RICHMOND — With Saturday’s deadline looming large, the newly created Virginia Redistricting Commission is set to meet again this morning to review and debate the state’s new legislative maps. If the panel is successful in drawing new districts that will survive an up-or-down vote in the General Assembly, the commonwealth would enter further into uncharted territory – because the 100 House of Delegates races currently underway are based on what will soon be outdated legislative maps.
“This is an issue that folks have not really talked about very much which I think is going to be a real problem,” said Henry Chambers, a professor of constitutional law at the University of Richmond School of Law. “If the commission works well, we will have a set of maps in October. But we’ll have General Assembly elections in November run on the old maps. It’s going to be bizarre. There is a fight out there that’s going to brew.”
Until recently, the Virginia Constitution required the General Assembly to redraw Virginia’s state legislative and congressional districts every 10 years, using data from the latest national census. That changed after Virginians voted last year to amend the constitution to authorize the establishment of the Virginia Redistricting Commission – a bipartisan panel tasked with redrawing electoral districts.
Usually, new census data is released early in the year, allowing for enough time to consider the data to draw new districts reflecting changes in population. But this year – because of the ongoing pandemic – the new data wasn’t available until late August. That’s why the House races, including primaries, are being run in districts drawn using old census data from 2010.
“The late delivery of census data really hurt Virginia, because it’s one of the only states with state legislative elections this year,” said Kyle Kondik, a political scientist at the University of Virginia Center for Politics. “The whole point of redrawing every 10 years is to reflect population changes in the state. So whatever population imbalances exist in the state legislative districts currently are going to endure for at least another year, which means the votes of some are going to count more than the votes of others, effectively,” Kodik said.
One of the districts that would look very different on a map proposed by Democratic consultants is that of Del. Chris Head, R-Botetourt County. The map would keep Head’s residence in Botetourt but would gain a lot of new territory, such as Salem and Craig County, to meet its population minimum.
Yet Head remains unfazed by the prospects of taking in a different constituency. “I think these concerns are more applicable to the larger Senate districts,” he said in a phone interview on Wednesday. “In the House districts, there are always little tweaks, there are always new people that you represent. That’s just how redistricting goes.”
But some legal experts consider this issue a much bigger deal. Paul Goldman, an attorney from Richmond who once served as chair of the Democratic Party of Virginia, says that the commonwealth is on track to hold an “unconstitutional, illegal election” on Nov. 2.
“In the history of Virginia – probably of the entire country – we have never held an election under the old districts. People lose their rights because the government was slow to do the census,” Goldman said in an interview Thursday. “The voters last year didn’t only create the VRC, they also added some language to the state Constitution as to what they expect from officials on reapportionment. In Virginia, you are supposed to have redistricting done in time for the election, and make sure you do it correctly.”
Because he believes that state leaders, without any court permission, are holding an election under unconstitutional districts for “the purposes of getting their incumbent friends and cronies a two-year term,” Goldman in June filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against Gov. Ralph Northam and state election officials, alleging they knowingly ignored constitutional requirements when they allowed the elections to move forward using the 2010 maps. “They purposely didn’t seek any guidance and just let the election go on, hoping nobody would say anything,” Goldman said.
Virginia’s Attorney General Mark Herring, who had argued that state officials could not be sued in this case, declined to comment Thursday.
Goldman says the November elections should be stopped or postponed. “The federal courts have that option. We have to hold another election as soon as possible under the new constitutional plan.”
Kondik, the political scientist at the UVA Center for Politics, said that Virginia might solve this dilemma by having three straight years of state House elections, “because the new maps will be in place at some point over the next several months.”
While this at first glance might seem an impossible scenario, there is a historical precedent. In 1981, a federal court required Virginia to hold three consecutive House elections. In Cosner v. Dalton, the three-judge panel at the Eastern District Court had ruled that the General Assembly’s redistricting plan was illegal, citing a disparity between the number of people in different House districts (“one person, one vote”).
But because the 1981 campaigns were already underway, the court ordered that election to proceed based on the existing districts that it had deemed unconstitutional. It then ordered a new election for 1982, using the new maps that met the requirements of federal laws, plus another election in 1983 for the full, two-year terms. The consequence of this ruling was that delegates elected in 1981 served only one year, and those elected in 1982 under a legally-approved plan also served just one year.
“Until now, Cosner was settled law,” Goldman said. “This isn’t 1821, it’s 2021. I made an honest argument, and I’m shocked no one else did it.”
Chambers, the UR professor, raised another theoretical question that could spell more trouble. “What if, God forbid, some legislator dies just after the 2021 elections. Do you run the new election for the new person in the old district that they just had in 2021? Or under the proposed new district that will be in effect in 2023?”
The answer is to run them based on the previously drawn districts, Chambers said. “But that would just remind us again of how strange it is to have an election under old maps when you know that new maps are coming very soon, those new maps may essentially be right there, ready to be approved. It’s just odd,” Chambers said.
If the redistricting committee fails to agree on a set of maps today, the panel will reconvene Saturday morning, the day of the deadline.
Markus Schmidt is a reporter for Cardinal News. Reach him at markus@cardinalnews.org.