Observers of the court-ordered redistricting process understood from early on that this week’s special session was unlikely to yield a plan that either side would like. At best, most saw an opportunity for some kind of horse trade to help grease the skids on a compromise deal that could have placed one additional Congressional seat in play in 2016.
Some Democrats even theorized that the recent showdown over Terry McAuliffe’s unilateral recess appointment of Fairfax Judge Jane Roush to the Virginia Supreme Court was nothing more than the Republicans creating a bargaining chip for this purpose. Now, we think redistricting is too much of a priority for the Governor for him to have been swayed much by any deal to support Judge Roush, but this goes to show what the mindset was among many General Assembly members as the redistricting special session approached.
Probably the best thing Republicans could have hoped for, and what looked to be on track as the session opened yesterday, was a Republican-drawn plan narrowly tailored to the court order requiring changes to the Third Congressional District (i.e., reducing the percentage of African-American voters in the Third and adding those voters to adjacent districts, most likely the Second and the Fourth) to be passed by both the Senate and House of Delegates. Even with the expected veto by the Governor, such a plan that complied with the court’s order and that was “passed by the General Assembly” would have given the court a convenient starting place, and may have been something the court could have simply adopted in whole as part of its final order.
However, sensing the risk of allowing the GOP to put the General Assembly’s stamp of approval on a redistricting plan that complies with the court’s order without doing more to help Democrats’ chances of picking up another seat next year, the Democrats found a way to effectively keep Republicans from passing such a plan. The General Assembly can’t pass anything if one house refuses to participate, and thus the Senate Democrats–aided by the retiring occasional Republican Senator John Watkins and a tie-breaking vote from Lt. Governor Ralph Northam–brought the special session to a halt yesterday by voting to adjourn sine die.
This move, largely because of Watkins’ complicity in it, was initially interpreted as a way to preserve Judge (now Justice) Roush’s seat on the Supreme Court. Watkins had expressed reservations about the Republicans’ plans to instead elect Judge Rossie Alston to that seat, and thus his move here was seen as his way to keep that from happening. Adjournment wasn’t necessary for that, though; all that was needed to keep Roush on the high court bench was for Watkins to join with the Democrats in not voting for Alston, thus allowing Gov. McAuliffe to give Roush a repeat recess appointment when her initial term expires next month. (Don’t expect her to survive very long once the regular session convenes in January…Republicans aren’t likely to easily forget the tactics employed by the Governor here).
So, the linkage of Watkins’ move to the Roush/Alston kerfuffle is little more than convenient cover. Instead, Watkins joined with Democrats to spoil Republicans’ redistricting plans for reasons that he has not yet directly commented on in public. Some individuals close to the matter have indicated to The Bull Elephant that Watkins is animated by spite, and that this is his way of delivering a parting shot to the party that ultimately thwarted his aims of establishing a federal Obamacare exchange and expanding Medicaid. (Cue the timer on just when former Senator Watkins joins John Chichester in endorsing the next Democrat candidate for Governor, and the next Democrat candidate for the U.S. Senate, because the GOP has become too “extreme.” Where have we heard this kind of thing before?)
Whatever the motivations for Watkins to align himself with the Democrats on this, the effect is the same. In Gov. McAuliffe’s words, â€œThe opportunity for a legislative remedy has ended.â€ That’s the real aim…to take this process completely out of the hands of the legislature in the hopes that the court will draw altogether new lines in ways that will help Democrats more than what the Republicans would have passed.
Without a “General Assembly-approved” (even if vetoed by the Governor) map to start from, the Democrats hope the court will exercise the discretion to undertake more sweeping changes. As we understand it, there is not a lot of 4th Circuit precedent suggesting the courts are predisposed to this sort of thing, so it is a gamble that might not pay off. The court might simply replicate the kind of narrow approach favored by the Republicans. But they might not, which is what the Democrats are hoping for.
The Governor’s statement yesterday reveals this transparent motivation:
â€œTherefore, it is appropriate that the Court now take action and provide relief to the citizens of the Commonwealth in the form of a new map based on the principles of equal representation, protection of minority voting rights, compact and contiguous districts, and the integrity of communities of interest.
â€œIt is clear, given the Court ruling, that the only means to achieve that goal is to take a comprehensive approach that starts from the beginning and erases the taint of racial and partisan politics that poisons the old unconstitutional map.â€
The biggest problem with this isn’t the power politics at play, though, it’s the way in which the play was made. By unilaterally adjourning the Senate, Minority Leader Sen. Don McEachin (R-Richmond) and his fellow Democrats are running directly counter to the Virginia Constitution which says neither chamber may “without the consent of the other, adjourn to another place, nor for more than three days.” Democrats point to “precedent” for their move, but those are instances of one body adjourning early when there was already an agreed adjournment scheduled within three days. This is new and very dangerous territory for the General Assembly…to simply ignore the Constitution’s requirements in service of political advantage.
But it’s also territory Governor McAuliffe is very used to.