Reject perennial ‘Etch A Sketch’ redistricting

January 29, 2013

by Brian Cannon

Update: Brian Cannon’s letter to the Richmond Times-Dispatch is available here.

Whether Sen. John Watkins’ Martin Luther King Day surprise defies the U.S. Constitution or the federal Voting Rights Act are complicated questions. But the constitutionality of his “re-redisticting” bill might live closer to home. Consider Virginia’s state Constitution.

In Article II Section 6, the Virginia Constitution grants the legislature the authority to redraw district lines with the following passage:  “The General Assembly shall reapportion the Commonwealth into electoral districts … in the year 2011 and every ten years thereafter.  Any such decennial reapportionment law shall take effect immediately….”

One reading of this provision is that the legislature is authorized to draw maps only once per decade — an interpretation consistent with precedent in other states with constitutional provisions like Virginia’s. In 2003, the Colorado legislature tried to supplant a court-ordered 2002 redistricting plan (sometimes courts have to step in when legislators fail to draw maps in time). The Colorado Supreme Court stopped the legislature from re-redistricting, citing its state Constitution’s decennial districting mandate. At least the Colorado legislature had a good reason to try to redraw its maps on the theory that legislatures, not courts, are the best institutions to represent the will of the people. Sen. Watkins has no such argument—his maps re-draw the legislature’s own maps finalized just one year ago.

An alternative reading, one to which Sen. Watkins must subscribe, is that the Virginia Constitution mandates decennial redistricting, but does not prohibit additional bites at the apple. But there’s good reason to reject this interpretation and to construe the state Constitution to restrict line drawing to once per decade.  If political parties can redraw lines whenever they achieve majority, Virginia’s districts would be subject to a game of perennial Etch A Sketch.

Gov. Bob McDonnell should veto this legislation, and while he’s at it push forward plans for an independent redistricting commission in Virginia. It’s bad enough we have to witness our legislators pick their voters once a decade. More than that would not only be unbearable, it could well be unconstitutional.

Brian Cannon, former president of the William & Mary Election Law Society, now works as an attorney in Richmond.

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