Virginia is presently holding 47 primary elections across the state for party nominations for seats in the General Assembly. Early voting opened May 5, hence the “presently.” For those who prefer a more traditional election, June 20 is the day.
One of those 47 General Assembly primaries is for the Republican nomination in House District 39, a district just east of Roanoke that leans strongly Republican and has no incumbent — nor, at present, any Democratic candidate, which means the Republican primary really is tantamount to election. Will Davis and Ron Jefferson are competing for the nomination in a district that covers 39,997 voters in Franklin County, 22,433 voters in Roanoke County … and two voters in Bedford County.
That’s not a mistake. Well, actually, yes, it is a mistake, but not a mathematical one.
It’s also a mistake (more on the nature of it to come) that is duplicated in state Senate District 3. In that strongly Republican district, both parties have already set their nominees: Del. Chris Head of Botetourt County for the Republicans, Glasgow Vice Mayor Jade Harris for the Democrats. They’ll be competing in a district that includes — deep breath — 30,463 voters in Roanoke County, 26,308 voters in Botetourt County, 21,195 voters in Augusta County, 18,146 voters in Staunton, 16,233 voters in Rockbridge County, 15,518 voters in Waynesboro, 11,032 voters in Alleghany County, 4,424 voters in Buena Vista, 4,199 voters in Lexington, 3,966 voters in Craig County, 3,882 voters in Covington … and two voters in Bedford County.
So what’s with these two voters in Bedford County who are singled out in both districts?
This isn’t news. It was first reported last year, but the problem remains — and now we have some new information.
Let’s review: The redistricting plan that the state Supreme Court approved in December 2021 — drawn by two court-appointed “special masters,” one representing each party — is based on census tracts. Every locality contains a bunch of census tracts and each tract contains various census blocks; that’s how the Census Bureau assembles data. They are convenient statistical building blocks because they don’t cross county or city lines. Except here one did.
Last year, when Bedford County registrar Barbara Gunter was looking at how the new maps split her county between the 5th Congressional District and the 9th Congressional District, she discovered an odd little discrepancy: On the western edge of Bedford County, the census block lines inexplicably deviated from the Bedford-Roanoke county line. That meant one Roanoke County census blocks slipped across the county line and picked up one house — and its two voters — in Bedford County. That also meant that when 6th District Republicans held a primary last year, Bedford County had to open a precinct for just those two voters, even though they said they didn’t intend to vote.
I wrote about the situation then, pointing out that these voters were being deprived of a secret ballot.
Indeed, while the two voters said they weren’t planning to participate in the Republican primary, one of them did vote in the November election — and we know who for. The State Board of Elections dutifully records the county-by-county vote in the 6th Congressional District as: Ben Cline 1, Jennifer Lewis 0, write-ins 0.
Let me say again: That voter is being deprived of a secret ballot.
(These two voters were identified in other reporting last summer; I’m not inclined to name them here.)
Now another primary election is in progress and, once more, Bedford County must open a precinct for just two voters.
I checked back in with the registrar and learned that since last year, she’s figured out why the census block doesn’t match the county line the way it’s supposed to. She forwarded an email from the Census Bureau that said “it appears that this boundary was inadvertently adjusted during a geographic processing or cleanup operation.”
The Census Bureau says it’s since fixed the problem, so the census blocks will now be right — for the redistricting after the 2030 census.
However, that doesn’t change the lines for the rest of the decade. Those lines, based on the census blocks that existed in 2021, are set, not in stone, but something more permanent: a court order.
Our current redistricting is the first one since a constitutional amendment set up a new redistricting method for Virginia, one that took the power away from the General Assembly (realistically, the majority party in the General Assembly) and gave it to a bipartisan commission. That commission predictably deadlocked, so the task fell to the Virginia Supreme Court, which appointed the two aforementioned special masters, then issued a court order affirming the results of their work.
Let me restate that more clearly. Previous maps were drawn by an act of the General Assembly — and acts of the General Assembly can be amended. These maps were ordered by the Supreme Court and the constitution makes no provision for amending them. Indeed, that would defeat the purpose: to get the General Assembly’s grubby hands off the process.
That means we’re stuck with this oddity of two voters who have their ballots exposed, unless the Supreme Court issues an order amending its previous order.
I consulted with three of Virginia’s best-known legal experts on constitutional law: Carl Tobias at the University of Richmond, Henry Chambers at the University of Richmond and Rebecca Green at the College of William & Mary. Each one was baffled, each one was intrigued and each one passed the question off to someone else who they felt certain would have a better answer.
Their consensus: The current situation seems plainly unconstitutional. The Virginia Constitution clearly says: “At the time any precinct is established, each precinct in a county shall have no fewer than 100 registered voters and each precinct in a city shall have no fewer than 500 registered voters.” That doesn’t address split precincts, which technically this is, but the Constitution is also clear in another place: “Secrecy in casting votes shall be maintained …” That’s clearly not happening here.
The legal experts were also skeptical whether the Supreme Court would do anything without the two voters filing suit. Courts are set up to react to litigation, not initiate it. Courts judge, they don’t govern. “Typically, the Virginia Supreme Court could not weigh in spontaneously,” Green said. “It would need jurisdiction over a case brought by an injured party (affected voter or perhaps someone else who could make a plausible claim to be negatively impacted). Then again, these are the court’s maps.”
Indeed, they are.
So, out of our thousands and thousands of readers every day, I’m really hoping that seven in particular read this column: the seven justices of the Virginia Supreme Court.
Through no fault of your own, you have enacted a redistricting plan that strips two voters of their constitutional right to a secret ballot. Can you fix that?