Episode 19: What’s with the redistricting amendment on our Virginia ballots?

If you've gotten your ballot for the upcoming election, you may have noticed a question about a proposed Amendment to the Virginia State Constitution. 

The Amendent proposes a bipartisan commission to end the process of gerrymandering--politicians drawing districts to suit their own interests--in Virginia. That's important, because next year, Virginia will be holding its state elections based on those districts.

But does the amendment go far enough? How did Virginia get here in the first place? This week we talk to journalist Peter Galuszka and historian Brent Tarter, author of Gerrymanders: How Redistricting Has Protected Slavery, White Supremacy, and Partisan Minorities in Virginia.

The proposed Amendment to the State Constitution can be found here.

 Episode Transcript

Nathan Moore: This is Bold Dominion, an explainer for state politics in a changing Virginia. I’m Nathan Moore.

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So last week, when Aaryan and I were planning out today’s episode, we were planning to do a dive into what the General Assembly managed to get done in their Special Session. Then the Special session kept going. And going. And it’s still going. We’re currently in week six of the special session, which is the same length of some regular sessions. And it’s still chugging along. With any luck, we’ll have an episode for you in two weeks… but, well, we said that last time.

Anyway, this week we turn to another key issue -- Have you gotten your ballot yet to vote early? It’s not just a vote for president, senator, and member of the House of Representatives. You may have noticed a question about a proposed Amendment to the Virginia State Constitution. And that proposed amendment is all about the problem of gerrymandering and how we draw our congressional district lines.

All this year, the US Census has been doing a rough count of every person in the country. Next year, in 2021, Virginia is will be one of the first states in the nation to hold elections after the census. In between, we need to redraw our district lines to accurately reflect the population shifts that have happened over the last decade.

But what happens if somebody abuses that process for their own gain? It’s called gerrymandering. It’s what happens when a political body uses its power to redraw the district lines for their own gain.

Brent Tarter: It injures the voters in the fair exercise of a Constitutionally-protected right to vote. In a representative democracy, voters ought to be able to choose the representatives they want. But with partisan gerrymandering, legislators choose the voters that they want. It undermines, to a certain extent, the whole theory of democratic representation that we have.

NM: That’s Brent Tarter, a retired research historian at the Library of Virginia. He’s the author of Gerrymanders: How Redistricting Has Protected Slavery, White Supremacy, and Partisan Minorities in Virginia. We’ll hear more from him in a bit.

The proposed Constitutional Amendment on this year’s ballot aims to create a non-partisan commission to draw the new district lines in a fair way. Seems like a no-brainer, right? But as with so many things, the devil is in the details. And this proposed amendment might not be such a simple fix after all.

Peter Galuszka is a journalist based in the Richmond area. We kick off our discussion with some of the recent gerrymandering controversies in Virginia.

Peter Galuszka: The most recent problems with gerrymandering, after the census in 2010, were that a number of districts had to be redrawn, and it went to court and it was a big mess. They did all kinds of things such as: Congressional districts, they would stack African American voters into one districts to sort of dilute their influence in neighboring districts. And that happened with the Third District. And also it happened in, you know, the General Assembly as well, where they had to redraw districts, because, you know, they were favored. But it just to be fair, you know, both sides do it.

And that's why they gave rise to the idea of an independent commission, which is what the amendment's about on the election in November.

NM: How did Virginia come to have an amendment on the ballot this year?

PG: Well, I think that activists got tired of the way the General Assembly was just sort of, you know, whoever's in charge at that moment--at that particular year, the first year after the census--first session gets to draw things. And it always ends up in court, and it's a big mess. You know, one of the activist groups was the One Virginia 2021, which has done a lot to promote the idea of an independent commission, which is what appears to be might be happening. Eight members would be from the General Assembly, eight would be independent citizens, and--supposedly independent, we're gonna get to that in a minute--and they will come in and they will make the recommendations for, you know, drawing to districts. And this will supposedly get more laymen and laywomen voices involved.

NM: So the idea for redistricting reform, to try and end these gerrymandering practices is that there will be this independent commission. It's nonpartisan. It draws the lines based on fairness, based on you know, presumably, appropriate community representation in our legislative bodies. How is what's being proposed different from that?

PG: Okay, this is what people have been complaining about. First off the legislative--the eight members who are...they'll be like, four from the House of Delegates and four from the Senate. Those people will actually be picked by, you know, the General Assembly. So that's half the Commission has already been controlled.

And meanwhile, the way I understand it, is that the citizen eight members will be picked by a group of five retired circuit judges. Well, who picks them but the General Assembly? So you know, goes back to the General Assembly.

And another issue that one of my co-bloggers at Bacon's Rebellion, Dick Hall-Sizemore has criticized, and I think rightly, is that if you look at the eight legislative members: for them, any proposal for a new plan would have to be approved by six of the eight legislative members or it doesn't go anywhere except to the Supreme Court. And so that means that you know, you still have plenty of room for partisanship there. All you have to do is get to partisan members of the House group to get one of the other ones to oppose something. And that's it.

 So I don't know what the best thing to do is--to either vote down this amendment and hope for a better one. Or, you know, maybe you should just grab the chance now. This is the dilemma that I'm having. I don't know how to vote on this, and I intend to vote this week.

NM: How did we end up with this proposal? If there are other states that have commissions like this that are, you know, from what I understand successful.

PG: You know, obviously, the political climate has moved in favor of an independent commission. There's no question about that. But the powers in the General Assembly--in typical Virginia fashion the Virginia way--have moved in to control that process as much as they possibly can. So you know, you'll get a commission but isn't really independent. It's really kind of too bad. Because, you know, this existing system is really flawed. I mean, it's been flawed for years. And you just shouldn't have to have the Democrats or the Republicans, depending on who's on top of that in one particular year after a census to you know, call the shots for everything.

NM: Back to the citizen advocate groups, like One Virginia 2021. Is the proposal on the ballot right now the one that they were advocating?

PG: I'm not sure, because I think there were two that were competing in the last General Assembly. And you know, it's like, once again, it gets bogged down in the process. It sounds like: "Oh, we have an independent commission proposal." But then when you really look at how it's actually being presented and what's not being answered, it just raises questions.

NM: That's like, the old cliche, the devil's in the details.

PG: Exactly. And that's what exactly what happens all the time in the General Assembly. That's what they're really good at, is either killing something in committee or engineering so something never really gets anywhere. And so there's some really strong voices, knowledgeable voices, really critiquing the amendment. And as I say, I'm afraid that if you don't vote for it, it might go away. You know, and so it's kind of a rock and a hard place.

NM: Well, Peter, what's our key takeaway?

PG: Key takeaway is: read as much as you can before you vote and hopefully you'll make the right decision. As I say, I mean, I'm befuddled by this I mean, I was all for it. "Oh, this is easy. I'll just write for the commission." But then when I started reading about it, and the lack of clarity in the language on the amendment, it's just disturbing.

NM: Peter Galuszka is a journalist based in the Richmond area and a regular here on Bold Dominion. We’re going to take a short break, but stay with us. In a moment, we’re back with Brent Tarter, author of Gerrymanders: How Redistricting Has Protected Slavery, White Supremacy, and Partisan Minorities in Virginia.

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Earlier this week, Bold Dominion producer Aaryan Balu spoke with Brent Tarter. He’s a retired research historian at the Library of Virginia and the man who literally wrote the book on gerrymandering in the Commonwealth. He and Aaryan discuss the centuries-long history of gerrymandering in Virginia, the merits and failures of the proposed commission, and the difficulty in passing a State Constitutional Amendment in the first place.

Brent Tarter: The amendment process in Virginia is protracted. It requires a majority vote in both houses of the General Assembly before a general election, and then another majority vote after the general election on exactly the same provision, the same wording. In the 2020 General Assembly, they gave a second approval, which means then that that proposed constitutional amendment to create that bipartisan redistricting commission goes before the voters in November of 2020. This will be the voters' very first chance in the whole of Virginia's more than 400-year history to get rid of gerrymandering, or at least to reduce the likelihood of partisan gerrymanders.

Aaryan Balu: So specifically, looking at the most recent amendment, could you go into more depth on the detail of what it does?

BT: The proposed amendment is complex. It creates a 16-member bipartisan redistricting commission. Four of those members are legislators of the House of Delegates, and four members from the Senate. Two each in the House would be Democrats two Republicans. Two each in the Senate would be Democrats, two Republicans. The other eight members of the commission would be named by party leaders in the two houses of the General Assembly, from a panel that retired state judges would choose. These would probably include: maybe some other state judges, maybe some experts on redistricting law, maybe some members of public interest groups, you know, perhaps there might be a representative chosen from the League of Women Voters, for instance. These people are supposed to be independent to politics.

The proposed amendment then requires that that commission draw legislative and congressional district lines that meet the criteria in the state constitution, and in the Federal Constitution, and in the Voting Rights Act of 1965. That requires reasonably compact district shapes. It requires that the territory within each district be contiguous. So you, for instance, you could not make a district that included Norfolk and Winchester and nothing in between.

The most important part, and we have the most restrictive rules of the Supreme Court of the United States, is that the district must contain as nearly as practicable--that's the word--as nearly as practicable, equal populations.

Now, within those constraints, you can still do a lot of partisan gerrymandering. They've been doing it for decades in this state. During the latter part of the 20th century, Democratic legislators made it extremely difficult for Republican voters to elect Republican legislators. And during the first part of the 21st century, Republican legislators made it extremely difficult for Democratic voters to elect Democratic legislators. That's partisan redistricting.

If the districts could be drawn without reference to the place of residence of an incumbent, and if districts could be drawn without reference to the recent voting history of a district or any part of it, then it would be nonpartisan, or at least it would seriously reduce the amount of partisanship involved. With the politicians involved, you know that they're going to look out after their self-interests. That's how gerrymandering arose--first recorded episode is in Massachusetts in 1812.

So this, this necessarily is a complicated process. It's a complicated commission, it works in a complicated way. It has to have a majority of legislators of both parties in favor of the final plan. And then the plan has to go to the General Assembly, because this has to be enacted as a state law. The General Assembly can adopt it--pass it--or they can defeat it, but they cannot amend it. One very controversial provision indicates that if the commission cannot produce a districting plan that the General Assembly is willing to enact, then the state's Supreme Court would impose a redistricting scheme on both houses of the General Assembly and both houses of Congress. This has been very controversial. Democrats have been very worried about this, because the fact of the matter is that over the years, the General Assembly has had Republican majorities in both houses, which means that the judges of the state Supreme Court were all selected by Republicans and are presumably, Republicans. You know, if the shoe was on the other foot, you would hear the objection, probably from the other side. Them's politics.

AB: Why does this vote matter right now? Why is it important?

BT: One of the things that we don't appreciate is the importance of state government. All of our focus, most of the time is on the federal government, because we know that's important. But state government affects us in just as many ways, maybe even more ways than the federal government does. It's the state government that states what our school system is going to be like, what our law enforcement system is going to be like, what are public health policies are like, what our taxes are. And in this instance, you know who we get to vote for.

So state government, state courts are a lot more important than we give them credit for being. They deserve a lot more attention, or a lot more scrutiny.

AB: There are some statements by activists--there's one from Linda Perriello--people who fought for redistricting reform, who say this is not quite gone far enough. She says that the fixes that didn't get into the amendment would have provided guardrails for those who could or could not serve on the commission, explicitly prohibit gerrymandering and provide adequate guarantees for participation by persons of color. And sort of the statement there is that the people in power in Richmond have not--the amendment that we're getting is not the one that a lot of activists want.

Does what we have right now go far enough, and if it passes or fails, what is the likelihood of getting anything on redistricting reform in the future?

BT: This proposal is full of political compromises. Politicians wrote it, that's their responsibility. Our responsibility is to accept it or reject. It is far from ideal, in my opinion. It still leaves entirely too much wiggle room and probably too much legislative influence. But without that, it wouldn't have passed the General Assembly and gone to the voters at all.

I favor ratification, I'm going to vote for ratification of this amendment, imperfect though it is. What other legislation is perfect? We will try it out, if it's ratified, and see how it works next year. We have then almost a decade either to amend the amendment to try to improve any defects we find or ascertain whether by law, we can require that commission to do something like for instance, ignore the place of residence of incumbents, or ignore the past voting district lines and voters behavior.

You have to allow a certain amount of consideration of race in this, the Supreme Court says that you cannot redistrict to state in such a way as to deprive minority voters of a chance to continue to elect African Americans to the General Assembly. That's in the Voting Rights Act, that's not in the Federal Constitution, not in the state constitution. But state constitution laws has to conform to the Federal Constitution and federal laws. That's all that makes it just extraordinarily complicated. I was surprised we got a proposed amendment at all. I was not surprised that some people find it unsatisfactory in one way or another, or in several.

AB: When would this amendment go into effect? So, is it gonna be relevant for next year?

BT: It would go into effect in November of 2020. Because, you know, the Virginia Constitution requires that the legislative and congressional district be redrawn in the year 2021, and every 10 years thereafter, the year after the federal census. So it has to be done next year, has to be completed next year, in order that people will know where they live, in which district they live. And that people who want to run for office will know where to file their election papers and where to campaign.

So if this amendment was ratified, this commission will be formed before the end of this year. And it will began its work. And it needs to complete its work while the General Assembly is in session January and February of next year, so that the General Assembly can enact it as law or reject it. So this is going to move fast--if it's ratified. However, if it works, we will see whether the objections and reservations that some others entertain are serious or maybe not so serious as we feared.

AB: Your focus is really looking back at how we got here. I'd love to delve into that. I mean, I can guess what makes Virginia sort of the home, the center of gerrymandering--which is, you know, it's the center of a lot of the terrible power practices in American history. But what got us here? What are some of the interesting points in the journey to getting us to the point where we are?

BT: I'm afraid to some other states are even worse in their use of gerrymandering recently, but it's very, very injurious to those of us in Virginia. As I said earlier, we think about gerrymandering as a partisan exercise, where Republican legislators try to reduce the number of Democratic legislators or vice versa. We think of it as a zero-sum game between the parties in the General Assembly.

But in fact, the real victims of partisan gerrymander are not the politicians. It's the voters. Because it injures the voters in the fair exercise of a Constitutionally-protected right to vote. In a representative democracy, voters ought to be able to choose the representatives they want. But with partisan gerrymandering, legislators choose the voters that they want. It undermines, to a certain extent, the whole theory of democratic representation that we have.

It's not new. I mean, people have been doing this for decades and for centuries. In the in the 20th century, when conservative Democrats were in control of the state, they made it extremely impossible for Republican voters to elect people they wanted, either to Congress or to the General Assembly. Early in the 20th century, when Republicans had majorities of the General Assembly, they made it equally difficult for Democratic voters to elect their first choices to the General Assembly. So it is injurious to the voters. They ought to be the most concerned. All voters, not just Democratic voters or Republican voters, but independent voters.

AB: Less of a partisan issue and more of those in power structuring things to maintain their power. Has it been a partisan issue in the past? What is sort of the history of how gerrymandering has been used in Virginia?

BT: Well, in the Revolutionary War--before the revolutionary period, actually, going to Colonial period and revolution, and thereafter--they didn't actually deliberately gerrymander the General Assembly. But they had a kind of gerrymander, anyway.

In the colonial period, and up until 1830. every county got two members of the House of Delegates regardless of its size, regardless of its population, regardless of its wealth. And at that same time, the only people allowed to vote were adult, white, property-owning men. So in fact, that would privileged the minority of Virginians who were adult white property-owning men. That's not exactly a gerrymander, but has the same kind of effect.

Before the Civil War, they contrived legislative districts that enabled white adult property-owning men into parts of the state where slavery was most important to elect more members of the legislature than everybody else. That was a deliberate scheme of representation to protect slavery. I call that a gerrymander.

During the latter part of the 19th century, when there was a competitive politics in Virginia for a brief time between Republicans and Democrats, they didn't so much gerrymander as they rigged election laws to make it very difficult for Republicans and African Americans to register, or to vote, or to have their votes fairly counted. Virginia for much of the 20th century was a one-party state. A rigid one-party state. They didn't use gerrymanders, specifically, but they profited from schemes of representation that worked the same as a gerrymander, not just to keep Democrats and Republicans out, but to keep Harry Byrd conservative Democrats in and other kinds of Democrats out. So this is worked all the way through the entire Virginia's history in one variant or another,

AB: Once you have means of keeping the political power in one place, how do you then--or how has Virginia then sort of moved out of that inertia and made a shift?

BT: Well, gerrymanders seriously affect the electoral process, but they're not the only thing. Throughout the, say, the second half of the 20th century with the Civil Rights movement, the Voting Rights Act, the end of the poll tax, that broke down part of the basis of the one-party, Harry Byrd, Democratic Virginia, so that allowed a lot of people to take part in politics who had been frozen out before.

At the same time, there are many changes in Virginia politics that reflect changes in national politics. During the second half of the 20th century, Republicans gradually grew more conservative. Democrats became more uniformly liberal. That polarized politics in a slightly different way. It wasn't so much Democrats and Republicans, it was liberals and conservatives. As the parties changed, voters, allegiances changed, and in spite of Democratic gerrymandering that made it difficult for Republicans to win an election late in the 19th century, eventually, they were so numerous that they want anyway.

And something similar has taken place in the last decade or so. You know, Virginians have won every gubernatorial election but one is this century. Now carried to stay for three presidential candidates in a row. No Democrat had won this state in a presidential race except Lyndon Johnson's in 1948. I mean, that's a big change. That's a demographic change.

You know, there's a lot of Virginia now who weren't born here, didn't grow up in the old atmosphere, didn't think the same as the people who thought in the olden days. They live in different places, they do different kinds of work. We have different communications media--we didn't have podcasts until a short time ago. All of these things conspired together to change the political climate. That has changed electoral behavior. It's demographic change and cultural change, that, in turn, then begins to drive political change in the state, and has finally led up to the point now, where we have an opportunity in November to try to reduce the influence of partisanship in our redistricting.

AB: Why is this whole process so difficult, and, you know, susceptible to political interference in the first place?

BT: One thing that it's tempting for any lawyer or political scientist or historian to do, is to get bogged down in the complexities of the law. Redistricting law, the court cases on it are unbelievably complicated, because you're dealing with a great many extremely important issues of where people live, where they work, how they behave, what they believe. what they want. And they work at cross-purposes. It's just really difficult.

And federal courts in particular have required such an exact standard of equality for population districts, that, you know, you get some pretty funny looking lines that are drawn between electoral district just because they're 12 people on the side of the street and six on the other side of the street, even with the line may have crossed the street. So the case law, the federal case law, that involving equality of districts, and also, the even more complex case law involving adherence to the federal Voting Rights Act of 1965, means that you really do need a whole room full of skilled lawyers who know their stuff on that subject.

And then at the same time, in order to get the mathematics right on the quality of population, you need another room full of people who are statisticians with a big raft of computers, so that they can put all of this new data in. You know, we'll get new data from the Census Bureau early in 2021. If we're lucky, they do their job. And then they will have to contrive a whole scheme of legislative representation in very short order. That's a very difficult, technologically difficult process. I wouldn't even begin to understand how the mathematics works. I have some general understanding of the law, although I'm not a lawyer, and I wouldn't presume to call myself an expert on that. But you've got many complicated factors here going on.

Plus, then the political interests that we all feel in, in the outcome. The outcome is one thing, the process is another. To distinguish that between the two, I mean, representative democracy is the process. How it comes out, is a different thing. And we tend to focus on the end result, which is the whole purpose. So it's easy to let too many things get in there. You've got a lot of cooks in the kitchen already. Too many ingredients makes it even harder.

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NM: Brent Tarter is a retired research historian at the Library of Virginia and author of Gerrymanders: How Redistricting Has Protected Slavery, White Supremacy, and Partisan Minorities in Virginia. Thanks to him and journalist Peter Galuszka for joining us this week.

My name’s Nathan Moore, and I’m the host of Bold Dominion. Huge thanks as always to our producer Aaryan Balu. Find this show online at BoldDominion.org. Go ahead and subscribe… it’s just a click away.

Keep social distancing, y’all, and I’ll talk with you in two weeks!