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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A few days in southern Utah . . .

. . . where a piece of the Trump administration’s environmental agenda is playing out, and where hordes of Americans (and foreigners) can’t get enough of the West. Fiery Furnace is a mind game

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Thoughts on visionaries

Linked from my other site: Ruminations on Rambling: Glimpes of genius in the Permian Basin

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Traveling the U.S.A.

I am traveling the country for two months, but politics is never far from my mind. See my other site, generally devoted to thoughts about bicycling, but in this case travels without Charlie: Temporary border in the Big Ben



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Virginia’s high court silently joins gerrymandering conversation

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Maps derived from Virginia Public Access Project

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.



Posted in gerrymandering, Supreme Court, U.S. Constitution, Virginia legislature, Voting, Voting Rights Act | Tagged , , , , | 1 Comment

That fantasy about the Second Amendment

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Government troops fire on Shays’ Rebellion (cite unknown)

I keep seeing these fairy tales about the origins of the Second Amendment — that its purpose was to guard against the tyranny of the government by enshrining an individual’s right to own a gun.

The Constitution was ratified in reaction to the weakness of the Articles of Confederation. A bunch of ragtag former colonies had somehow managed to wear down the British over five years under a skeletal cooperation agreement, during which the Continental Congress spent much of its time pleading for money from the 13 former colonies.

Then critics managed to convince the states to appoint delegates to a constitutional convention separate from the state legislatures, which were jealous of their sovereignty. They met in secret and came up with a plan that barely achieved ratification. Thus the United States was born.

Virginia and New York were the last of the 11 states that with varying reservations put the Constitution into effect (it required nine but practically could not have succeeded without those two), and Rhode Island and North Carolina were still recalcitrant. So during the First Congress, while Hamilton was constructing the executive branch and Madison was pushing legislation through the House to create a government from scratch, Madison also convinced Congress to take up the Bill of Rights (originally 12 amendments but finally 10).

The First and Fourth through Eighth are a logical piece of poetry about the rights of individuals. The Ninth and Tenth are about the relationship between the states and the federal government. The Second and Third dealt with problems that had confronted the colonies/states.

The Third, which we never talk about anymore, prevented the government from housing soldiers in your home — a cause of the revolution. It’s the forgotten amendment.

The Second was forgotten for more than 150 years. Its purpose was to ensure that the federal government, which barely functioned and was in debt (to Americans, British merchants, the French, etc.), had access to a standing army to confront enemies foreign and domestic. And there were both.

The British, still pissed about their humiliating defeat, continued to foment trouble on the western frontier. Domestically, throughout the post-war period, the states and their people were angry about paying taxes (some things never change).

In 1786-87, Daniel Shays led a band of rebels against the government of Massachusetts over taxes. Shays’ Rebellion drove General Washington out of retirement. The Constitutional Convention followed shortly.

So the Second, in a period while Congress hadn’t even gotten to the argument about whether to have an army, was intended to create an alternative: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The idea was that the states could be called upon to support the feds. It was not so that people would have the right to prosecute an insurrection against the government that THESE LEADERS HAD JUST CREATED.

After The Federalists were dispatched in 1800, Jefferson came to see that a standing army and navy was a good idea, handy for fighting on the shores of Tripoli. His successors found them useful for battling Britain and soon enough Indians. State militias were the backbone of the Civil War.

We went along that way, thinking no more of the Second than of the Third until the 1970s when, after an internal battle at the NRA that coincided with a period of domestic unrest and the truncated reign of a “law and order” president with paranoid tendencies, an argument was conceived that the amendment was about protecting your right to own a gun. That hadn’t been an issue for 350 years in a country whose expansion was forged at the barrel of a gun, individually and collectively.

And now we have a Gun Manufacturers Association whose purpose is to sell guns by stoking fear of your fellow countrymen. Next up: arm teachers. Because the only way to stop a bad man with a gun is to have a good man with a gun.

Tell that to Ronald Reagan’s Secret Service detail.

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