Muddying the Waters: Publishing Proposed Redistricting Remedies

September 28, 2015

By: Darcee Case

The most recent action in Virginia’s ongoing redistricting saga involves a motion to make the proposed remedial plans available on a publicly accessible website. Perhaps ironically, it is the Defendants (Alcorn) suggesting that the proposals be posted online, while the Plaintiffs (Personhuballah) argues that general public input is not necessary or appropriate.

Almost one year ago (October 7, 2014), a U.S. District Court (the Court) ordered that Virginia adopt a new redistricting plan before the next election of U.S. Representatives. It ordered the State’s General Assembly to remedy the constitutional violations found by the court. After the United States Supreme Court vacated that judgment and remanded the case in March of this year, the Court again ordered the General Assembly to draw and adopt new districts by September 1, 2015.

When the General Assembly failed to meet the deadline, the Court ordered the parties to propose remedial plans of their own by September 18. All interested non-parties were invited to do the same. In total, 10 proposals were submitted. Although the court made clear that the parties and non-parties who submitted proposed remedial plans would have the opportunity to view and respond to the plans submitted, it made no mention of public comment generally. The Defendants are now requesting authorization from the Court to post those proposed remedial plans on the State’s Division of Legislative Services website (which is accessible to the public) and the Plaintiffs are strongly opposing the motion. Why?

In a September 20, 2015 memo to the Court the Plaintiffs gives three reasons for the opposition, all of which revolve around the idea that public input will needlessly complicate an already complex matter. First, the Plaintiffs lean on the fact that the court order only made mention of responses to the proposed plans from parties and non-parties that submitted plans; there was no suggestion of additional public commentary. They argue that authorizing the release of the plans would be inconsistent with the order, and therefore inappropriate. Second, the Plaintiffs argue that public input isn’t necessary for the task at hand—the court is simply remedying an unconstitutional map (as opposed to starting a new map from scratch). Further, the Plaintiffs argue that publicly posting the proposed maps without the entire court record would only lead to uninformed, and implicitly unhelpful, input from the public. Their final argument is that posting the proposals and seeking public comment simply is not a practical endeavor. The Plaintiffs argue the proposals (and the data supporting them) are large files that can only be read through the use of specialized software and wouldn’t be helpful in producing public commentary.

The memorandum begs the question, “If the files are technically available to the public through the Court Clerk’s office, which they are, why would posting them on a public website present an issue?” Overall, it looks like the Plaintiffs just don’t think the public can give meaningful, or necessary, input on the matter and any input that is given will just serve to unnecessarily muddy the waters at this stage of the game.