Court Grants Virginia A Third Swing At RedistrictingBy Woody Holton
Vol. 4, No. 1, 1981, pp. 22-24
Virginia's court legislative redistricting plan survived neither a court challange nor U.S. Justice Department "preclearance" required by the Voting Rights Act.
In July, Justice obliged legislators to hold a special August conclave to patch up two majority black House of Delegates districts they had drawn and quartered in their first reapportionment session last April. On August 25, a three-judge federal district court found that, by assigning much fewer voters to some House of Delegates districts than to others, the House had failed to give all voters an equal voice in electing delegates.
Virginia has until February 1 to swing again. If its third plan violates the Voting Rights Act or "one person, one vote," the 3-judge court will probably draw its own map for the next decade's elections.
The House of Delegates' woes began when it tore up two districts that had black majorities. Through the 70s, the predominantly black city of Petersburg elected its own delegate. But Petersburg fell behind the rest of the state in population and had to be combined with a neighboring area. In April the House merged Petersburg with Colonial Heights, a city just across the Appomattox river that is 98 percent white—and known to many as Colonial Whites. The new district was 61 percent white.
Near Petersburg, the first redistricting session demolished a majority-black rural district (the white incumbent wasn't running again) to use its counties as building blocks for neighboring districts that needed more voters.
Section 5 of the Voting Rights Act requires states to prove to the Justice Department that elections changes do not dilute minority voting strength. Justice objected to the ill treatment of both Petersburg and the rural district nearby. In its August re-districting session, the legislature put Petersburg in a new district that has a black majority and created a new majority-black district in the nearby rural area.
One of the Justice Department's objections remains unresolved. In the last decade, the port city of Norfolk elected its senators at-large. To complete its transition to single-member districts, the Senate this year drew a line through the city—and down the middle of its black neighborhood.
Virginia's lone black senator, Douglas Wilder, urged his colleagues to put Norfolk blacks in a single district that would have a black majority. The Senate refused, and Justice objected to this fragmentation. Since Virginians won't elect senators again till 1983, the Senate has not decided where to draw the line for the next election.
When it met in August, the House complied with all of the Justice Department's objections to its April plan. The Delegates also eliminated all but one of the "floterial" districts in its original map. A "floater" is a form of multi-member districting in which one or more legislators are elected from subdistricts and one or more legislators are elected districtwide.
In the floterial system the legislature measures its deviation from "one person, one vote" for the entire district—leaving huge variances among underlying districts. Theoretically, redistricters could assign one floater to represent each half of the state, then measure only the population deviation between the two monster floterial districts regardless of the deviation in population of the smaller districts within the two halves. Apparently fearing floaters wouldn't hold up in court, the House largely abandoned them in its second redistricting session.
The shift away from floaters did not reduce deviation from "one person, one vote" enough. On August 25, the court found the House plan unconstitutional.
To measure population deviaton, the Supreme Court adds the percentage of the population of the district that exceeds the population of an ideal district with the percentage of the population of the district that falls shortest of the ideal. The sum is the state's total deviation.
In 1973, the Supreme Court allowed Virginia a higher deviation than any other state—16.4 percent. The Court cautioned that this figure "may well approach tolerable limits." The 1981 House of Delegates plan strayed from perfect equality by 27 percent.
"They were perfectly aware when they voted for it that it was unconstitutional," says American Civil Liberties Union lobbyist Judy Goldberg, "They were told time after time by their legal staff what the range was."
Delegate Elize B. Heinz voted against both the original and the revised plans. "I was doing a real Cassandra act, and nobody was paying any attention," says Heinz, "It's just as if we had this strong compulsion to self-destruction." The 100-member House passed the first plan 87-11 and the August revision 78-12.
Throughout the long process of public hearings, subcommittee meetings and committee markup, Virginia groups had fought for a fair plan. The A.C.L.U. did not address public hearings heard around the state because the House held these hearings before any plan had been proposed. "It was just a waste of time," says A.C.L.U. associate director Steven Rutherford.
Common Cause and N.A.A.C.P. members did speak at the hearings, endorsing single-member districts and laying down guidelines for population deviation. The N.A.A.C.P. wrote Virginia's 127 black elected officials, as well as black groups around the state, urging them to speak at the hearings. At two political conferences, N.A.A.C.P. experts briefed black leaders on redistricting.
When the House Privileges and Elections committee held its one public hearing after devising a plan, members of all three groups came forward to oppose it.
All three groups sued to keep the state from using the new House districts in the 1981 elections. Their complaints differed on some points, but a common theme ran through them—the House plan murdered "one person, one vote."
Frank Parker, who directs the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, attributes the legislature's high-deviation plan to an arrogant belief that "Virginia is not really part of the United States—Supreme Court decisions don't apply in Virginia." Parker joined the A.C.L.U. in its successful challenge to the House plan.
Joan Mahan, secretary of the State Board of Elections, says she "thought there was a good possibility" Virginia's deviation would stand. The imprecision of Census figures justifies some deviation, she says, and "the courts have never said what is the magic number."
The Old Dominion claims it strayed so far from "one person, one vote" to avoid grouping a portion of one locality with another locality. Since 1776, its lawyers pointed out, House of Delegates districts have preserved the boundaries of counties and cities.
But the House Privileges and Elections Committee considered and rejected several plans that preserved localities while also reducing deviation. In both 1971 and 1981, Virginia's congressional and state senate districts cut through localities. Even the House of Delegates maps, in both 1971 and 1981, divide Fairfax County, a thickly populated suburb of Washington, D.C.
The A.C.L.U. questions Virginia's claim that localities' influence in Richmond would weaken if they were split among districts. Goldberg found that although the state Senate's districts presently divide localities, senators propose a higher percentage of local legislation than House members.
Goldberg thinks she knows the real reason the variance was so high. "Every time you see a particularly noticeable variance," she says, "You will also see an incumbent whose seat they wanted to protect." Mahan echoes the delegates' interest in considering incumbency "Nowhere," she says, "did they throw two incumbents into one seat."
Some delegates charge that the chairman of the House Privileges and Elections Committee didn't enforce discipline as well as his Senate counterpart. At one point in April the committee adopted a plan that seemed to suit everyone. It was later found to contain 101 delegates—one more than the constitution permits.
Others blame Delegate Ford Quillen, who chaired the House's redistricting subcommittee, for the breakdown of law and order. Quillen is from the southwestern corner of the state, which points like an arrowhead into the Appalachian mountains. Though the mountaineers had moved a lot during the 1970s, Quillen refused to let Southwest Virginia's four districts be altered.
Deviation among the three extreme southwestern districts is 20 percent—well above the highest deviation the Supreme Court has allowed. Once incumbency overpowered "one person, one vote" in Southwest Virginia, some believe, other delegates who wanted to stretch things a bit could point to the southwestern districts as examples.
Quillen claims he sought only to preserve the area's county boundaries.
Whether it's an honest goal or merely a pretext, preserving localities' boundaries would end altogether if A.C.L.U., N.A.A.C.P., and Common Cause ever convert the House of Delegates to single-member districts. Throughout the redistricting battle, they held single-member districts as their ultimate goal.
In addition to distancing leaders and voters, these groups charge, multi-member districts discriminate against minorities by submerging their neighborhoods in areas with white majorities. They claim that's one reason only four blacks serve in the House, although 18.5 percent of Virginians are black.
Delegate Robert C. Scott explained why neither he nor the other black delegates opposed either the original or revised House plan. In cities with large black minorities, says Scott, the whole delegation listens to blacks. Single-member districts would permit delegates from predominantly white areas to ignore blacks.
Scott also questions whether single-member districts would boost the number of black delegates as much as the N.A.A.C.P. claims, since the white legislature would draw the districts to favor whites.
But A.C.L.U.'s Rutherford says the legislature won't get away with diluting black strength. "We've got the Voting Rights Act to fall back on," says Rutherford, "We've got a good track record on that."
Anyway, says N.A.A.C.P political director Michael Brown, a single-member plan needn't come from the legislature. The A.C.L.U. has drawn a single-member plan that includes 10-black majority districts, and Brown thinks the court should have executed that plan after the legislature's second failure to obey the Constitution in redistricting.
Instead the Court instructed Virginia to hold interim elections under the unconstitutional August plan. The new legislature will serve only one of the usual two years. If Virginia's third try at redistricting fails, the court says it will draw its own plan, and the Supreme Court requires courts that draw plans to use single-member districts.
If a court-ordered plan is implemented, single-member districts could favor the two groups which are the weakest in the legislature—blacks and Republicans.
Already the court has sentenced incumbents to suffer for their sins. Since the interim legislature will serve only one year, delegates will have to face election every year for the next three.
Woody Holton works for the Congress Watch newsletter and resides in McLean, Virginia.