VCC Magazine Spring 2018

Small Steps towards Electoral Reform in Virginia By Mark Rush

by primary. Regardless, our political parties had no control over who would bear their brand. Incumbents in Virginia tend to win general elections by blowout margins. As a result, the Incumbent Protection Act essentially wiped out any opportunity for voters to have any meaningful choice because we were unlikely to have

Electoral reform is seldom a topic that generates much excitement. Invariably, it concerns only the small number of people who are dedicated students of elections and politics. Gerrymandering, of course, preoccupies the public precisely because it generates notions of crooked politicians drawing crooked district lines to favor one party or one candidate at the expense of another. Ridiculous district shapes are the smoking gun of gerrymandering controversies because they are anything but subtle. When a district looks like a “toilet bowl,” a “dumbbell,” or a “sea monster,” or if a district is contiguous only at low tide, the accompanying news coverage is always entertaining. Alas, the grotesqueness of the gerrymandering of district lines obscures the simplistic nature of the gerrymandering controversy. District shape is as much a function of geography as it does with the intent of the people drawing district lines.You can’t draw a district near the Chesapeake Bay without a crazy shape. Also, it is essentially impossible to comply with the Voting Rights Act’s requirement that states promote representational opportunities for minorities without using bizarre shapes. Minority voters do not choose their homes based on whether or not they are located in places that make it easy to draw straight district lines. Accordingly, electoral fairness sometimes requires the creation of bizarre districts even though they look like districts drawn to do harm to one’s opponents. The real threats to the integrity of our elections are much more subtle and pernicious than strangely shaped legislative districts. Instead, they are hidden in the arcane minutiae of that favor the major parties or incumbent legislators. Such laws are no more grotesque than the print on the page where they are written. Yet, their intent can be devastating. Intent was the focus of the recent decision in the U.S. District Court for the Western District of Virginia, Fitzgerald v. Alcor n. There, the court struck down Section 24.2-509 (B) of the Virginia Code, known as the “Incumbent Protection Act.” The law enabled incumbents to choose the manner by which they would stand for re- nomination regardless of the preferences of their party organization. The key passage of the provision read: A party shall nominate its candidate for election for a General Assembly district where there is only one incumbent of that party for the district by the method designated by that incumbent, or absent any designation by him by the method of nomination determined by the party. A party shall· nominate its candidates for election for a General Assembly district where there is more than one incumbent of that party for the district by a primary unless all the incumbents consent to a different method of nomination. A party, whose candidate at the immediately preceding election for a particular office other than the General Assembly (i) was nominated by a primary or filed for a primary but was not opposed and (ii) was elected at the general election, shall nominate a candidate for the next election for that office by a primary unless all incumbents of that party for that office consent to a different method. The impact of this law dwarfed that of even the most contorted, gerrymandered district. It erected a tremendous barrier to entry to anyone who wanted to challenge a party’s nominee. Incumbents had home field advantage and they got to set the rules of the political game. One result is that primaries have been rare inVirginia congressional and legislative elections. This is not surprising. Primaries promote competition for office. They are therefore expensive because they force candidates (including incumbents) to get out and campaign. In addition, if a political party had a falling out with its incumbent, it could be stopped from nominating someone else if the incumbent chose to go around the party organization and seek re-nomination

competitive primary elections or general elections. The abysmal participation rates in our state legislative elections manifest this. The Fitzgerald decision is therefore an important, necessary step towards revitalizing electoral democracy in Virginia. It deserves celebration. There is, however, much more work to do. Our elections remain uncompetitive because of the overwhelming power of our incumbents. That is not necessarily a bad thing: if our incumbents do a good job, we would hope to return them to office. Nevertheless, since our voting districts are drawn by the hands of the party controlling the state legislature, we really cannot tell whether districts are uncompetitive because the incumbents are doing an outstanding job or because their districts are drawn to minimize partisan competition. This is not an indictment of the work of our elected officials. There is tremendous pressure to get a lot of work done in a short legislative session. The terms of the House of Delegates are only two years. As a result, our delegates barely finish their first session before they have to file to run again and then campaign for re-election. It therefore is no surprise that they prefer safe districts so they can dedicate the time necessary to serve their constituents and the Commonwealth. To maintain the momentum of the Fitzgerald decision, I suggest two additional reforms. First, the Commonwealth should follow the lead of many other states and empower a nonpartisan commission to oversee redistricting. This would remove the veneer of conflict of interest that currently characterizes the process in Virginia. In addition, we might consider lengthening at least the terms of the House of Delegates. Were they to serve three or four-year terms (instead of two-year terms), they would have more breathing room to focus on their legislative agendas instead of being in what amounts to an almost constant state of campaigning. The Fitzgerald decision is an important step forward towards revitalizing elections in Virginia. There are, of course, many other potential reforms that would give voters a more meaningful choice on Election Day. The state legislature could take the steps necessary to implement the two I suggest with little trouble. If it chooses not to do so, we will have to rely on the courts, as we did in Fitzgerald, to inch the commonwealth towards a more vibrant democracy. Mark Rush is Waxberg Professor of Politics and Law and Director of the Center for International Education at Washington and Lee University.

V

B ERNIE H ENDERSON Chief Executive Officer Funeral Celebrant

1771 North Parham Road Richmond, Virginia 23229

Phone: (804) 545-7251 Bernard.Henderson@dignitymemorial.com

V irginia C apitol C onnections , S pring 2018

16