Jurisprudence

Democrats Supported Redistricting Reform in Virginia. Was It a Mistake?

The Virginia Capitol on a sunny day.
The Virginia State Capitol in Richmond. Ron Cogswell/Flickr

When Virginia voters amended their state constitution to create a bipartisan redistricting commission, they thought they were ending the partisan squabbling that plagued the state’s redistricting process for centuries. Instead, they may have made it worse.

The Virginia commission—added to the state constitution by legislative approval followed by a referendum in 2020—was supposed to establish a fair, transparent process that discouraged politicking and incentivized compromise. It shifted power over the creation of new maps from the General Assembly (which Democrats now control) to a 16-member commission made up of eight legislative leaders and eight citizens. Both groups are evenly split between Democrats and Republicans. The commission must draw compact districts that do not favor any political party, and may adopt new maps only with supermajority support from both the legislators and citizens. If the commissioners can’t reach an agreement, the Virginia Supreme Court—where conservative justices currently hold a majority—draws the maps.

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The commission has repeatedly deadlocked along partisan lines, failing to reach the beginnings of an agreement after hours of negotiations. The commissioners have already asked the Virginia Supreme Court to redraw state legislative districts, and they appear poised to give up on congressional maps as well. Democrats currently hold seven out of the state’s 11 congressional districts. The court’s map, however, may give several districts back to Republicans; indeed, it appears that the commission’s Republicans sought a deadlock in the hopes of securing a favorable map from the court. Democrats, who generally supported redistricting reform in the legislature, now fear the new process will diminish their odds of retaining control over the House of Representatives—and, by extension, killing the possibility of a federal ban on gerrymandering anytime soon.

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Many groups across the political spectrum supported redistricting reform in Virginia, including the Brennan Center for Justice, which advocates for voting rights and democracy reform. In 2019, Brennan Center senior counsel Michael Li argued that the bipartisan commission would be “a big win” for Virginia voters. On Friday, I spoke with him about the commission’s implosion and its implications for redistricting reform in the rest of the country. Our conversation has been edited for length and clarity.

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Mark Joseph Stern: Why do you think the commission has proved unable to agree on new maps?

Michael Li: It’s a bipartisan hybrid commission. You have people very closely connected to the political process involving drawing lines. On top of that, the process is very easy to deadlock. And sometimes deadlock can be an objective in and of itself for members of a commission—they’d rather deadlock and go to an alternative process. There’s no incentive to compromise if your party thinks the alternative process will be better than compromise.

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Which party is trying to deadlock here?

Here, it’s Republicans, because the Virginia Supreme Court is more conservative. My sense is that the Democrats are the ones up in arms. The Democrats would like a different map that perhaps favors Republicans a little less. And Republicans see no need to compromise.

Say the commission deadlocks and the Virginia Supreme Court draws all the maps instead. Do you think creating this commission was still better than the alternative?

I do think it’s better than the alternative because the alternative is single-party control of redistricting. If you’re a Democrat this cycle, you’re saying, what’s wrong with that? We would do a great job with single-party control. But in the past you’ve had Republican single-party control that’s produced bad maps.

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A foe of this commission might argue that kicking redistricting to the court is even less transparent and responsive to what the people of Virginia want. You have zero elected lawmakers involved in the process. You have none of the long hearings and community meetings—basically, the court’s going to hire a special master to draw the map.

I’m not sure having elected people draw maps is good. Elected people are the problem. The other pushback is that courts generally do OK at maps. If you look at court-drawn maps, they’re not aggressive gerrymanders. If the problem is extreme gerrymandering, courts don’t engage in that. Do they draw the perfect map? No. But are they in the ballpark? Yes. They don’t draw outlier maps.

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House Democrats support the Freedom to Vote Act, a federal ban on partisan gerrymandering. House Republicans oppose it. What do you think of the argument that Democrats should gerrymander congressional districts in their favor now so they can preserve the opportunity to pass a federal ban on gerrymandering later?

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Let me give you a historical perspective. The party that feels like it has the upper hand is never in favor of redistricting reform. The idea that you should have a federal statutory ban on partisan gerrymandering actually comes from Republicans—most prominently from Mitch McConnell in the 1980s and ’90s. McConnell wrote a bill with language very similar to what’s in the Freedom to Vote Act. It got 34 Republican sponsors in the Senate, but not a single Democratic sponsor, because Democrats had long controlled the House. Now it’s Democrats who are in favor of ending gerrymandering and Republicans who are uniformly opposed.

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Inherent in your question is the assumption that Democrats are forever good on this issue, because it’s in their self-interest to be good on this issue. At a certain point, they might not feel as motivated on this. Is there an argument that Democrats should gerrymander because Republicans will gerrymander so why unilaterally disarm? It’s a self-interested argument that is fine. But I think that gives Democrats too much credit.

Imagine it’s 2023. Democrats have enough votes in the Senate to reform the filibuster so they can pass a federal ban on gerrymandering. Joe Biden supports it. But Democrats can’t pass it, because they lost the House by a single vote. And that vote comes from Virginia, where Democrats could have gerrymandered themselves more seats but for the redistricting commission, which held them back. Would you say creating the commission was still a good idea?

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I think, on balance, yes. Because ending the possibility of single-party control is a really big thing. Even imperfect commissions still draw maps in the ballpark of being reasonable as opposed to wild gerrymanders. I do think that it is still, on balance, better. Which is not to say that if I were a Virginian that I wouldn’t advocate for stronger reforms in the future to make the process even better. After this cycle, we’ve learned about what works and what doesn’t work.

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Just to be clear: You’re saying that creating the Virginia redistricting commission was a worthwhile trade-off for failing to pass a federal ban on gerrymandering that applies to all 50 states?

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No, I don’t know that I’m saying that. I’ve spent so much time working on this federal ban. I would love to have the federal ban. But you could just as easily ask, what happens if it’s one seat in Arizona or California or Michigan? The California commission works great. It has produced very responsive maps. You could argue that, without it, Democrats could gerrymander California and it would be better for democracy, better for the Equality Act, better for all kinds of things we care about. But I take issue with the question. I don’t know if that’s the trade-off. If I were going to a ballot box, if I had these two choices, a federal gerrymandering ban or Virginia reform, I’d choose the federal gerrymandering ban.

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The Atlantic recently published an article speculating that redistricting reform could “doom Democrats for a decade,” since most states to adopt reforms lean Democratic. Do you agree?

Well, look. Michigan passed a reform. Utah passed a reform. In California, Democrats actually picked up seats from the commission-drawn maps. It turns out that when they drew maps themselves, Democrats overprotected incumbents. They thought their incumbents needed much more Democratic districts to win. And the interests of incumbents are sometimes at odds with interests of a party, because incumbents will want safer districts, which means packing Democrats, which means you’re leaving seats on the table.

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The commission was told to keep communities together, not to consider competitive districts or political data. It turns out that if you keep communities together, there’s a lot of natural competitiveness in a lot of places. By unpacking districts—which the commission did just by keeping communities together—it created more Democratic opportunities.

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So your argument is that even if Democrats had single-party control in a state like California, they wouldn’t necessarily gerrymander as aggressively as some partisans are fantasizing about, so we shouldn’t view reform as a trade-off with Democrats winning more seats because Democrats might actually benefit from it?

Something like that. Democrats in a state like California also felt pressure to create minority districts. The optimal gerrymander would be “let’s just make districts nonwhite enough and win a bunch of them but not necessarily create new opportunities for minorities.” But Democrats feel like they actually have to create minority opportunities. They tend to be very responsive to the interests of incumbents, especially minority incumbents. Republicans are much more strategic. They don’t have to worry about making sure minority lawmakers are protected. Democrats feel an obligation to protect minority lawmakers. That means leaving seats on the table in ways that Republicans are not.

If California is a success story for both democracy and Democrats, Virginia seems to be a failure on both fronts. What can other states learn from its commission’s collapse?

Not all reforms are created equal. Some are more carefully thought out and have more checks and balances and safeguards than others. It’s important, when designing reforms, to think about all of these things. Sometimes people do and sometimes they don’t. We are involved in reform in lots of states. People come to you and say, “Hey, can you look at this proposal we’re doing?” And sometimes we’re like, “Oh, my God. You just picked all of the worst elements.” It is important to think this through. We’re getting a lot more data points as more states adopt commissions. These are laboratories of democracy in action, and sometimes in a laboratory the experiment goes bad, the wonder drug doesn’t work, and you need to go back to the drawing board. Many people would’ve said Virginia’s commission was not their favorite reform. The jury’s still out.

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