[Ed Note: This article originally appeared in print in Bearing Drift’s January 2011 issue [1]. To subscribe, join our mailing list [2] and get a first peek in print every month.]
[3]In 2010, we all had the pleasure of engaging in a public duty that is as old as the Republic – participation in the decennial census.
The U.S. Constitution requires an actual enumeration be taken every ten years, and it forms the basis of the apportionment scheme that underlies the formation of the House of Representatives. Likewise, the Constitution of Virginia requires that the General Assembly “reapportion the Commonwealth into electoral districts….in the year 2011 and every ten years thereafter.” Additionally, state law requires that counties, cities and towns that elect governing bodies also redistrict every 10 years.
With Republicans currently in control of the House of Delegates, Democrats in control of the State Senate, a Republican governor, and an almost 3-to-1 overwhelming Republican majority in Congressional seats, we face the prospect of a partisan redistricting process.
It’s likely that Democrats in the Senate look at this as something akin to “Custer’s Last Stand” or the “Alamo”. Coupled with the fact that Virginia must have any redistricting plan approved by the federal government under the terms of the Voting Rights Act, we may not know for sure that the lines drawn in 2011 will be the permanent ones for a long time.
Given the importance of redistricting and reapportionment to the 2011 General Assembly and local elections, the 2012 federal elections, and the 2013 statewide elections, it is important to understand what exactly is going on with redistricting, what some of the likely outcomes are, and what the various players stand to gain or lose in the battles over the lines that loom before us.
Redistricting and Reapportionment – What are they?
Redistricting is the process whereby the lines are redrawn at the federal, state and local levels.
Reapportionment is a different creature – it is the process by which the population of the states determine the number of seats in the House of Representatives each state receives.
Since the number of Congressmen was capped by Congress in the Reapportionment Act of 1929, the question of reapportionment has been critical, as it represents major losses or gains of political power for a state.
Each state must have a minimum of one Congressman, and because of the current cap, the average Congressional seat today represents about 650,000 people, save for the four states who only have that single Congressman (Wyoming, Vermont, Alaska and North Dakota). Under our current apportionment process, population numbers are fed into a mathematical formula that assigns the 385 unassigned seats based on population – each state gets one to start.
Both federal and state redistricting is done by the Virginia General Assembly, under the Constitutions of both the United States and Virginia. Congress may alter by legislation the means by which Virginia handles its drawing of the lines (as it has done by adopting single-member districts and passing the Voting Rights Act), but the ultimate decision rests in the hands of the General Assembly.
Under current federal law, the Clerk of the House of Representatives must notify each state of the number of seats they will be entitled to under the new reapportionment by January 25, 2011. The Census Bureau announced the first release of final data on the 2010 census in December and the impact on Virginia was minimal. We will still have the same 11 seats to draw that we do now.
The Voting Rights Act – What It Means to Virginia
Passed in response to almost one hundred years of Democratic Party suppression of the black vote across the south, the Voting Rights Act of 1965 was one of the most sweeping and immediately successful civil rights legislation passed during the 1960s. For example, in Mississippi, one of the most unreconstructed of all the southern states, black voter registration went from 6.7 percent before the passage of the act to 59.8 percent just two years later. In the seven states originally covered, including Virginia, black registration increased from 29.3 percent to 56.6 percent in less than ten years.
Section 2 of the act restates the 15th amendment and prohibits any redistricting plans or other voting plans that are designed with the intention of disenfranchising a minority population.
Section 5 of the act requires that any changes to “any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting” be submitted to either the attorney general of the United States or the U.S. District Court for the District of Columbia. The law has been reauthorized multiple times since 1965, and Section 5 has been extended to a number of other states. The protection of Section 5 has been extended to foreign language minorities in addition to racial minorities.
The Republican-led 2006 Congress reauthorized the Voting Rights Act with the Section 5 preclearance provisions set to expire in 2032.
Virginia has a long and unfortunate history when it comes to Jim Crow and voting rights. Virginia’s poll tax was one of the last to remain on the books until it was finally struck down by the Supreme Court in 1966 in Harper v. Virginia State Board of Elections, 383 U.S. 662 (1966). Thus any changes made to our district lines, both at the federal and state level, must be precleared either by the attorney general or a federal court.
Under the Voting Rights Act and Supreme Court precedent, redistricting plans should be precleared so long as they are not retrogressive – meaning that as long as they do not see a protected minority class lose voting power within a district, they should be approved.
It took the attorney general less than two months to preclear the House, Senate and Federal plans in 2001. Two lawsuits were filed over the drawing of the 4th District lines in 2001, arguing a violation of Section 5, and those suits were finally disposed of in 2005, demonstrating how long a process litigation of the district lines under the VRA may take.
The most likely place we could see a VRA Section 5 challenge this time around is in the 3rd District. It is the most diverse district in Virginia, and with a majority black population of 54%, any changes to the district that reduce that percentage may open up the lines to a challenge under Section 5’s retrogression standards.
Section 2 and Section 5 have been used to challenge district gerrymandering – the process where the lines are drawn in weird or seemingly random fashion designed to scoop up discrete groups of people for the benefit (or detriment) of the office holder. The Supreme Court has held that racial gerrymandering is barred under both the equal protection clause of the 14th amendment and the Voting Rights Act. Political gerrymandering, however, where the districts are drawn specifically to benefit a political party and race is not a factor, has recently been held to be a political issue that is outside the Supreme Court’s purview. In Vieth v. Jubelirer, 541 U.S. 267 (2004), Justice Scalia closed the door on the Court hearing any more political gerrymandering cases, holding that those types of cases are best resolved by the political process and are non-justiciable. The Vieth case reversed a number of prior court rulings about partisan gerrymandering.
When it comes to Virginia drawing federal lines, partisanship is okay to take into account, race is not.
Federal Redistricting – Expectations and Issues
Virginia has a lively history of redistricting fights at the federal level, right from the very beginning.
Governor Patrick Henry, an avowed anti-federalist and opponent of the federal constitution, tried to draw the lines of the 5th Congressional District in such a way as to keep James Madison, architect of the Constitution, out of the Congress.
Henry tried to pack Madison’s district with anti-federalists and even went so far as to recruit future president and James Monroe to run against Madison. Madison won by over three hundred votes – almost a landslide at the time. And there apparently were no hard feelings between Madison and Monroe, as Monroe served as Madison’s Secretary of State and Secretary of War before succeeding him as president.
This time around, things may be just as tough.
The November elections that swept Robert Hurt, Morgan Griffith and Scott Rigell into Congress will make it considerably more difficult to draw the Congressional lines in 2010. With Republicans holding 8 of the 11 current Congressional seats (Democrats hold the 3rd, 8th and 11th districts) drawing lines that do not harm any Republican incumbents while making Democratic strongholds vulnerable will be exceedingly difficult.
But make no mistake – the changes have to come.
A quick look at the estimated variances from target population across Virginia make it clear that the Congressional districts we have come to know are going to see some major changes. The districts need to gain or lose the following number of people in order to meet the estimated 717K people each Virginia district should possess:
• 1st (Rob Wittman-R): -36K
• 2nd (Scott Rigell-R): +57K
• 3rd (Bobby Scott-D): +60K
• 4th (Randy Forbes-R): -20K
• 5th (Robert Hurt-R): +38K
• 6th (Bob Goodlatte-R): +23K
• 7th (Eric Cantor-R): -66K
• 8th (Jim Moran-D): +33K
• 9th (Morgan Griffith-R): +67K
• 10th (Frank Wolf-R): -132K
• 11th (Gerry Connolly-D): -24K
Northern Virginia sources tell Bearing Drift that the most likely outcome here would be for the 11th to shed some of its more Democratic precincts into the 8th District, while possibly gaining some more Republican voters from the 10th. The 10th will have to lose some of its western portions into Bob Goodlatte’s district.
The makeup of these districts invariably must change. The current makeup politically of these districts on the Cook Partisanship Index is as follows: 1 – R+7; 2 – R+5; 3 – D+20; 4 – R+4; 5 – R+5; 6 – R+12; 7 – R+9; 8 – D+16; 9 – R+11; 10 – R+2; 11 – D+2. As you can tell by these numbers, the two Democratic strongholds are almost impregnable, and given the high number of minorities in the 3rd District, trying to dilute the Democratic advantage in the 3rd is almost impossible thanks to the Voting Rights Act (more on that later).
The most Republican part of the state, the Shenandoah valley along Interstate-81 from Front Royal to Bristol, is going to have to add significant numbers and the only place to get them is going to be by shifting the borders north into Northern Virginia.
Federal redistricting is going to be a slog; I’m sure the General Assembly is not looking forward to it.
State House and State Senate Redistricting
The House of Delegates and the State Senate redistricting process is a little different, mainly because they have more rules applied than at the federal level. The Virginia Constitution, as noted above, governs the drawing of lines, and includes a provision requiring that the districts be “composed of contiguous and compact territory” and that they provide for “representation in proportion to the population of the district” as nearly as is possible.
Generally, under federal law, variances in population of less than 10% do not trigger a presumption that the lines violate the equal protection clause of the Constitution, but being within 10% is not an automatic approval, either. While the criteria for this year’s redistricting hasn’t been released by the General Assembly yet, in 2001, the goal was plus-or-minus 2% deviation across all General Assembly districts and no deviation for Congressional districts. The lines from 2001 met both of those goals.
Even more difficult questions come up when dealing with House of Delegates and State Senate redistricting.
With Republicans enjoying a significant lead in the House of Delegates (59 Republicans and 2 Independents who caucus with the GOP vs. 39 Democrats) the pressure on Republicans in the House to play games with district lines to benefit their party is diminished. The biggest issue will be determining which parts of the state will gain and which will lose seats.
Right now, most of the overpopulated districts in the State House are in Northern and Central Virginia. It is likely that Northern and Central Virginia will pick up a handful of new districts, while southern Virginia will lose – which sets up a number of major primary fights.
The State Senate is a much more difficult provision.
Democrats do not enjoy as significant a majority in the Senate as Republicans do in the House (merely 22 Democrats to 18 Republicans). The chances of Democrats using the process here to strengthen their electoral process is slim, as they have to expect that Republicans in the House will not agree to a redraw districts that significantly damages their party’s chance at taking back the Senate. Districts in the Norfolk/Hampton Roads area and Southwest Virginia are likely to lose seats to Northern and Central Virginia during this process based on population.
Sources have told Bearing Drift that conversations between the House and the Senate have been few and far between. Both sides seem to be focusing on their own processes and ignoring those of the other body. Both the House and the Senate have held multiple public hearings around the Commonwealth to get public input into the redistricting process.
The conventional wisdom, which has not been contradicted by any of the elected officials or staff who spoke with Bearing Drift on strict anonymity, is that both houses will draw their own lines and likely not interfere significantly in the other body’s line drawing.
The two sides will have to compromise on federal redistricting, but that process does not have the immediacy of resolving the issues with House and Senate districts, amidst of the pressures of a general election looming in mere months.
Strategists expect to see a special session of the legislature in March to finalize the line drawing, with primaries set for July. It is unlikely that we, the voters, will get a chance to see the lines as suggested until the House and Senate are prepared to vote on them.
What About a Bipartisan Commission?
The notion of a bipartisan commission to draw the lines is repeatedly proposed – usually by the party not in power. An independent commission would, proponents argue, increase voter faith in the redistricting process and draw the lines in a way that doesn’t focus on political advantage for the party in control.
As recently as this month, some political strategists in Richmond have said that Governor Bob McDonnell is interested in the idea of a commission and may announce the formation of one in the coming months.
“The governor will work with Republicans and Democrats, and enlist greater public input to ensure that a more open approach is taken to the redistricting process,” responded Taylor Thornley a spokeswoman with the governor’s communication team. “We will have further details on how the Administration will approach the matter in the days ahead.”
Bearing Drift, however, has talked to a number of sources who believe a bipartisan commission is not going to happen.
Opponents argue that bipartisan commissions tend to result in the same partisan fights you see in a normal redistricting process. Since the make-up of the commission tends to include both Democrats, Republicans and independents, the independents effectively own the process. This doesn’t result in any better results than the current system.
The bipartisan commission system necessarily benefits the party not in power, as it gives them a greater chance to influence the process than they would have otherwise. But given the fact that we have divided government in Richmond, neither party gains a real edge or loses significantly by choosing a bipartisan commission, leaving it unlikely that a bipartisan commission will be chosen to suggest lines to the governor.
[Ed. Note: This article was written for the magazine on Dec. 23, 2010. The governor announced on Jan. 10, 2011 (10 days ago and well after we went to print) that there would be a bipartisan commission. Bearing Drift does not see the necessity of this commission.]
What Does This Mean for 2011?
With the entire House of Delegates and State Senate up for reelection, the impact of redistricting on the 2011 elections is up in the air.
One thing seems certain – it is likely to be an incumbent’s year.
Given the compressed schedule, all of the usual decisions candidates make about running will be compressed into a much shorter timeline. With primaries not likely to take place until July or August, the crucial summer period that many candidates use to regroup from primary fights and prepare for the general election will be gone (see Josh St. Louis’ article).
But not everything trends in favor of incumbents.
New district lines mean new voters, and in areas where significant changes will likely be made, some incumbents face the prospect of almost entirely new districts, while others may end up taking on colleagues in primaries or the general election. And, given the compactness of the schedule and the need for an additional session to focus specifically on redistricting, the amount of time incumbents will have to campaign and raise money, which incumbents are barred from doing during a legislative session – is significantly lessened.
Running in 2011 is going to be much more difficult for just about everybody thanks to the redistricting process.
Conclusion
The redistricting and reapportionment processes are in full swing, and we can expect to see even more news on the efforts in both the House and Senate over the next coming weeks. Given the inherent difficulty in drawing the lines, complying with state and federal law, and the typical partisan concerns that weave their way through this entire process, this process is not going to be easy nor will it be drama-free.
That means for political junkies like all of us, it should be pretty darn fun, but misery for all the elected officials. A win-win!