Latest spat over legislative lines could help fuel push for an independent commission in Va.
Last month, two top House Democrats stood in front of Republican colleagues, facing a cross-examination that resembled a live courtroom.
“Who — who actually drew the map?” asked Del. Rob Bell, R-Albemarle, at a meeting of the House Privileges and Elections committee.
“It was a collective effort,” said Del. Lamont Bagby, D-Henrico, and chairman of the Legislative Black Caucus.
Bagby was answering questions about a bill he sponsored that would redraw boundaries for more than two dozen House of Delegates districts. His proposal, developed with the help of the House Democratic Caucus, is a response to a federal court redistricting order.
Three judges found that 11 districts are unconstitutionally packed with black voters in order to ensure surrounding areas are whiter. They ordered a fix by Oct. 30.
Republicans — who oversaw the drawing of those 11 districts in 2011 — believe the judges erred and have appealed the order to the U.S. Supreme Court.
Bagby said he didn’t know the names of the people who drew the maps. But Bell and House Majority Leader Todd Gilbert, R-Shenandoah Valley, continued to press Bagby and House Minority Leader David Toscano, D-Charlottesville, on where the map came from, to no avail.
Asked if the committee could get a list of those who drew the map, Toscano replied, “Well, I don’t know. I mean we — look, we have a map. If you don’t like the map, you either amend it or you vote it down.”
After the meeting, Toscano would not elaborate on who drew the map except that it was a Washington, D.C.-based consultant. The House Democratic Caucus refused to say who drew the map, how much it cost and how it was paid for.
“Delegates worked together in a collaborative fashion to produce the Bagby map,” said
Trevor Southerland, the caucus' executive director, in an emailed statement through a spokeswoman. “Every decision was made between Delegates and the buck stops with them. Delegates considered advice and data to make better decisions and every decision was theirs."
The drawing of legislative maps is typically shrouded in secrecy. Districts are usually crafted behind closed doors before new map proposals are presented to the public.
The process is controlled by whichever party is in power, leading to claims that the drawers are most concerned with getting re-elected. Software used to draw the maps is widely accessible, but it's not clear who wields the mouse.
Such political wrangling has led more states to consider independent, nonpartisan commissions to draw the lines. That's being debated in Virginia, too, but the change would require a constitutional amendment.
House Democrats have advocated for an independent process, but they also haven't had a chance to draw legislative maps in decades. For this latest map proposal, Democrats said their court-ordered deadline was too tight to assemble an independent commission of drawers.
Bagby, Bell and their colleagues left Richmond Aug. 30 with no agreed-upon plan for how to fix the 11 unconstitutional districts. That led Gov. Ralph Northam — who hoped delegates would compromise on a map at the special session he had called — to send Speaker of the House Kirk Cox, R-Colonial Heights, a letter a week later urging him to ask a court to redraw the map instead.
In his own letter to the governor, Cox said he was disappointed by Northam's request and that, contrary to what Democrats have said, Republicans are still willing to work out an agreement.
If the parties drew the maps, no one knows who exactly would be holding the pen.
“Democrats and Republicans are both responsible for having processes that are shrouded in secret,” said Rebecca Green, a law professor and co-director of the Election Law Program at the College of William and Mary. “It is just in their DNA to sort of form a huddle and figure out how to do this, and that's the problem. It's sort of a coin toss to have power when the lines are actually drawn and maps have to be redrawn. We can't expect legislators to not act in their self interest.”
How it works now
Right now, the party in power drives Virginia's redistricting process.
Senate and House maps are redrawn every 10 years after the U.S. Census Bureau's release of new demographic data. The current district map was drawn in 2011, when Republicans held a strong majority in the House of Delegates.
Lawmakers typically redraw lines behind closed doors. In 2011, the process was overseen by House Appropriations Chairman Chris Jones, R-Suffolk. A series of public hearings were scheduled throughout the state so Virginians could weigh in, but it's unclear if the meetings happened before or after the map proposal was drawn up.
What's also unclear, usually, is who exactly draws the maps and how. Green said it's likely politicians are using sophisticated mapping software or hiring a consultant to do the work. Software can layer multiple data points to spit out a specific map that the drawer wants.
Last fall, as court proceedings continued over the federal gerrymandering case (known to many as the Bethune-Hill case), Green co-taught a class that tasked 16 William and Mary law and graduate students to draw a fair map of their own. They learned how to use GIS mapping technology and were asked to address some of the issues raised in the Bethune-Hill case, and ensure their maps still complied with federal law.
Some prioritized not splitting precincts, and others tried to make as few changes to the current map as possible. At the end of the four-week course, the four teams created maps. They were all different, but likely would have passed constitutional muster.
“Given software tools and a little bit of training, it's possible and very interesting for people to make their own maps,” Green said.
“It used to be this process that very few people had technical expertise in and data and the ability or knowledge to draw maps. Now computers make it a relatively easy process so people — students and members of communities — can get on and see if they can do better.”
Green wasn't certain how lawmakers redraw their maps. But she imagined they or their consultant use a computer program like Maptitude, the software her students used.
Maptitude works like this: You enter multiple layers of data, the base being Census information. You can include any criteria you want, such as voting precinct data and school district information. Then you can shift the lines and see how the changes affect the demographics of your districts.
But for politicians who are seeking to protect or expand their party's influence, the process might be more laborious, Green said.
A national movement
Frustrations over the lack of transparency when it comes to politicians and lobbyists drawing maps have led some grassroots groups to try and change the system across the country.
“It all happens behind closed doors,” said Katie Fahey, the founder of the bipartisan grassroots organization Voters Not Politicians, which grew out of dissatisfaction with Michigan's gerrymandered maps.
While holding 33 town halls across Michigan, she found voters didn't want politicians drawing their maps; they wanted it to be done in an impartial and transparent way.
After getting more than 425,000 signatures — thousands more than required — Voters Not Politicians got a constitutional amendment on the November ballot that would create a 13member citizen commission tasked with redrawing the maps while following strict criteria.
Grassroots efforts like Michigan's are proof gerrymandering is an issue resonating with voters in a new way, said Michael Li, senior counsel for the Democracy Program at the Brennan Center for Justice at New York University's law school.
“I think people recognize that just giving lawmakers carte blanche to do whatever they want isn't working for the country and we need to do better,” he said.
Utah, Colorado and Arkansas will join Michigan this November in having ballot measures for an independent commission. A fifth state, Missouri, had a ballot proposal calling for a new statistical redistricting model and putting a nonpartisan state demographer in charge of drawing the lines. Those measures were ruled “insufficient” Friday, with a judge saying the ballot had too many measures. The case is being appealed.
Li points to California as a story of success: The state voted for an independent redistricting commission in 2008, and Li said its 14 commissioners have produced maps that are “much better at partisan fairness and preserving communities” through public hearings and citizen participation.
Applicants for the commission are thoroughly screened and have to meet certain eligibility requirements, such as not having held state or congressional office for the last 10 years.
“If you're talking about a skewed map, even flawed commissions do better than state legislatures do in drawing fair maps,” Li said.
Democrats have long campaigned in Virginia for an independent redistricting process. Republicans have argued no commission could be void of partisanship or loyalty to the person who appointed them.
“You'll certainly be able to find people who will say that citizen commissions are, say, ineffective because they're not skilled enough to do the job, or they're easy to manipulate, or something else similar,” said Alex Kaplan, policy director for RepresentUs, a national grassroots anticorruption organization, in an email.
He said those arguments are used as a blatant cover to “protect a system where self-interested parties draw the lines.”
What about Virginia?
In Virginia, two elements could force a path forward for an independent commission, according to Green.
The first is a growing public interest in redistricting. She noted membership in OneVirginia2021, a group advocating for independent redistricting, has grown from 3,500 in 2015 to more than 85,000 today. The second factor is the uncertainty of which party will hold power to redraw the maps in 2021. Legislators may be willing to let someone other than a politician draw maps, instead of betting on party control.
“If you had asked me five years ago, I would have said it's an almost impossible task,” Green said.
Next year, Democrats will try again. Del. Steve Heretick, DPortsmouth, filed a bill at the end of August calling for a constitutional amendment that establishes a redistricting commission.
And OneVirginia2021 announced last week it would create a bipartisan committee to draft such an amendment.
If the proposed amendment is successful, an independent commission could be in place in time for the mandatory redistricting following the 2020 census.
The same day Toscano and Bagby defended their map to the Privileges and Elections committee, Heretick had spoken out against his own party's proposal.
According to a Virginia Public Access Project analysis of Bagby's map, five current Republican districts would become between 5 percent and 18 percent more Democratic. That, Toscano says, is the natural effect of unpacking black voters from certain areas.
“It's a self-serving political power grab,” Heretick said on the House floor that day. “It's gerrymandering in response to gerrymandering.”
As the Oct. 30 deadlines looms, both parties are waiting: Republicans for the U.S. Supreme Court to rule on their appeal, and Democrats on a GOP response to their version of a constitutional map.
“I think the next couple years are going to be really robust ones for redistricting reform,” Li said. “This is an issue that has caught fire.”