RICHMOND, Va. - The majority of Virginia legislators voted early this year to curb their own power, passing a measure meant to stop them from drawing political maps for partisan gain. But gerrymandering in the Old Dominion is not dead yet.
The constitutional amendment to create a nonpartisan redistricting commission, which sailed out of the legislature in February, won't take effect unless it clears the legislature a second time. Then it must win approval from voters.
Most members of the Legislative Black Caucus opposed the legislation the first time around. Now a few other Democrats are saying their votes in favor of the amendment in February were too hasty.
With their party in control of the state House and Senate for the first time in a generation, opponents of the amendment are feeling empowered and saying they want to hit the brakes.
Chief among their concerns: If maps drawn by a nonpartisan commission don't win the approval of the legislature, the state Supreme Court would decide legislative and congressional district lines.
Del. Lamont Bagby, D-Henrico, chairman of the Legislative Black Caucus, calls that provision "a dealbreaker" because a majority of the current justices were chosen by Republicans.
"I can't support an amendment that ends with the Supreme Court," said Bagby, who also wants a guarantee that the commission would have minority representation. "I am a supporter of a fair, independent redistricting commission. But this isn't fair, and this isn't independent. The Supreme Court for the past 20 years has been friends and family of the Republican Party."
Bagby opposed the measure in February, as did nearly every other Black Caucus member in the House, where it passed 85 to 13. The bill drew only one nay - from a Republican - in the Senate.
Among those having second thoughts is Del. Mark Levine, D-Alexandria, who voted for the amendment in February but now on his website calls it a "dangerous proposal to allow Republicans to Gerrymander Virginia FOREVER."
Incoming House Speaker Eileen Filler-Corn, D-Fairfax, who also voted for the amendment, was noncommittal when asked through a spokeswoman for her current thoughts.
"The previous lines were struck down by the Supreme Court as a racial gerrymander, so it is important we make sure there is a more inclusive process," Filler-Corn spokeswoman Holly Armstrong said in an email. "Just as she has done with the rest of her efforts moving into the majority, Speaker-designee Filler-Corn's goal is to ensure everyone has a seat at the table to discuss how we move forward in a well-conceived way."
An about-face by Democrats would be awkward for a party that in recent years, with help from former president Barack Obama and his former attorney general Eric Holder, has turned the relatively wonky issue of nonpartisan redistricting into a rallying cry.
Seventy percent of voters support the Virginia amendment, according to a poll released this month by the Wason Center for Public Policy at Christopher Newport University.
It must pass - without so much as a comma change - in the General Assembly session that kicks off Jan. 8, and then must be approved by voters in order to govern the redistricting that will follow the 2020 Census.
If the amendment does not receive those approvals, the power to draw legislative and congressional lines in 2021 will remain with the legislature and Gov. Ralph Northam, a Democrat.
With a handful of exceptions, House and Senate Republicans opposed nonpartisan redistricting until early this year, when their hold on the legislature seemed imperiled by upcoming elections. They ultimately lost five seats in the House and two in the Senate, costing them control of both chambers.
Now GOP lawmakers are saying Democrats will scrap the amendment out of unvarnished self-interest.
"Will Virginia Democrats stand for principles, or partisanship?" read one of several statements from incoming House Minority Leader Todd Gilbert, R-Shenandoah.
"The Democrats are certainly in a bit of a bind," said Bob Holsworth, a veteran Richmond political analyst. "They agreed to a plan that basically makes the Virginia Supreme Court the backstop for redistricting. And I think many Democrats believe . . . that becomes an incentive for Republican members of the commission to promote a deadlock."
The state constitution directs the legislature to draw maps every 10 years for Virginia's 140 House and Senate districts and its 11 congressional districts. Since Virginia's maps were last drawn in 2011 - by a Republican-led House and Democratically controlled Senate - the U.S. Supreme Court twice ordered do-overs. Federal courts found that the legislature had packed too many African American voters into a Hampton Roads-based congressional district and 11 House of Delegates districts.
Under the proposed amendment, districts would be drawn by a commission of eight legislators and eight citizens. A supermajority of citizens and legislators on the panel would be required to approve the maps, which would then get an up-or-down vote from General Assembly.
In the event of a deadlock, the Supreme Court would appoint a special master to draw maps and the court would make the final pick.
Of the seven justices, five were Republican picks. One of the two chosen by Democrats - Justice Cleo Powell, the court's first African American woman - is regarded as one of the most conservative on the bench.
"It's a very conservative court. There's no question about that," said Steve Emmert, publisher of Virginia Appellate News & Analysis. "It does not mean they're partisan hacks. In fact, I would guess the last thing the current crop of justices would want is to adjudicate a map."
Supporters of the amendment, including the nonpartisan redistricting group OneVirginia2021, say any flaws can be addressed with enabling legislation, adopted as ordinary bills rather than through the two-year amendment process.
Those bills could require, for example, that the commission reflect the state's racial and geographic diversity. And that it follow certain mapping criteria, such as mandating that the districts be contiguous and compact and respect municipal boundaries. Or that any special master abide by the same criteria.
The group also suggests a bill requiring recusal for any Supreme Court justice who is the spouse of or an immediate relative of a legislator or member of Congress. (Justice Teresa Chafin is the sister of state Sen. Benton Chafin, R-Russell.
"There are a lot of things about the operations of the commission that need to be worked out, and we hope to do those in a bipartisan fashion," said Brian Cannon, executive director of OneVirginia2021.
Said Sen. George Barker, D-Fairfax, who sponsored the Senate version of the amendment: "There's a lot of things that are pretty much uncertain right now, but we'll give it a go. If we don't do the constitutional amendment this year, it's basically come back in 10 years."