RICHMOND, Va. (CN) — A Virginia lawmaker is expressing concern about the legality of this year's House of Delegates elections as census issues have forced the state to run races for all 100 seats on old maps in violation of the state’s constitution.
“It’s pretty obvious that the constitution requires new maps for this election,” said Delegate Lee Carter, D-Manassas, in a phone interview Thursday morning. “It says ‘shall,’ not ‘may,’ and there’s no wiggle room here. I’m not a lawyer but I’m a legislator so I know the difference between ‘shall’ and ‘may,’ so we need to run on new maps.”
Virginia is one of two states that runs legislative races in odd years, with New Jersey being the other. This usually means they get early access to census data, but delays blamed on the coronavirus pandemic means that data has been pushed back to the end of the year.
Still, the Virginia Constitution is clear that the state must be reapportioned every 10 years, and, thanks to the recent passage of a constitutional amendment, that process must start in 2021.
Carter said he wasn’t aware of the issue until someone brought it up to him, but once he learned about the possible issues he sent a letter to Virginia Attorney General Mark Herring, a fellow Democrat, asking for an opinion on the matter. The letter was sent late last month but he’s gotten no response, which he says also violates the state constitution.
“I guess I wouldn't be surprised if he ignored the constitutional requirement to give an opinion about the Department of Elections' constitutional requirement to have new maps,” he said of Herring’s lack of response.
In a written statement, Herring’s office said it does not comment on pending opinion requests.
Concerns about the legality of Virginia’s 2021 elections aren’t new, but they haven’t been expressed in public much.
Delegates had been rumbling about constitutional concerns in the wake of the Covid-19 outbreak and now, with six months to election day, they admit there’s little they can do except run on the old maps.
“The state constitution says we have to [use new maps], but we’re proceeding on the basis that it’s practically impossible,” said Delegate Marcus Simon, D-Fairfax, in a March interview about using maps drawn in 2011 this year. “Everybody’s taken the conservative approach; the less said, the better.”
Simon is a member of the state’s constitutionally created Redistricting Commission. He said hopes for a 2021 redraw faded shortly after the Census Bureau told legislators data wouldn’t be available by the usual time in early May.
Most candidates and incumbents appear not too worried about it as many of the race and primary campaigns are well under way, including Carter’s and Simon's.
While Carter’s is still waiting for an answer from the attorney general, the reality appears in the short term that the races will go on, but exactly how is still in question.
Simon offered a few possibilities. One is the easiest: run elections this year on old maps and make new maps in time for 2023.
Another option involves running again next year under new maps and keeping House of Delegates races in even years alongside their congressional counterparts. Simon says there are pros and cons to that idea.
“We’re one of the only games in town - getting employees and consultants is cheaper cause they’re trying to stay employed for the odd year,” he said. He also pointed to the calculus involved in gubernatorial years, like 2021, where running more or less candidates in delegate races can increase, or decrease, turn out at the top of the ballot.
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