State Senate Redistricting Plan Designed for Litigation

This post is a guest post from Paul A. Prados, a Northern Virginia attorney. Paul Prados is the author of the Northern Virginia Lawyer blog. The following is used with permission from his blog with his legal opinion of the State Senate’s redistricting plans.

On March 29, 2011 political junkies were treated to a once every ten years phenomenon:  The release of proposed redistricting plans drawn by the General Assembly that have an actual opportunity of passing into law.  These maps can be found here:

http://redistricting.dls.virginia.gov/2010/RedistrictingPlans.aspx#map (warning: to view the maps you need to install an additional program, and the maps are not easily copied.)

The Virginia Senate has two proposed plans: the first is from Senator Howell, reflecting the desires of the Democratic majority, the second is from Senator Watkins a Republican. Based on rumblings, it is expected that the Howell Plan is likely to pass the Senate without modification as the General Assembly has a history of deferring to the wishes of the particular legislative body in determining district boundaries.

The Howell Plan has serious Virginia Constitutional problems and is an invitation to litigation.

Prior to the release of these plans I posted a brief summary of what litigation opportunities to look for in analyzing the redistricting plans.

The Howell Plan has serious problems showing compact (and in some instances, contiguous) districts.

Under Article II Section 6 of the Virginia Constitution “Every electoral district shall be composed of contiguous and compact territory . . .” Thankfully, the Virginia Supreme Court has had an opportunity to analyze the definitions of “contiguous” and “compact” under the Virginia Constitution in the cases of Jamerson v. Womack, 244 Va. 506, 423 S.E.2d 180 (1992) and Wilkins v. West, 264 Va. 447, 571 S.E.2d 100 (2002).

Virginia constitution:http://legis.state.va.us/laws/search/constitution.htm

Wilkins is publicly available at:http://www.courts.state.va.us/opinions/opnscvwp/1021003.pdf(I will use page references from the publicly available version herein)

There does not appear to be a publicly available version of Jamerson, online.

What does contiguous mean?

Contiguous has a generic dictionary definition, but under case law the word has been expanded to mean far mar than immediately touching. In Wilkins, the Virginia Supreme Court addressed what contiguous means.  “. . . land masses separated by water may . . . satisfy the contiguity requirement in certain circumstances.” Wilkins, p. 16.  “While ease of travel within a district is a factor to consider when resolving issues of compactness and contiguity, resting the constitutional test of contiguity solely on physical access within the district imposes an artificial requirement which reflects neither the actual need of the residents of the district nor the panoply of factors which must be considered by the General Assembly in the design of a district.” Wilkins, p. 17. “Each district must be examined separately.” Wilkins, p. 18. The Virginia Supreme Court did not explicitly state (aside from an intervening land mass) what would qualify to make a district not contiguous, but did indicate that access to the various portions of the district must be shown to be “unreasonable, unduly burdensome, or adversely impacts the ability of residents to secure meaningful representation . . .” to invalidate a particular district. Wilkins, p. 17-18, 21. The burden of showing access is hindered is on the party filing the lawsuit.

“Compact” is even more difficult to define.

We all know what compact is when we see it, but “compact,” in a legal sense, is exceedingly difficult to define. There are experts on compactness that the trial court may take into consideration. Wilkins, p. 20. In a battle of experts if a major geologic, or demographic reason exists to create an otherwise sprawling district, the government receives the benefit of nearly all inferences. Jamerson, 244 Va. at 514-517. Given the heavy weight accorded to the legislative body it appears the legislative body merely needs to allege that compactness was considered in order to have its plans upheld. Jamerson, 244 Va. at 517.

The burden of proof is on the challenger

It is also clear from the case law the burden of proof is definitely laid at the feet of the person challenging the redistricting plan.  The Virginia Supreme Court stated in Jamerson that, “we must give proper deference to the wide discretion accorded the General Assembly in its value judgment of the relative degree of compactness required . . .”  244 Va. at 517.  “[O]nly where the statute in issue is ‘plainly repugnant’ to a constitutional provision will we declare it null and void.”  Wilkins, p. 14 (citations omitted).  At the outset, this sets an extremely high burden.

The legislature may balance competing concerns

Additionally, the Virginia Supreme Court has made clear that in analyzing whether districts are compact and contiguous the legislature is allowed to balance these two requirements against all of the other requirements in redistricting.  Jamerson, 244 Va. at 517.  “[T]he General Assembly must balance a number of competing constitutional and statutory factors when designing electoral districts. In addition, traditional redistricting elements not contained in the statute, such as preservation of existing districts, incumbency, voting behavior, and communities of interest, are also legitimate legislative considerations.”  Wilkins, p. 17 (citations omitted). “[I]f the validity of the legislature’s reconciliation of various criteria is fairly debatable and not clearly erroneous, arbitrary, or wholly unwarranted, neither the court below nor this Court can conclude that the resulting electoral district fails to comply with the compactness and contiguous requirements of Article II, § 6.”  Wilkins, p. 15.

Is there a ray of hope?

Yes.  Judges will be loath to render a portion of the Virginia Constitution meaningless.  The Plaintiffs in the Wilkins case were actually very successful at the initial trial of the matter, even though the decision was overturned on appeal.  Most importantly, Virginia Supreme Court Justice Compton dissented in the Jamerson case, stating:

The 15th District crosses 12 counties, only six of which are wholly within the district, and cuts through three independent cities. The 18th District crosses six counties, only two of which are entirely within the district, and six independent cities, only one of which is wholly included in the district. The 15th District is approximately 145 miles long and is only eight miles wide at its narrowest point. The 18th District is 165 miles long, and only five miles wide at some places . . . Notwithstanding the deference to be accorded an act of the General Assembly and the findings of the trial court, I would decide as a matter of law, given the facts and circumstances of this case, that the legislature has exceeded the constitutional limitation on its power.”  244 Va. at 517

Reading the descriptions of those districts, and knowing at least one of seven justices thought they were inherently not compact, we will look at the most offensive districts in the Howell Plan.

The problem districts

In short, the Howell Plan is a mess.  The Senators, in developing this plan, may very well have taken all of the other Constitutional and statutory requirements for redistricting into consideration but approximately one third of all Senate districts appear to have been drawn with little or no consideration for compactness. Following is a list of what appear to be the least compact districts with the top five singled out:

Least compact: 8, 9, 13, 15, 16, 18, 21, 29, 31, 32, 33, 37.

The top five least compact Districts in the Howell Plan and most likely to lead to litigation:

5.) District 2 – District 2 picks up substantial portions of the Hampton Roads Newport News area but then jumps across the James River to pick up three oddly carved precincts called thirty seven, thirty eight, and thirty nine.  On the shore of Virginia it is not odd that one would have a body of water between one portion of the district and the remainder of the district. What is odd is that the district crosses a substantial body of water in order to include three small precincts which are surrounded by multiple other districts.

4.) District 1 – District 1 runs alongside District 2. In order for District 1 to run all the way down to the southern portion of its peninsula the Downtown precinct in Newport News has been split in order for District 1 to hug the coast.  The district then jumps across the James to grab one precinct, Harbor View, despite the fact that this one precinct is surrounded by other districts.

3.) District 36 – District 36 does not have one unique quality that makes it especially offensive. The district begins in Stafford and Prince William counties and meanders up the Potomac and into Fairfax County.  Parts of the Featherstone, Rippon, and River Oaks precincts have been carved in such a way that they are accessible to each other only via water.  Up in Fairfax County in order to place portions of the Villages and Franconia precincts in District 36 the district narrows as small as one half and three quarters of a mile in two different places.  In order to include the Wilton precinct a portion of the district narrows to approximately 1/3 of mile. This district contains so many unnecessary and seemingly gerrymandered portions, it is more likely to warrant a challenge than many of the other meandering districts.

2.) District 30 – District 30 stretches from South Arlington down to Fort Belvoir. To include the Hayfield precinct a sliver of the Villages precinct was carved to create a bottleneck to maintain contiguity.  This bottleneck appears to be approximately 700 feet wide.  More importantly to connect Alexandria with Mount Vernon the district runs along the Potomac River. The Hollinhall precinct was carved to create a neck to connect the two large land masses of District 30. This neck appears to be approximately 800 feet wide. District 30 represents a blatant gerrymander.

1.) District 3 – You must look at District 3. District 3 is on the Chesapeake Bay and tidewater portions of the Commonwealth. District 3 covers gerrymandered portions of two major peninsulas and areas on the southern part of the James River. To travel from one end of the district to the other, without leaving the district, one would have to cross two major bodies of water. In order to connect Parts of York County and Poquoson County to the remainder of District 3 one has to travel across water (there is a bridge) to access a portion of the district located on the same peninsula as other portions of the district. These two portions on the Virginia Peninsula/Hampton Roads Peninsula are not contiguous to each other. Additionally two precincts on the James River appear to have been severed for no reason, Bacon’s Castle appears to no longer be connected to Rushmere. The entire area along the southern coast of the James River appears out of place, and barely, if at all contiguous with the rest of the district. If any district would impose substantial difficulties on representation, it is this district. For these reasons District 3 is the most likely district to warrant a viable challenge on the grounds that it is not compact or contiguous.

Conclusion

All of this does not matter if no one bothers to challenge these plans.  Perhaps the Senate Democrats will realize the follow of pursuing this plan as it stands, and tighten some of the districts before a final vote.  Otherwise, we are probably looking to see the Virginia Supreme Court define compact and contiguous even further.

A final note: The problem districts as I have identified them are nothing more than my personal opinion.  Any party wishing to bring these matters to court should consult an attorney and hire a third party expert to do an analysis, preferably before filing a lawsuit.

Cross-posted at http://northernvirginialawyer.blogspot.com/

  • Credo

    I’m not a lawyer nor do I play one on TV. I think the Governor has the upper hand in this. If he holds firm and there’s a stalemate then the Assembly elections this year could be held under the current districts. I can’t imagine that’s what J Howell wants.

    Paul how do Communities of Interest play into this? In Fairfax County the Senate districts defined by the Howell plan stretch from Arlington and Alexandria all the way into Loudoun. You can’t even make that trip in less than 2 hours during the week – I guess it shows how clueless J Howell in regards to the transportation issues here.

  • Credo,
    Communities of interest was addressed primarily in the Jamerson decision. There is no explicit Virginia or Federal Constitutional requirement to preserve communities of interest. Because of that, preserving communities of interest becomes subservient to federal law regarding dilution of voting power 9 one-man one-vote), and race based gerrymandering (racial dilution or cramming/packing) and state Constitutional requirements such as compactness and contiguity. If the state and federal requirements are otherwise met, preserving communities of interest is a recognized basis for setting boundaries.

    To see the relative unimportance of keeping together communities of interest look at the Senate Republicans proposed guidelines for redistricting which was defeated in committee. http://leg1.state.va.us/cgi-bin/legp504.exe?112+ful+SR502

  • Steve Vaughan

    Republicans should be kicking themselves for not letting Democrats throw them in that “non-partisan” redistricting briar patch. The governor’s commission plan would elect, at maximum 18 Dem senators. The Congressional plan would be 7-4 Republicans (which is probably more realistic than 8-3) and the House of Delegates plan doesn’t look to me like the GOP would do any worse than in the plan the GOP Caucus drew. Because Dem voters tend to be packed in relatively small geographic areas, a plan that only considered “compact and contigous” works out really sweet for Republicans.

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