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October 5, 2021

Va. redistricting panel “stuck” as deadline looms

Virginia Mercury Photo/Ned Oliver
The 16-member Virginia Redistricting Commission considers draft maps for new legislative districts.
You have to take history into consideration when you’re discussing things like this. We’d be making a huge mistake if we didn’t.
— Commission member Brandon Hutchins, a Democratic Navy veteran from Virginia Beach.
By Graham Moomaw
The Virginia Mercury

Last month, Greta Harris took a break from trying to corral the eight Republicans and eight Democrats on the Virginia Redistricting Commission to make an impassioned plea.

It wasn’t too long ago, she said, that Black Virginians like her were systematically denied the right to vote. Some of the new political maps up for consideration by the commission, she said, didn’t seem to reflect the moral imperative to protect the progress made by minority voters.

“Citizens who look like me who got up every day, went to work, tried to do things to ensure that their kids had a bright future, were denied that simply because of the color of their skin,” said Ms. Harris, a Richmond affordable housing advocate serving as the commission’s Democratic co-chair. “Let’s step up and do the right thing.”

Her comments drew a rejoinder from Republican commissioner Richard Harrell, a trucking executive from Southwest Virginia. He said all Virginians’ voting rights matter.

“We just can’t go off on an emotional tangent and try to resolve issues from the past,” Mr. Harrell said. “That’s regrettable. That’s the past. We’re dealing with today.”

With an Oct. 10 deadline approaching to finish new General Assembly maps, race remains one of the toughest dividing lines left for the commission to overcome, one that could potentially derail its efforts to reach consensus and send a proposal to the legislature for an up-or-down vote.

Disagreements over how much to allow racial demographics to guide the commission’s work were a major factor in its inability to produce a comprehensive pair of maps for public hearings scheduled this week. Instead, the commission is asking the public to weigh in on multiple proposals in the hope outside feedback could guide its final push for compromise when it reconvenes Friday.

Some commissioners seem more optimistic than others about whether consensus is even possible. If the commission fails in its first-ever effort to redraw Virginia’s political maps, which would leave the Supreme Court of Virginia to draw new maps, the differing legal and philosophical views on obligations to racial minorities could be the breaking point.

Drawing political boundaries guided too much by race can violate constitutional rules requiring equal treatment under the law. At the same time, the process cannot be race-blind due to the Voting Rights Act, the landmark federal law meant to protect the political rights of Black Americans once deliberately excluded from democratic participation. Broadly, Section 2 prohibits discrimination in elections on the basis of race, color or language. But the U.S. Supreme Court hasn’t established a precise legal framework for how it applies to redistricting, the once-a-decade process of redrawing political districts to account for population shifts.

The Redistricting Commission has hired two partisan consulting teams, and the two sides’ lawyers are giving commissioners conflicting advice.

The Democratic team sees race as a more central consideration, advising the commission it has a legal duty to seize every chance to draw districts favorable for minorities without straying too far from other rules requiring compact, cohesive districts. Instead of simply ensuring Black majorities in some districts, they say, the commission must work to create “opportunity districts” that racial minorities could effectively control by comprising 40 to 50 percent of the voting-age population therein.

Democrats have reminded their GOP counterparts the redistricting reform amendment Virginia voters approved overwhelmingly last year states the commission “shall provide, where practicable, opportunities for racial and ethnic communities to elect candidates of their choice.”

“If you have politically cohesive groups that are near each other, geographically compact, such districts are required under Section 2 of the Voting Rights Act,” said J. Gerald Hebert, a Democratic adviser.

The Republican team disagrees. They acknowledge drawing majority-Black districts is essential for Voting Rights Act compliance, but insist the commission isn’t obligated to go beyond that and draw as many opportunity districts as possible. Doing so, they argue, is a legally risky approach that overemphasizes race for political ends.

“Opportunity for what? To elect more Democrats?” Sen. Bill Stanley (R-Franklin) said at a meeting Saturday.

Though the commission has at times struggled with its own racial analysis of its ever-shifting draft plans, Republican maps generally have more majority-Black districts, and Democratic maps tend to spread racial minorities out among significantly more opportunity districts. According to analysis from the Virginia Public Access Project, the current Democratic plans draw four additional opportunity districts in the House and three additional opportunity districts in the Senate.

Independent redistricting experts at the Princeton Gerrymandering Project have given the latest Democratic draft maps better fairness ratings than the Republican drafts. Grades for the House proposals have been fairly similar, but the Republican-drawn Senate map received an F rating while the Democratic map received an A. Republican commissioners have been largely dismissive of outside analysis, suggesting hidden partisan motivations may lie within ostensibly nonpartisan groups.

Heavily White areas have been easiest for the commission to handle. But progress has been slower for Richmond and Hampton Roads, regions with the highest concentrations of Black voters.

“We’re sort of stuck,” Ms. Harris said late last week as a lengthy discussion of House of Delegates districts in Hampton Roads ended with no clear decision on how to proceed.

Whenever the commission has reached gridlock, it has usually found a way to move on without taking votes that might result in an 8-8, party-line split.

Both sets of lawyers agree the commission has to make careful, analytical decisions when considering race, and can’t simply pick a number of minority districts that feels right and draw maps to hit that target.

That’s led to complex discussions of how many Black or minority voters are necessary to make a district “perform” on their behalf without veering into racial packing, the unconstitutional practice that caused federal courts to overturn and redraw some districts created in Virginia’s 2011 redistricting process.

Memories of 2011 have at times created tension due to the commission’s hiring of John Morgan, a Republican map-drawer involved in creating the 2011 maps deemed racially gerrymandered. During a discussion of racial dynamics in rural Southside Virginia, where White and Black Voters diverge most sharply in their political preferences, Democratic consultant Kareem Crayton pointedly reminded commissioners of Mr. Morgan’s past.

“I gotta mention, I think Mr. Morgan was the person who drew the unconstitutional maps in the first place in the Southside area,” Crayton said. “So I’m not necessarily convinced that his assertion of what his personal experience is of what works and doesn’t work in the Southside is one I’m going to rely upon.”

Mr. Morgan said the House district in question for that area was removed from the legal challenge over the 2011 lines because courts ruled map-drawers had considered race appropriately for that district while erring in 11 others.

“While I was involved in the map-drawing process, I wasn’t the person who was making the final decisions on that,” Mr. Morgan said.

The area in question is currently represented by Del. Rosyln Tyler (D-Sussex). Sen. George Barker (D-Fairfax) highlighted her precarious position to argue for strong minority protection.

When facing Republican opponents under the 2011 lines, Ms. Tyler, who is Black, easily won re-election with more than 60 percent of the vote. But her district got more competitive in 2019 when a federal court redrew parts of the House map to unpack Black voters. Mr. Barker noted Ms. Tyler came close to losing in 2019 to Republican challenger Otto Wachsmann, who is running against her again this year in a tight race.

“It is important, I think, to make sure that we make this district one where the African-American population can control things,” Mr. Barker said.

Both draft plans draw a majority-Black district for the area.

While drawing new House maps in 2011, the Republican majority at the time used a 55 percent black voting-age population target to ensure a floor of districts Black communities could control.
That target was appropriate for Ms. Tyler’s district at the time, federal courts eventually ruled, but too crude an approach to be justified in the other 11 challenged districts. The court case hinged on the question of whether map-drawers inappropriately elevated race as a predominant factor to draw maps with too-strong Black majorities, effectively diluting the Black vote elsewhere.

Fighting all the way to the U.S. Supreme Court, House Republicans insisted they had to consider race as they did to comply with the Voting Rights Act. The high court dismissed the House GOP appeal in 2019 on largely technical grounds, finding one legislative chamber couldn’t continue to fight a lower court’s ruling with Attorney General Mark Herring declining to do so on behalf of the state’s official legal apparatus.

By not settling the merits of the case, that ruling allowed uncertainty to persist over when prioritizing race is appropriate for Voting Rights Act compliance and when it becomes impermissible racial gerrymandering.

When the Redistricting Commission’s deliberations returned to race at a meeting Saturday, Republican commissioner Jose Feliciano, a Fredericksburg-area military veteran and the only Hispanic member of the 16-person commission, recalled how his grandfather was repeatedly blocked from voting after coming to the mainland from Puerto Rico in 1947. He said he sees voting not as a right or a privilege, but a duty.

“Even when I was in the desert, I did the absentee ballots,” he said. “I would never vote to disenfranchise anyone.”

Black commissioners have said their concerns aren’t rooted in emotion, but hard truths about the past.

“You have to take history into consideration when you’re discussing things like this,” said Brandon Hutchins, a Democratic Navy veteran from Virginia Beach. “We’d be making a huge mistake if we didn’t.”

With Democrats and Republicans alternating being in charge of running meetings, Ms. Harris said she’s dreading that it will be her turn to preside over Friday’s effort to bridge the divide over racial fairness. She encouraged everyone to “lift their hearts and minds to other citizens,” but said she doesn’t see how an “integration” will happen.

“I’m at a loss as to how we go forward,” she said.
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