Jurisprudence

Will Virginia Democrats Create a Blue Gerrymander?

After a historic win, Democrats have a choice to make—and they have to make it soon.

Eric Holder stands in the middle of the road and points at Jess Foster and Joshua Cole, who hold campaign yard signs.
Former Attorney General Eric Holder stands on the district dividing line in Fredericksburg, Virginia, with candidates Jess Foster and Joshua Cole.
John Bisognano

College Avenue in Fredericksburg, Virginia, isn’t just the dividing line that splits a Democratic city into two red-leaning state House districts. The yellow line in the middle of the street is the actual border, so if you drive out of the University of Mary Washington campus and take a left into McDonald’s, you cross from one district to another, midturn.

On the last Saturday before Election Day, former U.S. Attorney General Eric Holder—now leading the Democratic Party’s anti-gerrymandering fight—and Joshua Cole, a preacher-turned–Democratic candidate seeking the 28th District seat, dodged weekend traffic for the ultimate photo op. Holder straddles the yellow line, arms spread across two districts, flanked by Cole on one side and another candidate on the other, smack in the middle of the road.

“Holder told me it’s the craziest thing he’s ever done,” a still-jubilant Cole told me on Thursday, celebrating his own narrow victory (after an 82-vote defeat in 2017) and the first Democratic trifecta in Richmond in more than 25 years. The Democrats took control of both chambers of the statehouse on Tuesday, boosted by the invalidation of a racial gerrymander drawn by Republican lawmakers in 2011.

Cole’s campaign, understandably, made gerrymandering a focal point of his race. That won him not only a get-out-the-vote visit from Holder but also one of just 11 Virginia state House endorsements made by Barack Obama. “We ran on this issue,” he said, pointing out that Democratic candidates statewide promised voters fair maps and independent redistricting. “Now we all need to be accountable to the people.”

Cole might quickly find the middle of Fredericksburg traffic a safer and more comfortable place to be.

This past February, both houses of the Virginia legislature—then under GOP control—overwhelmingly passed a constitutional amendment that would create a bipartisan commission to draw the state’s next set of maps in 2021. No one loved the compromise. But amending Virginia’s constitution requires passage of the same bill with identical language in two consecutive years, followed by approval by all voters. The laborious process needed to start this year in order to meet the 2021 deadline; this solid compromise—a 16-person commission, half citizens and half politicians, with real transparency provisions and protections against either side jamming through a map the other party hated—was the best attainable deal.

Now the legislature’s new Democratic majority needs to make a decision. They can embrace an imperfect deal, pass the amendment a second time, and model the good government practices Holder, Obama, and others have demanded this decade through litigation—even with no assurance or expectation that Republicans will offer similar politesse in the states that they control. Or they could scuttle or slow-walk the constitutional amendment and do a gerrymander of their own, entrench their majority, and punt this blue-leaning state solidly into the Democratic column throughout the 2020s, picking up a handful of crucial congressional seats in the process.

Will it be the high ground or hardball? Here’s what makes the Democrats’ decision more fraught: Like so much else involving both Virginia and redistricting, it’s complicated by race, politics, and mistrust.

While the constitutional amendment cleared the house 83–15 and with a unanimous 40–0 vote in the Senate, most of the opposition to this compromise inside the house of delegates came from the Democratic black caucus, concerned that the amendment itself offers no guarantees of minority representation on the new commission.

“The constitutional amendment is insufficient. Period,” Delegate Marcia Price, a prominent member of the legislative black caucus, told me on Wednesday. Price has been an outspoken opponent of gerrymandering but says that in this political climate—pointing to GOP voter suppression efforts in Florida, Georgia, and North Carolina—she’d be naïve to back any plan with this much Republican support without clear protections for minority voters.

“If the commission is really for the purpose of protecting residents and their voices, how can we make such a big compromise?” asked Price. “We want to do something. I don’t believe that compromise is the only thing we can do. We can find solutions that don’t exclude black and brown voices.”

Delegate Sam Rasoul, a fellow member of the legislative black caucus, told me that he both supports the amendment and believes that an accompanying bill can be passed that addresses concerns about minority representation and puts additional teeth into the process. “We can’t change the amendment,” he said, “but how we participate in the process, with equity, can be outlined in enabling legislation.”

State Sen. Jennifer McClellan said that the legislature, even as control switches hands, remains “in the process of passing a constitutional amendment and we plan to pass it again.” McClellan, who co-sponsored a bill with Price last session that would have added specific criteria for the commission, including a prohibition on the use of political performance data, agreed that additional safeguards for minority representation needed to be added. “We have to work on a criteria bill and on implementing legislation so we can assure the fairest and most compact districts that we can have,” she said. But she insisted that fair, competitive districts were good for both Democrats and democracy, and force officials to knock doors and make their case to voters every cycle.

A Democratic gerrymander could go after additional seats in Congress, entrench Democratic elected officials, maximize seats in the legislature, or strategically seek to oust specific Republicans. People involved in the redistricting debate said that former Gov. Terry McAuliffe — who has aggressively spoken out against GOP gerrymanders and may run for governor again in 2021—was encouraging efforts to craft a Democrat-friendly map. McAuliffe declined an interview request from Slate, but sounded non-committal and unwilling to endorse the constitutional amendment on Virginia public radio station on Wednesday. “I am concerned about what we have set up in Virginia,” he said, specifically mentioning his discomfort with the state Supreme Court holding the power to draw the lines if the commission deadlocks. “This is something we have to sit and look at.”

The president of the Asian American and Pacific Islanders Victory Fund—whose board includes former Washington Gov. Gary Locke, former congressman and Cabinet secretary Norman Mineta, a founder of the liberal State Innovation Exchange, and several former Obama administration officials—tried to pump the brakes on redistricting reform on Twitter. “While the tide is rising high for Democrats since 2017, we cannot unilaterally disarm and fix gerrymandering,” wrote Varun Nikore, who was appointed to multiple Virginia boards by McAuliffe and whose organization endorsed several Virginia candidates.

New Jersey Democrats tried a similar move after winning trifecta power in 2017, quickly attempting to alter a bipartisan commission to their advantage. Holder, who intervened in New Jersey, appeared to take a more wait-and-see approach in a statement to Slate. “We share the concern voiced by some members of Virginia’s legislative black caucus that the reform passed earlier this year does not have enough protections for minority voters,” said Patrick Rodenbush, Holder’s spokesman at the National Democratic Redistricting Foundation. “However, that was just the first step in the process. The legislature now has the opportunity to draft the actual criteria and details for reform in a way that protects communities of interest, minority voters, and gives Virginia a truly non-partisan redistricting process.”

Democrats could, if they choose, let this amendment die in 2020, remap the state legislature and congressional districts themselves in 2021, and then bring forth a reform effort after that, having etched themselves a decade of likely control.

That plan could have its own political repercussions. Voters understand and hate gerrymandering. Redistricting reformers won statewide ballot initiatives in red and purple states like Utah, Missouri, Colorado, Ohio, and Michigan in 2018. Democrats made an ambitious package of democracy and voting reforms the very first legislation introduced in the U.S. House after reclaiming the majority in 2019. Even while constrained by an unfavorable map, Virginia’s turning blue anyway. Democrats hold every statewide office and both U.S. Senate seats. It has gone blue at the presidential level since 2008. Democrats would likely win six or seven of the state’s 11 congressional seats under a fair map.

It’s also a natural contrast with Republican politicians, who have built barriers to the ballot box after capturing trifectas in swing states such as North Carolina, Wisconsin, Ohio, and Pennsylvania. Why abandon a popular reform and further politicize gerrymandering, that rare issue that Democrats, Republicans, and independents agree is horrible for democracy? Why kneecap reformers running on pro-democracy platforms in Virginia and elsewhere, or state litigation that has undone partisan gerrymanders in North Carolina and Pennsylvania?

I had to be missing something, and knew who to call: David Faris, the author of It’s Time to Fight Dirty, an aggressive manifesto that recommends fighting right-wing norm-busting with hardball tactics of our own. But even this court-packing advocate of busting California up into seven states with 14 senators wasn’t having it. “I hate to disappoint you,” he said, “but I think they should go forward with the reform.”

Faris says that he conceptualizes fighting dirty in a more high-minded way. “It’s about using your constitutional power to level the playing field, not to create an unfair one,” he said. “Public opinion has turned against gerrymandering in a significant way. The public relations hit, the cost to their legitimacy, from playing hardball in Virginia is a steep price to pay for the limited advantage they’d get by doing that. One more seat? With a hardcore gerrymander? You can’t make an argument in a serious way that you are doing the right thing.”

Cole, the youngest black American of either party to be nominated for the state House, guaranteed that he was going to Richmond to do the right thing, and support a reform that mattered deeply to his district. “I know I’m a freshman member and my voice may not hold very much sway, but I will do what I told people I would do,” the newly elected delegate said. He said that his fellow Democratic newcomers from 2017 and his class would stay the course. “We still have to deal with some of the old-school Democrats,” he said, referring to those in the state Senate. Rasoul and McClellan, meanwhile, vowed that the black caucus’ concerns about equity would be addressed comprehensively.

“I think there was a bipartisan spirit before and have no reason to believe that will change,” Rasoul said with conviction. “We’re hoping cooler heads prevail and we can fix this thing for the next generation.”

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