Amendment 1 Does Not Create an Independent Redistricting Commission

By Cathie Lee

In a healthy democracy, citizens choose their representatives, not the other way around. A fair, impartial districting process keeps politicians accountable and secures policies and laws the public needs like affordable health care and quality education. However, the redistricting proposal on the ballot this November, Virginia’s Constitutional Amendment #1, does not achieve that goal. Instead, Amendment 1 institutionalizes an already broken two-party, highly partisan system.

Here’s why. A truly independent redistricting commission would need experts to analyze the citizenry and draw fair and unbiased voting maps that accurately reflect the population. Imagine the expertise a commission would need to perform that task. It might include a cartographer, demographer, mathematician, psychologist, sociologist, mediator, political scientist, labor organizer, business leader, educator, diversity professionals and minority representatives. Throw in a lawyer or two to explain election law.

The Redistricting Commission created by Amendment 1 does not include any of the above experts. Instead, it consists of 16 members — eight legislators (four Democrats and four Republicans) and eight citizens. The eight citizens will be chosen by retired judges from lists provided by the legislators, meaning the Democrat and Republican parties. Will the two major political parties put independents, educators or environmentalists on their citizen lists? No. Common sense dictates the citizen members will be fierce party advocates and/or big donors because political power is at stake. Power is too important to allow impartial citizens in the room.

It gets worse. Two members of the “Independent Commission” can block whatever map is created and send the entire redistricting process to the Virginia Supreme Court. The justices of the Virginia Supreme Court, currently two women and five men, are appointed by the General Assembly to 12-year terms. They are frequently reappointed, and many do not leave until required at the age of 73 when they can remain on senior status with a lighter caseload. Virginia’s bench is stacked with conservatives.  The earliest possible appointment is 2022. The court has a long history of decisions favoring Republican causes: big business and government agencies or boards at the expense of citizens.

Contrary to popular belief, judges are not independent, apolitical people. Remember, they are appointed by the General Assembly. They are lawyers, typically from large firms, noticed because of their political prowess, connections and contributions to the cause. I’ve worked for judges. Today, I make my living trying to persuade them. It’s a frustrating profession because too often judges know the result they want and find the case(s) or legal maxims to justify their decision.

Recent history is telling. In a 2019 suit, the Hanover NAACP alleged that minority students attending schools with confederate general names were denied their right to an education free from discrimination and compelled speech. Requiring students, particularly athletes, to wear names and mascots that dehumanized them violated their First and Fourteenth Amendment rights. The NAACP’s complaint was brilliant and based on solid legal theories. Senior Judge Robert Payne dismissed the case without a trial, deciding, in part, a two-year statute of limitations applied. The NAACP was too late because the time to sue expired two years after the schools were named, around 1960 and 1971.

Is that really the law? Arguably, no. Ignoring the fact that the parents of the students seeking relief may not have been born 50-60 years ago making it impossible for them to sue, Judge Payne ignored the continuing harm rule. This legal doctrine begins a statute of limitations when the harm ends. The harm was still happening when the NAACP filed suit, so it was clearly timely. Judge Payne is a 79-year-old white man selected by President George H.W. Bush in 1991. Does it surprise anyone he relied on a shaky statute of limitations instead of the continuing harm rule to support his decision?  

Judicial politics have consequences beyond school names. The 2017 House of Delegates race in Newport News saw Democrat Shelly Simonds beat Republican David Yancey by one vote. The Republicans found a ballot that had been thrown out because the voter marked both candidates’ names. The Republicans asked a three-judge panel to count the discarded ballot for Yancey. Judge Bryant L. Sugg announced the decision that the voter intended to pick Yancey even though he/she marked both bubbles and put a stroke through Simonds, like the stroke the voter put through the Republican candidate for Governor, Ed Gillespie. The judges’ decision meant the winner had to be decided by coin toss and Yancey won. The Democrats also had a ballot they wanted the panel to rule on, but like Judge Payne, the panel said the Democrats were too late. Guess who recommended and helped appoint Judge Suggs? Yep, Delegate David Yancey, who won the coin toss and the House of Delegates seat. Did Judge Suggs disclose the potential conflict or recuse himself?  Nope.

So, can you really count on eight legislators and eight citizens selected by legislators or the Virginia Supreme Court to draw fair and impartial redistricting maps? Do you want a Redistricting Commission with those members embedded in the Virginia Constitution? As you weigh your decision, look at the ballot from the Newport News debacle. Should this vote have been counted for Yancey or thrown out? What if the justices add one more Republican house into a district? Do judges really make fair and impartial decisions blind to parties or politics? Sadly, my life experience requires me to vote NO to Amendment 1 in the hope that we will get a truly independent Redistricting Commission with the impartial experts we desperately need to draw fair election maps.