Analyzing the Court-Drawn Democratic Gerrymander in the Virginia House of Delegates

Earlier this month, by declining to hear the appeal of the House of Delegates, the Supreme Court has in effect affirmed the ruling of the District Court, mandating a partisan gerrymander in favor of Democrats to counteract alleged unconstitutional racial criteria for drawing district lines.

This isn’t spin. Media headlines have called it “handing a win to Democrats.” The DLCC called it a “victory for Democrats.” You’d have to squint (or rather, be capable of reading a multi-page document) to remember that the original complaint had nothing to do with partisanship at all.

The basis of the lawsuit, eventually tabbed as Bethune-Hill vs Virginia State Board of Elections, was that racial considerations were unduly used in drawing the 2011 House of Delegate districts. Ignore anything you’ve read from folks outside Virginia or people who only read headlines on Twitter. Ignore local editorials that get extremely basic facts wrong, like the make-up of chambers when redistricting was passed.

There have been malicious efforts to pack minorities into districts in the U.S. before; only fools deny that. But that’s not what House Republicans did in 2011.

There’s four basic things you should about the 2011 redistricting:

1) It was a partisan gerrymander, not a racial gerrymander.

House Republicans drew a partisan gerrymander in the House. Senate Democrats drew a partisan gerrymander in the Senate. This was the compromise Virginia Democrats agreed to.

2) Governor Northam and Attorney General Herring both voted for it.

Before they both got caught up in blackface scandals, both Ralph Northam and Mark Herring were State Senators. Both analyzed the maps. Both voted yes. As did almost every Democrat in both chambers. Both Northam and Herring are spewing bullshit today about maps they endorsed eight years ago.

3) The Legislative Black Caucus endorsed, supported, and voted for it.

According to the Washington Post:

“Every member of the Legislative Black Caucus voted for the plan — and many spoke in favor of it, saying that their views had been taken into account as the plan was drawn.”

4) The Obama DoJ, run by Eric Holder, approved the maps.

Virginia is a “special provision” state under the 1965 Voting Rights Act. That means any legislative changes to elections — including redistricting — has to be “precleared” by the Department of Justice before it can be enacted. Accordingly, the General Assembly submitted its maps to the Obama DoJ and the maps were approved.

So how did we get to where we are today?

Revisiting the 2011 Compromise

Flashback to 2011. Republican Bob McDonnell was Governor. At the time, the GOP had a 55-45 edge in the House, and Democrats held a 21-19 lead in the Senate (with a Republican Lt. Governor as a tie-breaking vote, if needed).

Meanwhile, due to the 2010 midterms, Republicans controlled 8 of the 11 Congressional Districts, and nearly controlled 9 as Gerry Connolly barely escaped with less a <1,000 vote win (and would’ve lost had Pat Herrity won the GOP nomination).

(As a result, Gerry Connolly backed an incumbent-protection plan for Congress that would lock in an 8-3 GOP majority. Connolly got state Democrats on board, and drew himself a safe district that literally carved new lines down streets to exclude 2010 candidates Pat Herrity and Keith Fimian, as well as 2012 nominee Chris Perkins, from the 11th District.)

Virginia Democrats were in a precarious position: the power of incumbency made it clear that their best bet for maintaining a seat at the table was to keep control of the State Senate. However, the lines had to be drawn just so in order to maintain that control. So they effectively ceded the House of Delegates and set out on an absurd partisan gerrymander in the Senate.

That’s why not 1, not 2, but six State Senate districts in Northern Virginia (SDs 30, 31, 32, 36, 37, and 39) combine the exurbs of Loudoun, Prince William, and the outer parts of Fairfax County with heavily Democratic precincts in Arlington and inside the Beltway. Former Arlington Democratic Chair Peter Rousselot accurately labeled this a “hyper-partisan” gerrymander in a 2011 article.

But it all worked out: House Republicans got their lines and Senate Democrats got their lines. All they needed to do was get it approved, so they followed this set of instructions: 1) draw lines that enable minorities to get elected in areas where minorities live, 2) don’t use race as a predominant factor in drawing lines, and 3) get your districts cleared by the Department of Justice before they’re enacted (called “preclearance”).

In this instance, the 2011 lines were precleared by President Obama’s DOJ under Eric Holder. Afterwards, the maps were approved with huge bi-partisan majorities.

So where’s the problem?

The 55% Problem

Here’s what happened: in order to abide by the Voting Rights Act, Virginia lawmakers sought to create districts that would be predisposed to electing minority representation. Several Supreme Court cases over the past 50 years have guided lawmakers on how to draw lines, including Bartlett v. Strickland in 2009, which held that in order to create districts that will elect a minority representative, that district should have a 50%+ of minority voters.

However, at the same time, Supreme Court cases have also said that race cannot be used as a predominant factor when drawing district lines, as in the cases of Shaw v. Reno and Bush v. Vera. These cases dealt with racial gerrymanders that created bizarre and obscene district lines, like the one below.

(Nowadays if you want to find lines as oddly shaped as these, you’d have to ask Maryland Democrats to create them for you.)

But Virginia Republicans didn’t want to pack minorities into crazily-drawn districts. They just wanted to draw Republican districts. The problem is that Virginia Republicans tried too hard to ensure black representatives would get elected. Seriously.

Over the course of litigation, mapmakers conceded to using a specific marker: to ensure nonwhite representation, the district should be 55 percent nonwhite. This in accordance with the SCOTUS decision in Bartlett v. Strickland, referenced above. This decision was fresh in their minds, having just been adjudicated in 2009 and mandating at least 50 percent racial makeup to create majority-minority districts.

However, seven years later, the District Court would rule that the way Virginia stayed within bounds as prescribed by SCOTUS, by using 55 percent, was using race as what they considered was a “predominant” criteria and is unconstitutional.

It’s not that electing nonwhite representatives is bad, to be sure; it’s just that the law says you can’t explicitly use racial percentages to draw the lines, even if that use was intended to facilitate the election of nonwhite representatives in accordance with the Voting Rights Act and prior Supreme Court cases.

In the report of the Special Master, who drew the new Democrat-favor lines, he explicitly decried the use of a 55 percent standard. Accordingly, he relied on reports that show that districts may not have been necessary to be as high as 55 percent to ensure minorities can get elected.

That’s it. That’s the nefarious underbelly of the Illegal Redistricting Scheme: that racial minorities were in districts that were slightly higher than may have been necessary.

I found it interesting, though, that those reports the Special Master relies on were based on the results of the 2013 legislative elections based on the new lines drawn in 2011. The implicit understanding here is that the House of Delegates should have known in 2011 about the results of a report written in 2013 about the lines they hadn’t yet drawn.

A Democratic Gerrymander

It’s interesting that Democrats are jumping up and down for joy for the Republican-drawn map to be overturned. However, not a single one has uttered a word about the Democratic gerrymander they themselves drew. It’s almost as if their entire argument is bad faith partisan hypocrisy.

It’s no wonder they’re celebrating, though, as the new lines clearly favor Democrats, who have a strong chance to take over the chamber in the November elections. As a result: Virginia has a Democratic gerrymander in the State Senate (drawn by Democrats) and now a Democratic gerrymander in the House (drawn by the Courts).

Keep in mind, this is supposed to be about racial gerrymandering, not partisan gerrymandering.

The bitter irony of it all? The new maps will help Democrats get elected in previously-held GOP districts. But not a single one of them will be black.

More on that in a future post.