Revolution in Virginia: the legislature cedes a spoil of partisan advantage

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Where we go for justice: reform advocates in March 2018

It’s been a bad month for Virginia’s government, with controversies around racism, sexual assault and the “Virginia way” enveloping its three elected state leaders, and the legislature unable to formulate a response. As if to affirm Virginia is still mired in the Civil War, with all manner of its leaders donning blackface when in other places white men knew better, the ruling Republicans in the General Assembly killed a bill to allow localities to remove statues honoring warriors for slavery.

So it was astonishing to see the General Assembly on February 23 take the first step in creating a semi-independent commission to draw lines for state legislative and U.S. House districts.

It is a reform long in the making, backed by former leaders in both parties, sparked by citizens’ revulsion at gerrymandering and, most importantly, driven by the GOP’s awareness that its two-seat margin in each chamber is about to slip away for a generation. Thus the party raced ahead of conventional prediction: the majority will support non-partisan redistricting the second it’s in the minority.

My second post on this blog, four years and one week ago, was about gerrymandering in Virginia and Maryland – in Virginia by Republicans, in Maryland by Democrats. My attention remains fixed. Based on decades of observation, I believe gerrymandering is the greatest cause of legislative dysfunction: Because the governors do not reflect the governed, neither do their policies.

For a decade redistricting reform has been on state ballots, in federal and state courts, and considered with varying degrees of seriousness in state legislatures. The Supreme Court has so far declined to address whether political gerrymandering is unconstitutional.

This debate over democratic legitimacy is much like the one we struggled with for the first seven decades of the last century: whether state legislative districts must reflect population. In the early 20th century, many legislatures simply stopped remapping their districts as urban populations overtook rural areas, even as the Constitution required them to redraw U.S. House maps following the decennial census. Future Chief Justice Earl Warren, as governor of California, defended rural power as Los Angeles and San Francisco overwhelmed the population of districts whose reps ran the state assembly.

But in 1962, after turning away case after case, Chief Justice Warren’s court finally ruled in Baker v. Carr that “one person one vote” was a principle of representation that applied to the states and that the question of whether their districts were fairly drawn was “judiciable,” a question for courts. And in Reynolds v. Sims (1964), the high court declared that state legislative districts must have equal populations, and that whether their structure reflected Congress (the Senate’s membership is unrelated to population) was irrelevant. For the court, Warren wrote, “legislators represent people, not trees or acres.”

The U.S. Senate Republican leader, Everett Dirksen of Illinois, backed by moneyed interests and a sophisticated PR firm, led a campaign to overturn Reynolds by constitutional amendment. It fizzled two states short of ratification when, after redistricting in 1971, the republic did not collapse.

Fifty years later, gerrymandering presents similar questions of democratic legitimacy. As in the lead-up to Baker, the Supreme Court has skirted it, remanding cases in Wisconsin, Maryland and North Carolina. (In March it will hear two more, a reframing of Maryland’s political question from a year ago, and a racial gerrymandering case from Virginia for the second time.) But lower federal and state courts have struck down politically gerrymandered districts (racial gerrymandering has long been unconstitutional). Meanwhile voters have demanded reform, most recently in Michigan and Utah, where in 2018 they passed citizen initiatives for independent commissions. California voters did so a decade ago, and its commission is the gold standard – one of many states where map-drawing is at least partly independent of state legislatures.

Like all legislative handiwork, the Virginia plan is imperfect, but it’s better than we reformers thought possible last fall: a 16-member commission of eight partisans – two each appointed by respective party leaders in the state senate and house – and eight citizens selected by a panel of retired judges. Six members of each group would be required to approve the maps, and the Assembly would be allowed to vote only up or down but not amend. A year ago the leading advocates – OneVirginia2021 and the League of Women Voters – thought it impractical to advocate any citizen participation.

The Senate passed the constitutional amendment 40-0, the House of Delegates 83-15. The Assembly will have to approve an identical measure in one year, before it goes to the ballot in November 2020 – in time for redistricting in 2021. Assuming the commission is effected, the Assembly may write statutory guidance about membership and map criteria.

A year ago, Republicans were thinking that their 15-seat loss in the 2017 House elections was a flash in the pan. Then last fall the state’s congressional delegation flipped from 7-4 Republican to 7-4 Democratic. And this month a federal court cleared the way (pending a long-shot reversal from the Supreme Court) for 26 redrawn House lines that are likely to give the Democrats control of both chambers. Barring Trump landing in jail to energize the base before November, Republicans see the writing on the wall.

If fear is what it takes, cool. My friends in my former home state will, I anticipate, hold the Democrats’ feet to the fire, assuming they take control in the November elections. Two years from now, Virginia will draw fair lines, without favor to parties or incumbents.

 

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New maps and a new reality in Virginia

The four-year, twisting tale of 11 Virginia House districts judged to be racially gerrymandered is reaching its climax, as the federal court presiding over the case has drawn new lines for 26 districts, both those at issue and 15 adjacent ones.

Of personal interest are the 72nd and 73rd districts in suburban Richmond, because I walked them during the 2017 election campaign, and because the court’s solution apparently considers the central questions of redistricting: maps that are fair to all voters – or as we say, compact and contiguous, reflective of constituencies, without favor to parties or candidates, and perhaps politically competitive. These issues are before the General Assembly as it considers a nonpartisan redistricting commission advocated by OneVirginia2021.

On their face, the current lines of the 72nd and 73rd are absurd – a court brief referred to the 72nd, now represented by my buddy Schuyler VanValkenburg, as a “toilet bowl.” The 72nd wraps around the 73rd, and both were drawn in 2011 for the benefit of two Republican incumbents who lived near each other and, under the state constitution, must live in the districts they represent.

The 72nd was one of the 11 districts the U.S. Supreme Court in 2017 found to be racially gerrymandered. The 73rd was never part of the case, and it looks like a relatively reasonable district – not round but not twisted into a pretzel, with a political profile befitting what was then the area’s suburban, conservative character (the Republican incumbent had drawn no opponent since the 2011 redistricting until Democrat Debra Rodman defeated him in 2017).

The special master appointed by the federal District Court for the Eastern District of Virginia proposed two maps: one that split the two into halves (the map at left, above) and another (at right) that swapped a couple of 72nd precincts with another district and did not touch the 73rd. The court chose the second option, which the Virginia Public Access Project, a nonpartisan organization that produced these maps, projects will tilt the 72nd 1.94 points to the left.

As a matter of geography, the left map makes sense. As a matter of politics, it would have produced one solidly Democratic and one solidly Republican district, neither competitive by current measures. And it would have been disruptive. It might have required its incumbents to give up their seats unless they chose to move. It would have gone far beyond the purview of the court – to address racial gerrymandering, not make the districts compact and contiguous, or necessarily affect their political composition.

In total, the new maps are detrimental to the GOP’s 51-49 hold on the House of Delegates, and Speaker Kirkland Cox decried the court’s decision. But we expected that. After all, according to the court record, the GOP’s author of the 2011 maps, Chris Jones, worked with black incumbent Democrats to draw them safe districts at the expense of a map that would have been more competitive and favorable to Democrats as a whole. The Supreme Court struck down the plan as a racial gerrymander because it packed blacks into fewer districts, thus diluting their voting strength. The new House maps appear to threaten a net of at least a half-dozen GOP seats.

The final chapter in this story may be written by June, when the Supreme Court is expected to rule on Cox’s appeal of the district court’s order to redraw the 11 districts per the Supremes’ 7-1 decision in 2017. Four justices, I assume, agreed to take the case: the two (Thomas and Alito) who wrote separate opinions two years ago joined by the two Trump nominees.

It’s possible that Chief Justice Roberts will reverse his support for the principles underlying then-Justice Kennedy’s majority opinion – that the court was bound by precedents striking down racial gerrymandering. That seems unlikely, as the high court declined January 8 to stop the district court from drawing new maps until the underlying case is decided. But it is Cox’s prayer, and his only hope of retaining the speaker’s gavel, and perhaps his seat, after November’s elections. Under the new maps, Cox’s own district shifts from 63 percent Republican to 53 percent Democratic.

Perhaps the GOP will make these calculations as it determines whether to pursue a constitutional amendment creating an independent redistricting commission. It has to decide this month, while the legislature is in session. If it doesn’t lay the groundwork for a fair process – a constitutional amendment requires passage in consecutive legislative sessions with an intervening election and then voter approval on a general election ballot – it’s likely to face Democratic majorities, backed by a Democratic governor, drawing new maps in 2021.

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George Bush and the politics of prudence

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Richard Darman, George Bush’s budget director

What George Bush, who died yesterday, regarded as the biggest mistake of his presidency was his most courageous political act. It was also the last time the Republican Party engaged in responsible budget policy.

I was Capitol Hill reporter when the Bush administration and the bipartisan leadership in the Democratic-controlled Congress negotiated a rewrite of the budget process and a tax increase on the wealthy. The result closed the chapter on Ronald Reagan’s credit-card fiscal policies – and opened one, starring Newt Gingrich, that has ever since had the GOP in the thrall of tax cuts regardless of economic conditions.

For eight months in 1990, leaders in Congress and the administration met behind closed doors at Andrews Air Force Base to hash out an agreement in which both sides gave ground, finally addressing comprehensively the profligacy of the Reagan era. They were driven by the financial market’s reaction to deficits amid the slowing of tax receipts.

Their names are worth remembering: White House budget director Richard Darman and Treasury Secretary Nicholas Brady, House Budget Committee Chairman Leon Panetta and his Senate counterpart Jim Sasser, and a group of brilliant, dedicated, anonymous staff people who wrote law from goals.

When the group came back with a plan in early October, House liberals balked, and a band of conservatives led by Gingrich staged a revolt against their party’s leaders. Watching the bill’s 179-254 defeat in the House chamber, I saw that the negotiators would move left in round two to pick up the liberals – that’s where the votes were. Which they did, right before the election, by adding a 31-percent tax bracket for high-income citizens.

The 1990 law created a process to address the growth of “mandatory” spending – that controlled by permanent law, including payments to individuals who meet criteria, like Social Security or student-loan recipients. And it reversed Bush’s ill-considered “read my lips” no-new-taxes pledge of the 1988 campaign.

The hard right was furious, and Gingrich built his anti-government movement on the tax increase (and other bits of media-ready controversy). At the 1992 Republican convention in Houston that renominated Bush, Patrick Buchanan, who had challenged the president for the nomination and had developed Richard Nixon’s Southern Strategy of appealing to disaffected whites with racial dog whistles, declared a “culture war” in America. Walking on the floor of the convention, I felt an angry, resentful hall of delegates. I wasn’t exactly frightened, but I was uneasy. Bush had lost control of his convention, and that fall he lost the election to Bill Clinton, whose party went on to write a second budget act that refined the first and raised taxes a bit more on the wealthy – without a single GOP vote in either chamber of Congress. The stage was set for Gingrich’s revolution in 1994. It was also set for budget surpluses by the end of Clinton’s tenure.

I don’t know what George Bush meant when he called the 1990 agreement his greatest regret. Perhaps he meant reneging on a campaign pledge. Perhaps he meant agreeing to raise taxes on rich people (I doubt that).  I’d like to think he meant that the compromise unleashed Gingrich, who didn’t have the votes to pass anything but sure knew how to inflame partisans. Perhaps, on reflection, he regretted that his son, a decade later, killed the budget law he had signed and pushed through tax cuts that destroyed his path of fiscal prudence.

What I see is a moment that sparked our polarization, now manifest in the Gingrich-Buchanan vision of America represented by Donald Trump.

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What I ponder at the Lincoln Memorial

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What have I learned in 60 years? Take little for granted, other than that I will (likely) return home from a bike ride.

At dawn I took my customary solstice/birthday pilgrimage to the Lincoln Memorial and faced the Washington Monument, as I have done scores of times. On this occasion, I noted that I may never sit here again. In 20 days, I will fly away to a new hometown on the other coast. Though I will return to Arlington at least once, later in the summer, I have a glimpse of my own mortality: Everywhere I go in these three weeks may be for the last time. I feel neither wistful nor nostalgic, but grateful.

I turn and look at Abe, sitting on that chair. He took nothing for granted. Both of his great speeches – the greatest in our history – have at core propositions rather than assertions.

At Gettysburg, he said, we were engaged in a test of whether any nation conceived and dedicated to the proposition that all men are created equal could long endure.

Sixteen months later, in his Second Inaugural, he proposed that the Civil War was the price the nation paid for slavery. “Yet, if God wills that it continue, until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.’”

These propositions apply to our moment, in which we are recycling the same conflicts we have experienced throughout our history. It’s no coincidence that the author of the Declaration Lincoln invoked was a slaveholder whose notions of life, liberty and the pursuit of happiness became the American creed. John Calhoun, a two-term vice president under both parties, extrapolated from Jeffersonian philosophy the idea that states could nullify laws with which they disagreed – a justification for states’ rights used later to promote the Fugitive Slave Act in 1850, a cause of the war a decade later, and for defiance of racial justice measures since.

What we face, now as then, is a conflict between Calhoun’s planter class and the interests of the whole. Throughout our history, the planter class – now as then backed by Northern bankers – has used fear of Other to draw support from white peasants who bleed for its wealth. Historian C. Vann Woodward (1908-1999) unspooled the myth of benevolent slaveholders, uncovering the violence and manipulation that drew in the peasants because, at least, they were not Negroes. That myth survived into the 1950s, wrote his protégé David Brion Davis, until Woodward “helped to reveal and reverse the fact that the South, despite its military defeat, had long been winning the ideological Civil War.”

That reversal, in my mind, ran from Harry Truman’s desegregation of the armed forces in 1948 (amid postwar prosperity) to the election of Ronald Reagan in 1980. In the first half of that period, the nation embraced inclusion: the Civil Rights and Voting Rights Acts and the Immigration Act of 1965, which reversed exclusionary policies of the 1920s. At the end of the 60s, Neal Armstrong’s giant leap for mankind marked the peak of American power and prestige.

But over the next 11 years, we determined that Vietnam was a lie fomented by one president, faced the impeachment of another over anti-democratic corruption, experienced the vulnerability of the oil embargo, revolted over forced busing (race again, right in the middle), began to feel the effects of de-industrialization and foreign competition, and were humiliated by the Iran hostage crisis.

Enter Reagan, who said “government is the problem” and corralled the same forces of white grievance that Calhoun had organized in 1832. Their disaffection had always been cultural (anti-black), as Woodward explained. Reagan took advantage of the “malaise” of the 1970s to attack government and pursue wealth concentration in private hands: low taxes, deregulation, union-busting, and a Supreme Court that expanded the power of commerce at the expense of the government’s leavening hand.

We are now 30 years past Reagan. Seeing no help from the Democratic Party – decades ago a mix of racists and economic populists but now a multi-racial alliance led by educated urban elites – the next generation of Reagan Democrats is all in with Trump, who personifies its anger and grievance. As his followers’ primary news sources promote him and the planter class behind him, our polarization solidifies.

Donald Trump is the perfect manifestation of these disparate trends: a demagogue with overt racist appeal; a nationalist who views cooperation as weak; and a champion in all of his policies of powerful rent-seekers in legacy industries granted commercial advantages through the powers of the government held by all three branches.

As the Republican Party surrenders its heritage of open markets and (relatively) open borders to Trump’s whims, America again faces a test of its creed, not only whether a government of, by and for the people will perish, but whether it should survive. As Lincoln said, a house divided cannot stand.

I take nothing for granted. And I’m grateful I’m still here.

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Standing agape in an undivided current

Thoughts on Yosemite, from bikerben58.wordpress.com: The vision of Abraham Lincoln and John Muir

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On cue, Virginia punts on redistricting reform

Virginia’s legislative attempt to address gerrymandering came to its expected futile end May 18 when Democratic Governor Ralph Northam vetoed a bill that would have made minor changes in the criteria the (for now) GOP-controlled General Assembly must use to draw districts. It was the final chapter in a script written in the first days of the annual session.

Reform efforts could hardly have concluded otherwise in a polarized capital, where lawmakers are watching the courts. It’s been 11 weeks since the Virginia Supreme Court heard oral arguments in one gerrymandering case and six months since a panel of the Richmond-based Fourth Circuit received final arguments in another. Perhaps both courts are waiting on U.S. Supreme Court decisions in gerrymandering cases from Wisconsin and Maryland. So Virginia’s divided political branches also could be expected to wait and see, neither party clear about its advantage.

On January 16, Republican Senator William Stanley Jr. (above, right) brought up a bill that would extend an expired license for a closed hospital in Patrick County. West of the midpoint of the state’s southern border, Patrick has an ebbing population of 17,000 and an 18-percent poverty rate.

Pioneer Community Hospital filed for bankruptcy in March 2016 and closed in September 2017. Stanley’s bill was intended to help the county attract another hospital operator by reducing red tape associated with reopening a facility with no license. As Stanley recognized, a rural county with no hospital is economically doomed.

Stanley remains a stalwart opponent of Medicaid expansion under Obamacare, which would provide a revenue stream for a hospital desperate to right its finances. So when the senator sought consideration of his bill under “emergency” procedures (requiring 80-percent approval, or 32 of 40 Senate votes), 10 Democrats voted no, to remind Stanley of the conflict between his stance on Medicaid and his support for a defunct hospital.

Senate GOP Leader Thomas Norment Jr. (above, left) then joined Stanley in excoriating the Democrats for their lack of “Virginia Way” collegiality – a bit of political theater for the rank-and-file and a contingent of Stanley’s constituents watching from the gallery.

An hour later, the Senate Privileges and Elections Committee held its first meeting of the session. As payback, the GOP majority killed all but one of the pending bills on redistricting – many of them reforms that had passed with bipartisan support over several sessions, though they had always died in the GOP-dominated House.

Eventually tempers settled, but the consequences for gerrymandering were clear: A governor who had run last fall on Medicaid expansion and redistricting reform wasn’t going to get any help – unless the opposition recognized it was in their interest. What’s curious is that Republican legislators don’t seem to get that both issues are in their interest.

As in other states with a rural/urban divide in the Trump era, the artificial political advantage the GOP created in the 2011 maps is on borrowed time. The urban, prosperous and increasingly Democratic counties are growing, while rural, economically distressed counties are declining, partly because of circumstances like that in Patrick. Northam won 22 percent of the county’s vote – 4,633 of the state’s 2.6 million total. Rocket scientists are not required to observe that the GOP’s prospects in Virginia are diminishing because the people attracted to its positions are a falling share of the population. (They’ve lost every statewide race since 2009.)

That the party is unable to drop its self-defeating opposition to Obamacare has yet to penetrate in the Senate, though the GOP’s House majority, reduced from 66 seats to 51 after November, shifted in March to support of Medicaid expansion in its first version of the two-year budget. (The two chambers remain at odds on the issue, stalling passage of the budget for the year that starts in six weeks.)

The author of the House’s budget bill is Chris Jones, chairman of the Appropriations Committee. Jones also is author of the 2001 and 2011 House district maps. As on Medicaid expansion, Jones took the late lead in the House in drafting the chamber’s redistricting bill. HB 1598 followed the Senate GOP’s lone reform, SB 106, which drew two of 19 Democratic votes.

The identical bills would have codified several criteria for the GA to follow in drawing maps for its seats and for the U.S. House. They focused on a definition of compactness that stressed consistency with existing political jurisdictions, like cities and counties. Senate Democrats led by George Barker, the author of the 2011 Senate map, complained that the provision would distort representation – and harm them (though the party ended up losing control under Barker’s maps).

Neither party in the GA is ready to address the problem: redistricting is a party- and incumbent-protection racket. The way to fix it, non-partisans proposed, is to give the job to an independent commission, and short of that require the legislature to disregard voter data in drawing maps. The substantive reform authored by Democratic Delegate Rip Sullivan and Republican Senator Emmett Hanger Jr. would bar districts drawn “for the purpose of favoring or disfavoring any political party, incumbent legislator or member of Congress, or potential candidate.”

Virginia’s governor has the power to submit amendments to bills for the GA’s up-or-down vote. Northam’s amendments stripped the GOP’s compactness language and added the Sullivan/Hanger provision, plus a requirement concerning fair representation for minority voters.

A month ago the House rejected the governor’s amendments on party lines, 51-48. One Democrat and one Republican crossed lines in the Senate’s 20-19 dispatch of the amendments. Faced with the original version of the bill to sign or reject, Northam vetoed it.

“. . . . [T]his legislation excludes criteria that are essential to fair electoral maps,” Northam wrote in his veto message. “Any criteria for redistricting must prohibit districts from being drawn to restrict or deny the ability of any racial or ethnic minority to participate in the political process and elect a preferred candidate. I believe the criteria should also prohibit districts that favor or disfavor any political party, incumbent legislator, member of Congress or individual or entity.”

Northam’s words come from the Sullivan/Hanger bills, though they omit the distinction of intent. Some districts inevitably will favor one party or the other; the issue is whether they are drawn for that purpose.

As with Medicaid, the Republicans remain in denial. They suppose that the 2017 Democratic wave was a fluke, to be reversed in 2019 when senators – not a president, governor or U.S. senator – will top the ballot and turnout will be lower. Democrats, on the other hand, feel certain they are riding a wave that has yet to crest.

Says Democratic Delegate Mark Levine, “The GOP will support redistricting reform the moment it’s in the minority.” Meanwhile, the legislature is back where it was, having done nothing to address its own lack of political legitimacy.

 

 

 

 

 

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In the afterglow

Reflections on a short trip to the bottom of the Grand Canyon.

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