The Washington PostDemocracy Dies in Darkness

Opinion Harry Byrd’s political descendants versus Virginians’ voting rights

The Virginia House of Delegates on Jan. 12 in Richmond. (Steve Helber/Associated Press)
3 min

An essential conceit of the “Virginia Way” as practiced during the long reign of Sen Harry Byrd’s “Organization” is that public officials were honest and corruption was rare.

It was all hogwash, of course. As historian and author Brent Tarter wrote, Byrd’s machine “thrived” not because it was clean but because its power was rooted in the “more systemic and profound corruption of a constricted electorate” and a poll tax that disenfranchised millions of Black and poor White voters.

The machine is long dead, but some of its practices — including finding ingenious ways to manipulate the electorate — appear to be alive and well.

Evidence of that is on display in the ongoing legal fight Paul Goldman, my former writing partner, is waging in a federal courtroom in Richmond over voting rights and the constitutionality of Virginia’s 2021 House of Delegates elections.

In a new brief filed with the district court, Goldman enlists math to help make his case. And the numbers he provides are compelling: Goldman calculates that there are massive population differences between House districts. The biggest variance he found was between House District 87 and House District 75:

The old House District 87 ranked as the most populated with 130,192 inhabitants. Old House District 75 ranked as the least populated with 67,404 inhabitants. … This calculates to a 78.4% maximum population deviation.

Note: Old district lines and 2021 results can be found here.

Goldman says the population difference between districts in 2021 is nearly 300 percent more than variations between Virginia House districts a federal court ruled in 1981 were “facially unconstitutional.”

Think about that for a second. The current and former Virginia attorney general — Jason Miyares (R) and Mark R. Herring (D), respectively) — plus their legal teams, plus the Democratic and Republican leaders of the General Assembly, plus current Gov. Glenn Youngkin, a Republican, and former governor Ralph Northam, a Democrat, have no apparent problems with this situation.

It gets worse.

The Virginia Supreme Court established new House districts in December 2021. The new maps went into effect immediately, meaning the districts used in the November 2021 elections no longer existed as of Dec. 28, 2021.

In his brief, Goldman asks the fundamental question: Who is his House delegate today?

It’s more than an academic question about the changing district boundaries and numbers. It’s about the right of every Virginian to equal representation and whether legal precedent and the Virginia Constitution mean what they say or are just so many inkblots.

So far, the commonwealth’s political class has shown an unusual degree of bipartisan agreement that “inkblot” is the way to go. That leaves us with 100 self-styled delegates who represent, apparently, themselves. And if Miyares’s defense of the status quo is successful, it will mean that Virginians will have no constitutionally legitimate House members until 2024.

That’s never happened before in Virginia. Even Byrd’s machine — as contemptuous as it was of voters, democratic norms and voting rights in general — never dared contemplate such an arrangement.

Somewhere, old Byrd is turning green with envy at the barefaced cheek of his political heirs.

The solution to this mess has long been obvious: Follow the precedent set back in the early 1980s and hold a special House election to correct the constitutional harm.

There is hope for a successful outcome. Goldman has successfully fought off both Herring and Miyares so far — an astounding feat for a plaintiff representing himself in federal court. And more groups, and even a few local Democratic Party committees, have called for special elections this November.

More support is needed — from the media, which usually flocks to stories about voting rights, from those elected officials who privately concede the AG’s position is as unconscionable as it is unconstitutional, and from the voting public, whose rights are being undermined so as to not inconvenience a small group of politicians and their inkblot theories of representative government.