Virginia Capitol Connections Winter 2019

Will gerrymandering cost Virginia Republicans in the House of Delegates? By Alex Keena and Elliott Fullmer

If there is a lesson to draw from last month's congressional elections in Virginia, it is about the unintended consequences of partisan districting. In 2016, a federal court ruled that the General Assembly enacted an illegal racial gerrymander when it drew the 3rd congressional district to have a super-majority of African- American residents. The court appointed a Special Master to redraw the 3rd district, and in the process, the boundaries for adjacent districts became more favorable for Democrats. The 4th district notably gained both Richmond and Petersburg, allowing Democrat Donald McEachin to win the seat by large margins in 2016 and 2018. Meanwhile, the 7th District lost Hanover and New Kent Counties—both Republican strongholds—to the 1st District, a move that undoubtedly helped Democrat Abigail Spanberger defeat incumbent Republican Dave Brat last month. Changes to the 2nd District were not entirely advantageous to Democrats, but the addition of Williamsburg—previously in the 1st District—helped Elaine Luria unseat the Republican incumbent Scott Taylor. Although the rules surrounding racial gerrymandering are complicated, the legal doctrine is well established. Under the Voting RightsAct of 1965 and its amendments, states may not draw legislative districts in a way that reduces the voting power of a racial or ethnic minority group, either by “cracking” (when a minority community is split into multiple districts to dilute its voting power) or by “packing” (when a minority community is concentrated into a single district to reduce its voting power in adjacent districts). Virginia’s former 3rd District, which consisted mostly of heavily African-American communities in Richmond, Petersburg, and throughout Hampton Roads, was ruled to be an illegal packing maneuver. Recently, a federal court ruled that several House of Delegates districts are also unconstitutional racial gerrymanders, and it has ordered the same Special Master to redraw the district boundaries to strengthen African-American voting power. In this regard, Democrats' gains in Virginia's congressional delegation may foreshadow similar gains in the General Assembly. Although Virginia Republicans have appealed this decision to the Supreme Court, which has agreed to hear the case, if the lower court's decision stands, it could mean huge gains for the Democrats in 2019. This is important because the GOP currently has a very narrow 51-49 majority in the House of Delegates. If Democrats flip two additional seats in the House and Senate (where Republicans currently hold a 21-19 edge), they will be well-positioned to advance policy priorities such as a minimum wage increase, paid family leave, anti-LGBT discrimination laws, and expanded early and absentee voting. Furthermore, the 2019 elections will determine which party will control the next round of redistricting in 2021, following the completion of the 2020 Census. Although it is difficult to predict precisely how the Supreme Court will respond to the GOP’s appeal of the racial gerrymandering The second wave of suburbanization into the Tenth district—which is defined less by middle-aged adults buying single- family homes “in the country” and more by younger adults moving into townhouses and apartment buildings close to highways, mass transit and suburban office jobs—is not a trend that plays to Republican political advantages. Two years from now, the demographics of this rapidly changing district will look even less appealing for Republicans than they were this year. Stephen J. Farnsworth is professor of political science at the University of Mary Washington, where he directs the Center for Leadership and Media Studies. Stephen Hanna is professor of geography at UMW. V Continued from previous page

ruling, this litigation has created a degree of uncertainty and instability for Delegates from both parties and threatens to undermine the relationships between citizens and their elected officials. These events underscore the harms of partisan districting on political representation and democratic governance. Although the Republicans used their power in the General Assembly to create an electoral advantage in Congress, as well as the House of Delegates, this advantage has been short lived. Moreover, while Democrats appear well-positioned to control redistricting in 2021, they too may face similar consequences if they aggressively manipulate legislative district boundaries to give themselves an advantage. Regardless of which party "wins" in

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the short term, in the long run the voters lose when their district boundaries are drawn by legislators for partisan advantage and when the courts must step in as a last resort to correct the most egregious harms. Fortunately, there are lessons we can draw from other states that have taken steps to resolve the problems of partisan districting. Recently, voters in Colorado, Ohio, Utah, and Michigan approved ballot initiatives that will take districting out of the hands of politicians and delegate the task to independent commissions. These states will join Arizona, California, Idaho, Iowa, New Jersey, and Washington, who already draw their districts through bipartisan or non-partisan commissions. Research suggests that these independent commissions tend to create more competitive, more compact districts than those drawn by partisan legislatures. In Virginia, redistricting reformers are advancing similar measures. OneVirginia 2021, an anti-gerrymandering organization, has already collected over 72,000 signatures in an effort to amend the state constitution to achieve the goal of independent districting. Specifically, the group proposes that future redistricting be conducted by a ten-person committee consisting of three Republicans, three Democrats, and four independents. Under this proposal, a map would require at least seven votes to pass, including at least one vote from both a committee Democrat and a committee Republican. Thus, rather than advancing the interests of the controlling political party, districting outcomes would reflect broad consensus between independent and partisan stakeholders and would likely level the political playing field in elections for Congress and the General Assembly. Like any amendment to the Virginia Constitution, passing One Virginia 2021’s redistricting amendment requires two votes in the General Assembly—one in 2019 and another in 2020. If the measure is approved both times, it then will be put before voters on the November 2020 ballot for final approval. Alex Keena is an Assistant Professor of Political Science at Virginia Commonwealth University. He is co-author of Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty (2016 Cambridge University Press) and his research focuses on political representation, legislative politics, and election law. Elliott Fullmer is an assistant professor in the Department of Political Science, and director of the Washington Initiative, at Randolph- Macon College.

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