Virginia Capitol Connections, Winter 2022 17 chipdicks@gentrylocke.com 804.225.5507 gentrylocke.com/chip CHIP DICKS Legislative Counsel Last year, Virginia voters sent an unmistakable message: our legislative redistricting process is broken and we want to make a good faith attempt to fix it. Amendment One passed by a landslide, with nearly two-thirds supporting a new path forward for this contentious and complicated pursuit. Voters had righted the wrong of elected officials having unilateral control over drawing their own districts. Last year at this time, I remember propping my laptop on the counter to watch the Commission’s first meeting while I made an apple pie for Thanksgiving. I felt optimistic about the formation of the Virginia Redistricting Commission, and was wowed that over 1,200 citizens had applied to serve on it. Voters finally had an opportunity to have their voices heard in the redistricting process, and they were jumping at the chance to take full advantage. If you’re reading this, you probably know where the story goes from there. Partisanship and gridlock marred the work of the newlyformed Commission, and the deadline came and went to submit legislative maps for both chambers of the General Assembly in October. A few weeks later, the Commission also failed to agree on Congressional maps too. Now the process has moved to the Supreme Court of Virginia (SCOVA). For those who have been fighting for this moment for so long, it’s easy to feel disappointed by this outcome. Passage of the referendum followed nearly a decade of advocacy by voters and principled politicians from across the political spectrum, and this is not what voters expected in their support of Amendment One. The formation of this Commission was intended to force entrenched partisans to come together and compromise on a final plan for fair districts. So many advocates sincerely believed it would do its job—from nonpartisan advocacy groups, to nationally-renowned anti-gerrymandering experts, to the editorial boards of every major newspaper in Virginia. But I keep thinking about what a bright student in my election law class pointed out as we discussed the Commission’s failure: as sticky and complicated as the redistricting process has been, it is working. Some on the Commission said that they do not consider the recent gridlock to indicate failure, and I agree. True failure would have been approaching redistricting in Virginia the same way we always have. In fact, the new process is working exactly as designed; the redistricting pen remains out of the hands of elected officials. Supporters of Amendment One knew the partisan divide might be insurmountable, which is precisely why SCOVA was made the backstop. Courts across the country routinely draw fair and representative maps after striking those they deem to violate state or federal law. I am confident that SCOVA will do so in this instance. It did as recently as 2018. But SCOVA’s role is not the only evidence the process is working. This has without question been the most transparent redistricting process in the history of Virginia. It isn’t even close. Every single decision, thorny political discussion, and citizen comment was (and is) available to every Virginian who wants to see it. This is enormously significant. One of my favorite moments in the process was watching a legislator on the Commission plea for his house remain in the current district he serves. I do not fault him for that. Incumbents play an important role in our system and he had every right to make the argument. But more importantly, the moment demonstrated that voters had successfully brought the proverbial “smoky back rooms” of old into the light. The process also featured meaningful public input, despite pandemic impediments. This citizen feedback includes comments submitted through the Department of Legislative Services email portal, hours of in-person and virtual testimony, and over 100 citizen-drawn maps (with over 1,500 public comments left on those maps)—including a few William & Mary law students offered up. SCOVA, too, has been actively encouraging public comments through its website, and has specifically instructed its two Special Masters to consider all public feedback the Commission received. When SCOVA approves the final maps, the process will have been far more transparent than any in Virginia’s history. Because Virginia’s constitution does not allow voters to amend its constitution directly, reformers had to support the strongest possible amendment that would pass through two successive General Assemblies. That meant a hybrid commission with both citizens and legislators serving—a make-up that ultimately saw its demise due to partisan obstruction. But it did not undercut the core goals of the reform movement: it removed sole responsibility of drawing electoral district lines from self-interested politicians, while bringing citizens into the fold for the first time. Prior to the passage of Amendment One, most everyone agreed that Virginia’s redistricting process had been profoundly broken for generations, with elected officials steamrolling their maps without feedback, transparency, or checks. Virginia voters fixed that problem. Here’s hoping reformers continue work towards a more successful process in the years to come. Rebecca Green teaches election law at William & Mary Law School where she co-directs its Election Law Program. Thanksgiving for Redistricting Reform By REBECCA GREEN BENNETT FUNERAL HOME Charles D. Morehead, Sr. Funeral Director & General Manager 3215 Cutshaw Avenue Richmond, Virginia 23221 (804) 359-4481 V
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