Differing approaches to redistricting reform still in play

After several years of unsuccessful attempts to reform Virginia’s redistricting process, the 2019 General Assembly approved a Constitutional amendment that would task a 16-member Virginia Redistricting Commission with drawing district lines for the General Assembly and the U.S. House of Representatives.  Since a Constitutional amendment must pass the legislature twice in identical form before being submitted to the voters, this amendment is being considered by the 2020 General Assembly as SJ 18 (Barker), HJ 34 (Cole, M.), and HJ 71 (VanValkenburg).  The General Assembly is also considering bills that would accompany the Constitutional amendments by providing additional parameters for the establishment and operation of the Commission, as well as a bill that is intended as a replacement for the Constitutional amendment.  In addition, several bills are under consideration that would specify criteria, which would govern the drawing of district lines.

Constitutional Amendment
The Senate passed the Constitutional amendment by a vote of 38-2.  The House is still considering the House versions of the amendment (the procedural resolution governing the schedule of the session sets a deadline of February 20 for each chamber to pass Constitutional amendments that are being considered for the second year).

Key provisions of the Constitutional amendment:

• Establishes a 16-member Virginia Redistricting Commission, which would consist of eight legislators (two Senators from the majority party, appointed by the President pro tempore, and two Senators from the minority party, appointed by the minority leader; two Delegates from the majority party, appointed by the Speaker, and two Delegates from the minority party, appointed by the minority leader) and eight citizen members (chosen by a committee of retired circuit court judges from lists submitted by General Assembly leadership).

• The Commission shall submit plans for General Assembly districts no later than 45 days following the receipt of Census data, and shall submit plans for Congressional districts either 60 days after the receipt of Census data or by July 1, whichever is later. Plans must be supported by six of the eight legislative members and six of the eight citizen members in order to be submitted.

• The General Assembly would vote on the House of Delegates and Senate districts as a single bill on which no amendments would be permitted. If the General Assembly fails to approve the bill within 15 days of receipt, the Commission must submit a new plan within 14 days, which the General Assembly must vote on within seven days of receipt.  If the General Assembly still fails to approve the plan, the Supreme Court of Virginia will draw the districts.

• Commission meetings must be open to the public and the Commission must hold three public hearings in different parts of the state prior to proposing any redistricting plans, and all records will be considered public information.

Virginia Redistricting Commission bills
HB 758 (VanValkenburg), which passed the House 83-14-2, and SB 203 (Lucas), which passed the Senate with the Lieutenant Governor’s tiebreaking vote, are nearly identical bills that provide additional detail on the selection and operations of the Virginia Redistricting Commission, including requirements for the Supreme Court’s development of district lines, should the Commission proposals fail to be enacted by the General Assembly.  The bills are contingent on approval of the Constitutional amendment at the November 2020 general election.

Key provisions of HB 758/SB 203:

• Specifies qualifications for the members of the Redistricting Commission Selection Committee, who are retired circuit court judges; the legislation would bar service by judges who are related to members of Congress or the General Assembly and would require consideration of the racial, ethnic, geographic, and gender diversity of the Commonwealth in selecting the members.

• Requires the Selection Committee to establish an application process for Commission members and specifies certain information that must be collected from applicants with respect to their political activities and employment history and that of their relatives. Requires Virginia Redistricting Commission members to be selected with consideration to the racial, ethnic, geographic, and gender diversity of the Commonwealth and specifies certain disqualifications from service on the Commission.

• Sets out requirements for public participation in the Commission’s deliberations.

• Specifies criteria for establishment of congressional and General Assembly districts, to include:
  • A population deviation of no more than 5 percent when drawing districts
  • Adherence to Constitutional provisions and federal and state laws and judicial decisions regarding racial and ethnic fairness
  • Prohibitions on drawing districts that result in a denial or abridgement of the right of any citizen to vote on account of race or color or membership in a language minority group, or limitations on the ability of any racial or language minority group to participate in the political process and to elect candidates of their choice
  • Requirements to preserve communities of interest and to draw districts that are contiguous and compact and do not, when considered on a statewide basis, unduly favor or disfavor any political party

• Requires that an individual incarcerated in a federal, state, or local correctional facility be counted either at his or her address at the time of incarceration (if the address was located within the Commonwealth), or at the location of the facility (if his or her address at the time of incarceration was located outside the Commonwealth or is not known).

• Spells out the procedures for submission of proposed plans to the General Assembly.

• Requires the Supreme Court to enact rules and procedures governing its establishment of congressional or General Assembly districts in case the General Assembly fails to enact plans recommended by the Commission, which include requirements for public participation and the appointment of two special masters from lists submitted by General Assembly leadership. HB 758 states that the Court “shall follow” these stipulations, while SB 203 states that the Court “shall give consideration to” them.

HB 1256 (Price) provides an alternative mechanism for redistricting that would not require passage of the Constitutional amendment and would not provide for the Supreme Court’s involvement in drawing districts.

Key provisions of HB 1256:

• Establishes a Virginia Redistricting Advisory Commission, with a composition as envisioned in HB 758/SB 203, and generally selected in the same manner by the Redistricting Commission Selection Committee.

• Provides for seven public hearings by the Commission (the other bills contemplate three hearings, plus additional hearings by the House and Senate Privileges and Elections Committees), as well as video recording and archiving of meetings.

• Contains the same criteria for drawing districts as in HB 758/SB 203, including the counting of incarcerated individuals at their pre-incarceration addresses.

• Provides that plans submitted by the Commission for Congressional, House of Delegates, and Senate districts would be voted on as separate bills. No amendments would be allowed during the first two attempts at consideration of plans except “those of a purely corrective nature.”  If the first plan fails, a second plan would be considered; if a third plan is required, the bill would be subject to amendment “in the same manner as other bills,” so the General Assembly could rework the plan.

Criteria bills
HB 1255 (Price)/SB 717 (McClellan) specify the criteria by which districts would be drawn.  These criteria are also embedded in the bills establishing the Virginia Redistricting Commission (HB 758/SB 203) or the Virginia Redistricting Advisory Commission (HB 1256), and would include racial and ethnic fairness; compactness, contiguity, and the preservation of communities of interest; and the counting of incarcerated individuals at their pre-incarcerated addresses (if known and if located within the Commonwealth) discussed above.  HB 1255 passed the House 55-45, and SB 717 passed the Senate 20-19.

Next steps
The House’s deadline to approve the House version of the Constitutional amendment is Thursday, February 20.  If it opts not to take up the House amendments, it could still consider and act favorably on the Senate version.  The two approaches to the Commission advanced by the House (HB 758 and HB 1256) are now before Senate Privileges and Elections Committee.

VACo Contact:  Katie Boyle