Editors’ Note: We are reposting this article from April 13 of this year discussing the redistricting amendment that will be on the ballot this November. Given that absentee ballots will be mailed out and in-person early voting begins throughout the Commonwealth this Friday, September 18, we believe it is appropriate for readers to ponder the issues involved in this proposed amendment to the Virginia Constitution.
Mr. Shakespeare often displayed keen political insight. In Hamlet (Act I), a Danish officer, Marcellus, after seeing the ghost of Hamlet’s father, tells Horatio, “Something is rotten in the state of Denmark.” Horatio repeats the ominous warning to Hamlet who, in turn, steps out onto the battlements to see for himself. A contemporary interpretation is that there may be a fish rotting from the head in the Democratic hierarchy in Virginia.
Last week, VoxFairfax offered an opinion that the Virginia Democratic Party engaged in a full 180-degree flip in opposing the redistricting amendment to be on the November ballot (Majority Madness). Referendums must be voted upon in two consecutive General Assembly sessions with the precise same language to be included on a ballot. In 2019, Democrats wholeheartedly voted for the legislation, including many individuals who are now leaders of an effort to defeat the referendum. The smoke signals of the reversal were noticed by the Washington Post in an editorial (12/31/2019):
Given the lopsided votes, and the measure’s broad public support, you might expect it to sail through its second required vote, particularly because Democrats who long pushed for redistricting reform will be in control when the legislature convenes in January. That assumes, though, that Democrats will keep their promise and act on principle and not out of party interest. Sadly, that can’t be taken for granted.
The change of heart is not motivated by concern about legislative imperfections, many of which can be addressed by the separate enactment of enabling legislation. It was easy for Democrats to pose as pure-hearted reformers when Republicans were in control. Now that they are in control, they would be the ones to draw lines after the 2020 Census, absent a change in the law. Suddenly a system in which politicians can choose their voters, rather than the other way around, doesn’t seem so bad to them.
Particularly noxious is the court-demonizing excuse that Republican-appointed judges are in the majority on the state Supreme Court, which would resolve redistricting disputes under the new law. In fact, courts have a far better record than politicians in drawing maps that are fair to voters, rather than the party in power.
Towards the eleventh hour of its 2020 session, the Democratic majority of Virginia’s House of Delegates voted to kill the required second successive passage of the proposed referendum to create an independent commission to draw the Commonwealth’s electoral maps. Only nine of the 55 Democratic majority voted in favor; but the measure passed 55-45. The epiphany to torpedo the legislation was led by a well-organized criticism, chiefly that several of its provisions were merely Republican devices to maintain control of drawing the state’s boundary maps.
While it may be arguable that the proposed amendment is not the perfect solution, the attack upon it conjures a sense of progressive puritanism for some ideal that Democrats have not yet put forward. There are many details to be worked out upon approval of the amendment, including staffing, membership selection process, commission rules, budget, and others, that are very likely to extend its functioning into 2021 following the November vote. The “[p]articularly noxious court demonizing excuse” deserves more detailed attention.
In essence, the Democrats have alleged that the Republican membership of the state’s Supreme Court is a captive of the political party, incapable of fair jurisprudence. No evidence of such putative bias has been cited or offered concerning the Court’s members, individually or collectively.
In essence, the Democrats have alleged that the Republican membership of the state’s Supreme Court is a captive of the political party, incapable of fair jurisprudence. No evidence of such putative bias has been cited or offered concerning the Court’s members, individually or collectively. Similar to the referendum vote, a number of the present justices were approved by Democrats in their appointments to the bench. The allegation that the Court is a puppet of the political party is pure smear, fear, and conspiracy theory.
The critics also contend that any two of the commission’s four Republican members of the total of 12 can vote to reject maps drawn by the group and forwarded to the Supreme Court to be completed. However, those same critics generally fail to mention that the amendment requires two rejections before referral to the Court. Surely, the process will be subject to more detailed rules of the commission as well as normal political horse trading. The critics do not mention that two Democrats have the same authority.
Moreover, there is a significant time line factor that will affect the commission’s work. Assuming passage of the referendum in November, a number of months would surely lapse into 2021 to permit time to select commission members, employ staff, establish procedures, secure a budget, etc. Producing a set of maps based upon the results of the 2020 census will push map-making well into 2021. The Bureau of the Census will deliver apportionment data to Congress in December 2020 and by March 31, 2021, that data will be delivered to the states.
It’s the guess of any pundit as to the date by which the commission may have a first set of completed maps for approval by the 12 members. Then, according to the critics, a Republican (or Democratic) cabal of two must on two consecutive dates object to the maps in order to involve the Supreme Court. Those delays and disputes could conceivably collide with the November 2021 elections. That possibility may yield to the Post’s observation that Virginia’s “courts have a far better record than politicians in drawing maps that are fair to voters, rather than the party in power.” At present, the Democratic leadership is asserting no such belief and has begun making noises to defeat the referendum.
Finally, there is an even longer time line that Democrats have declined to emphasize in their doom-and-gloom messaging to the electoral faithful: that the state Supreme Court will have three vacancies by July 2023, offering an opportunity to change the bench’s composition. Of course, such would require a longer term political outlook to maintain majorities in both chambers of the General Assembly to ensure election of justices who, at least nominally, are Democrats eligible for the 12-year terms.
The noxious criticism of the state’s Supreme Court jurisprudence is, at minimum, a poorly conceived attempt to create a poison pill to engender fear in the November electorate. The public is not as naïve as the state Democratic leadership may believe.
If the true objective is to take down the referendum while maintaining majorities in the General Assembly in order to draw the boundaries upon the results of the 2020 census, the means to that end are as noxious as the criticism of the Supreme Court. The observation by the Post about Democrats keeping a promise and acting on principle instead of party interest may come true. Meanwhile, voters, like Marcellus and Hamlet, are on the battlements looking for themselves to locate the rancid rot in the Commonwealth.