Mary Elizabeth Braddon is one of those historical figures who is so fascinating, and so influential on our popular culture, that schools today dare not teach her work.
She was an English actress in the 1800s, which meant she was stigmatized right away because proper women didn’t do such things, although plenty of proper women enjoyed going to the theater. The Victorian era was a complicated time.
In time, Braddon moved on to writing novels because there weren’t enough strong female roles on stage. These weren’t polite novels for the parlor. Braddon wrote what were known at the time as “sensation novels” because they dealt with taboo subjects that made readers blush. Bigamy was one of Braddon’s favorite topics. She also liked murder, ghosts and pacts with the devil. Her personal life was something of a scandal by the standards of the time: She lived with a married man and introduced him as her husband, even though he wasn’t. Newspapers exposed the secret, but that did not diminish Braddon’s titillating popularity.
We remember Braddon today (well, some people do) because she is credited with coining what has become a common phrase, first published in a poem 150 years ago this year in 1876: “As low he bends o’er her he loves so dear, to whisper some sweet nothing in her ear.”
She liked the phrase so much she used it in other work, making it plural: “sweet nothings.”
What in the world, you’re wondering, does an obscure and somewhat tawdry Victorian writer have to do with Virginia’s present redistricting special election, which the headline promised that this column would be about?
Be patient, dear reader. One of the criticisms of the proposed map of congressional lines is that they are gerrymandered to knock four of Virginia’s five Republican House members out of office. That, of course, is quite true and Democrats have not been bashful about that goal. Some Republicans have contended that the map is so contorted that courts will eventually find that it violates the state constitution. After all, that esteemed document contains this reassuring provision when it comes to describing how district lines should be drawn: “Every electoral district shall be composed of contiguous and compact territory …”
Some of the districts on the proposed map certainly don’t look compact. No fewer than five of the districts snake out of Northern Virginia in long strands that extend deep into rural Virginia, for the purpose of “burying” the Republican voting rural voters in districts where the population base is in Democratic-voting Northern Virginia. The most famous of these districts is the so-called “lobster district,” a redrawn 7th District that starts in Arlington County (the tail), runs through the northern Piedmont (the body) and then has two claw-like extensions, the western one into Rockingham and Augusta counties in the Shenandoah Valley and an eastern one in Goochland and Powhatan counties in Southside.
These new districts are certainly less compact than many of their predecessors. The current 8th District and 11th District sure look compact on a map. They’re geographically small parts of Northern Virginia that have lots of people. The proposed versions of those districts are elongated strands that, in the case of the proposed 8th District, go all the way to the edge of Hampton Roads and, in the case of the proposed 11th, cross the Blue Ridge into the Shenandoah Valley.
For those of you who are counting on the courts to throw out the map (if redistricting passes on Tuesday) on the grounds that these districts aren’t compact, I regret to inform you of Braddon’s most famous phrase: These constitutional words about compactness are simply sweet nothings. The courts have said so.
Contiguous is definable enough; you can’t have a piece of a district here and another disconnected from it over there. However, the courts have taken, shall we say, a very flexible view of what constitutes compactness — and have generally ruled that, like beauty, compactness is in the eye of the beholder. More to the point, they’ve found that compactness isn’t something courts can define.
The pertinent ruling in Virginia is Vesalind v. Board of Elections from 2018. That case involved 14 Virginians who lived in a General Assembly district that they felt violated the constitutional guarantee of compactness. After a three-day trial, a Richmond judge said the evidence would “lead reasonable and objective people to differ” about whether the districts were or were not compact. He ruled against the plaintiffs. They appealed. The Virginia Supreme Court looked at the maps and came to the same conclusion as the trial judge.
“Compactness is a somewhat abstract concept,” Justice Bernard Goodwyn wrote in the court’s opinion. “Determining compactness does not admit to a bright line approach in determining whether a legislative district is, in fact, compact.” A social scientist who testified for the plaintiffs actually undermined their case, Goodwyn wrote. Testimony showed that “social scientists have developed at least 50 different methods of measuring compactness. The proliferation of measures does not provide clarity. It does exactly the opposite. In the social science community, there is no universal definition or consensus as to what constitutes the best measure for compact districts.”
The ruling went on for 25 pages (and a little onto a 26th), but the point was the same. The court was not going to become an arbiter of what constituted compactness. “Even if the districts in the 2011 Plan were not as compact as they could have been, as we have explained above, that is not what our Constitution requires,” the court’s opinion said. “Our Constitution speaks to the result of the redistricting process, and mandates that districts be compact in the end.” However, even then, the constitution does not require “that compactness be given priority over other considerations, much less establish a standard to determine whether the legislature gave proper priority to compactness.”
Many of the districts in the proposed map are clearly less compact than their predecessors, but the court in 2018 has said the constitution doesn’t speak to degrees of compactness — or even what compactness is.
A U.S. Supreme Court ruling in 2019 said essentially the same thing. Rucho v. Commonwealth was a case out of North Carolina that challenged Republican gerrymandering in the Tar Heel State. (For legal purposes, it also incorporates a similar case out of Maryland that challenged Democratic gerrymandering there.) I’ll spare you the legal citations, but the outcome was the same as in the Virginia case. In his opinion for a 5-4 majority, Chief Justice John Roberts said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
The courts have reserved the right to look at gerrymandering through a racial prism to make sure minority voters aren’t unnecessarily split among multiple districts or packed into a single one as a means to dilute their vote — although the current U.S. Supreme Court has become more reluctant to do that, at times. In any case, the proposed map wasn’t drawn with the intention of disadvantaging a racial minority in Virginia; it was drawn to disadvantage a political minority: Republicans.
Based on both the Virginia Supreme Court’s Vesalind ruling and the U.S. Supreme Court’s Rucho ruling, that means Virginia Republicans are almost certainly out of luck on a compactness challenge. They might have strong legal grounds on other points, such as the language on the ballot being misleading, or the question as to whether last October’s special session met the legal time frame for passing an amendment. As for arguing that Democrats are violating the state constitution’s provision on compactness, well, Mary Elizabeth Braddon had something to say about that 150 years ago. Those words are simply sweet nothings.
A final look at the early voting trends
This is the last weekend of early voting before next Tuesday’s special election on redistricting.
Got questions about redistricting? You can submit those here.
I’ll have my weekly update on early voting and other political news in West of the Capital, our weekly political newsletter that goes out on Friday afternoons. Sign up here:
