In the past decade, Virginia’s electoral maps have brought repeated waves of litigation. Twelve different lawsuits, including five trips to the U.S. Supreme Court, with the costs borne by Virginia taxpayers. Both federal and state districts were struck down, leaving the state map up in the air until earlier this year — nine years after lines were supposed to be final.
Like its hyperpartisan neighbors to the north and south, Virginia fell victim to partisan overindulgence. The abuse of race in the redistricting process was the immediate mechanism, but partisanship was the deep-seated motivation.
Misguided racial means are unacceptable — legally and morally — whatever the ultimate rationale. But the most effective remedies treat both the surface symptom and the underlying cause.
In 2019, Democrats turned Virginia blue: they now have the unilateral control the Republicans found in 2012. And at the same time, the U.S. Supreme Court has closed federal courthouse doors to lawsuits directly challenging undue partisanship in the redistricting process.
The new Democratic majority will be tempted to indulge its worst partisan instincts. That would be a mistake.
First, the hard-nosed pragmatism: Federal courts aren’t the only courts. In North Carolina, as in several other states, state courts recently held that language in the state constitution prohibits extreme gerrymanders. Virginia’s Constitution has some of the same language as in North Carolina, and Virginia courts might well take the same approach. Continued partisan overindulgence is likely to bring only continued cost.
Second, a dollop of idealism: Government shouldn’t operate on endless cycles of revenge. Most of us were taught that two wrongs don’t make a right. The proper response to unlawful excess is a restoration of reasonable order, not the deployment of unlawful excess in the opposite direction.
The good news is that there is a proposed constitutional amendment before the General Assembly, crafted before November’s elections and behind the veil of ignorance, when neither party knew which would have control of the redistricting pen in the years to come.
That reform is, like any compromise, not perfect. But it’s better than what exists now.
It sets up a bipartisan body to draw district lines, and it will finally give citizens an equal voice at the table. They also have to do their real work in public, so everybody gets to keep an eye on things.
Further, the reform amendment has some prominent protections for minority rights. These are important on their own — but even more crucial in light of the misuse of race revealed in recent litigation.
First, there are structural protections embedded in the commission’s design. Right now, party leaders can draw lines behind the scenes, marginalizing both partisan opposition and members of their own caucus perceived to step out of line. But the appointments to the commission are public. Any party vying for the votes of Virginia’s sizable minority community has a prominent political incentive to ensure that the commission reflects the diversity of the state.
Second, and more important, this amendment requires adherence to the Voting Rights Act … and then goes beyond. The VRA has been severely cut back by federal courts in recent years. The amendment establishes a state constitutional mandate with independent strength however the federal statute is construed.
One of the recent federal cutbacks to the federal statute imposes an artificial majority-minority limit to federal protection. Virginia’s proposal returns the focus to practical political power. Where minority groups have the opportunity to elect candidates of their choice, districts should equitably reflect that opportunity to ensure a fair playing field.
There’s no artificial 50% cutoff in the new proposal. And that’s particularly important in Virginia, where minority communities have shown for decades that they can effectively elect candidates of choice with less than the majority of a district. The amendment provides protection for minority communities that doesn’t otherwise exist, reflecting the political realities Virginia’s voters have long understood.
These pillars — protections against dilution of minority rights, atop protections against undue partisanship — can help prevent a continued cycle of abuse and restore a bit of reasonable order to Virginia’s redistricting process.
As the product of vigorous negotiation, it’s not perfect. But in the long term, it’s much better than what’s otherwise coming down the pike.
Justin Levitt, a national expert on redistricting and election law, is a professor at Loyola Law School in Los Angeles. He served in the leadership of the U.S. Justice Department’s Civil Rights Division from 2015-17.
