Know the Facts About the Proposed Constitutional Amendment on Redistricting

In 2020, redistricting reform is more important than ever, given that our democratic institutions are facing grave threats and citizens’ faith in government is shattered. And in the age of 24 hour information, it can be confusing to get the facts about major structural changes to our democracy like redistricting reform.

Fair Maps VA encourages voters to be informed about the proposed constitutional amendment before voting this fall, and we hope these FAQs provide clarity.

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• What is redistricting and why does it matter? And what IS gerrymandering?

• What is the political process to end gerrymandering in Virginia?

• Are both parties guilty of gerrymandering?

• What is wrong with the current system of redistricting in Virginia?

• Why are you supporting the constitutional amendment that passed the General Assembly in 2019 and 2020?

• Why are you proposing a constitutional amendment instead of a bill?

• Is the amendment a Democratic or Republican proposal?

• Is this amendment popular among Virginia voters?

• Is the amendment supported by both parties?

• How will the commission be composed?

• Why does the commission have legislators on it at all?

• Does the amendment include voting rights protections for minority communities?

• But what does “where practicable” really mean?

• In the event of a gridlock on the commission, why does the Supreme Court of Virginia serve as a backstop?

• How does the amendment end partisan gerrymandering in Virginia?

• What happens if the amendment fails?

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What is redistricting and why does it matter? And what IS gerrymandering?

Every 10 years, the United States conducts a national Census. Following the Census, all states are required to redraw their electoral district boundaries to make sure the “one person/one vote” requirement is met. That process is called redistricting. Gerrymandering is the manipulation of the redistricting process to guarantee certain outcomes from elections by the partisan legislators in charge of the process. In the past, both Republican and Democratic politicians have used this authority to draw maps that ensure their own re-election by choosing which voters they want in their districts. Put more succinctly, former U.S. Attorney General Eric Holder once said that “gerrymandering is cheating.”

What is the political process to end gerrymandering in Virginia?

Some states can simply pass a bill or a simple voter referendum to enact redistricting reform, but not in Virginia. Here, a Constitutional Amendment is needed.

This is a challenging process, because the identical proposal must be voted on and pass in two consecutive legislative sessions, and then the citizens of Virginia must pass a Referendum in the following General Election.

Amazingly, we are two-thirds of the way there! The VA General Assembly in a bipartisan manner passed the Constitutional Amendment (SJ18) in 2019 and again in 2020. Now, if Amendment 1 on the Virginia ballot passed on November 3, a bipartisan, citizen-led, transparent Redistricting Commission will decide the maps in 2021, not the General Assembly.

No more secret, backroom deals. Instead of politicians choosing their voters, voters will get to choose their politicians.

Are both parties guilty of gerrymandering?

Absolutely. No party nationally has clean hands when it comes to gerrymandering. For proof, look at our neighboring states in 2018: Maryland’s total statewide votes gave Democrats a 66%-32% advantage. But blue-friendly district lines gave Democrats 7 of 8 Congressional seats, thanks to creative cartography by Maryland’s Democratic legislature.

In North Carolina, the opposite happened, with statewide votes giving the GOP a 49%-48% advantage, but manipulated districts gave Republicans 10 of 13 Congressional seats. So, both parties share responsibility for rigging maps.

In Virginia, Democrats regularly used the redistricting process to their advantage until 2001, when the Republicans took complete control. For the last two decades, Republicans have done gerrymandered to benefit their party and their incumbents.

What is wrong with the current system of redistricting in Virginia?

Where to begin? The current system is broken because it allows politicians to systematically pick which voters they prefer and to intentionally manipulate electoral maps to reflect that. They can do it without any involvement from citizens whatsoever, and no transparency is required at all.

It eliminates electoral competition, increases partisanship and is often most detrimental to marginalized communities.

This is the definition of a conflict of interest, but it is completely legal in Virginia. We want to change the status quo.

Why are you supporting the constitutional amendment that passed the General Assembly in 2019 and 2020?

Because it would be the most significant improvement on Virginia’s outdated and discriminatory redistricting laws in Virginia’s history. It would end partisan gerrymandering.

By mandating an equal number of citizens sitting on the commission, a citizen chairperson, unprecedented levels of transparency and partisan balance, it will make the problems of partisan gerrymandering faced by our neighbors like Maryland and North Carolina (and many other states) a thing of the past.

Beyond establishing a much needed citizen-led commission, the amendment also adds historic, new civil rights protections into the Virginia Constitution to safeguard the voting power of people of color. This substantial transformation to Virginia’s redistricting process will empower community organizations, engaged Virginians, and watchdog organizations like ours to ensure fair maps this decade.

Why are you proposing a constitutional amendment instead of a bill?

Amending the constitution is the only way to impact a partisan legislature’s role in redistricting. Article II, Section 6 of the Virginia Constitution is crystal clear: “electoral districts (are) established by the General Assembly.” Period. No stand-alone legislation can undo those words.

Legislators have proposed bills to remedy gerrymandering, but any commission created without a constitutional amendment can only advise the General Assembly. Virginians tried an advisory commission in 2011 and it did not work. Put simply, a constitutional amendment is the only way to put people over politicians when it comes to map-drawing power.

In the end, partisan politicians will protect their own partisan interest and their own re-election unless we amend the constitution to take the power away from them.

Is the amendment a Democratic or Republican proposal?

The final version of the amendment was ultimately a compromise between both parties, and it passed through a Republican-controlled legislature in 2019 and a Democratic-controlled legislature in 2020.

But when doing a side-by-side comparison, it more closely resembles the resolution originally introduced by Democratic Senators George Barker and Dick Saslaw as opposed to the legislation pushed by Republican Delegate Mark Cole. This includes the makeup of the commission itself, the supermajority requirement and sending a gridlocked commission to the Supreme Court of Virginia (SCOVA) – all of these were Democratic ideas.

Is this amendment popular among Virginia voters?

It is very popular. Two recent surveys by Christopher Newport University’s Wason Center for Public Policy showed that 78% of Virginia voters supported the formation of a redistricting commission, with 70% specifically supporting the amendment proposal being considered by voters.

Another survey from Mason-Dixon Polling indicated that 72% of voters support the amendment, with the strongest support coming from the geographic regions of Northern Virginia (78%), Hampton Roads (76%) and Richmond Metro (71%), along with 80% of Black voters and 80% of Democrats.

Is the amendment supported by both parties?

This amendment had bipartisan support in both legislative chambers in both 2019 and 2020 – including from leadership in both parties and every Black member of the Senate of Virginia.

Now that this is close to becoming a reality, partisan politicians will try to derail it so they can protect the status quote.. This is not a “left” versus “right” issue, this is about right versus wrong.

How will the commission be composed?

Districts will be drawn by a commission composed of 8 citizens and 8 legislators, with one of the citizens serving as chair. The citizen selection process will be politically balanced and the final determination of who serves will be made by a panel of five retired circuit court judges. This process is similar to selecting an impartial jury.

Further, citizen members are prohibited from being an elected member of Congress or the Virginia General Assembly or a member of their staff.

Why does the commission have legislators on it at all?

The proposed commission is a hybrid, bipartisan commission composed of citizens and legislators from both major parties because there was not enough support to establish a citizens-only redistricting commission in time to draw maps in 2021.

This hybrid commission is a vast improvement upon the current unfair laws that allow shady backroom deals and discriminatory district lines. The proposed commission will end partisan gerrymandering through balance and transparency. Instead of unilateral redistricting control by the majority party, there are multiple mechanisms which put compromise above partisan interest.

Politicians in the General Assembly often want to protect their own parties interest or the interest of incumbency - so they get reelected. This commission completely removes the General Assembly from being the sole decider in the redistricting process. Provisions include an equal number of citizen commissioners (one of whom will be chair), mandated public hearings, data transparency laws, and a supermajority requirement to pass final maps.

Does the amendment include voting rights protections for minority communities?

Yes. In fact, this Amendment provides statewide Constitutional protections for minority voting rights for the first time in Virginia’s history. For decades, Virginia has depended on federal protections for minority voting rights but those have been eroded. This amendment makes sure that “districts shall provide, where practicable, opportunities for racial and ethnic communities to elect candidates of their choice.” It will be enshrined in the Virginia Constitution regardless of what happens with the federal Voting Rights Act in the future.

In fact, Justin Levitt, a former Obama administration Justice Department official said that the “amendment requires adherence to the Voting Rights Act … and then goes beyond,” and former Attorney General Eric Holder said that he “support(s) - and will work to make effective - the Commision in Virginia to do the redistricting in 2021.”

But what does “where practicable” really mean?

The “where practicable” language represents realities in districting. Racial considerations cannot predominate over traditional redistricting criteria in line drawing without violating the U.S. Constitution’s prohibitions on racial gerrymandering. The seminal case is Thornburg v. Gingles (1986) interpreting Section 2 of the Voting Rights Act, in which only minority communities that are sufficiently large, compact, and politically cohesive gain protections for electing their candidate of choice. The “where practicable” language in Amendment 1 acknowledges that line drawers cannot racially gerrymander and incorporates the Thornburg test, putting the entirety of VRA Section 2 protections into Virginia’s constitution.

In the event of a gridlock on the commission, why does the Supreme Court of Virginia serve as a backstop?

The Supreme Court of Virginia (SCOVA) serves as the redistricting backstop if the commission cannot agree because the alternative is returning all power to the General Assembly. No matter what commission structure was used, there would need to be a backstop and the people of Virginia are better served by it being the Supreme Court than returning power to the same partisan politicians who only want to protect partisan power and protect incumbent reelection.

Importantly, without this amendment, either party can file suit - just like they can under the commission - and this process would be moved to the Supreme Court of Virginia. This would be no different than the gerrymandering status quo.

Further, many other states use their Supreme Courts as backstops for gridlocked commissions, including Arizona, California and Iowa. And in all three, the state Supreme Court has never actually heard a case from a gridlocked commission. Not one time.

It is also worth noting that if this amendment fails, current laws already send a gridlocked map SCOVA. It is the state’s highest court, after all. Other proposals would send a commission stalemate back to the legislature or the Governor.

What’s more, all but one of the sitting SCOVA justices have been appointed unanimously by both the House and the Senate. Additionally, State Supreme Courts don’t draw maps themselves. They appoint “Special Masters” (academics with backgrounds in demographics, statistics and redistricting) who must follow all state and federal laws regarding redistricting to draw fair, truly representative districts. This last happened in 2019, and the Democratic Party made gains in six GOP-held districts.

How does the amendment end partisan gerrymandering in Virginia?

Under current law, one political party is in total control of the redistricting process. This amendment has specific regulations to prevent this from happening in the future.

“Partisan gerrymandering” refers specifically to redistricting practices that explicitly favor one party over the other, and a clause in the amendment incentivises compromise by requiring a supermajority of the commission’s members to recommend a plan for final approval.

By requiring six of the eight legislative members six of the eight citizen members, Virginia’s unfair redistricting laws will become a relic of the past.

What happens if the amendment fails?

Virginia’s unfair laws remain in place - partisan gerrymandering will continue. Politicians will continue to have free rein to pick their voters behind closed doors, regardless of which party is in charge. Nothing can legally require them to change the status quo in 2021.

Some will argue that they’ll run a fair process even without an amendment to the Constitution. But the “just trust us” argument doesn’t measure up when you consider the bipartisan, decades-long practice of both parties weaponizing the partisan gerrymandering for their political gain. We can either reform the system or trust the politicians.

In fact, the Senate Privileges and Elections Committee unanimously approved an explanation of the amendment that said:

“A ‘no’ vote will leave the sole responsibility for drawing the districts with the General Assembly.”