Friday, March 18, 2011

Primer on Virginia redistricting law

UPDATE: For other redistricting posts, primary sources, and other information regarding the Virginia Redistricting process in 2011 please see The Road to Redistricting Litigation in Virginia.

As the Governor’s Redistricting Commission starts releasing maps, counties are having internal fights to protect their incumbents, and legislators meet in back rooms to carve up the Commonwealth contrary to the suggestions of the Commission, I was concerned about the dearth of coverage of actual redistricting law. 

Some plaintiffs have already sued the Commonwealth of Virginia and lost a redistricting case in less than a month. 

Thankfully Virginia's Division of Legislative Services has written a fantastic primer on redistricting law in Virginia.

This lengthy, detailed, and annotated primer should serve as the basis for understanding the law underlying redistricting with little reference to outside documents. The following is a summary of the legal issues addressed in the “Drawing the Line 2011” document.

How a redistricting plan is enacted in Virginia:

For the General Assembly and Virginia's eleven congressional districts, a redistricting plan must be passed by the legislature and signed into law by the Governor just as any other piece of legislation. This system is set out in the Virginia Constitution. In 2011 a special session of the General Assembly addressing the issue of redistricting is considered to be ongoing, although the special session has been adjourned until April 4, 2011. Apparently in 2001 after the last census it took the general assembly approximately 2 weeks to pass redistricting plans once it met for a special session.

Each district must be equal in population

Under the federal Constitution the Supreme Court of the United States has determined that congressional districts must have exactly equal representation. The way this calculation has played out is that the percentage deviation from the ideal size district must either be 0% or round to 0% in almost all instances. The population of each state level legislative district must be roughly equal.  Instead of relying on Article 1 Section 2 of the United States Constitution when determining equality amongst state level legislative districts, the equal protection clause of the 14th Amendment of the United States Constitution applies to redistricting at the state level.  Apparently the 14th Amendment applies a less stringent standard and allows deviations from the ideal size district up to 10% in certain circumstances.

Districts must be compact and contiguous

Under the Virginia Constitution districts must be compact and contiguous. The legal definition of contiguous is consistent with the standard dictionary definition of contiguous. Compactness, on the other hand, although it may be shown or refuted through statistical data and expert witness testimony, appears to be an incredibly subjective matter.

The Voting Rights Act requirements

The federal Voting Rights Act [VRA] creates two additional major requirements clearly applicable to Virginia.  The VRA requires creation of a redistricting plan that does not functionally disenfranchise protected classes of individuals specifically based on race. The case law in this area is far more complicated and extensive than even is indicated in the “Drawing the Line 2011” document. As such, I will not take the time to address the matter further in this summary post.

The second requirement under the voting rights act is generally called preclearance. Preclearance is a requirement in certain jurisdictions that have a history of disenfranchising individuals based on race to obtain approval of any electoral laws after enactment but prior to enforcement. The Commonwealth of Virginia is still subject to preclearance requirements. Preclearance can be obtained from the Department of Justice, or through specialized procedure in federal district court. The federal district court procedure is generally longer and more cumbersome than seeking approval from the Department of Justice, and hence nearly all preclearance occurs through application to the Department of Justice.  In 2001 preclearance for the three statewide plans each took approximately 60 days with the Department of Justice.

What happens if the above referenced standards are not met?

If the above referenced standards are not met then an aggrieved individual can sue to invalidate existing redistricting plans, to force public officials to create proper redistricting plans, and for other specialized injunctive and declaratory relief. On some level, redistricting lawsuits are inevitable. Moreover, the threat of redistricting lawsuits increases the likelihood that redistricting plans will comply with both federal and state constitutions. This may not be the best way to ensure compliance with the Constitution but it certainly appears to be moderately effective.  Specialized federal procedures exist for handling redistricting challenges.

Redistricting resources in Virginia

The primary place to look for redistricting resources in Virginia is the redistricting Virginia 2010 website located here:

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