RICHMOND (CN)- Lawyers for the Commonwealth of Virginia appeared before the state Supreme Court Thursday arguing that legislators are legally allowed to create electoral district maps -- even if the districts are not as compact as critics would hope.
The case originated with a challenge to state House and Senate district maps that were drawn in 2011 and 2012. The focus in the underlying lawsuit was on 11 districts that One Virginia 2021, a bipartisan fair elections group, claims are unwieldy and fail to comport with the notion of compactness enshrined in the state constitution.
While a Richmond Circuit Court expressed sympathy for Virginia 2021’s argument, the judge nevertheless sided with the defendant legislators saying they had wide deference to make redistricting decisions. The voters appealed, which brought the case before the Virginia Supreme Court.
According to lawyers for the voters, the state legislature failed to keep compactness in mind when they drew the maps seven years ago. Compactness is a matter of keeping “communities of interest” together, among other criteria. It is one of three points that must be considered when drawing district lines according to the state’s 1971 Constitution.
“Legislators have not given compactness the mandate [the map] deserve,” argued Wyatt Durrette, the lawyer representing the voters. “The principal in mind is the [compactness] constitutional mandates require a priority.”
The importance of compactness was also explained in an amicus brief submitted by Dick Howard, one of the authors of the Commonwealth’s 1971 constitution. While the Virginia constitution has been revised five times since it was first signed in 1776, the “compactness” of districts was only written into the document in 1851.
“Compactness has been recognized to protect the right to vote and the right to representation by limiting the impact of gerrymandering,” Howard wrote, explaining that compactness ensures voters are able to hold legislators accountable when it comes to election day.
“[The] requirement helps to ensure that voting districts are drawn in a manner to keep the interests of voters, and not the interests of legislators, in mind,” he said.
But Toby Heytens, solicitor general for the office of the state attorney general, argued the compactness requirement was at the discretion of the legislators who made the map, and even if a more compact map could have been drawn, the one used was constitutionally sound.
“The General Assembly is not administrative,” he said. “They don’t have to explain their reasoning.”
The pretrial saga of this case, and the many years it's taken to get to this point, have been just as dramatic as in other redistricting cases. While the case was filed when the Commonwealth had GOP dominance of all three branches of state government, power has since shifted putting a more sympathetic Democrat in the executive office as well as the attorney general’s office.
While this may or may not have lessened the state’s argument, it did give rise to House Republicans stepping in to intervene as defenders of the 2011/12 maps. To that end, the appellee’s time was split between Heytens arguing for the attorney general’s office and Richard Riley arguing for legislators.
Riley reiterated Heytens’ point that elected officials “make the decision as to how compact is compact enough,” but he also suggested it wasn’t the court’s right, or in its best interest, to be involved with this kind of redistricting case.
“This case is about redistricting reform, and reasonable minds can disagree, but that needs to happen through the legislation,” he said. “[You Judges are] here to interpret the law.”
And legislators have started to act to address this specific issue ahead of One Virginia’s 2021 redistricting process. Bills submitted during the 2018 General Assembly, one by Del. Chris Jones, one of the author’s of the 2011 maps, have passed with bipartisan support and are now heading to the Governor’s desk for signature.
“The problems in this case are directly addressed in these bills,” said Brian Cannon, executive director at One Virginia 2021. He called the legislation a major step forward, and while it doesn’t address all of their gerrymandering concerns, it does offer “a win for our case before it's even decided by the Supreme Court.”
Geoffrey Skelley, associate editor of Sabato’s Crystal Ball, the University of Virginia Center for Politics’ nonpartisan newsletter on American campaigns and elections, was also glad to hear about Jones’ bill. He said compactness is a gerrymandering tool that can influence districts to benefit incumbents in an unfair way.
“Some of these things are unavoidable because of the geography of the state, but at the same time it can be very obvious if a district isn’t compact,” he said. And while Republicans in Virginia were often the beneficiary of redistricting over the last few years, he was quick to point out the 2011/12 maps offered incumbent protection for both Democrats and Republicans which is how it got passed in the first place.
“It’s pretty clear that … maximizing partisan gains are principal goals [in redistricting] for whichever party is in power,” he said. “One Virginia 2021 wants to see a different system, or at the very least maps that they view as more compact and representative of communities of interest and not just a bunch of squiggly lines that are drawn to help incumbents”
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