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Their View: Is Virginia's redistricting commission violating the law?

Their View: Is Virginia's redistricting commission violating the law?

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Virginia’s redistricting commission is not turning out the way we thought it would. The half-legislature, half-citizen, half-Democrat, half-Republican commission has already broken its first promise to the voters who approved the constitutional amendment creating it last year. Perhaps the bigger question is: Has it broken the law?

The law that created the commission the amendment set in motion specified that “In making its appointments, the appointing authorities shall give consideration to the racial, ethnic, geographic, and gender diversity of the Commonwealth.” The initial appointments came short of the most obvious way to achieve diversity – by having an equal number of men and women.

Legislators appointed five men and three women from their own ranks (by law, half Democrats, half Republicans). A panel of retired judges who appointed the so-called citizen members could have made up that difference but did not. The judges initially appointed six men and two women – for a total of 11 men and five women.

That does not seem to meet the spirit of the law, although the letter of law is written in such a squishy way as to make this difficult to enforce. What does “shall give consideration” mean? Perhaps both legislators and judges gave consideration to appointing more women and then decided not to. Who’s to say?

The initial appointments did, at least, try to achieve some geographic diversity. If anything, Southside found itself over-represented – with two legislators (state Sen. Steve Newman, R-Bedford, and Del. Les Adams, R-Pittsylvania) and one citizen (Richard Harrell of South Boston). There were no representatives from the Roanoke Valley – the largest metro area to be unrepresented – but far Southwest Virginia did have a member in the person of Marvin Gilliam of Bristol.

Then Gilliam resigned for unspecified reasons, and that’s where the commission strayed even further from its mandate. The commission is set up so that each party’s legislative leaders in Richmond get a certain number of appointments. Gilliam had been on the list submitted by Senate Minority Leader Tommy Norment, so to replace him the commission (who now had the task of replacing him, not the judges) had to go back to Norment’s list. That limited the options because the only other nominee on Norment’s list from Southwest Virginia was from Roanoke – which some might not consider Southwest Virginia. In any case, the commission passed him over and picked someone from Lynchburg.

The commission’s motives might be sound – that replacement is Lynchburg lawyer Virginia Trost-Thornton. By appointing her, the commission did what it could to fix the gender imbalance. That’s a good thing. However, in doing so, it left Southwest Virginia unrepresented. There’s now not a single commission member from west of Forest.

This seems a very plain violation of the mandate of geographic diversity. We hate to encourage a more litigious society but this is what courts are for: It would be curious to see what some judge might have to say about this. Does the commission begin its work by being in violation of the law? Or does that “give consideration” phrase excuse all manner of deviations? Does that promise of diversity really mean anything? Probably not.

Two facts remain: Even with Trost-Thornton’s appointment, the commission still has more men than women – and a whole swath of the state is completely unrepresented. So much for either gender diversity or geographical diversity. Those are two of the four categories we were promised and the commission has failed on both counts. A future legislature, if it were so inclined, could fix both of these things by re-writing the law to require diversity, not just “give consideration” to it. We often think of calls for “diversity” as a liberal thing, a sign of wokeness. Here, though, actual diversity would benefit a lot of conservative voters in Southwest Virginia.

No matter who draws the lines, the state’s population trends will dictate that Southwest Virginia will lose seats in this redistricting. Having someone from Southwest Virginia at the table won’t change that. Still, it would be nice – more than nice – if someone from Southwest Virginia had some say in how those new lines get drawn. We are a nation founded on the principle of “no taxation without representation,” but we’re about to get redistricting without representation. On behalf of Southwest Virginia, we cry foul. (This is also a problem that could still be fixed: Someone else on the commission could resign to make way for a Southwest Virginia representative. Just a hint.)

There are other problems with this commission, too. This is not exactly a distinguished group of people. One member – Jose Feliciano Jr. of Fredericksburg – has tweeted crude language about female celebrities he didn’t care for, using words we’re not even willing to dash out. This week The Bulwark – a site run by anti-Trump Republicans – took a dim view of Trost-Thornton because she’s posted “Trump won” images on Facebook.

“Instead of having elected political hacks redrawing the district lines for the House of Representatives and state-level offices, Virginians will get an unelected conspiracy theorist,” The Bulwark wrote. (Again, keep in mind this is a conservative site, just not a Trumpian site). By even including Trost-Thornton and Feliciano on their lists, The Bulwark said “Virginia GOP makes a mockery of the redistricting process.” They’re not alone – as we’ve just seen, the “appointing authorities” have made a mockery of it in other ways.

These two appointments certainly don’t reflect well on Virginia Republicans. Really? This is the best you can do? We know better than that. However, even problematic citizen appointees are still preferable to having a single party draw new lines. The whole point of a redistricting commission is to take redistricting out of the hands of the majority party – in the present case, Democrats, and Democrats concentrated in Northern Virginia – and try to force some kind of bipartisan process. Since the law funnels all those citizen appointments through legislative leaders, we shouldn’t be too surprised that we get some problematic political appointments. The real problem is the process is set up to eliminate truly independent-minded people from serving – neither party would want that!

Redistricting is never pretty – nor high-minded – no matter which party is in charge. Now we’re finding it’s neither pretty nor high-minded even when both parties are in charge.

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