On Friday, Virginia's Democratic legislature moved forward with reforms to the state's redistricting process by approving a constitutional amendment that the Republican-led legislature had passed in 2019 before the GOP lost its narrow majorities in November.
Unusually, nearly all Democrats in the Senate supported the amendment, while all but a handful of Democrats in the House opposed it. Voters will now decide whether to adopt the new amendment this fall. If they do, it would take effect in time for congressional and legislative redistricting following the 2020 census.
As we've previously detailed, the constitutional amendment would create a bipartisan 16-member commission for congressional and legislative redistricting, with half the commissioners consisting of legislators from each major party and half of citizens picked by retired judges. Maps would be subject to approval by the legislature without gubernatorial veto, but lawmakers could not draw their own.
The amendment turned out to be weaker than what reformers had proposed by dropping a number of criteria, including a ban on maps unduly favoring one party; a requirement to try to keep cities and counties whole; and a mandate to preserve communities of interest. As a result, nothing would prevent bipartisan gerrymandering to protect incumbents, though it would take bipartisan support for the commission to recommend a map to lawmakers, potentially limiting the chance for one-party distortion.
Democratic lawmakers thus passed statutory criteria legislation along party lines seeking to address some of these concerns by requiring the commission members to reflect Virginia's demographic and geographic diversity; banning maps that intentionally and unfairly favor a party or candidate; increasing transparency; and ending prison gerrymandering by counting incarcerated people for redistricting purposes at their last address instead of where they are imprisoned and can't even vote.
Democrats also passed a so-called enabling bill for the commission that includes the same nonpartisan criteria above, which the state Supreme Court must also follow if commissioners fail to pass a map. That last provision is critical because Democrats are concerned that the state's highest court, which is dominated by conservatives, would draw maps that unfairly favor the Republican legislators who elevated them to the bench to begin with. (Virginia is one of the few states in which legislators choose judges.)
The amendment was approved after Democrats tried and failed to pass an alternative amendment that they argued was superior. While that substitute would have enshrined the nonpartisan criteria into the state constitution, it would have also effectively let the legislative majority appoint a majority of commissioners, leaving little doubt that it would have ultimately let Democrats pass maps without Republican support. Furthermore, it wouldn't have taken effect in time for the next round of redistricting in 2021, prompting a handful of House Democrats to side with Republicans to block it.
Given the bipartisan support for the redistricting reform amendment, it is likely to pass at the ballot box in November. If it does, the new system will prevent Democrats from gerrymandering and should ensure maps that are relatively fair both on a partisan basis and to racial minorities. However, the strengthened criteria are only statutory, and unless they're added to the constitution in the future, Republicans could repeal them if they regain full power.
Correction: A previous version of this story incorrectly stated that the governor could veto maps approved by the proposed new Virginia redistricting process.
