With Hopes for Behind the Scenes Compromise on Redistricting Fading, a Murkier Supreme Court Process Awaits
Last week the Virginia Redistricting Commission made it clear they didn’t they would reach a compromise between the two hard partisan halves on congressional maps. But while they canceled all of their remaining meetings, they left themselves an avenue.
If two commissioners could agree on a single map for the commission to consider, the co-chairs would reconvene the body to tweak it and hopefully submit a proposal to the General Assembly for approval.
More the most part, Democrats on the commission said that they wouldn’t accept a congressional map that didn’t more or less guarantee them five of Virginia’s 11 seats in Congress, with the opportunity to win two more, mirroring their current balance in Virginia’s delegation.
Republicans said they would only draw a map with one competitive district, arguing the makeup of Virginia’s lawmakers in Washington has historically been much more Republican than the delegation of late.
After a number of speeches bemoaning partisanship on the commission, and in some cases’ commissioners’ own hopes for the commission, co-chairs moved towards canceling all of the remaining meetings of the commission.
But then Democratic Senator George Barker said something that seemed to defy math.
“I think that there are possibilities as it relates to ending up with a map that is somewhere between 5-4-2 and 5-5-1 and being able to address it that way,” he said. “I think we can reach an agreement on something.”
Throughout the redistricting process, Barker consistently was more of an optimist that some sort of compromise could be reached, sometimes voting against his democratic colleagues, but he sounds less hopeful these days.
“Well we haven't resolved it yet, so I'm not sure whether it will go forward this way or whether it will also end up going to the Supreme Court,” said Barker of the partisan balance differences, and the future of the areas in Representative Abigail Spanberger swing district. “I think there's a good chance it will end up going to the Supreme Court.”
The Supreme Court of Virginia is already responsible for drawing maps for the House of Delegates and the State Senate, after the commission failed in dramatic fashion before its first major deadline.
The process was enshrined in law as a backstop for failure by the commission, giving Virginia’s seven Supreme Court Justices the responsibility of drawing new political districts.
Some parts of the process are clear: the justices will appoint two people called “special masters,” to draw draft maps, from lists submitted by Democratic and Republican leadership in the House and Senate. The leadership has seven days - until 11:59 pm on November 1st - to nominate lists.
But it's unclear what the leadership is considering or the criteria they are using. In the runup to the deadline, when asked about what criteria the Speaker of the House, Eileen Filler-Corn, would use when nominating special masters, her communications director expressed hope commissioners would “find a way to send a fair legislative and congressional plan to the General Assembly for approval."
Representatives of the Republican House and Senate leadership didn’t respond to multiple requests for comment.
Jacqueline Hixson Woodbridge, the communications director for the senate Democrats said she wasn’t sure what senate leadership was considering, or if the House and Senate would cooperate with lists.
“With the House having their election next week it will be an added hurdle for us to be able to get together with them,” she said.
The court outlined its own rules for the process in February, but there are a few gaps in the process.
There’s no set timeline for when the justices need to pick the new map drawers after they are submitted.
Greg Lucyk, a former chief staff attorney for the Supreme Court of Virginia and a board member of OneVirginia2021, which pushed the redistricting amendment that created the commission, said it could happen during the upcoming Supreme Court session.
“It may well be that the court will take up at that time during it's November 8th session considering who to appoint for special master and whether it might issue additional policies or procedures for how it will conduct this process and how the public can participate in that sort of thing. So we could see some movement pretty quickly on that.”
How many maps the special masters will submit isn’t outlined, raising questions since each special master will be nominated by a different political party. Who the special masters are allowed to communicate with isn’t outlined either, nor is what information they can utilize.
In its rules from February, the court said it’s clerk could file for a Freedom of Information Act request for records from the commission, the General Assembly, and the Department of Legislative Services, the staff agency which did much of the commission’s work behind the scenes.
This could include the hundreds of maps already submitted to the commission, or drawn by its map drawers, and thousands of citizen comments. The courts rules say that public comment could be received in writing and if one special master asks for public hearings they will be held.
In the last decade, a federal court has redrawn districts for the House of Delegates and Congress through a special master. Generally though, drawing new maps is new territory for Virginia's Supreme Court, although it has ruled on redistricting issues.
“All of these cases, they were resolved without the court actually having to engage in creating a remedial plan or drawing districts,” said Lucyk. “This will be the first time, at least in my understanding, that the court is tasked to draw legislative districts.”
Lucyk said Virginians should feel confident in the court's ability to draw the new maps.
"The justices have taken an oath to uphold the law and the constitution. and that's exactly what they're doing. They have specific criteria. They have a specific set of data and they have experts who will assist them in this process."
Once the special masters are chosen, and receive their instructions, the map drawers will have 30 days to complete their work.