The General Assembly is asleep at the switch, and your Republican member of Congress may be in jeopardy. Hoping for a judicial solution on redistricting, the General Assembly is ignoring a federal court order at its own peril.[read_more]
Where did the court order come from?
On October 7, 2014 a three judge panel struck down Virginia’s congressional districts as an unconstitutional racial gerrymander. This was due in part to a shift in Supreme Court case law on the voting rights act. For background on the reasoning see my October 2014 post and read the comments.
There is a maxim in litigation that states “the court speaks through its orders.” In short, this means in many ways it does not matter how much commentary there is on a topic inside or outside the courtroom the only thing that really matters is the actual court order entered by a judge or judges.
I obtained the court order back in October to ascertain the language being applied to the General Assembly which is now reposted here:
In relevant part:
The matter of providing a redistricting plan for the post-2014 elections to remedy the constitutional violations found in this case is referred to the Virginia General Assembly for exercise of its primary jurisdiction. The Virginia General Assembly should exercise this jurisdiction as expeditiously as possible, but no later than April 1, 2015, by adopting a new redistricting plan.
But if this order is going to be overturned there’s no need to act…
Given the unusual manner in which redistricting cases are adjudicated, the appeal from the three judge panel is directly to the Supreme Court of the United States. In this instance, the Republican members of Congress appealed. Even our casual readers know that an appeal to the Supreme Court is usually a long shot.
No attempt was made to obtain a stay of the order in the District Court and the Appellants had great confidence that the Supreme Court would announce they were taking the case in mid-January paving the way for a stay in the Supreme Court.
The Supreme Court has not denied the appeal, but they passed over the appeal in January which casts substantial doubt on the possibility the Supreme Court will take the case. The Appellants have not moved for a stay in the Supreme Court.
After the decision in October new Plaintiffs have filed suit to challenge Virginia House of Delegates districts on similar grounds. Given that the earlier case came down as it did, the House districts are in jeopardy.
General Assembly action?
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.
When facing a seemingly helpless situation the Republican caucuses should be looking for opportunities
The situation is not helpless. Go back and look at the court order, the directive that guides the action (or inaction) of the General Assembly.
The General Assembly, should exercise this jurisdiction . . . by adopting a new redistricting plan.
There are two ways to interpret this:
Option 1: The General Assembly, and General Assembly alone, has the power under the court order to adopt a new redistricting plan. No action, or inaction by the Governor is needed or warranted. Republicans control both the House and the Senate, they could just “adopt a plan” comply with the order, and that would be the end of it.
Option 2: The General Assembly can only “adopt” a new plan by passing a plan with the Governor’s signature or over the Governor’s veto by April 1, 2015. Under this scenario, even if the plan passed by the General Assembly is nonbinding, the three Judge panel in charge of administration of its court order would likely look on any legislative solution favorably in comparison to having a third party completely redraw Virginia’s districts.
Keep in mind that if option two applies it gives McAuliffe incredible power. If Gov. McAuliffe vetoes a plan, then nothing could be passed by April 1, 2015 anyway as the reconvened session to deal with vetoes does not begin until April 15, 2015. This suggests that option two is the less likely interpretation of the court order.
The fundamental question
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 alternative theory
When given the choice between incompetence and nefariousness I generally presume incompetence. It has been suggested to me that the cause of inaction may actually be nefariousness. It may be that there are redistricting plans for Congress and the House already worked out. These plans are known only to members of the leadership and can be used to reward friends and punish enemies, and are awaiting a precipitating event to be made public.
That precipitating event would be a crisis, such as a sudden and clear denial of the appeal, or a motion in the Congressional redistricting case to appoint a “special master” to redraw the districts. The crisis would require immediate action with little scrutiny. The public would be unable to adequately review the new plans and entrenched powers would get their every desire…
To the Republican leaders in the General Assembly:
Start working on and passing a congressional redistricting plan immediately or risk losing members of congress, OR if you have these secret plans in the works let them see the light of day so we can have an honest debate about their worthiness.
[…] Paul A. Prados February 9, 2015 […]
[…] I wrote about this back in February as the General Assembly sat on its hands under the threat of a d… […]
[…] TBE’s previous thoughts on the dynamics at play, including discussion of whether the General Assembly would dare to bypass the Governor in this process, can be found here and here. […]
[…] ** In previous redistricting suits (all or almost all of which were conducted under the auspices of Section 5 of the Voting Rights Act), the Governor’s signature has been secured on the required redistricting plan. All bets are off, though, if in the context of the court order Republicans decide to play hardball and argue that all that is required to comply with the order is a plan passed by the General Assembly and approved by the judge. We don’t know how sound this approach would be, but raise it based on conversations with certain experts who suggest it is a possibility. Our own Paul Prados had some thoughts on this question back in February, analyzing the verbiage of the court’s order very closely. […]
The General Assembly is quite probably waiting to see the outcome of the appeal before getting at the business of coming with a new map. Since the Eric Holder Justice Department cleared the current district boundaries, it is hard to see how the G.A. could lose the appeal. Why acquiesce in a court order that is more than likely to be overturned on appeal?
With 14 working days left until the court appointed deadline to have a plan “adopted” (I assume by this they mean passed by the GA) and no stay in the offing, I might offer a difficult to accept, but possible Option 3 – gross negligence. Perhaps Judge Duncan will be understanding, like your 7th grade teacher when you failed to turn in your book report on time. Probably NOT though. Prioritizing and workflow time management seem to be an insurmountable hill to climb for the legislative leadership year in and year out, something even the local donut shop has managed to achieve in their daily business routine.
“When given the choice between incompetence and nefariousness I generally presume incompetence.”
That I believe is the ultimate question in all political situations. I generally presume nefariousness, because presuming incompetence should lead one to question why those people are in elected office to begin with. Generally speaking, I prefer the competent corrupt legislator to the incompetent honest one. Mainly because you can never trust the incompetent honest one to be truly honest because they are too stupid to know the difference. You can usually trust the nefarious one to pull off whatever scheme they are planning, granted it will not always be in the best interest of the state.
Now for the hard question.
If option 2 is the legally required one, a plan is passed, and McAuliffe does veto it, is it possible, and what do you peg as the odds, that the court will deem the plan passed by the GA as in effect rather than appoint someone else to draw the districts?
If option 1 is possible, then doesn’t that mean its possible to pass a law through the GA without following the Virginia Constitutional process?
Under option two, I say it is 50/50 whether the court appoints someone to redraw the districts. Still, any redrawn districts could be compared against the new districts designated by the G.A. and the court could decide between the new E.D.Va. special master districts and the G.A. districts. appointment of a special master does not mean that the plan by the G.A. will be completely ignored.
“If option 1 is possible, then doesn’t that mean its possible to pass a law through the GA without following the Virginia Constitutional process?”
Sort of. It depends on your definition of the “Virginia Constitutional Process.” Under option one the court is asking for something from the G.A. alone to draw new districts outside of the usual legislative process.
Let the Court handle redistricting. It needs to be shown that cheating does not pay.
Here… just use these: http://bdistricting.com/2010/VA_Congress/
That looks better than what we have now.
Good except the Shore needs to stay with Virginia Beach. There are no more ferries so it doesn’t make sense to have to drive from the Northern Neck all the way to Virginia Beach and across the CBBT to get to another part of your district.
I agree that it is not perfect. Your correction is a great example of how it can be improved. I am very much in support of using math, algorithms, and computers to draw the lines based on raw population counts and with little to no guidance. Your suggestion of keeping the Shore with VB would qualify as the “little guidance” needed to complete the algorithms work for Virginia. I think the less human decision-making that goes into the process, the better.
I’m assuming you are using GIS or some kind of geometry handling to do your algorithms? I would suggest implementing some kind of conditional statement using the master road centerline file for intersecting polygons with district numbers other than the one being drawn. If done right, it would read that Accomack and Northampton Counties are only accessible via roads that cross through another Congressional district and it would have changed their district value to match up with where Virginia Beach is.
It’s actually someone else’s work (http://bdistricting.com/author.html). The site is one I found during the 2011 redistricting process as I became increasingly disgusted with the gerrymandering. The algorithms and software are open source (http://bdistricting.com/about.html#open). Great suggestion for the “only accessible via” exceptions. I’ll pass on your comments to Mr. Olson.
Hi, author of bdistricting here. The maps were made pretty naively focusing just on contiguity, equal population, and compactness, because even that is several thousand lines of code and months of compute time. Road connectedness could be a good automatic measure, but there a lot of roads and checking them all would take a lot of compute time. I may yet get around to trying it though. Maybe for 2020.
Maybe someone should forward these maps to the relevant Court so they can threaten, “Dear Assembly, if you can’t do better, you get _this_”
Thank you for weighing in, Mr. Olson.