Away from the bright lights and hubbub of Virginia’s gubernatorial race, the commonwealth’s new redistricting commission is going about its task of redrawing the district boundaries for the General Assembly. It’s supposed to have drafts ready by Oct. 10.
I have been skeptical of the commission’s ability to meaningfully change Virginia’s political culture, and Democratic state Sen. George Barker of Fairfax’s recent move to make sure he wasn’t redistricted out of a job is a case in point. Fortunately, and in the commission’s favor, Barker’s self-interested move happened in the full light of day rather than a political consultant’s office.
That’s good, and we should expect even more transparency as the commission continues its job of drawing new boundaries in time for the 2023 elections.
Wait — 2023? What about the elections this November? That’s the story no one in Capitol Square really wants to talk about.
This year’s House of Delegates races — primaries and the general — are being run in districts drawn using 2010 census data. That’s a constitutional problem. And state lawmakers have known about it for months.
Only Del. Lee Carter, D-Manassas, has pushed the issue. In April, Carter sent a letter to Attorney General Mark Herring, a Democrat, asking for a “formal opinion” on the “constitutionality of the 2021 elections for the House of Delegates being conducted under electoral districts established in 2011.”
Herring, who is running for re-election, has issued no such opinion, which doesn’t square with his legal responsibilities to do so.
Why the cold shoulder? A possible answer comes from Marcus Simon, D-Fairfax, a redistricting commission member, who in March said, “Everybody’s taken the conservative approach; the less said, the better.”
And when Virginia’s political class decides it’s above the law, that’s when the public interest lawyers, voting rights groups and others concerned about democracy leap into action. So far, though, the only one doing so is my friend and former writing partner, Paul Goldman.
Goldman is suing Democratic Gov. Ralph Northam and the State Board of Elections in U.S. District Court, alleging Northam and the Board of Elections knew exactly what they were doing in ignoring the constitutional requirements and hoped no one would notice, and, if they did, would shift the blame to the Census Bureau and the coronavirus for delaying the data.
It might even have worked had Goldman not been on the case and brought a federal court’s attention to 1981’s Cosner v. Dalton. In that case, a three-judge panel ruled that the General Assembly’s redistricting plan was illegal, and its remedy was to require the state to hold House elections in 1981, as scheduled and under the old boundaries for a single-year term. Elections would be held again in 1982 under new, legal maps, for another one-year term, and again in 1983 for full, two-year terms.
The cynic would say House incumbents don’t want to do any of that this time because they might face primaries in 2022 or, worse, lose in new districts. Barker’s incumbent-protection effort clearly demonstrated that attitude. And the Senate isn’t up for election until 2023.
As for the rest of the political class, it’s all a big win. Republicans will benefit from running in districts they drew in 2011 that do not reflect the population shifts away from their rural bases and toward Northern and central Virginia. And Democratic incumbents won’t have to work nearly as hard to get reelected.
Unless someone — Northam, a state legislator, a redistricting committee member — asks Herring to answer the question put to him in April or petitions a court to ask for guidance on what to do, Virginia’s politicians may be openly and consciously violating the constitution and court precedent for their political benefit.
Somewhere, the ghost of Harry Byrd is smiling at his political descendants’ ability to keep voters ignorant and docile. Meanwhile, the shade of Henry Howell, who fought to keep the big boys honest, is howling for justice.
Norman Leahy’s column is syndicated by The Washington Post.