On Aug. 30, I and my colleagues in the General Assembly will return to the State Capitol in Richmond at the request of Governor Ralph Northam to un-gerrymander eleven House of Delegates districts that have been found by a panel of federal judges to be unconstitutional. The court’s action was based on a finding that the districts as drawn violated the equal protection of the law afforded to everyone by the United States Constitution. In the redistricting of 2011, the Republicans who had a majority in the House of Delegates packed African Americans in the Richmond-Hampton Roads regions into the eleven districts that have been found unconstitutional. From a partisan perspective the packing resulted in African Americans who historically vote Democratic to be limited in their influence over voting outcomes throughout the region. From a legal perspective African Americans were denied their constitutional protection from the gerrymandering that put them into fewer districts over which they might have an influence.
The requirement to un-gerrymander legislative districts in Virginia is not new. Most recently and earlier this year the congressional districts in the Richmond-Hampton Roads region were found to be unconstitutional. When the districts were redrawn Democrats won an additional congressional seat with an African-American candidate.
Unravelling a partisan gerrymander is not easy. With the congressional districts, the courts had to redraw them because the General Assembly could not come to an agreement as to how it should be done. There is serious concern as to whether the General Assembly will be able to redraw the district lines for the House of Delegates or whether it will revert to the courts for correction. With any of these revisions there are likely to be winners and losers, and legislative bodies have not shown the ability to draw lines that will disadvantage a member(s) in re-election. With the congressional redistricting, for example, one member of Congress lost a seat to the African-American candidate who ran in a newly redrawn district.
To correct the clear racial discrimination in the eleven districts that have been found to be unconstitutional, it will be necessary to redraw more than thirty district lines as currently constituted. As the redrawing takes place some voters will find themselves in new districts as will some incumbent legislators. The election outcomes are likely to be different as the racial bias of how the districts have been drawn is removed.
The courts have not taken up cases of gerrymandering when allegations of partisan discrimination are alleged. The courts are interested in issues of constitutional protections most often found when racial discrimination can be shown. Issues of removing partisanship from the redistricting process, as some have expressed it—to have the people choose their elected representatives instead of legislators choosing their constituents—have been resolved in other places by having an independent, nonpartisan commission draw the lines. I first introduced a bill to establish such a commission in Virginia in 1982 and have introduced such a bill many times.
The General Assembly must carry out its responsibility to undo the racially discriminating districts that currently exist. Additionally, it should take the next step to put an independent non-partisan commission in place.