Gerrymandering has broken through the din of partisan grenade-throwing to become a top-tier issue of voter concern across the political spectrum. If we cannot fix this party- and incumbent-protection racket, We the People are coming to understand, we will cease to be a representative democracy in which one person/one vote has any meaning.
This term the U.S. Supreme Court is hearing political gerrymandering cases from Wisconsin, Maryland and North Carolina, and one involving Texas’ indefatigable effort to suppress the franchise. This week it received a second appeal from Pennsylvania Republicans of their state’s supreme court rejection of one of the most distorted U.S. House maps in the nation.
Meanwhile, the Virginia Supreme Court is about to decide a narrower question: whether the 2011 maps for the House of Delegates (drawn by Republicans) and Senate (drawn by Democrats) were so gerrymandered as to fail the state constitution’s requirement that districts be compact.
The court heard 40 minutes of oral argument in Vesilind v. Virginia State Board of Elections on March 1, nearly a year after a state district court in Richmond decided against the plaintiffs in 11 districts – five House, six Senate – and for the defendants, who in the case of the House plan had been joined by the House of Delegates and its speaker as intervenors.
“When a statute’s constitutionality depends on fact, the legislature’s factual determination will be set aside if it is clearly erroneous, arbitrary or wholly unwarranted,” wrote Circuit Judge W. Reilly Marchant. Relying on 1992 and 2002 Supreme Court precedents, he wrote that “if the evidence offered in support of those facts would lead reasonable, objective persons to reach different conclusions, then the legislative determination is ‘fairly debatable’ and must be upheld.” Marchant found the constitutional validity of the 2011 maps “fairly debatable.”
On appeal before the Supreme Court, the Vesilind plaintiffs contended that the trial court had erred by failing to shift to the legislature the burden to produce evidence of reasonableness. In fact, wrote A.E. Dick Howard, a University of Virginia law professor who was principal drafter of the current state constitution, the General Assembly submitted no evidence at all. (Judge Marchant had found the Senate in civil contempt for its failure to provide documents in discovery, a finding the Supreme Court vacated on grounds of legislative privilege.)
Howard, who with three other law professors submitted an amicus brief, wrote: “[T]he circuit court did not require the Legislature to identify any standard guiding line-drawing decisions to ensure compliance with the constitutional compactness command before declaring the issue to be ‘fairly debatable.’ The circuit court’s failure to do so permits the Legislature to claim that it satisfied the constitutional requirements without having to demonstrate that it made any bona fide attempt to do so.” [Italics in original.]
In the appellants’ brief, Wyatt B. Durrette, Jr., wrote: “The evidence before the trial court established that the Legislature subordinated the required criterion of compactness to discretionary criteria in violation of the Virginia Constitution. Without correction, the trial court’s erroneous decision allows the Legislature to continue undermining representative democracy and the Virginia Constitution.”
To the layman, the 11 districts, which include the 72nd House (a.k.a. the “toilet bowl”) but not the 73rd, are laughably not compact. The legal question turns on: how compact is compact enough?
For that legislatures and courts (as may be required) turn to Ph.D.s in legislative map-making, who have devised formulas to express deviations from a mathematically pure ideal: the circle. And courts, for their part, grow uncomfortable at the prospect of overturning legislative prerogative.
In the Vesilind trial, both sides presented learned map analysts to walk the court through mathematical tests that go by the names Reock, Polsby-Popper and Schwartzberg, all of which are used to arrive at a deviation from perfection. Said Vesilind, the 2011 maps fail the tests. Said the legislature, no they don’t. Said Judge Marchant, it’s debatable.
Said Chief Justice Donald W. Lemons at the Supreme Court, “Thank you.” There were no questions from the seven justices.
After the argument, Durrette held a briefing before plaintiffs, amicus lawyers and other supporters of OneVirginia2021, the Richmond nonprofit that is leading the state’s grassroots-based, nonpartisan charge against political gerrymandering (and my favorite charity).
Durrette, an eminent figure in the Virginia bar who served three House terms and ran unsuccessfully for attorney general and governor as a Republican, suggested that the high court’s decision will turn on whether to accept the math of the plaintiff’s expert witness, Michael McDonald, whose testimony the defense tried and failed to exclude at trial. McDonald had testified that the “degradation of compactness from ideal” could not be attributed to “required” criteria – the supreme mandates of federal law (equal population and Voting Rights Act compliance) or the state constitution’s “contiguous and compact.” Rather, the maps elevated certain “discretionary” criteria – such as economic, social, cultural, geographic, governmental jurisdictions, and – bingo – political beliefs, voting trends and incumbency.
Alternatively, Durrette said, the court could accept the legislature’s argument: it met the standards of compactness the Supreme Court upheld in Jamerson v. Womack and Wilkins v. West, which grew out of the legislature’s 1991 and 2001 maps. Even so, Durrette said during oral argument, those precedents do not apply in Vesilind. The earlier cases involved compactness standards in the context of Voting Rights Act requirements, which in the Vesilind districts are not applicable.
The Voting Rights Act is at the heart of a separate case involving 11 other House of Delegates districts. In Bethune-Hill v. Virginia State Board of Elections, the plaintiffs unsuccessfully argued before a federal district court in Richmond that the House had unconstitutionally “packed” minority voters into those districts by using a “floor” of 55-percent BVAP (black voting age population), thus diluting their representation across a wider number of districts. But on appeal, the U.S. Supreme Court ruled that the three-judge panel had used the wrong standard. (It reduced the districts at issue from the original 12 to 11.) On remand, the parties completed post-trial briefs in December, and the district court’s decision is pending.
In both cases, plaintiffs have asked the courts to toss the maps and call elections. At stake are not only the districts under review but of course those that are contiguous – that other word in the constitution’s map-drawing mandate.