VCC Magazine Summer 2018

Redistricting in Virginia: Making the Case for Electoral Reform By Mark Rush

(Full disclosure: I co-authored a brief in Veselind that challenged the current redistricting process because, essentially, there is no definition (let alone a clear one that can be discussed and debated) of district “compactness”.) Virginia has been at the forefront of redistricting law in 2018. The Supreme Court of Virginia dismissed a challenge to the state legislature’s method of determining district compactness in May ( Veselind v. State Board of Elections ). Shortly thereafter, a federal district court declared all House of Delegates districts drawn after the 2010 census to comply with section 2 of the Voting Rights Act to be unconstitutional racial gerrymanders ( Bethune-Hill v. Virginia State Board of Elections ). While the cases addressed different aspects of the redistricting process, they demonstrate clearly that the time is ripe to revise Virginia’s election process. As it stands, the current system is antiquated, costly and undemocratic. Article II, §6 of Virginia’s constitution states several criteria for drawing legislative districts, one of which is compactness. The Constitution offers no definition of compactness, so it is the state legislature’s job to establish one. At this time, the legislature has not done so. Compactness makes it more difficult for legislators to draw districts that snake across the state in order to pick up or jettison supporters. But, without any definition, “compactness” is an arbitrary notion that offers little meaningful direction to or constraint upon those who draw district lines. Of course, notions of compactness deal as much with aesthetics as they do with measures of district perimeter, area, and so forth. Skeptics would argue that compactness lies in the eye of the beholder. Granted, at a time when social media makes communications between legislators and constituents instantaneous and constant, one rationale for ensuring district compactness (easing the task of meeting with constituents)maybe less compelling.Nonetheless, if the legislature is to abide by a constitutional mandate for district compactness, it must articulate the means by which it does so. Otherwise, there is no basis on which to challenge a redistricting map and less opportunity to hold the legislature accountable. In Bethune-Hill , a federal district court declared that all twelve of the House of Delegates districts drawn to comply with the VRA were racial gerrymanders. The state had set a 55% black voting age population (“BVAP”) threshold to ensure that black voters would have an opportunity to elect a candidate of their choice. Plaintiffs asserted that it was no longer necessary to have such a high threshold because recent electoral history demonstrated that black incumbents did not need such a high percentage of black voters to win elections. As well, in order to maintain such a high BVAP threshold, the General Assembly had to move many black voters and split many voting districts and municipal boundaries. Accordingly, the district court declared that race had predominated in the 2011 redistricting process.

Pennsylvania and Wisconsin have made headlines as they litigated gerrymandering claims in state or federal court. In each of these states, voters have endured a decade of democratic uncertainty and instability. Instead of drawing new districts at the beginning of each decade with new census data, states now spend the entire decade litigating and redrawing district lines. There is no question that this situation could be resolved by moving to a system of

elections comprised of multimember districts. There would be fewer district lines to draw and correspondingly fewer municipal boundaries to split. Using ranked-choice voting, multimember districts would give voters a meaningful choice on Election Day instead of presenting them frequently with uncompetitive and frequently uncontested general elections that offer no real democratic choice. Maine used ranked choice voting in its June elections. Many municipal governments across the country have used a form of ranked choice voting for some time. Voters like it. It reduces the cost of elections, limits gerrymandering, provides better Election Day choices and, therefore, improves democracy. Virginia could easily implement a system such as Maine’s. In fact, the Code of Virginia already makes such a transition possible. Section 24.2 of the Code states that Senate and House Districts are entitled to representation by only one elected member. Local governing bodies, however, may be elected “from any combination of at-large, single-member, and multi-member districts or wards.” Therefore, multimember districts are neither uncommon nor foreign to Virginia Politics. Single-member districts are antiquated methods of electing legislators. They made sense in earlier eras when distances were large, travel and communications were slower, and populations were my less mobile or diverse. In the 21st century, however, they are the equivalent of horse-and-buggy technology. Expanding the use of multimember districts beyond our local governments would improve the quality of elections in Virginia and save the Commonwealth and its citizens the needless cost of going back to court to litigate district lines in state and federal court. The 2020 census is less than two years away. The General Assembly could amend the Code of Virginia to expand the use of multimember districts for the upcoming cycle of reapportionment and redistricting. This would make Virginia elections more democratic and less expensive. So, why not make the change? Mark Rush is Waxberg Professor of Politics and Law and Director of the Center for International Education at Washington and Lee University.

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The substance of the two cases demonstrates the complexity of constraints on the redistricting process. To draw 100 Delegate and 40 Senate districts that comply with the one person, one vote principle and the demands of the Voting Rights Act while looking to preserve municipal boundaries and communities of interests is a truly daunting task that ensures endless litigation. The timing of the cases demonstrates the absurdity of the redistricting process: with less than two years until the next census, the nearly eight-year old district maps were subject to litigation in state and federal court. Sadly, this is a common situation across the country. In the last two years, numerous states, including Virginia, Alabama, North Carolina,

Legislative Counsel

John G. “Chip” Dicks FutureLaw, LLC 1802 Bayberry Court, Suite 403 Richmond, Virginia 23226

(804) 225-5507 (Direct Dial) chipdicks@futurelaw.net (804) 225-5508 (Fax) www.futurelaw.net

V irginia C apitol C onnections , S ummer 2018

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