Using the courts to reform Virginia’s politicians-pick-their-voters redistricting procedures got harder than ever, thanks to last week’s ruling by the Virginia Supreme Court.

One Virginia 2021, a nonpartisan redistricting reform group, had challenged the 2011 gerrymandering of five House of Delegates districts and six Senate districts on the grounds that they violated the state constitutional requirement that legislative districts must be “compact.” But the Supremes, concluding that reasonable, objective people can reach different conclusions about what constituts compactness, ruled against the challengers.

“We learn from today’s opinion that there’s a great deal of science in the redistricting process,” wrote Steve Emmert, publisher of the Virginia Appellate News & Analysis blog, immediately after the ruling, “but it’s a social science, not something as readily definable as physics. Both the challengers and the legislature … adduced expert testimony exploring the issue by various means of calculating compactness.”

The opinion written by Justice S. Bernard Goodwyn lays out the challengers’ argument in Rima Ford Vesilind versus the Virginia State Board of Elections as follows:

Article II… of the Constitution of Virginia … provides that legislative districts “shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district,” as well as federal requirements of “one person, one vote” and the Voting Rights Act. … The complaint asserts that “[w]hile the legislature may consider other rational public policy considerations, the mandates of the United States and Virginia Constitutions can never be subordinated to those considerations.”

The Challengers allege that the General Assembly “subordinated” the mandatory compactness requirements to other public policy considerations, and ignored compactness in favor of “nonconstitutional considerations,” such as “favor[ing] partisan interests” and “protect[in] particular incumbent[s],” “with the result that the Challenged Districts are not within any acceptable objective measures of compactness.”

During a three-day trial in March, Dr. Nicholas Mueller testified how he used software called Maptitude to draw an alternative district map to compare against the 2011 plan. He showed how it was possible to draw districts meeting the constitutional requirements while also refraining from splitting political subdivisions and refraining from pairing incumbents. Also, using the Reock, Polsby-Popper and Schwartsberg scores for measuring compactness, Dr. Michael McDonald showed how the districts enacted by the General Assembly degraded compactness scores by more than 50%.

However, wrote Goodwyn in his analysis of the testimony, “Compactness is a somewhat abstract concept.”

Determining compactness does not admit to a bright line approach in determining whether a legislative district is, in fact, compact. … Social scientists have developed at least 50 different methods of measuring compactness. The proliferation of measures does not provide clarity. It does exactly the opposite. In the social science community, there is no universal definition or consensus as to what constitutes the best measure for compact districts.

Furthermore, wrote Goodwyn:

Contrary to a core premise in Dr. McDonald’s test, the Constitution of Virginia does not require districts to be as compact as possible. [It] simply requires that districts “shall be … compact.” … As the Board observed, the compactness requirement is not based on the same type of objective comparative inquiry as the equal population requirement. …

Our Constitution speaks to the result of the redistricting process, and mandates that districts be compact in the end. It does not attempt to curtail the legislative process that creates the end result. Nor does it require that compactness be given priority over other considerations, much less establish a standard to determine whether the legislature gave proper priority to compactness.

While taking no issue with the Justice’s logic, blogger Emmert expressed his repugnance for the result. “I regard partisan redistricting as a form of blatant political corruption; as a cancer on our Republican form of government. The justices’ decision today means that we, the voters, are the surgeons who must remove this cancer. We can do so by telling our legislators that we insist upon it, and by voting for candidates who will pledge to commit the redistricting process to a nonpartisan group, as six states have already done.”