by Hans Bader

On Tuesday, a three-judge panel redistricted Virginia’s House of Delegates, adopting a highly favorable map for Democrats. It is effectively a political gerrymander in their favor. The result will be to lock in Democratic dominance in the state for years to come, giving them control of future redistricting.

Tuesday’s redistricting will shift control of the House of Delegates, which currently is controlled by Republicans by a narrow 51-to-49 margin, to the Democrats. Democrats already control the governor’s mansion, and were virtually certain to pick up control of the State Senate next year, which is currently split 21-to-19 in favor of the GOP. That’s because four Senate districts currently represented by Republicans have become Democratic-leaning, and Democrats are almost certain to pick up one of those seats, because the incumbent, Dick Black (R), is retiring in a district that Hillary Clinton carried by 6%.

The court’s ruling is a political gerrymander that purports to fix a racial gerrymander. In a 2-to-1 ruling, with Democratic-appointed judges in the majority, a three-judge panel found that Virginia’s 2011 redistricting had been a racial gerrymander — even though that redistricting had passed with substantial bipartisan and biracial support.

But to fix that alleged gerrymander, the court imposes a political gerrymander of its own, as I discuss further below. It locks in Democratic dominance by essentially guaranteeing the Democrats complete control of Virginia’s government in the next legislative session, including the redistricting process after the 2020 census. While legislatures, as political bodies, may be allowed to engage in such political gerrymanders, I don’t see why a court, which is supposed to be non-political, should be allowed to get away with it.

The ruling in Bethune-Hill v. Virginia Board of Elections will result in the Democrats having complete control of Virginia, and being able to pass liberal legislation that moderates and conservatives oppose. It will reduce my ability to petition government officials to address my grievances. It doesn’t affect the boundaries of my House of Delegates district, but it does get rid of delegates who would potentially respond to my emails about pending legislation. I live in a district represented by a liberal Democrat who has never responded to any of my emails. The people who do respond to my emails about pending legislation are, ironically, legislators outside my district, mostly Republicans (like the moderate Republican House Committee Chair who revised one bill to include the specific amendment I suggested). This ruling guarantees there will be no such GOP chairmen in 2020, and virtually wipes out moderate Republicans.

The court’s political gerrymander is evident based on application of the Supreme Court’s Arlington Heights factors for smoking out discrimination. (See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-67 (1977.) Discriminatory intent may be as evidenced by such factors as “disproportionate impact” and “departures” from “factors” previously deemed “important by the decisionmaker” or when those factors “favor a decision contrary to the one reached.”

Just as North Carolina legislative redistricting was deemed discriminatory because it supposedly targeted black voters with almost “surgical precision,” this judicial redistricting targets GOP lawmakers for defeat with almost surgical precision. It effectively eliminates the two most powerful Republicans, the Speaker and Appropriations Chair, as well as delegates Yancey and Helsel, while shoring up vulnerable junior Democrats in close districts, like Cheryl Turpin (who is now clearly favored to win, due her incumbency, and the fact that her district no longer is slightly pro-Trump, but rather, slightly pro-Clinton), and Schuyler Van Valkenburg, who will now win even more easily. See Grant Moomaw, Federal court picks redrawn Va. House map that boosts Democrats’ chances of Taking Control, Richmond Times-Dispatch, Jan. 23, 2019, showing shifts of 32%, 27.4%, 19.8%, and 13.6% respectively in the districts of Cox, Jones, Helsel, and Yancey); Blue Virginia, “Latest Virginia 2019 Forecast: Republican House and Senate Majorities Looking REALLY Shaky,” Jan 24, 2019 (linking to district ratings of State Legislature Pundit Chaz Nuttycombe showing the Jones and Yancey districts as “strong D” districts, the Helsell district as a “likely D” district and the Cox district as “lean D”).

In short, it is a political gerrymander. The court engaged in political discrimination. It is not just the obvious “disproportionate impact” of its ruling against the GOP, which will probably lock in Democratic control of the legislature for years. The court also repeatedly and consistently acted to favor Democrats since it was assigned to the current three-judge panel. Originally, the court panel had included a Clinton appointee, Gerald Bruce Lee, and a Bush appointee, Robert Payne, who ruled in favor of the state legislature, over a dissent by Obama appointee Barbara Milano Keenan. But on remand from the Supreme Court, Lee was replaced on the panel by the more ideological Arenda Wright Allen, an Obama appointee who once issued a ruling that mistakenly attributed to the U.S. Constitution language that was not in it, in a ruling striking down a provision of the Virginia Constitution loathed by progressives. The new, more left-wing panel found the state guilty of racial gerrymandering based on reasoning and credibility determinations at odds with its earlier ruling in favor of the state.

For example, the court panel hired Bernard Grofman, the Democrats’ dream consultant, as the Special Master assigned to do the redistricting. Grofman is a liberal academic whose methodology favors the Democrats generally even as it authorizes the unconstitutional anti-GOP Maryland gerrymander struck down last year in Benisek v. Lamone. The court then exacerbated matters by picking the most pro-Democrat of Grofman’s proposed alternative maps, even though the rationale given for them by the Special Master conflicts with the court’s earlier ruling. That inconsistency, and the political slant of the court’s actions, warrant suspicion under the Supreme Court’s Arlington Heights factors for smoking out veiled discrimination.

As the Daily Progress noted last year, the picking of Grofman was a godsend for Democrats.

[The]“appointment of University of California-Irvine political science professor Bernard Grofman was a victory for the Democratic plaintiffs who successfully challenged the constitutionality of 11 House districts in a long-running lawsuit. It was a likely setback for Republicans trying to preserve the House’s current partisan makeup. A federal court has appointed the same expert who redrew Virginia’s congressional map in 2015 to draw new House of Delegates lines to address racial gerrymandering. Attorney General Mark Herring, a Democrat, suggested Grofman as the outside redistricting expert, known as a ‘special master’ in court parlance. Marc Elias, the Democratic lawyer who led the challenge against the House map, called Grofman ‘a great choice’ and ‘one we endorsed.’ House Republicans had urged the court not to choose Grofman and criticized the way Grofman handled the 2015 process.

(See Grant Moomaw, “Familiar expert named to redraw House districts,” Daily Progress, Oct. 18, 2018).

The disproportionate impact of the court’s decision is quite clear. “It would nearly guarantee a Democratic takeover of the House of Delegates,’ said Larry Sabato, head of the Center for Politics at the University of Virginia.” (See Grant Moomaw, “Federal court picks redrawn Va. House map that boosts Democrats’ chances of Taking Control,” Richmond Times-Dispatch, Jan. 23, 2019).

The Court itself deliberately chose the most pro-Democratic alternative map. As the Richmond Times-Dispatch noted on January 23, “Grofman gave the court several map options for each region. In Tuesday’s order, the court picked the map it prefers in the four regions. In a filing last week, Republicans told the court which map option they preferred in the four regions. In all regions, the court chose a different option.” (See id.).

As the House Speaker has aptly noted, “The modules selected by the Court target senior Republicans, myself included, without a substantive basis in the law. In fact, in many cases the rationale given by the special master for the modules selected by the Court contradict the Court’s own opinion,” which is a suspicious “departure” under the Arlington Heights factors. (See Tyler Arnold, “GOP House Speaker, Drawn Into a Democrat-Leaning District, Criticizes New Maps,” Virginia Watchdog, Jan. 23, 2019).

Even if the court had not cherry-picked Grofman’s districts to get the ones most favorable for Democrats, Grofman himself favors the Democrats to begin with. Grofman advocates what is essentially affirmative action for Democrats in the redistricting process, to compensate them for the natural effects of political geography. Republicans have a natural “geographical advantage because their voters” are “spread more widely across suburban and rural America instead of being highly concentrated, as Democrats generally are, in big cities.” (See AP analysis shows how gerrymandering benefited GOP in 2016, Associated Press, June 27, 2017).

For example, there were 59 voting divisions in Philadelphia where Republican presidential candidate Mitt Romney got zero votes; no rural area in Pennsylvania was as uniformly hostile to President Obama as these urban areas were to Romney. It is this geographic concentration of Democrats in cities that makes it hard for them to take control of most state legislatures, unless there is a political gerrymander in their favor.

So totally random redistricting will tend to give an edge to Republicans. Grofman seeks to eliminate this natural geographic edge for Republicans through the so-called “symmetry” or “efficiency gap” standard. (See, e.g., Brief of Amici Curiae Professors Gary King, Bernard Grofman, Andrew Gelman, and Jonathan N. Katz in support of neither party, in Jackson v. Perry, Supreme Court docket no. 05-204).

His approach would render unconstitutional many redistricting plans that ignore political voting patterns and other political considerations, and instead follow traditional, non-partisan districting principles, such as keeping districts as compact as possible. For example, even Iowa, which takes an unusually non-partisan approach to redistricting, usually has a substantial “efficiency gap,” and could run afoul of Grofman’s standard.

Grofman’s “symmetry” standard is defective even in what it purports to measure (voter support for the respective parties on a statewide basis), in a way skewed in favor of Democrats. It compares statewide vote totals of all Democratic legislative candidates and all Republican legislative candidates. In a district with an uncontested race (a common phenomenon in Democratic districts in the 2017 election), voters are all deemed to support the incumbent, even if many would have voted against the incumbent had an opposing candidate run. The “symmetry” standard ignores such latent support for the opposing party.

In Arlington, where I live, a substantial minority of the voters will vote for a Republican if one runs, but there is little point in one running, since the Democrats are virtually guaranteed to win. My delegate, Patrick Hope, has never responded to any of my constituent emails or calls about anything, and obviously, I do not support him. I would vote against him if any GOP candidate ran against him, even though I do not always vote for Republicans in statewide races (who tend to be less moderate than the Republicans in my backyard). But Grofman’s methodology treats voter support for Hope as 100% in my district because he runs unopposed, even though, in reality, there is opposition to him. In the past, when challengers ran against him, they received thousands of votes. A Republican who ran against him in 2009 got nearly a third of the vote. A Libertarian who ran against him in 2013 received 23% of the vote. Now, the GOP has stopped running futile challenges to Hope. But this does not mean Arlington residents have all become liberal Democrats: Even in 2017, in the neighboring district of Democrat Alfonso Lopez, perhaps the most liberal district in the State, a GOP candidate received 19% of the vote. Yet Grofman’s methodology would treat Arlington voters as if they were 100% Democrats, in legislative races in the 2017 election cycle.

Ironically, although Grofman seeks to compensate the Democrats for the Republican’s natural geographic edge, he recognizes a “bonus” exception to his “symmetry” standard that seems tailor-made to uphold the political gerrymander struck down by a three-judge court in Maryland last year. Maryland’s dominant Democratic Party gave itself seven out of eight Congressional seats, by gerrymandering away the seat held by Congressman Roscoe Bartlett (R), and thus giving itself a far higher percentage of seats than its proportionate share of the popular vote in Maryland Congressional elections. This “bonus” is expressly permissible under Grofman’s “symmetry” or “efficiency gap” standard. (See Brief of Amici Curiae Professors Gary King, Bernard Grofman, Andrew Gelman, and Jonathan N. Katz in support of neither party, in Jackson v. Perry, Supreme Court docket no. 05-204, at pg. 8). But that Maryland redistricting was such an extreme gerrymander that it was found unconstitutional by a three-judge court. (See Benisek v. Lamone, No. 13-cv-3233 (D. Md. Nov. 7, 2018) enjoining the gerrymander).

Legislatures are political bodies, and you can’t take the politics out of politics. So challenges to legislative political gerrymanders may not be justiciable, in most cases.

But gerrymanders by courts themselves are quite another matter. Judges must abide by “strict neutrality,” unlike politicians. (See Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2014)).

Political discrimination or favoritism by a court is intolerable, and at odds with the First Amendment and the equal-protection component of the Fifth Amendment. (See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991): “The injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself.”).

Political discrimination and gerrymanders by courts are forbidden, even if not those by state legislatures. State governments get more leeway than courts do to behave in a political manner, even when it affects the political process, or would otherwise raise First Amendment concerns. (See, e.g., U.S. Const., art. II, §1 (legislatures can pick presidential electors or dictate how they are picked); art. I, §4 (legislatures vested with Congressional redistricting); Connick v. Myers, 461 U.S. 138, 147 (1983) (state employer can restrict its employees’ speech on matters of private concern, in order to function and avoid turning every workplace utterance into a potential First Amendment lawsuit, even though that same speech would be protected against damages imposed by a judge in a “libel action”); Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2014) (judge’s own ability to engage in the political process is limited by the need for “strict neutrality” on the bench, making restrictions on judges’ behavior permissible even when they would violate the First Amendment as to other officials, who are allowed to behave in a political way); Easley v. Cromartie, 532 U.S. 234, 237 (2001) (race permitted as non-predominant factor in legislative redistricting, despite general constitutional ban on using race)).

Courts, by contrast, are fully subject to the First Amendment and the equal-protection component of the Fifth Amendment. (See Near v. Minnesota, 283 U.S. 697 (1931) (state court injunction against libel violated First Amendment); Snyder v. Phelps, 562 U.S. 443 (2011) (damage awards imposed by courts are subject to First Amendment limits); Rose v. Mitchell, 443 U.S. 545, 556 (1979) (forbidding racially conscious judicial proceedings)).

So the court should not have done this, even if a state legislature would be allowed to do such a political gerrymander.

The new map will lock in Democratic control of the House of Delegates in the future. “It would nearly guarantee a Democratic takeover of the House of Delegates,’ said Larry Sabato, head of the Center for Politics at the University of Virginia.” (See Grant Moomaw, “Federal court picks redrawn Va. House map that boosts Democrats’ chances of taking control,” Richmond Times-Dispatch, Jan. 23, 2019)).

Indeed, a political analyst notes that with this new legislative “‘map it’s not a matter of whether the Democrats are flipping the chamber (they will), it’s whether Democrats will get to 60 seats.’” See Blue Virginia, “Latest Virginia 2019 Forecast: Republican House and Senate Majorities Looking REALLY Shaky,” quoting State Legislature Pundit Chaz Nuttycombe.

The map is a Democratic-Party wish list: As that self-described “center-left” analyst notes, “the Democrats got the best possible map for the House of Delegates, the one I made a while back.”

This will give Democrats a political monopoly in Virginia’s legislature, since they were already virtually certain to take control of the State Senate in the 2019 elections, under a map that was drawn back when the Democrats controlled the Senate. A political analyst says the Democrats will keep all of their current 19 seats, and are virtually certain to pick up two additional seats: the 13th district currently held by retiring Senator Dick Black — rated as a “strong D” district — and the 10th district currently held by Glenn Sturdevant — rated as a “likely D” district, Yet another district currently held by the GOP is classified as a “lean D” district. (See Current Virginia House of Delegates & State Senate ratings with maps and table format, tweeted by Chaz Nuttycombe, Jan. 26, 2019.)

If standing were as broad in voting-rights cases as in, say, environmental cases, voters like me would have standing to challenge this gerrymander, because the Democratic takeover of the legislature will lead to new laws that increase consumer prices and reduce employment, laws that would not be enacted if the GOP controlled one of the legislature’s two chambers. For example, the Democratic takeover is virtually guaranteed to lead to a doubling of the minimum wage. Every single Democrat in the state Senate recently voted to double it to $15, even though economists estimate that similar legislation in California will wipe out hundreds of thousands of jobs, and increase prices, as even supporters of such legislation have recognized. (See CEI v. NHTSA, 901 F.2d 107, 111-13 (D.C Cir. 1990) (consumer price increase is basis for standing)).

Even if they recognize the negative consequences of such policies, senior Democratic legislators won’t stop supporting them, because doing so would make them more vulnerable to primary challenges from left-wing challengers, like the challenge currently being mounted against the Democratic leader in the State Senate, Dick Saslaw, whose challenger is more anti-business and left-wing than he is. The specter of such primary challenges makes Democratic leaders take left-wing positions supported by the ideological base of the Democratic Party, even if they are not favored by most voters.

As a result, the court’s political gerrymander will result in Virginia’s new legislature pursuing left-wing policies more typical of California than of Virginia, which may include the abolition of Virginia’s Right-to-Work law, and the abolition of the death penalty (which remains favored by Virginia voters, but is opposed by the state’s governor and most Democrats).

Hans Bader, a senior attorney at the Competitive Enterprise Institute until 2017, lives in Arlington. This essay was published first in the Liberty Unyielding website.