Why I Oppose the Dangerous Proposal
to Amend the Virginia Constitution
to Allow Republicans
to Gerrymander Virginia
by Virginia Delegate Mark Levine
My mom always told me I should be a teacher. And I must admit I take joy in taking a complex question and deconstructing it, laying out all its elements.
Similarly, prior to putting together Ikea furniture, I make sure I first have every last necessary dowel (those little wooden things, pictured below), including the one that rolled under the bed. And then I proceed to follow every last instruction in order, staring at each diagram until I understand exactly what they want me to do. And I just don't move forward until I understand the instructions. Perhaps it's a little OCD (obsessive-compulsive disorder), but I know that if I pound the wrong dowel into the wrong hole, that chest of drawers I'm creating may be forever lopsided, and I'll always regret the mistake I made in acting hastily.
I feel the same way with legislation. It's not enough to believe in a cause. I know if, with sincere belief that I'm doing something right, I neglect the details, I may actually do irrevocable harm to the very cause I'm fighting so hard to win.
So, particularly when I'm trying to upend an established belief, I know I have to move with caution and explain everything. I know from my life experience that you can change people's minds, as long as you proceed logically and methodically, step by step, answer every question and persist without fear of confronting a widely-held position. I have always had the following phrase at the bottom of my website.
So please excuse the level of detail I'm about to provide. But it's Black Friday weekend, and you have the time. And surely you don't want to go to the shopping mall. Not this weekend!
So please sit back and I hope you'll enjoy my little detour into the history and politics of gerrymandering. One of the reasons I like representing Alexandria, Arlington, and Fairfax is I know my constituents largely consist of seriously-minded intellectuals who appreciate getting the details right. And whether you think I'm right or wrong, by all means, let me know!
I. Summary of Argument
A proposed Constitutional Amendment rushed through the Virginia General Assembly by Republicans last year in twenty minutes purports to stop gerrymandering.
In fact, the amendment would allow Republicans – despite having been solidly rejected by Virginia voters in 2017 and 2019 – to draw Virginia district lines in 2021, 2031, 2041, 2051, and forever thereafter.
The proposed Amendment purports to set up a commission to draw the lines. But an objection by any two Republican Delegates or Senators renders the commission a nullity and sends the drawing of lines to the seven-person Virginia Supreme Court, chosen by the Republicans in the General Assembly.
I support having an independent commission or a computer draw the lines.
But I believe this flawed amendment, which relies entirely on the goodwill of a Republican Supreme Court, will increase gerrymandering in Virginia.
"But Mark. I don't have time to read all this. And I process things better by listening than by reading."
OK, my dear reader. Fine by me. Want to hear my full argument rather than read it?
Just click below and watch the first 12 minutes.
II. Petitions on Election Day Don't Always Mean What They Seem.
Every Election Day, twice a year, I spend all day visiting every one of the 23 precincts I represent. As in years' past, I saw members of the organization OneVirginia2021 encourage voters to sign petitions to "oppose gerrymandering" at the polls. Many of my constituents signed the petitions. In fact, if there were a petition to simply "oppose gerrymandering," I would have signed it as well.
Shaking hands at Blessed Sacrament.
I visit every precinct I represent every Election Day.
Unfortunately, the petitions -- which go to me -- and are signed by people of goodwill who oppose gerrymandering do exactly the opposite. They support a 2019 Republican constitutional amendment proposal to give Republicans control over Virginia district lines forever. So they do the opposite of what the people signing them want done!
It's actually pretty sneaky. And a lot of good people are being fooled. So I'm writing you to sound the alarm and asking you to spread the word.
If you know the basics of how gerrymandering works and just want to get to the heart of why I oppose the proposed redistricting Virginia Constitutional Amendment, skip to Part X below.
III. Why We Redistrict Every Decade
The United States Constitution requires a nationwide census every 10 years, on years ending in zero, to count the entire population of the United States. We will have a census in 2020. And based on that count, every state legislature in USA will draw district lines in 2021 to match the population. Virginia will divide into 100 state delegate districts, 40 state senate districts, and eleven United States Congressional districts of roughly equal population (unless we gain or lose a seat which is not expected). Because population shifts over time, new lines must be drawn to reflect the basic constitutional principle of "one person, one vote."
The decennial census is found at the very beginning of the US Constitution in
Article I, Section 2, just after Section 1 vests all legislative powers in Congress.
IV. How Does Virginia Do It?
The Virginia Constitution currently puts drawing of district lines in the hands of the Virginia General Assembly, which passes a law signed by the Governor, to establish the new lines. In 2011, as in 2001, the Virginia Governor was a Republican and the Virginia House of Delegates was controlled by Republicans. (The Virginia Senate was controlled by Republicans in 2001 and by Democrats in 2011.)
In the past, Virginia Republicans used their line-drawing power to gerrymander Virginia districts in favor of Republicans. When I was first elected in 2015, we had a minority of 19 out of 40 Democrats in the Senate and only 34 out of 100 seats in the House of Delegates. The effect of the gerrymander was clear in the blue wave election year of 2017. Although Democrats received about 54-55% of the vote that year, we only garnered a minority of 49 seats.
It took a tremendous super-majority blue wave in both 2017 and 2019 -- largely due to reaction against Donald Trump -- to give us the Democratic majority we obtained in November.
With our new-found majority, Democrats will control Virginia redistricting for the first time in 30 years, unless we abdicate that power.
V. A RED WAVE is Coming!
Our blue wave is fleeting. If we are lucky enough to elect a Democratic President in 2020,
I believe a strong Virginia red wave will come back in 2021. Obviously I hope I'm wrong, but I'm basing my prediction on decades of Virginia history: Virginia voters generally vote in opposition to whoever controls the Federal Government.
How did we get the blue waves of 2017 and 2019? Because Virginia Republicans were happy with the current Trumpian Federal Government, while Virginia Democrats, fearful and angry, formed grassroots groups and worked feverishly in massive numbers to elect Virginia's new blue majority.
But if President [pick your favorite Democratic nominee] raises her or his right hand in January 2021 and past history repeats itself, I strongly suspect Democrats will become complacent once again. Our supporters will relax, secure in the knowledge that we finally have a Democratic President and a Blue Virginia, and many of us will stay home in 2021. But fearful and angry Republicans in 2021 will rise up and work feverishly in massive numbers to "take back Virginia."
It has happened before. Democrats first lost power in Virginia in 1993, one year after Bill Clinton was elected. And 2009, the year after Barack Obama became President, saw the biggest Republican landslide in decades in Virginia, as angry tea-partiers flocked to the polls while complacent Democrats stayed home. Democrats lost seats in the House, and our gubernatorial candidate barely got 41% of the vote. Then the Republican gerrymander reduced the House of Delegates to only 32 seats, less than a third of the body.
VI. How Does a Gerrymander Work?
A. What is a gerrymander?
B. How do you gerrymander?
By "packing" and "cracking". If you want to help your party, you "pack" the other party in districts that overwhelmingly favor that party. You then give your party a comfortable 60-40 or so lead in the remaining districts by "cracking" the other party's support in several districts. In a hypothetical state of 55 Democrats and 45 Republicans (which closely parallels Virginia's polity at the moment), you could set up 10 districts as follows:
District 2: 1 R 9 D District 2: 6 D 4 R
District 3: 1 R 9 D District 3: 6 D 4 R
District 4: 6 R 4 D District 4: 6 D 4 R
District 5: 6 R 4 D District 5: 6 D 4 R
District 6: 6 R 4 D District 6: 6 D 4 R
District 7: 6 R 4 D District 7: 6 D 4 R
District 8: 6 R 4 D District 8: 6 D 4 R
District 9: 6 R 4 D District 9: 6 D 4 R
District 10: 6 R 4 D District 10: 6 D 4 R
= 45 Rs controlling 7 seats (each 60%-40%) = 55 Ds controlling 9 seats (60%-40%)
+ 55 Ds controlling 3 seats (each 90%-10%) + 45 Rs controlling 1 seat (90%-10%)
VII. Is Gerrymandering Unfair? Yes.
While Blue Virginia won 55 out of 100 seats in 2019, it is smaller geographically than the 45 seats of sparsely
VIII. They Did It! Why Shouldn't We?
Republicans have gerrymandered Virginia for decades now to give them an unfair advantage. Shouldn't progressives want Democrats to do the exact same thing? Particularly as we can see the red wave of 2021 on the horizon?
It's a compelling argument and one many of my constituents have made. They (the Republicans) did it. Why shouldn't we Democrats? If we support progressive values, why not give these values a systemic likelihood of being enacted? We'll never win, the argument goes, if we play fair all the time while Republicans play dirty. In fact, of the top 10 most gerrymandered states in America, 9 of them are skewed sharply to favor Republicans (NC, PA, WV, KY, LA, UT, TX, AR, OH), while only 1(!) (Maryland) is skewed to favor Democrats. Given the deck is already stacked against Democrats nationwide, why shouldn't we put a few more weights in Virginia on the Democratic scale?
I concede I have sympathy for this argument. Since Republicans do it 90% of the time, why not gerrymander in the few Democratically-controlled states we have until we can negotiate a national prohibition?
Then again, we shouldn't act like they do. Michelle Obama told us, "When they go low, we go high!" And I have sympathy for this counter-argument as well. After all, I'd be the first to concede that gerrymandering is unfair no matter who does it.
But whether you support a Democratic gerrymander or oppose gerrymandering entirely, I think we can all agree that a continued Republican gerrymander is not in the best interests of the progressive constituents I represent. And unfortunately, that's exactly what the proposed Virginia Constitutional Amendment would do.
IX. Won't the Federal Courts Stop it? No.
The short answer is no. For more than 200 years, American political parties have gerrymandered their state legislators. (See map of the original Gerry-Mander in Part VI above.) And for more than 200 years, good government types have decried gerrymanders as unfair. In 2018, the Supreme Court came close to declaring political gerrymanders an unconstitutional violation of the "one person, one vote" doctrine of the equal-protection clause before backing away.
But in 2019, the United States Supreme Court, in a 5-4 decision, finally resolved the question, saying:
"Legislators Across America, Go Forth and Gerrymander!
They did. The Voting Rights Act of 1965 is a federal law that prohibits states from racist redistricting, i.e. drawing district lines specifically to disadvantage African-Americans. It's still in effect. And based on that federal law, federal courts redrew lines drawn by Virginia Republicans in 2011 in both Virginia's Congressional districts and Virginia's House of Delegates districts on the grounds that they were illegally racially gerrymandered.
X. What's Wrong with Proposed Redistricting Amendment to the Virginia Constitution?
It Allows the Virginia Supreme Court to Draw the Lines.
With all that detailed background out of the way (and thank you for reading this far!), let's suppose you want to prevent gerrymandering in Virginia. The proposed constitutional amendment claims to do just that. But I think it will actually make Virginia gerrymandering much worse. And I explain why in Question and Answer format.
Q. Why not support the proposed redistricting constitutional amendment?
A. Because the proposed amendment gives a body chosen by Virginia Republicans in the legislature the right to draw the district lines.
Q. Which body?
A. The Virginia Supreme Court
Q. I thought under the plan, a commission did it.
A. Nope. Even the League of Women Voters got this essential fact wrong when they claimed an independent commission would draw the lines. In theory, such a commission could draw the lines. In reality, they won't.
Q. Why won't they?
A. All it takes is two Republican legislators to derail the entire commission.
Q. Just two? No way. I thought the commission had eight legislative members and eight citizen members.
A. True. But even if 14 out of 16 like the plan, former Republican Speaker Kirk Cox and Republican Majority Leader Todd Gilbert could unilaterally kill the whole commission.
Q. I don't believe you.
A. See for yourself (sections (d)(3) and (e):
Q. It says "at least three of the four legislative members ... of the House of Delegates". So if, say, two Republican legislative members say no, the whole thing dies?
Q. Does it kill the Senate Plan too?
A. Yup. Because in (e), "plans for districts for Senate and the House of Delegates shall be ... voted on as a single bill." And if you read (d)(2), you see two Senators could kill the Commission as well. And under (d)(1), any three legislators could also deep-six any plan for Congressional representation.
Q. Sounds like there's a good chance this whole thing goes kaput.
A. That's what I think will happen, particularly if people act in bad faith. And as you'll see below, there's a strong incentive for Republicans to do exactly that.
A. Because if the Commission fails to submit a plan, the Virginia Supreme Court decides. See Section (g).
XI. What's Wrong with the Virginia Supreme Court Redistricting Virginia?
Its Conservative Justices Were Chosen by the Illegally-Racially-Gerrymandered Republican General Assembly.
And These Justices Would Continue to Be Reappointed, So Long as They Draw their Lines "Right"
Q. What's wrong with the Virginia Supreme Court redistricting Virginia?
A. The Virginia Supreme Court, like all courts in Virginia, is chosen entirely by the Virginia legislature. The Governor has no say in the matter.
Q. Do many states have their legislatures choose their judges?
A. Only two. Virginia and South Carolina. The other 48 states have their judges chosen either by people or their governors (elected by the people).
Q. Who chose the current members of the Virginia Supreme Court?
A. The Republicans in the General Assembly.
Q. Why only Republicans?
A. Judges have staggered 12-year terms. Every single current member of the Virginia Supreme Court was chosen while the House of Delegates was under Republican control. Four of the seven were chosen while the Virginia Senate was under Republican control. And three were chosen in the few years when control was split (Democrats controlled the Senate and Republicans controlled the House). But even one of these three (Justice William Mims) is himself a former Republican Senator and Delegate.
Q. Who was most recently chosen?
A. Since I've been in office, we've chosen two members of the Supreme Court, Justice Teresa Chafin (the sister of Republican Senator Ben Chafin) and Justice Steven McCullough (the right-hand man of former right-wing Republican Attorney General Ken Cuccinelli).
Q. I thought the Governor could make appointments?
A. The Governor of Virginia can only make appointments when the Virginia General Assembly is in recess. A few years back, Governor Terry McAuliffe chose Justice Jane Marum Roush, a very well-regarded Fairfax jurist, to be on the Virginia Supreme Court after her nomination was championed by former Republican Delegate Dave Albo, who was the chair of the House Courts of Justice Committee at that time. But the Republican leaders of the House and Senate threw the Governor's choice off the bench after she'd served a mere six months. That was their legal right to do.
Q. Won't Democrats in their new majority get to pick new Justices?
A. About one every two years. The next one up for renewal may well be the most liberal person on the Virginia Supreme Court, Justice Samuel Goodwyn. So whatever happens with his seat will not change the basic conservative outlook of the Virginia Supreme Court, rated in 2012 the 18th most conservative in the nation.
Q. So can't a Republican Supreme Court be fair?
A. Possibly. There was a time when I had more faith in our courts making political decisions. But that was before the 2000 US Supreme Court in the 5-4 decision of Bush v. Gore refused to allow Florida to count all its voters' votes on the grounds that counting all the votes of the People of Florida would "damage the legitimacy of Bush's claim to be President." The justices gave Bush the Presidency, precisely because they feared Florida voters chose Gore instead. When one partisan political actor in a black robe could choose the President of the United States and thereby disenfranchise the majority of American voters, my blind belief in judicial good faith was forever eroded. (The horrendous decision convinced me to quit my job as a trial lawyer and move thousands of miles away to Northern Virginia to take a job on Capitol Hill instead.)
I saw it happen again in Virginia in 2017. When then-candidate for delegate, Shelly Simonds won her race by one vote, Republicans the next day "discovered" another vote they had originally discarded as uncountable to make the race a tie. Contrary to clear Virginia Law, a Virginia judge -- appointed by the very Republican delegate whose seat he was ruling on --counted the "uncountable" vote. But the court left uncounted 26 votes cast in a predominantly African-American district that might well have tipped the margin for Shelly. In Josh Cole's case in 2017, a Republican federal judge refused to redo the election even though 147 votes were illegally cast in a race decided by only a 73-vote margin.
I'm proud to say both Shelly and Josh won the races in 2019 they should have won in 2017. But if Republican courts had been fair and acted according to law, Democrats would have taken control of the House of Delegates two years ago.
Q. Does the Virginia Supreme Court have any personal incentive to favor Republicans?
A. They do. As noted, Virginia is one of only two states in the nation where the legislature chooses the justices. Conservative Republican justices know that the only way their 12-year term will be renewed is if they choose a conservative Republican legislature to replace them. Simply put, if these justices want to keep their jobs, they need to pick the legislature that will pick them back.
And so the Supreme Court will gerrymander Virginia to favor Republicans....
So that the Republican legislature will pick Republican Supreme Court members...
Who will proceed to pick Republican legislators...
Who will pick Republican justices...
Who will pick Republican legislators...
Who will pick Republican justices...
FOREVER AND EVER
XII. If this Proposal Doesn't Work, Can't We Just Change it Again? No.
Q. If the Virginia Supreme Court chooses unfair district lines, can't we just change the process again 10 years from now?
Q. Why not?
A. Because it would require a constitutional amendment, not an ordinary law. Constitutional amendments in Virginia require the vote of two successive legislatures. If the Supreme Court gerrymanders Virginia to favor Republicans in 2021, we could never change the system back unless, despite the gerrymander, Virginia elected two successive Democratic legislatures. That's a tough lift, particularly if the proposed constitutional change gives justices a new incentive to gerrymander Virginia as red as possible. And that doesn't even include the expected red wave of 2021.
Q. Does fixing gerrymandering require a constitutional amendment?
A. No! We can redistrict in 2021 based on ordinary Virginia Law, just as Virginia did in 2011, in 2001, in 1991, and every ten years back to the founding of the United States.
Q. So are you saying there should be no constitutional amendment?
A. I'm fine with a Virginia constitutional amendment, so long as we get the details right. But I do not support the current one before us. I'd rather have no redistricting amendment at all than this dangerous proposal. Let's take the time to get it right, rather than take the only train leaving the station this year.
XIII. What's Your Proposal? The Efficiency Gap
Q. So how would you prevent gerrymandering?
A. My preferred way to end gerrymandering is the "efficiency gap" proposal developed in 2015 by social scientists at the University of Chicago. You can read a simplified version of it here. Basically the model uses computers to draw random contiguous districts with equal populations that minimize and equalize "wasted votes" so as to maximize each voter being represented by the party of their choice.
Wouldn't it be great to have computer draw the districts so that no one could be unfair?
I would base the model on the last Gubernatorial election to approximate the political bent of Virginia. So if 55% of Virginians chose a Democratic Governor in 2017 and 45% chose a Republican, the districts would be drawn so that when you add up the solid blue districts and the solid red districts -- and split the competitive seats evenly -- on average, approximately 55 seats would become blue and approximately 45 seats would become red.
Q. Won't that lead to squiggly districts?
A. It might. We must always keep in mind that what makes gerrymandering unfair is not the possible strange shape of districts. What makes gerrymandering unfair is when the districts drawn don't match the political preferences of a state's voters. That said, I would allow some leeway for policymakers in Virginia to consider and adjust any of the computer-drawn maps that bring the "wasted-vote" tally within 1% of fairness so long as we don't, by doing so, go outside that margin of 1%. I think that 1% leeway would be enough to allow the adjustment of districts to promote compactness and communities of interest. And, as always, we must comply with the Voting Rights Act.
Q. Is it your way or the highway?
A. Absolutely not. I realize the computer method is complicated and hard to explain. So I have a much easier proposal to recommend: leave in place the constitutional amendment's commission as it is but remove the Virginia Supreme Court from the equation. I've never had any problem with the commission if it works. But if it is deadlocked, we should let the Virginia General Assembly draw the maps as it has always done before.
XIV. How Did We Get Here in the First Place? We had 20 Minutes to Read and Vote.
I have no doubt that most people in the grassroots organization OneVirginia2021 mean well and act in good faith. Gerrymandering was and is a tremendous problem, and I appreciate their putting forward proposals to restrict it. But the proposed constitutional amendment OneVirginia2021 put forward was not the one approved by the 2019 Virginia General Assembly. Their proposal died in committee. The current proposal was developed by Virginia Republicans and put before us unseen until we had about 20 minutes to vote on it after it left the "conference committee".
Unlike in the United States Congress, where conference committees are chosen by both Republican and Democratic leaders, conference committees in the 2019 Virginia General Assembly were chosen entirely by the majority Republican leadership. So Republican legislators wrote the constitutional amendment OneVirginia2021 is now championing, even though OneVirginia2021 had proposed a different model.
When the conference report for the amendment came before me last February, I read it and saw the Virginia Supreme Court would likely draw the lines, but I had no power to craft or amend the legislation. So with just minutes to spare and being completely unsure what to do, I wavered back and forth. Finally, I voted for the constitutional amendment.
Why would I do that?
Well, I knew I would have a second chance to review the amendment because Virginia's constitutional amendments do not go into effect unless the legislature votes again in a subsequent year for the same amendment. I also knew I would have an entire year to analyze the amendment in detail, time that I did not have then. I saw my vote as a way to keep alive the only constitutional amendment on gerrymandering that had not been killed by Republicans in committee. So I voted for it as a way to say, "I oppose gerrymandering," and "this proposal should be considered," but not to express support for it. In fact, right after voting for the amendment, I expressed my concerns about the proposal both in my weekly newsletter and my annual end-of-session letter.
Now, having reviewed the proposal and fully examined its likely short-term and long-term consequences, I have made up my mind: I will vote against the proposal in 2020.
XV. Why Can't Enabling Legislation Fix the Problem?
Because a constitutional amendment trumps a law.
Many of my colleagues suggest that "enabling legislation" accompanying the constitutional amendment might fix the problems with it. I respectfully disagree.
No matter what legislation we write to accompany the constitutional amendment, the Virginia Supreme Court can promptly ignore it. After all, the Virginia Constitution trumps any ordinary Virginia Law. And if the Virginia Supreme Court refuses to follow the law, what could the legislature do? Very little. We couldn't appeal to the United States Supreme Court, because the last word on Virginia law is the Virginia Supreme Court, and the US Supreme Court has made clear it won't get involved anymore in questions of political gerrymandering (See Part IX above.)
It's true that we could write laws we hope the Virginia Supreme Court will follow. And maybe they will. But as noted above, I think conservative justices have every incentive not to obey our mandates and to do a Republican gerrymander instead. It's their best path to being reappointed.
If we do not have enough votes to defeat this proposal, I will support very strong enabling legislation in an attempt to limit the Virginia Supreme Court from drawing districts that do not reflect Virginia's actual political composition of voters. But I would much prefer to defeat the proposal instead. The danger of blind faith in impartial justice is just too great.
XVI. Whom Do You Trust?
It all comes down to whom you trust. Do you trust a body chosen entirely by the illegally-racially-gerrymandered former Republican majority -- and incentivized to help them -- to draw our new district lines to decide Virginia's political future in 2021 and forevermore?
Maybe I'm being cynical not to trust a court appointed by Republicans to do the right thing. But I fear that if I'm right, we could have a blue majority for just a brief two years and then a red majority for the next century or more.
Ever heard of the Greek goddess Cassandra? She was cursed to foretell the truth but her prophecies were never believed.
No one would listen to her prophecies of doom.
But she was always right.
Call me cynical.
But don't call me Cassandra!
I don't want people telling me in November 2021,
"Mark, I'm so sorry. You clearly were right. What do we do now?"
Because then it will all be too late.
The time to stop this disastrous proposal is now.
XVII. How Do I Find Out More Information?
One of the reasons I wrote you at such length is because I strove to answer every conceivable question, but if you have a question I haven't answered and you're my constituent, just email me.
I know this is a one-sided presentation. I'm a bit of a lone voice on this issue for now. The Washington Post and even the League of Women Voters have been pushing hard for this amendment without even mentioning the fact that the Virginia Supreme Court, unlike the fig-leaf commission, is likely to draw the lines!
I spoke to the League of Women Voters at a forum they held on this.
And unfortunately, many of my colleagues have already gone on record in support of the constitutional amendment because they, like me, voted for it last year. I hope you can email them and encourage them to change their minds!
Send them this email!
Meanwhile, you should certainly hear the other point of view. To that end, I encourage you to watch the public forum on December 11 where I debated the amendment with Brian Cannon, Executive Director of OneVirginia2021.
Some say that we need to pass this reform,
no matter how imperfect (or even harmful) it is.
I say no.
I think there's a better way.
I refuse to let Republicans
bake an unrepresentative Republican majority
forever into the Virginia Constitution.
Delegate Mark Levine
Proudly serving Alexandria, Arlington and Fairfax
in the Virginia House of Delegates