40 State Senate district boundaries established in 2011 had to be readjusted to reflect population changes between 2010-2021
Source: Virginia Public Access Project (VPAP), Gainers, Losers in Redistricting
Redistricting was required after the 2020 Census so US Congressional districts would be essentially equal to each other in population, meeting the US Supreme Court requirement for "one-person, one-vote." The requirement for Federal election districts was stricter than for state election districts, but Virginia districts had to be "substantially" equal in population.
The 2021 redistricting process was unique. For the first time, the General Assembly had to share responsibility for drawing new voting districts after the decennial census with a group of citizens. The voters had passed a constitutional amendment in 2020 that created a 16-person Virginia Redistricting Commission to propose new boundaries.
As one scholar at William and Mary Law School noted:1
The commission was designed to be bi-partisan, not non-partisan. The elected legislators structured the commission to maintain a measure of control over the process, resisted efforts by OneVirginia2021 and other anti-gerrymandering groups to eliminate the ability of the politicians to choose their voters by "packing" and "cracking" communities of interest when drawing election district boundaries.
Half of the commission's 16 members were chosen by the General Assembly. The House of Delegates selected two Republicans and two Democrats, as did the State Senate. The legislators chosen for the 2021 commission were:
Del. Les Adams (R - Chatham)
Sen. George Barker (D - Fairfax)
Sen. Mamie Locke (D - Hampton)
Sen. Ryan MccDougle (R - Hanover)
Del. Delores McQuinn (D - Richmond)
Sen. Steve Newman (R - Lynchburg)
Del. Margaret Ransone (R - Westmoreland)
Del. Marcus Simon (D - Fairfax)
Three of the four members from the State Senate had to approve the new boundaries for State Senate districts, and three of the four members from the House of Delegates had to approve the new boundaries for House districts. Two members from one party could vote against a draft map that was perceived as too partisan against their party, blocking the proposal from moving forward.
One of those chosen to represent the General Assembly was State Senator George Barker. He had been the lead Democrat in 2010 for that party's redistricting of the State Senate, when Republicans in control of the House of Delegates gerrymandered those 100 districts and Democrats in control of the State Senate gerrymandered those 40 districts. The Democratic gerrymander was not successful; Republicans gained two State Senate seats in the 2011 election. The 2011 results created a 20-20 tie, and Democrats were forced to cede control of the State Senate in a power-sharing arrangement.
A panel of retired judges chose another eight citizens for the Virginia Redistricting Commission. Since the legislature had elected ll of the judges, their partisan leanings would be a factor. The Chief Justice of the Supreme Court of Virginia presented a list of retired Circuit Court judges to the party leaders in the General Assembly. Those leaders chose four judges, and the four judges chose a fifth from the same list.
The five judges were required to choose the eight citizen members of the Virginia Redistricting Commission from lists prepared by the party leaders in the House of Delegates and State Senate. The judges did not have the option of choosing eight non-partisan citizen members based on their own preferences; they had to choose from lists submitted by four partisan leaders. The judges had to select two people from four separate slates, one each submitted by the Speaker of the House, the House minority leader, the President Pro Tempore of the Senate and the Senate minority leader:2
House of Delegates District 72, as drawn in 2011 redistricting, resembled a horseshoe or toilet bowl and was a classic example of boundaries that were not "compact and contiguous"
Source: Virginia Redistricting Commission, House (HB5005 Passed 4/28/11)
Over 1,200 people submitted applications to those four partisan leaders, seeking to be included in one of the four lists submitted to the retired judges. The leaders of the two parties in the legislature nominated 62 people from that pool. The five retired judges consciously tried to select a diverse group of panelists.
Creating the commission limited the traditional ability of the party in power to gerrymander election districts to increase the electability of their candidates. Gerrymandering was also used to constrain the potential election of candidates from the other party, and to force incumbents into running against each other in one district. The Republican legislators consistently supported creation of the Virginia Redistricting Commission in 2019 and 2020, as did the Democrats in the State Senate.
The constitutional amendment to create the Virginia Redistricting Commission was passed by two sessions of the General Assembly, in 2019 and 2020, before being approved by the voters in November 2020. In 2019, when the Republican Party controlled the General Assembly and it was unclear who might win a majority in the elections later that year, the delegates had voted 83-15 in favor of putting the redistricting commission proposal on the ballot.
Results of the 2019 election caused a dramatic reduction in support among the Democratic members in the House of Delegates. Control of that house shifted after the 2019 election to the Democrats. It became clear that one party could control the 2021 redistricting of both houses of the General Assembly.
In 2020, only nine Democratic Delegates were willing to give up control of the redistricting maps and support a bipartisan commission with citizen members. Just nine Democrats in the House of Delegates joined with 45 Republicans to endorse the ballot measure, which passed in a 54-46 vote.
One observer commented:3
The advocates for a nonpartisan commission had to compromise to get a process not controlled by incumbent politicians. As one noted:4
The political switch among Democrats in the House of Delegates between 2019-2020 reflected the traditional desire to craft partisan maps. As one experienced observer noted when the redistricting commission started to meet:5
The commission faced the challenge of revising boundaries to ensure an equal number of people lived in each district, for elections to state and Federal offices. That one person-one vote requirement also applied to revising districts for city council and county supervisor seats, where cities had defined wards and counties had defined magisterial districts. However, the Virginia Redistricting Commission had no responsibility for local districts, and local officials were free to gerrymander as in the past.
In advance of redistricting, it was clear that Republicans in Southside and Southwestern Virginia would be affected. Slow population growth in those regions, compared to Northern Virginia and Hampton Roads, would require drawing larger boundaries. Even if voters approved the redistricting commission, some Republican incumbents in rural Virginia would end up having to run against another Republican incumbent.
To avoid that challenge, in 2019 Del. Todd Pillion decided to run for the 40th District in the State Senate. He had not been challenged by another candidate in his last two elections to the House of Delegates, but his election to the State Senate in 2019 guaranteed he would be in office through 2023 no matter how redistricting affected Southwest Virginia.6
in 2019, Del. Todd Pillion chose to run for a four-year term in State Senate District 40 rather than for re-election to a two-year term in House of Delegates District 4
Source: Virginia Division of Legislative Services, Virginia Redistricting Commission
The timelines for action by the redistricting commission were tight. It was required to propose new district boundaries for the State Senate and the House of Delegates of the General Assembly within 45 days after the Census Bureau released final population numbers for Virginia. Boundaries for the US House of Representatives districts had to be drawn within 60 days. The deadline for both maps was July 1, unless the Census Bureau's delivery of population data was delayed.
The Census Bureau did delay. It failed to complete the state population counts for apportionment of US House of Representatives seats by the statutory deadline of December 31, 2020. Delays in "counting every American once, only once, and in the right place" were caused by the COVID-19 pandemic. That limited the ability of enumerators to contact nonresponding households, and to resolve duplicate counts for people living in group quarters such as college dormitories but also at alternative residences. There was political interference in the process, including a failed effort to distinguish between residents vs. legal citizens in the Census numbers.
The Census Bureau announced at the end of January, 2021 that apportionment data for drawing new districts within the states would not be available until July, or even later. That created the possibility that the 2021 elections would be held using the same boundaries as in 2019, but terms would be limited to just one year with new elections required in 2022. That approach had been used in 1981, when there were elections for the 100 House of Delegates seats in 1981, 1982, and 1983 (finally for a two-year term).7
The redistricting commission has to complete its work in time for the political parties to hold primaries, select candidates, and campaign before November elections. There was a risk that the commission would end up in deadlock, since the constitutional amendment creating it required approval by 75% of the delegates and 75% of the state senators but each political party appointed only 50% of them. Advocates for a completely non-partisan commission were concerned about the risk of backroom bargaining, creating boundaries that protected re-election potential for key politicians or incumbents in districts at risk of having competitive elections.
Partisan officials also highlighted the remaining potential for political bias, noting that even the citizen members selected by retired judges were nominated by political leaders in the General Assembly. Delegate Marcus Simon was appointed to the commission; he had supported creating it in February 2019, when the House of Delegates voted 85-13 to advance SJ 306.
However, Del. Simon became a leading opponent of ratifying the constitutional amendment after Democrats won control of the legislature in the November 2019 elections and his political party gained the power to define the election districts for the next decade of elections. Simon then flipped his opinion and claimed to be concerned about potential partisan influence, when he argued for a "No" vote before the 2020 election:8
The General Assembly rejected the proposal for a non-partisan (vs. bi-partisan) redistricting commission which included no legislators, as originally advocated by OneVirginia2021. Instead, the General Assembly structured the commission so any two delegates or any two state senators could block adoption of new maps.
To adopt any new set of maps for Congressional, State Senate, and House of Delegates districts, 12 of the 16 commissioners had to approve. Within those 12, six of the eight citizens had to approve. In addition, six of the eight legislators also had to approve the maps, including a minimum of three of the four delegates and three of the four state senators. Since Democratic and Republican leaders in the General Assembly each appointed two delegates and two state senators, the potential for the Virginia Redistricting Commission to endorse a overly-partisan redistricting plan was reduced.
There was also the potential for delay by the legislature. Each house of the General Assembly was given an opportunity to reject the redistricting plan submitted by the commission. In that case, the Virginia Redistricting Commission would have to revise its rejected proposal and submit another redistricting plan. If rejected by legislators a second time, then the Supreme Court of Virginia would draw the district boundaries.
The review process at the legislature could consume as much as 14 days for the first review, plus another seven days if a second review was required. In addition, time would be required by the redistricting commission to made adjustments, and for the Supreme Court of Virginia to make a decision.9
On February 12, 2021, the Census Bureau announced that Virginia would not receive the detailed data needed to redistrict boundaries within the state until September 30, 2021. The Federal agency decided that dropping plans to follow staggered delivery dates for redistricting data sped up the total process for all 50 states, though it would disrupt the scheduled legislative elections in New Jersey and Virginia.
The Census Bureau prioritized completing the population data required for the fundamental task of reapportioning membership in the House of Representatives. Population changes had caused Virginia to lose one seat in the House of Representatives after the 1930 Census, and to gain a seat in 1950 and 1990. The 2020 Census did not alter Virginia's total in the House of Representatives, but the delay still left plenty of time for the Virginia Redistricting Commission to the boundaries of the 11 districts to ensure equal population numbers before the 2022 elections to the US House of Representatives.
The September delivery date was six months after the deadline established by law, but members of Congress quickly announced support for changing the deadline and releasing data for all states at the same time in order to ensure accuracy. Prioritizing delivery to Virginia and New Jersey, releasing their data 4-6 weeks ahead of other states because of their 2021 elections, no longer offered any benefits. By February it was clear that the release date would be too late for Virginia to complete redistricting, nominate candidates, and have adequate time for candidates to campaign in new districts before the scheduled November, 2021 elections.10
Delaying the redistricting for 2021 elections violated the state constitution, as amended in 2020. The constitution granted the Virginia Redistricting Commission 45 days to craft new boundaries, with results expected by July 1. If the Census Bureau delivered the population data on September 30, there was no possible way to comply with the constitutional mandate:11
The redistricting amendment to the state constitution, approved in 2020, had little impact on redistricting for local offices. Elected officials retained the power to choose their own voters, and to enhance the potential of incumbents to be reelected. Prince William County established redistricting criteria that defined retention of incumbents as a priority:12
Prior to the 2020 constitutional amendment, state law did require at the local level:13
The amendment did not require the Virginia Redistricting Commission to get involved in any way with redistricting magisterial districts in counties, wards/districts within cities and towns, or school board seats. The Amendment did add one new requirement for local election districts intended to enhave the election of candidate from minority groups. In a majority-minority county such as Prince William, where no ethnic group exceeded 50% of the population, that provision created the potential for advocates to argue for magisterial district boundaries intended to incease the opportunity for electing white candidates to the Board of County Supervisors:14
The 2020 amendment did not require, and the General Assembly has not mandated, that local redistricting meet the "communities of interest" standard which was established for congressional and state legislative districts:15
The 2020 General Assembly modified the requirements for drawing county and city precincts. It required:16
when Virginia drew 2021 election district boundaries, a new srtate law required that people incarcerated in rural prisons (top) be assigned to their last known residential address (bottom)
Source: Virginia Public Access Project (VPAP), End of "Prison Gerrymandering" Saps Rural Virginia
The legislators were prescient in anticipating that congressional, Senate, and House of Delegates districts might not be adopted by June 15, 2021 after the 2020 census. Local jurisdictions were authorized to draw precinct boundaries based on previous districts for 2021, then revise those boundaries after the district boundaries were completed for US House of Representatives, State Senate, and House of Delegates districts.
The delay in receiving the 2020 Census data made it impossible to revise the House of District boundaries for the House of Delegates races in 2021. The solution was to cut the term of those elected in 2021 in half, to just one year. Delegates elected in 2021 had to run again in 2022, in newly-drawn districts, and would serve only one year again. Those elected in 2023, from the districts established in 2022 after consideration of the Census data, would serve two-year terms.
The delay in redistricting was expected to help the Republican Party capture control of the House of Delegates in 2021. The boundaries for the 100 delegate seats werre drawn in 2011, when that party controlled the House of Delegates. Even after court decisions that required some redistricting before 2020, those 2011 boundaries created districts that favored election of Republicans.17
That change did not affect members of the State Senate whose terms ended in 2023, but altered the opportunity for incumbent members of the House of Delegates to seek the nomination of their party for Governor, Lieutenant Governor, or Attorney General in June, and if unsuccessful to run again for re-election to the House of Delegates in an August primary.
Del. Kirk Cox, the Republican Party's Minority Leader, chose to run for his party's nomination for Governor; he did not get on the 2021 ballot as a candidate for the House of Delegates. When he lost, he had no "fall back" opportunity to be elected to another office that year. Del. Haya Alaya declined to run again in the 51st District, and put all her efforts into being nominated as the Democratic Party candidate for Lieutenant Governor.
Some incumbents chose to run simultaneously for both their House of Delegates seat and higher office. Del. Sam Rasoul had no primary challenger in the 11th District, so he was guaranteed to be on the ballot in November even if his effort to be nominated for Lieutenant Governor failed.
Del. Mark Levine, seking nomination for both Lieutenant Governor and to the 45th District seat in the House of Delegates, advertised he was "A leader so nice, you can vote for him twice!" Del. Lee Carter was on the ballot twice on June 6, seeking nomination as the Democratic Party candidate for governor and for the 50th District seat. Del. Elizabeth Guzman initially announced she would run only for Lieutenant Governor and got on the ballot for that office, while other candidates got on the ballot seeking to replace her as delegate for the 31st District. After realizing her statewide candidacy would not succeed, she dropped her bid for Lieutenant Governor and got on the ballot in time to run for re-election to her House of Delegates seat.
As described by the Washington Post:18
Two of the three incumbents seeking dual offices were defeated in both races, ending at least temporarily their careers are elected officials. Delegate Lee Carter (D-50) lost both the Governor's race and his House of Delegates race. Delegate Mark H. Levine (D-45) lost in both the Lieutenant Governor's race and in his House of Delegates race. Delegate Elizabeth Guzman (D-31) won her 2021 primary and then the general election in November, so she returned to the House of Delegates in 2022 after dropping out of the Lieutenant Governor's race.
Former Delegate Haya Ayala's gamble paid off. After resigning her seat in the 2nd District, she won the Democratic nomination for Lieutenant Governor. Sam Rasoul, who lost his bid for Lieutenant Governor, had no primary opponent. That ensured he would be the Democratic nominee for re-election in the 11th District in November, 2021. Jennifer McClellan was serving a four-year term in the Virginia State Senate which ended in 2023, so after losing the 2021 race for Governor she remained in the General Assembly.19
The redistricting process in 2021 altered the traditional way of counting prisoners when redrawing election district boundaries. The General Assembly required that inmates be assigned to their last known residential address, not to the address of the facility in which they were incarcerated on April 1, 2020 (as counted by the US Census).
The different adddresses used for 20,000 people held in federal, state and local institutions changed reduced the political influence of rural areas, where many prisons were located, and increased the population count in more-urban areas where many of the convicts had lived. The Supreme Court of Virginia rejected a challenge to the new way of counting prisoners in the 2021 redistricting process.20
To cope with the delay in delivery of new Census data, some states started their redistricting process by using American Community Survey data. In Illinois, Democrats who controlled the legislature drew new maps prior to a June 30 deadline. Delay past that deadline would have made a bipartisan commission responsible for that state's redistricting, increasing the opportunity for Republicans to win elections. Oklahoma's legislature did the same, though in that case the Republicans raced to complete redistricting to their advantage before a ddeadline that would transfer the process to a bipartisan commission.
In Colorado, the independent redistricting commission used the American Community Survey to draw draft maps for public comment. The deadline for that commission was tied to the date the Census Bureau released the data, but it chose not to wait. The release of draft maps in June, 2021 stimulated public review and comment, which could be incorporated into the final maps to be completed after the Census Bureau provided the official 2021 data.21
An appointee to the redistricting commission, Marvin Gilliam, resigned in July, 2021. He had been nominated by Senate Minority Leader Tommy Norment, and happened to be the only member from west of the Blue Ridge. Though the initial eight citizen members had been appointed by the panel of judges, the redistricting committee chose his replacement to fill the vacancy. The procedures for his replacement required that at least one of the eight Democrats had to vote in favor of a new Republican member. In the end, the appontment was made by a 13-1 vote.21
A person from the Lynchburg area was selected as the replacement. That left Southwest Virginia without any representative on the Virginia Redistricting Commission. Though one member of the commission noted that the appointment was "as close as we kind of get to Southwest, the Roanoke Times questioned if the lack of geographical diversity met the requirement to "give consideration to the racial, ethnic, geographic, and gender diversity of the Commonwealth."
The paper editorialized:22
Prior to the release of the detailed Census data, differences of opinion became clear between legislators and non-legislators on the redistricting commission. In the initial discussions, the legislators appeared more concerned about incumbency than partisanship. In October 2020, the General Assembly's Joint Reapportionment Committee had required that the redistricting commission be provided the home addresses of the current members of the legislature. That address data would allow the commission to draw district boundaries that avoided placing incumbents in the same district, or to use a partisan perspective and purposely place incumbents in the same district to reduce the chances of one getting re-elected.
The General Assembly did make clear that boundaries of existing legislative districts did not qualify as a "community of interest." Even if a legislator had served one area for the last decade or two, the commission should not define the legislative district boundaries as a community of interest to be protected - but the General Assembly ensured the commission could still consider the addresses of incumbents for political reasons. A briefing to the commision by a Division of Legislative Services attorney included:23
In 2010, California voters had established an independent redistricting commission and prohibited it from considering the addresses of incumbents when drawing new boundaries. As described by political pundit Larry Sabato at the University of Virginia, the commission took a "wrecking ball" to the old district boundaries for state legislators. It drew a new map after the 2010 Census that provided little protection to incumbents:24
In 2021, the eight legislators on the Virginia Redistricting Commission appeared more concerned than the non-legislators about splitting the process so House of Delegates members were not responsible for drawing State Senate district boundaries, and vice-versa. The legislators proposed creating two subcommittees, one for House of Delegates redistricting and one for State Senate redistricting. Two committees would avoid having members of one house shape boundaries for members of the other house. In 2011, when Republicans controlled the House of Delegates and Democrats controlled the State Senate, the members of the two houses had worked independently to redraw their boundaries.
The bi-partisan co-chairs, both citizen members, recommended having members of each house on each subcommittee. The legislators refused and the commission was unable to get a majority vote for any subcommittee option, so no subcommittees were created.
The commission members also debated whether to start from scratch to define new district boundaries as done by California's commission after 2010. The alternative was to start with the boundaries of existing districts and make modifications. Changes might improve the compact and contiguous character of a district, and facilitate the preservation of communities of interest. Starting with existing boundaries could minimize the number of incumbents who might be forced to move, or to run in a new district with voters who had not supported them in the past.
Experienced incumbents argued that the expertise accumulated over years of service were essential to effective government. The members of the General Assembly were part-time legislators paid just $18,000/year to make decisions on over a thousand bills in a six-eight week session. The legislators lacked the staff and time to understand the complicated budget and potential impacts of transportation, education, energy, and other key issues in their initial years, but gained perspective with experience. The legislators with decades of service should be considered as essential resources, not vilified as "career politicians."
The lawyers hired to represent Democratic and Republican perspectives advocated for modifying existing boundaries to retain incumbents. In response, one of the non-legislator members commented to the State Senator who led the redistricting for the 40 State Senate disctricts in 2011:25
The Bureau of Census released its detailed data on August 12, missing the schedule release date by ahead of its self-imposed September 30 deadline. Virginia Redistricting Commission chose to use August 26 as the start date for its 45-day map-drawing window, aligning the time to reflect the date when the Census data would be available in a more-useful format. That set the deadline for proposing 140 General Assembly district maps by October 10, and 11 maps for US House of Representative districts by October 25.
News stories about the redistricting process highlighted how the members of the commission were struggling to reach across the political divide, with headlines such as "Partisan tension roils Virginia redistricting commission" and "Virginia Redistricting Committee Opts for Partisan Approach to Map-Drawing."
The members did manage to agree on a 9-6 vote to consider the residence of incumbent legislators when drawing new boundaries. In a 12-4 vote, it decided to minimize how jurisdictions were split into different districts. Sponsor of that motion was Sen. Ryan McDougle, whose State Senate District 4 included parts of 10 separate jurisdictions. They also acknowledged that they would consider political voting trends when crafting new maps, rather than wait until maps were drafted and then review the political impacts. One opponent of that decision described it as "rigging the process from the beginning."
State Senate District 4, represented by Ryan McDougle in 2021, stretched across all or part of 10 jusrisdictions
Source: Virginia Redistricting Commission, Current Senate (HB5005 Passed 4/28/11)
One of the conflicts was whether the Virginia Redistricting Commission should hire two teams of partisan map-makers, comparable to its two teams of Republican and Democratic lawyers. The other option was to hire a non-partisan organization, such as the Spatial Analysis Lab at the University of Richmond. One Republican member claimed that finding a neutral mapmaker with experience in redistricting wouldd be equivaent to finding a unicorn.
After release of the Census data, the commission deadlocked on the decision. All eight Democrats voted for a single map drawer and all eight Republicans were opposed, so the motion failed on a tie vote. That left the partisan lawyer teams free to hire separate mapping specialists to draft boundaries for the 2022-2030 elections.
Several of the citizen members were frustrated by the partisan angles and decisions to "split the baby constantly along party lines." One commented:26
One of the members appointed by the General Assembly noted more optimistically:27
That comment reflected the narrow focus of elected officials to balance Republican and Democratic party interests, being bipartisan rather than nonpartisan. Citizen members appeared less interested in creating district boundaries that would be "safe Republican" or "leans Democratic," and more willing to consider districts that blended voters of both parties and created greater opportunity for flipping seats.
A "hot mike" exchange, when two commission members did not realize their conversation was being broadcast, was revealing. Brandon Hutchins, a citizen member representing Democrats, was speaking with State Senator George Barker. He led the process in 2011 to create partisan redistricting maps for the State Senate. As reported by the Virginia Mercury, Hutchins expressed concerns to Barker that citizen reaction to a process that prioritized political considerations of Democratic and Republican leaders would be negative:28
The director of the National Black Nonpartisan Redistricting Commission made clear his expectation that the divided commission, unable to agree on a single set of lawyers or mapmakers, would be unable to agree on maps either. His aid in frustration:29
In a surprise to some observers, the Virginia Redistricting Commission decided by a 9-7 vote to create new boundaries from scratch, without a parallel effort to draw boundaries also based on existing districts. The alternative was to adjust existing district boundaries, starting with boundaries that were comfortable to most incumbents and then adding/subtracting precincts to meet the required population numbers.
Starting from scratch prioritized creation of compact and contiguous districts that represented communities of interest. Such an approach increased the potential of putting multiple incumbents into one district, and creating other districts with no incumbent.30
The first draft maps were prepared for Northern Virginia, with seven other regions to be mapped later. No matter how the district boundaries were drawn, there would be relatively little partisan advantage because the area was so heavily Democratic. Most districts would remain tilted towards election of Democrats, but the Republican lawyers managed to draw boundaries of "compact" and "contiguous" territory would be more competitive. than the Democratic proposal.
Republican lawyers drafted maps that created more-competitive State Senate districts than the proposal from Democratic lawyers
Source: Virginia Public Access Project, Partisan Consultant Drawing Maps
proposed redistricting by Democratic and Republican lawyers still left all Northern Virginia House of Delegates districts as strongly tilted towards Democratic candidates
Source: Virginia Public Access Project (VPAP), Proposal B1 for Northern Virginia, presented by the Redistricting Commission's Democratic map drawers on September 2, 2021
The draft prepared by the Democratic lawyers ignored the home addresses of incumbents, and the elected officials on the Virginia Redistricting Commission were not happy with the proposal. Delegate Marcus Simon commented that he liked the Republican proposal better, since it left more of his existing district intact. The draft map placed State Senator Barker and State Senator Chap Petersen in the same district. Barker warned that the General Assembly had to approve the final map, and not protecting incumbents might result in rejection.31
Republican lawyers proposed new House of Delegates districts in Northern Virginia that would place three incumbents within one district
Source: Virginia Public Access Project, Without Regard to Incumbency
Right after the Census data was delivered and the first maps were drafted, one of the commission members was infected with COVID-19 and meetings were paused. Then, as the work of defining new election district boundaries was getting intense, State Senator Steve Newman resigned from the Virginia Redistricting Commission.
One observer noted that Sen. Newman may have been frustrated because the commission co-chairs had "dropped a bomb" at the August 23 meeting. They adopted a protocol, without a commission vote, that banned commission members from communicating with the attorneys and map drawers except in a public meeting. The intent was to increase transparency and to minimize citizen concerns about maps being prepared in secret. Sen. Newman had objected strongly, even though he said he was not planning to run for re-election and thus would not be impacted personally. The co-chairs refused to modify their protocol.
The resignation, with 37 days remaining before the deadline to finalize maps for the Virginia House and Senate, forced the Senate Minority Leader to appoint a replacement to step in for the final six weeks of the redistricting process. State Senator Bill Stanley from Franklin County was appointed, adding some geographic diversity.32
After drafting a map that lumped Delegate Marcus Simon with another incumbent, the Democratic lawyers revised their proposal to provide him a district without an incumbent competitor. The consultant used an independent website to get data on the addresses of incumbents; the commission had not provided that information to the map drawers. Del. Simon claimed he had made no request for a change.
State Senator George Barker made an overt effort to amend the map submitted by the Republican lawyers. He proposed a new map that would shift a few precincts so his home would not be within the same district as State Senator Chap Petersen. Barker complained that most of that proposed district was already represented by Petersen, so Barker would be at a disadvantage when trying to win the Democratic nomination in 2023:33
The residence of incumbents could end up being a significant factor when assessing if the proposed statewide map created an unfair impact on one political party. It was possible that the final 100 House of Delegates districts or 40 State Senate districts would create boundaries where many incumbents of one party were forced to run against each other for renomination, while few incumbents of another party were consolidated into common districts.
One of State Senator Bill Stanley's first comments was:34
In mid-September, the comnmission abandoned the idea of producing maps for different regions and then integrating them. The co-chairs decided there would not be adequate time for that process, and the impacts would be easier to evaluate if statewide maps were considered.35
Protecting incumbents ended up being part of the process. In late September, the addresses of all incumbents were released to the Republican and Democratic map drawers. That enabled drawing maps that had "political fairness," but that particular criterion was given lowest priority. Drawing boundaries to maximize the potential of individual incumbent politicians to win re-election in the next election was seen as a separate issue than partisan gerrymandering, in which boundaries would be drawn to maximize one political party's success for the next decade.
The Republican and Democratic map drawers modified their draft boundaries to alter precincts near the edges of districts, in order to minimize the number of districts in which two or three incumbents would be placed. One experienced reviewer of the redistricting process noted the changes in the October 3 draft maps:36
The Republican and Democratic consultants partnered to avoid partisan deadlock on the map of 40 State Senate districts. They proposed a revised map that both sides endorsed, and which would minimize the number of incumbent State Senators who would be placed in the same district.
The "tweaked" map had only two districts in Northern Virginia that included the homes of two incumbents. In both cases, one of them was expected to retire rather than compete in a primary for re-election. The two incumbents predicted to retire were senior leaders in the State Senate - Dick Saslaw, the Senate Majority Leader, and Janet Howell, the chair of the Senate Finance and Appropriations Committee.
two proposed State Senate Districts in Northern Virginia (dark purple) included two incumbents, while other districts (grey) had no incumbent
Source: Virginia Public Access Project (VPAP), Commission - Statewide - C2
Near Lynchburg, two Republican State Senators were also placed in the same district. The map drawers apparently assumed that State Senator Steve Newman, who had resigned from the Virginia Redistricting Commission, was not planning to seek re-election.37
One commentator noted that while statewide races might be won consistently by Democratic candidates, the Democratic voters were concentrated in a smaller percentage of the state than Republicans. A gerrymander that ignored "compact and contiguous" criteria was the only way to put the isolated pockets of Democrats in Blacksburg, Roanoke, and Charlottesville into a US House of Representatives district that would be competitive. However Congressional district boundaries were drawn for those cities in 2021, the Republican-leaning voters in surrounding rural counties would dominate elections.
in 2011 redistricting, the City of Roanoke was kept in the 6th Congressional District
Source: Virginia Redistricting Commission, Current Congressional (Court Ordered Modification 1/7/16)
Boundaries of compact and contiguous districts representing communities of interest inevitably include a high percentage of Democrats in Northern Virginia, Richmond area, and Hampton Roads. Democratic candidates are predicted to win in those districts by high margins, but a high percentage of other districts will be competitive or guaranteed for Republican candidates.38
Though representatives of the two political parties could not produce a combined map for the 100 House of Delegates districts in early October, the Princeton Gerrymandering Project's Redistricting Report Card gave both Republican and Democratic early drafts an "A" for non-partisanship. The good start was not sustained; later drafts got lower marks, including an F.
early in the process, the Princeton Gerrymandering Project rated highly both Democratic and Republican draft maps for House of Delegates districts
Source: Princeton Gerrymandering Project
The differences between the two initial draft maps were primarily regarding the opportunity for election of candidates from minority ethnic groups. The Democratic proposals included two "opportunity districts" for Hispanic candidates and one district for an Asian candidate, while the Republican draft had one Hispanic opportunity district and three such districts for Asian candidates.
In addition, the Democratic draft proposed an additional opportunity district for black candidates in Hampton Roads. The Republican draft concentrated more black voters into two districts near Richmond. Based on the presumption that black voters supported Democratic candidates, packing them into a small number of districts would make the remaining districts more competitive for Republican candidates.
Consideration of race was challenging. A key 1965 Federal law banned voting discrimination based on basis of race, color or language, but equal treatment under the law also required ensuring the opportunity for candidates from minority groups to win elections. The 2011 redistricting resulted in 5 Senate and 12 House majority-minority districts, but Federal courts later required revisions of the House of Delegates district boundaries because they split up black voters.
The 2020 amendment to the state constitution which created the Virginia Redistricting Commission included:39
Democrats argued that boundaries should increase the number of districts involving politically cohesive groups, living closely together, to maximize the potential to elect black candidates. They cited the challenge in District 75. The Republicans had controlled the House of Delegates in 2011, and they drew the boundaries to ensure a voting-age population that would be 55% black.
Del. Roslyn "Roz" Tyler won with over 60% of the vote in 2017. After boundaries were adjusted by a Federal court and the percentage of black voters in the district was reduced, she won with just 51% of the vote.40
A Democratic member of the commission stated bluntly:
The Republican map-drawer in 2021 was involved in creating the unconstitutional boundaries after the 2010 Census, which affected the ability of the two sides to compromise on one map in 2021. Knowing that most black candidates would be Democrats, the Republican legal advisor justified concentrating the black voters into a smaller number of districts:41
Failure to choose one set of mapdrawers, followed by 8-8 decisions split along party lines, led to the commission reaching a point of failure just before its deadline to deliver a final map for General Assembly districts.
The commission was unable to agree on a single officially-proposed map to submit for public comment at the start of October. Instead, the public had to consider 21 separate House of Delegates proposals and 20 proposals for State Senate districts. The commission held eight virtual public hearings without offering a preferred proposal for public review.42
COVID-19 led to the commission holding virtual meetings, which increased public access to discussions and transparency of debates previously held in secret
Source: Virginia Redistricting Commission, Virtual Public Hearing 10/07/2021 4:00 PM
Then on October 8, facing a deadline of adopting maps by October 10, the meeting started with a focus on four maps. Republican members had coalesced around a map for the House of Delegates districts and a map for the State Senate districts; Democrats had proposed a pair of different maps. The Democratic map for the State Senate was a new proposal that had received no public review.
Democrats proposed a plan for a State Senate District that prioritized linking Democratic-leaning precincts in Roanoke and Blackburg over "compact and contiguous" criteria
Source: Virginia Redistricting Commission, B4 Statewide SD
Republican members rejected a proposal by the Democratic members to pick one map for each part of the General Assembly, and to complete the process by refining those chosen maps. Democrats proposed starting with the map of State Senate districts produced by the Democratic map drawers and the map of House of Delegates districts produced by the Republican map drawers.
There were two more 8-8 votes where Republican members insisted on starting with a Republican version of the State Senate map. Democrats ended up abandoning their proposal to start with their new State Senate map and use a previously-proposed Democrat map and Republican map as starting points, but all eight the Republicans voted no. After a short recess, three Democratic citizen members left the meeting. That stunning action reduced attendance below a quorum and ended discussion for the day.
The very frustrated Democratic co-chair declared that she perceived no trust established across partisan lines, and no potential for 12 of the commission's 16 members (six of eight legislators, and also six of eight citizens) to agree on a map. She made clear that the Virginia Redistricting Commission process was over and, according to the 2020 constitutional amendment, the Supreme Court of Virginia would have to create the redistricting maps:43
There was no formal vote to adjourn, and the scheduled meeting on Saturday was cancelled.
the scheduled Saturday meeting of the commission was cancelled, after the collapse of negotiations and a walkout by Democratic citizem members on Friday
Source: Virginia Redistricting Commission, Public Meetings
The State Senate map proposed by the Republican map drawers was significantly more partisan than the Democratic proposal. According to the Richmond Times-Dispatch:44
One commentator clarified that the decision to consider the home addresses of incumbents was not a factor in the inability to agree on new maps. Adjusting boundaries to protect incumbents was popular among legislators in both parties, and may have facilitated adioption of any proposed maps.
Instead, the commentator allocated blame for the Commission's failure to both Republican and Democratic members, after the meeting ended in failure on October 8. The partisan commission was never able to create a non-partisan process:45
the public could provide comments on all drafts proposed for review by the Virginia Redistricting Commission
Source: Virginia Redistricting Commission, C1 Statewide CD (Plan 364)
Another allocated blame on the structure of the commission, rather than on the 16 members who could not find a path to compromise:46
The chaotic end of the commission's efforts to draw maps for General Assembly districts and failure to adopt maps by October 10 still left open an option. The law creating the commission included an automatic 14-day extension beyond the deadline.
All 16 members of the commission chose to meet virtually again on October 11, but they explored how to notify the Supreme Court of Virginia that the commission would not revisit the General Assembly maps. The remaining time would be spent drawing maps for the 11 House of Representatives districts, in hopes of meeting the October 25 deadline for that process.47
the collapse of the Virginia Redistricting Commission on October 8 meant that public comments on drafts, such as splitting Montgomery County into three House of Delegates districts, became irrelevant
Source: Virginia Redistricting Commission, B7 Statewide HOD
The commissioners negotiated a deal where the Democratic map drawers would propose boundaries for the 8th, 10th and 11th Congressional districts in Northern Virginia, while Republican map drawers would propose boundaries for the 5th, 6th, and 9th districts. The political tilt was so strong in those two regions that there was little opportunity to draw "compact and contiguous" boundaries that would result in a competitive two-party race.
The commissioners also agree to maintain the current boundaries of the 3rd and 4th districts, which a Federal court had defined. That deal left the Democrats with confidence they could win five of the state's 11 districts.
The commission's staff created a proposal for discussion with five districts that would be safely Republican, along with the five safely Democratic districts. The one highly-competitive district would be centered on Hampton Roads. At the time, there were seven Democrats and four Republicans serving in the House of Representatives. Three districts were competitive, with seats that had flipped from Republican to Democrat in 2018, but the boundaries of those districts had to be revised to reflect the population numbers from the 2020 Census.
the Virginia Redistricting Commission considered redrawing Congressional districts to create just one competitive "swing" district (purple)
Source: Virginia Public Access Project, Commission - US House - C1
The discussion on Congressional maps at the Virginia Redistricting Commmission soured almost immediately, once the Democratic members realized the staff's proposed map drew heavily upon a submission created by the National Republican Redistricting Trust. Even discussing the "Republican dream map" was challenging, even if the Democratic members ultimately decided the staff proposal was developed in a benign process without undue partisan influence behind the scenes.
One commentor noted:48
The final collapse of the commission's efforts occurred on October 20. Democrats proposed two maps that would create five safe Democratic districts, four safe Republican districts, and two "swing" or competitive districts. Republicans also created two maps, but with just one swing district and five safe Republican districts.
The dispute was centered on the 7th District, which could be redrawn to keep it competitive or make it safely Republican. The Republican map proposal moved many Democratic voters into what would be reliably Republican 1st and 5th districts. That would diminish the impact of their votes, leave Henrico County split between three districts, and make the 7th District reliably Republican as well. Democrats on the commission would not accept that proposed outcome.
Democrats drew boundaries of the 7th District (grey) to make it a swing district, rather than the staff's proposal for a reliably-Republican district
Source: Virginia Redistricting Commission, C1-A Statewide CD (Plan 420)
Democrats wanted the new election district maps to reflect "political fairness," acknowledging that in statewide elections the Democrats were winning consistently. At the time, the Republican and Democratic candidates for governor locked in a tight race. Virginia's recent reputation as a "blue" rather than "purple" state was in question.
The commission's votes on October 20 once again split along party lines. The eight Republicans endorsed their 5-5-1 map, and the eight Democrats endorsed their 5-4-2 map. That partisan deadlock was followed by a vote to adjourn permanently, without producing any maps for consideration by the General Assembly. The Democratic co-chair saw no reason to keep meeting and discussing the Congressional maps, even though the deadline for completing them was still five days away:49
In the end, the Virginia Supreme Court appointed special masters to draw new election boundaries for the US House of Representatives, House of Delegates, and State Senate. Those boundaries were set in in December 2021. For the 2022 race, both the Democratic and Republican nominees lived outside the boundaries of the new 7th District boundaries.
As a result of the delay, the 2021 election for the Virginia House of Delegates were based on the "old" election districts which did not reflect the 2020 Census data. When redistricting was delayed in 1981, the courts rule that a new House of Delegates election was required in 1982 using the new boundaries. The delegates elected in 1981 served just a one-year term, as did the delegartes elected in 1982. Those elected in 1983 returned to two-year terms.
A 2021 lawsuit sought to force new elections in 2022, matching the 1981 experience. Since the Republicans had flipped enough districts in 2021 to take control of the House of Delegates, a new election in 2022 would have given Democrats a chance to regain the majority. The legal process was delayed, and in June, 2022 a panel of three Federal judges ruled that the plaintiff lacked legal "standing" and no special election would be required for the House of Delegates.50
That decision was followed by a new lawsuit from an individual with legal "standing." The Federal judge hearing the case demanded speedy action. The judge suggested that former Attorney General Mark Herring had intentionally delayed a legal decision, in a political effort to "run out the clock" and prevent a 2022 special election. If the Federal judge required a special election, then primaries would have to be scheduled to select candidates just a few months before the general election on November 8, 2022.51