Local Commentary

Guest Commentary: Guardrails Can’t Prevent Amendment’s Gerrymander

By Mark Levine

I have widely expressed my concerns about the Republicans’ constitutional amendment on Virginia redistricting. Hastily written on the last scheduled day of our 2019 session, the proposal was quickly shoved before the legislature, giving us little time to read it and no time to change it. There was no hearing on its pros and cons. After the Republicans killed OneVirginia2021’s proposal, as well as several other redistricting measures, Republican Delegate Mark Cole hurriedly slapped together a fourth amendment to the Cole/Barker bill that became the only constitutional amendment redistricting proposal still standing as the session came to a close.

Given our short time to review it and its competition with the literally thousands of other bills we voted on in six short weeks, perhaps it’s unsurprising that so many of us (including me) voted for the amendment its first time around. Most of us Democrats have long opposed gerrymandering, and unlike ordinary bills, Virginia’s constitutional amendments must pass the legislature in two successive legislatures to succeed. We knew this was just the first step in a two-stage process: if the amendment turned out to be unfixable with accompanying legislation, we could just vote against it the following year and pass a better plan instead. And that’s what I told my constituents in the newsletter I sent days after voting for the measure.

How is the amendment flawed? Without repeating all the many arguments I’ve made elsewhere, my problems with the proposed constitutional amendment are relatively simple. The so-called independent commission consisting of legislators — and citizens chosen by these legislators — is easily defeated if just two legislators (Todd Gilbert and Kirk Cox, for example) appoint themselves to stymie the commission. Then the entire map-drawing process devolves upon the Virginia Supreme Court, which is free to establish whatever maps it likes under zero conditions, except it must avoid racial gerrymandering. Once they make their determination, the die is cast: there’s no appeal to any state or federal court. And neither the Governor nor the state legislature can change or affect the Supreme Court’s decision in any way.

With the entire conservative Virginia Supreme Court chosen by the formerly Republican legislature, each individual justice’s reappointment is far less likely under Democratic rule. Their easiest way to ensure reappointment is to draw lines so that Republicans again regain their majority. A heavily unfair Republican gerrymander would accomplish exactly that. That way, even if Virginia votes 60 percent for Democrats, the Republicans can take back the majority in 2021 and never relinquish it.

But why can’t the Virginia Legislature put guardrails around the Virginia Supreme Court? Although Brian Cannon and I have debated this issue at length, the answer is really quite simple: because the Constitution trumps the law. Any law purporting to restrain the Virginia Supreme Court’s redistricting power after the amendment passed would become, by definition, unconstitutional.

The amendment itself sets no guardrails. It in no way purports to make gerrymandering illegal. It does not even require the Virginia Supreme Court to do its redistricting based on law. It merely says “the districts shall be established by the Supreme Court of Virginia.” (See for yourself. It’s in Section (g).) And note the word “established.” Courts rarely have the power to “establish” anything. They don’t normally legislate like that. Courts usually decide cases based on lawsuits others file. It’s an express limitation on their power. But by putting this “right to judicial gerrymander” in our Virginia Constitution, we could greatly expand the power of this very partisan court. We’d give them the power, in effect, to reappoint themselves through gerrymandering forever.

Even OneVirginia2021 agrees this amendment is far from perfect. They concede the necessity of additional guardrails legislation. But there’s an easy answer to address both their concerns and mine: Pass the guardrails. Leave the flawed amendment behind.

We can pass guardrails in 2020 to set the legislative parameters for 2021 redistricting. I prefer using a computer to ensure mathematical fairness, a panel of special masters, and/or a truly independent commission.

But whatever the proposed legislative fix, let’s see if our model works well prior to baking it into our constitution forever. After all, if the flawed amendment leads to a heavily Republican gerrymander, it would be virtually impossible to get a returning majority-Republican legislature to relinquish their power again. If Republicans receive fewer statewide votes than Democrats and only take power through judicial gerrymander created by this constitutional amendment, why would they ever agree to change the constitution back?

Based on our 2021 redistricting — and a few tweaks to guardrail laws if necessary, we’ll have plenty of time to pass the best possible constitutional amendment in time for 2031.

Haste makes waste.

Mark Levine represents Virginia’s 45th district in the Virginia House of Delegates.