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Opinion Why I oppose a partisan judicial Virginia gerrymander

Virginia Kase, chief executive of the League of Women Voters of the United States, speaks at a Fair Maps Rally at the U.S. Supreme Court in March.
Virginia Kase, chief executive of the League of Women Voters of the United States, speaks at a Fair Maps Rally at the U.S. Supreme Court in March. (Sarah L. Voisin/The Washington Post)

Mark Levine, a Democrat, represents Alexandria and parts of Arlington and Fairfax counties in the Virginia House of Delegates.

A proposed amendment to Virginia’s Constitution could permanently gerrymander the commonwealth against the will of Virginia’s voters. By giving power to redraw district lines to a body — the Virginia Supreme Court — chosen by an illegally constituted former legislative majority, the amendment would allow the dead hand of the past to reconstitute itself forever, with little possibility of ever being uprooted again.

Because I believe the people should choose their elected representatives, I hope Virginia’s representatives reject the proposal.

Gerrymandering allows one party to ensconce itself in power by disenfranchising voters, even when a majority of voters choose the other party. Although frequently criticized for producing squiggly district lines, gerrymandering is not wrong because it violates some aesthetic standard; it is wrong because it subverts representative democracy.

A computer could model strictly fair district lines and thereby greatly reduce political gamesmanship. Political scientists can design maps so that a 50/50 vote statewide count is mathematically predicted to result in a 50/50 legislative split. Then, when more Virginians favor one party, that party would obtain a legislative majority. Such an open-source computer program, created by some of the country’s best gerrymandering-prevention experts, would be transparently fair.

In contrast, if enacted, the proposed constitutional amendment would take us in the wrong direction. Requiring only two legislators to shelve its non-independent commission, map-drawing power could devolve quickly to the Virginia Supreme Court.

Virginia is one of only two states in the nation whose legislative majority picks its highest court. In the other 48 states, the voters choose the Supreme Court, either directly by popular vote or indirectly through the governor, also elected by statewide vote. But only in Virginia and South Carolina can an unrepresentative, gerrymandered legislature likewise create an unrepresentative high court.

Every current member of the Virginia Supreme Court received a 12-year term from the Republican leadership of the House of Delegates; a majority of the justices were chosen by the Republican Senate leadership as well. Even more troubling, the House of Delegates that chose our Supreme Court was itself constituted via illegal racial gerrymander, according to a decision of the U.S. Supreme Court.

Some say Virginia’s justices are not partisan, and I hope that is indeed the case. But the most recent justice approved is the sister of a sitting Republican senator. Before that, the Republican-dominated legislature chose the right-hand man of right-wing former attorney general Ken Cuccinelli II, after unceremoniously firing the bipartisan pick for the position. And a third justice is a former Republican legislator.

Should the partisan appointees of an illegally constituted legislative body control Virginia forevermore? Once the proposal is baked into the Constitution, it would be virtually unamendable, as Virginia’s Constitution can be changed by the people only after getting legislative approval in two successive sessions. I fear any “democracy” in which control of the legislature is chosen by judges who were chosen by a legislature that was chosen by the judges chosen by the legislature in a never-ending loop that permanently circumvents voters.

Though the advocacy group One Virginia 2021 now supports the plan as “imperfect” after the Republican majority killed its original proposal, most Virginia legislators had only about 20 minutes to assess the latest iteration that was amended four times in three weeks before it was brought to a vote. Many of us, including me, were highly skeptical but voted for it anyway because we knew we would have a year to take a second careful look at it before making a final determination. I’m now convinced the proposed amendment is worse than imperfect: It could lock in partisan gerrymandering forever.

Fortunately, there are alternatives. We can pass a law this session that will ensure fair maps for 2021, with district lines so transparent that any mathematician with a calculator could call us out if we failed to obey our own mandate. We could refine and perfect that plan in plenty of time to enshrine it into the Virginia Constitution by 2031.

We should never rush to amend our Constitution. After all, the goal is not to do some thing about gerrymandering but to do the right thing. We should avoid unfixable mistakes. I don't want to be Cassandra, the goddess of Greek mythology whose scary but accurate prophesies went unheeded until it was too late. Call me cynical — but don't call me Cassandra.

I hope my colleagues will join me in voting no on the proposed constitutional amendment. Let a computer draw fair districts instead.

Read more:

Read a letter in response to this piece: Virginia legislators must act on gerrymandering in their upcoming session

Stephen J. Farnsworth and Kate Seltzer: No matter who controls Virginia’s legislature, redistricting reform must continue

The Post’s View: Virginia needs to get on board with fair redistricting

The Post’s View: Virginia is finally moving forward on bipartisan redistricting. It’s about time.

The Post’s View: Virginia is on the cusp of redistricting reform. Lawmakers must get it right.