Schapiro: Va. high court will do what panel wouldn’t, lawmakers couldn’t

By Jeff E. Schapiro, Richmond Times-Dispatch – 10/22/2021

In stripping most lawmakers of their power to draw legislative and congressional boundaries, Virginians last year believed they were dragging the dark art of redistricting into the sunlight. It’s about to be dragged back into the shadows.

It will probably be tossed to a handful of judges whose jobs hang on the whim of legislators. And their careers could depend the lines the judges draw.

The 16-member bipartisan commission created to depoliticize redistricting is a partisan train wreck, derailed by the intractability of Democrats and Republicans. Having quit on setting new boundaries for General Assembly seats, the commission appears likely to do the same on lines for U.S. House districts.

This means the job of — and the last word on, barring a lawsuit or two — resetting 100 seats in the House of Delegates, 40 in the Virginia Senate and 11 in the U.S. House of Representatives will fall to the seven justices of the Virginia Supreme Court, all of whom, because they are selected by legislators, are largely spared direct public accountability.

This Supreme Court is, as were many of its predecessors, conservative. That means it shows great deference to the General Assembly, presuming its handiwork to be constitutional. In redistricting cases, the court has largely affirmed lines set by lawmakers, even those that, from all appearances, qualify as a gerrymander.

The court now faces a different task: It will be judge and jury, fashioning districts that must comport with state and federal standards by reflecting shared regional interests and protecting minorities and that are sufficiently compact to ensure they contain equal numbers of residents.

This could mean the court is also executioner, perhaps lumping multiple incumbents in the same districts, triggering nomination contests and elections in which someone’s political life abruptly ends. Such scenarios contributed to the collapse of the redistricting commission.

The constitutional amendment Virginia’s voters overwhelmingly approved in 2020, creating the commission, requires the court take over mapmaking as a last resort. Of 21 states with bipartisan or independent redistricting, four include judicial remedies.

Many members in the General Assembly’s new Democratic majority, having initially backed the amendment, later opposed it, arguing maps drawn by the current justices would guarantee a Republican takeback of the legislature because all of the jurists are creatures of the old GOP majority.

Steve Emmert, a Virginia Beach lawyer and authority on the state’s appellate courts, says Democratic fears of Republican partisanship — disguised as judicial dispassion — are misplaced, and that carving districts is not an assignment the justices relish, though they barely grumbled about it as the amendment moved through the legislature.

“The justices’ reaction when they learned they were going to have to draw maps was, ‘Oh, criminy!’ ” Emmert said. “This was a task that the legislature forced upon the court … It’s my sense that they’ll do anything they can to avoid the appearance of partiality.”

Might the federal courts provide a clue to the Supreme Court’s direction? They unpacked multiple gerrymanders in response to Democratic challenges to GOP House of Delegates and congressional maps. Democrats would score big gains on revised maps that Republicans dismissed as the fancy of Democrat-dominated courts.

The justices would be on a tight timetable, possibly taking over from the commission in the week ahead. The court would select two redistricting experts — one Democrat, one Republican — from a pool of 12 candidates submitted by the General Assembly. Such experts were enlisted by the federal courts.

The fine print that guides redistricting requires these experts to work together, which could mean the justices demand they set aside partisan differences to produce compromise maps. This could take place out of view, as redistricting long has, because the court is not obligated to hold public hearings, though written comments would be allowed.

The entire process, which could conclude by the end of the year, may be colored — in the minds of legislators, reporters and political operatives — by personal factors unique to each justice, most notably when he or she is up for re-election by the General Assembly. More than a job, there’s a sweet judicial pension to protect.