As the courts prepare to redraw Virginia’s Congressional Districts likely resulting in a loss of one or more Republican incumbents, writers on the right are spending their time focusing on the underhanded tactics of Democrats.
I will take a brief moment and say that I agree there are some sketchy things about the timeline for appointment of a new Justice, and the adjournment of the Senate violates the Virginia Constitution.
Still, Republican leadership in the House and Senate had the ability to avoid this problem by simply filing, and possibly passing, redistricting legislation at any point since the entry of the October 7, 2014 court order.
I wrote about this back in February as the General Assembly sat on its hands under the threat of a deadline of April 1.
There is no serious General Assembly action. Republicans have control of the Virginia House and Senate. They could be pushing through new Congressional Districts and new House (and Senate Districts). Yet, all I have ever heard from the Republican members of the General Assembly on this issue is that “we can’t pass anything because McAuliffe will veto it,” and “we are confident in and must win the appeal.” The federal courts will end up redistricting for us if we lose!!!! No serious redistricting has even been proposed. Not good enough.”
I laid out the interpretations of the court order before finally concluding:
Under which option does it make sense to not pass any redistricting plan from each house of the General Assembly by April 1, 2015?
The Republican Caucuses are asleep at the switch, and are potentially burying our Congressional Republicans through inaction.
The Republicans showed up on August 17 and determined a series of parameters to guide the redistricting process leading up to September 1. The Democrats showed up with three formal redistricting plans a few weeks before the deadline. The Republicans showed up like it was January 2015 and they had all the time in the world.
This is litigation so what happens now?
The Plaintiffs will likely file a motion for appointment of a Special Master to oversee the redrawing of Congressional Districts. Once appointed, this Special Master will be charged with reviewing competing redistricting plans including plans developed by the Master. Recommendations will be made to the three Judge panel, the parties will be able to file briefs, and then the three Judge panel will choose our new Congressional Districts.
Expect a full scale redrawing of the districts
I apparently disagree with a handful of informed commenters and allies on this post. Let us talk about how the oral argument (here in Virginia Judges deplore ruling without oral argument) goes after the Special Master submits his reports. Here is my take:
Counsel for Republican House Caucus: We did everything we could but the Senate violated the Virginia Constitution by illegally adjourning and refused to even consider our legislation thereby preventing passage of a redistricting plan, SOOOO you should approve a plan chosen by the Republican caucus that merely tweaks the 3rd Congressional District.
Court: Counsel, when was our Order issued?
Counsel: October 2014, but that is not the point, the Senate Demo….
Court: The Order requires the G.A. to exercise its jurisdiction to engage in redistricting by April 1, 2015 correct?
Counsel: Yes, but we are appealing and obtained an extension from this Court to September 1.
Court: And what legislation was passed between April 1 and September 1?
Counsel: Well no legislation could be passed due to the illegal action…
Court: So four months passed with no action?
Counsel: The G.A. was not called back into session until August.
Court: Was the G.A. prohibited from engaging in redistricting between April and August?
Counsel: Not exactly, but…
Court: What was the status of redistricting legislation prior to April 1, 2015?
Counsel: Well the G.A. was working on some ideas.
Court: Was legislation introduced and sent through Committee?
Counsel: No, because the appeal was pending and an extension wa…
Court: At any point did the House Republicans submit legislation?
Counsel: They didn’t have the oppor…
Court: I understand it is uncontested that multiple redistricting plans were submitted by Democrats.
Counsel: But the process had only barely star…
Court: Going back to the Order, it does not say the G.A. must simply exercise jurisdiction by April 1, does it?
Counsel: That is the point, there was a deadline that was extended.
Court: But it also states the G.A. must exercise “jurisdiction as expeditiously as possible,” correct?
Counsel: Yes, but we were working with a deadline.
Court: Forget about passing, or even reviewing it in a committee, I don’t see how not INTRODUCING redistricting legislation for ten months constitutes expeditious exercise of jurisdiction.
Counsel: But the Senate Democrats…
Court: If anything the G.A. has willfully abdicated its role in this process and has asked the Court to fix these problems…
I expect a full scale redrawing of the Districts and G.A. Republicans to have minimal credibility at any hearing. The only reason the Court should not engage in a full scale redrawing is that the current redistricting plan was fully passed and signed into law.
What can be done?
The House is still in session, and can introduce and pass a redistricting plan from the House alone. Do not walk into Court empty handed. You have buried yourselves, and one or more Congressional Republicans through inaction. No matter how badly tricked you were by the Democrats on August 17, the failure, up until now, rests with you. Quit whining about Democrats violating rules, and denied extensions from the Court, and DO SOMETHING! Even something like this.
I was pushed to choose between incompetence and nefariousness back in February and I thought it was incompetence. Perhaps some that thought it was nefariousness are ready to change their minds.
1. I was too harsh in suggesting a ten month long requirement under the October order. It was actually a cumulative 8 month requirement that included nearly the entirety of the 2015 G.A. session. I had forgotten to mention the exception of the two month period from March 30, 2015 until Jun 5, 2015 when the case had been vacated and remanded. On June 5 a nearly identical order with a deadline of September 1 was entered.
2. There have been two rulings, both of which were appealed to the Supreme Court. At no time has ANY party sought a stay in the Supreme Court of the three Judge panel’s ruling pending appeal.
[…] Paul A. Prados, August 19, 2015 […]
[…] D.J. McGuire over at Bearing Drift has joined me in calling for the House to pass redistricting legislation quickly. As I indicated on Wednesday, […]
I think Republicans and Democrats should keep one thing in mind during all of this, the ultimate goal should be for the people of Virginia to be fairly represented in the legislature, that’s it. If there are groups of people who are not being represented fairly then it should be fixed, and that’s true whether it is because they are grouped together in a small area and aren’t fairly represented because of their race, or because they are spread across vast areas in the wilderness, or clumped together in the suburbs, everyone should expect the most fair minded and reasonable redistricting plan possible. I’m a conservative, and one of our ideals is fair representative government, so that’s what we should strive for.
If you just read that paragraph and you feel that what I am saying is that Republicans have gerrymandered districts to the point that they have taken an unfair advantage of the system, go back and read what I wrote again – I didn’t say that, but if you feel that way, it’s probably because you believed that was true before you ever read what I wrote.
The GOPers are dead ducks. They came out and shuffled some political deck chairs around and called the 3rd District “New and Improved.” as if that would satisfy the courts. Courts don’t like being played for fools. Neither do the voters who don’t have Obama to vote for any more. Who’s to say they may decide to focus on local elections next time around? The incumbent protection team is overplaying their hand and it could come back in unintended ways.
does anyone have any idea which Republican districts could be redrawn to become a Dem district? any guesses?
I don’t think anything would be redrawn to be a clear Dem district, but I imagine a couple of close districts.
In Court ordered redistricting: 2 – Rigell; 4 – Forbes; 7 – Brat; and 10 – Comstock, in that order.
In a brokered deal during the 2016 session: 7 – Brat; 2 – Rigell/4 – Forbes; and 10 – Comstock, in that order.
thanks. do you think we will know by the end of this year?
I’ll know more about the timeline for Court Ordered Redistricting probably in late September or early October when a hearing will be held. Given that time frame, we probably won’t get anything substantive from the Special Master until January. The Court is cognizant of the 2016 election cycle and may push for fast deadlines though.
Great article that rings of truth! How about being a more frequent contributor?
I write pretty frequently. Probably the most behind Jeanine and Steve A..
I don’t understand why you think the General Assembly should have drawn new lines before their case has been fully adjudicated? Do you think Bob McDonnell should report to jail before he has exhausted his appeals? He could end up completing his sentence only to have his conviction overturned. Seems a bit backwards to me.
By redrawing new lines before the appeals process has been exhausted, the General Assembly would be forgoing it’s rights and assuming the ruling against them was valid. Furthermore, the role of drawing new lines is not the purview of the courts. It is the role of the legislature. Even if the court moves forward, by the time this process works itself out we will already be in the 2016 Session. The General Assembly can simply create new lines (most likely with the complete agreement of Congressional Democrats who won’t want to see their districts weakened), and get it passed. The court plan would never see the light of day.
Q. I don’t understand why you think the General Assembly should have drawn new lines before their case has been fully adjudicated?
A. If a party seeks relief from a lower court’s court order they should seek a stay pending appeal. If denied, that is too bad. In this instance a stay was not sought before the three judge panel.
Q. Do you think Bob McDonnell should report to jail before he has exhausted his appeals? He could end up completing his sentence only to have his conviction overturned. Seems a bit backwards to me.
A. Apples and oranges… At this point yes. He had a good case for appeal and while it was pending in the 4th Circuit I understood staying the sentence. Now that he is left with nothing but a long shot appeal to the Supreme Court, I think I agree with most jurists.
Comment. Furthermore, the role of drawing new lines is not the purview of the courts. It is the role of the legislature.
A. The Courts told the legislature to proceed expeditiously on October 7. The Legislature sat on its hands for ten months. The Courts will not stand by while their rulings are ignored.
Comment. …by the time this process works itself out we will already be in the 2016 Session. The General Assembly can simply create new lines , and get it passed. The court plan would never see the light of day.
A. It is possible. The Court plan could be the impetus for the bargained agreement within the G.A. When faced with the possibility of a couple competing Court administered plans, the G.A. (Republicans and Democrats alike) may work together to pass a new plan which will need to be signed by McAuliffe. Republicans would HAVE to be giving something up under this scenario.
1. A stay does not have to be granted by the court that made the ruling. It can be granted by a higher court that agrees to hear the appeal. The General Assembly is appealing to the Supreme Court. They can decide to grant a stay.
2. The premise in the McDonnell case is the same. As soon as McDonnell steps into a jail cell, he is accepting the idea that his guilty verdict was correct. By agreeing to draw new lines ahead of time, the GA would be accepting the ruling of the court. It could actually hurt their case on appeal if the other side could say, “Look. They’re already redrawing lines because they know they need to do it.”
You also glossed over a point that I made. The three Democrat VA Congressmen aren’t particularly enamored with the thought of their districts becoming more competitive. The idea that the Republicans have to “give up” something is not accurate. The 11 VA Congressmen have been working together for decades to agree upon a map that protects the incumbents. Any map that moves Democrats into Republican districts will move Republicans into Democrat districts.
Beyer, Connolly, and Scott are not going to like the idea of working harder for their seats. They will work with the Republicans, come up with minor tweaks, and get McAuliffe and the Democrats in the GA to accept it.
In my opinion you are just not being realistic. Honestly I just do not see how you arrive at you conclusions. Paul is being totally realistic and honest in his comment.
McDonnell has been found guilty at all levels except SCOTUS. No doubt that he nor you will ever accept any verdict except not guilty even from SCOTUS. So be it.
You seem to be under the spell of hate radio?
1. The G.A. (in fact no one) petitioned for a stay before the Supreme Court. There is now technically a second appeal. In neither of those appeals has anyone asked for a stay.
2. To make them the same you have to assume that McDonnell, without a valid court order in place allowing him to stay out pending an appeal, would refuse to show up to prison when ordered because the optics are bad for his appeal. The G.A. is subject to a court order. They have ignored it at their own peril.
You and I disagree on the the Republicans having to give something up. The last redistricting plan came at a time when the Senate was split, the House was dominated by Republicans, and we had a Republican Governor. Moran was unafraid of reelection and Scott (gently) supported a plan that pushed the BVAP (Black Voting Age Population) in the third below 50% so a separate minority-majority district could be created. Connolly was the only one wanting to truly shore up his district. Connolly has far fewer concerns in 2015. With a court imposed plan breathing down the necks of Republicans in the G.A. they are likely to give up some of their advantages to get a plan through. You and I disagree on the political ramifications of a potential Court imposed plan. This does not make my statements “not accurate.” It simply means we disagree.
and at some point we need to acknowledge that in a state where the last statewide race was decided by only a few thousand votes, it’s utterly ridiculous that the closest House race in the state was won by 15 points.
Trying to compare statewide races to Congressional District results is a false comparison. Just because the statewide races are close doesn’t mean those votes are spread evenly geographically.
When the majority of Democrat votes are concentrated in smaller urban areas, and the majority of Republican votes are spread out amongst suburban and rural areas, you get 8 Republican seats and only three Democrat seats with margins of victory averaging around 15%. There’s nothing ridiculous about it.
I guess so …
The geographic distribution of Democratic and Republican voters does not produce this result. Intentional drawing of districts by a GOP General Assembly to protect a GOP-dominated Congressional delegation produced this result. And it is indeed “utterly ridiculous.”