Virginia

Due to a constitutional measure (Amendment 1) passed in 2020, Virginia’s congressional and state legislative lines are both drawn by a politician commission, in conversation with the state legislature.

The 16-member commission consists of eight legislators — two appointed by each of the four legislative leaders (majority and minority leader in each legislative house) — and eight citizen commissioners, endeavoring as a whole to reflect the state’s racial, ethnic, geographic, and gender diversity.  A selection committee of retired state circuit court judges (none of whom may be immediately related to legislators) is convened: one retired judge is chosen by each legislative leader, and those four select a fifth.  Each legislative leader then proposes sixteen nominees to the committee of judges, and the selection committee chooses two citizens nominated by each of the four legislative leaders. By statute, these citizen commissioners must have been Virginia residents and registered voters for the last three years, and must have voted in two of the last three general elections.  Citizen commissioners also may not have held or sought partisan public or party office; been employed by Congress, the state legislature, or any party or campaign; have been a lobbyist in the last five years; or be immediately related to any of the above.  [Va. Const. art. II, § 6-A(b); Va. Code §§ 30-392 – 394]

The eight legislative members of the 2020 commission are named here; the eight citizen members are named here.

Any district plan must receive support from 6 of the 8 legislative commissioners and 6 of the 8 citizen commissioners.  The plan for a state legislative chamber must also receive support from 3 of the 4 legislators from that chamber.  [Va. Const. art. II, § 6-A(d); Va. Code § 30-397]

The commission’s plans are presented to the legislature (the state legislative plans as a single bill), and must be approved or rejected, without amendments (and not subject to gubernatorial veto).  If the plan is rejected, the commission must submit a new plan, to be voted up or down without amendments (and not subject to veto).  If the commission fails to submit a plan, or if the legislature rejects two consecutive plans, the districts will be drawn by the Virginia Supreme Court.  [Va. Const. art. II, § 6-A(e)-(g); Va. Code §§ 30-398 – 399]

By statute, the commission must be given the chance to remedy any district found to be unlawful in court.  [Va. Code § 30-400]

The politician commission must submit congressional plans to the legislature within 60 days of receiving census data (or by July 1, 2021, whichever is later); the commission must submit state legislative plans to the legislature within 45 days of receiving census data.  The legislature, in turn, has 15 days to vote on a plan submitted by the commission; if the legislature rejects a plan, the commission has 14 days to submit a substitute, which the legislature must consider within 7 days.  [Va. Const. art. II, § 6-A(d)-(f); Va. Code § 30-397]

Candidates must file for congressional primary elections by Mar. 31, 2022, and for state legislative primary elections by Mar. 25, 2021. [Va. Code §§ 24.2-515, 24.2-515.1, 24.2-522(a)]  The regular legislative session began on Jan. 13, 2021, and is currently scheduled to end on Feb. 27, 2021.

Virginia law seems to prohibit the redrawing of congressional and state legislative lines mid-decade. [Va. Const. art. II, § 6]

The politician commission’s meetings are open to the public, and must be advertised in multiple languages “as practicable and appropriate.”  The commission must hold at least three public hearings, in different parts of the state, to collect feedback before proposing plans and before voting on plans to send to the legislature.  The commission must also establish a website where plans and data are to be published and where the public may submit proposals and comments.    [Va. Const. art. II, § 6-A(h); Va. Code §§ 30-396]

Records, documents, and communications of (or to) the commission are public records.  [Va. Const. art. II, § 6-A(i); Va. Code § 30-392(F)-(G)]

The commission held its first meeting on January 21, 2021. Records of all meetings can be found here.

Like all states, Virginia must comply with constitutional equal population requirements, and further requires districts to be proportionally populated, as nearly as is practicable; state legislative districts may deviate no more than five percent.  Virginia will adjust census data for congressional and state legislative districts in order to count incarcerated individuals at their last known residence before incarceration.  [Va. Const. art. II, § 6; Va. Code § 24.2-304.04]

Virginia must also, like all states, abide by the Voting Rights Act and constitutional rules on race.  The state Constitution independently requires that districts provide, where practicable, opportunities for racial and ethnic communities to elect candidates of their choice; statutes further specify that districts may not be drawn that result in a denial or abridgement of the right to vote on account of race or color or membership in a language minority group, or the right of racial and language minorities to participate in the political process and to elect representatives of choice, either alone or in coalition with others.  This statutory protection also prevents districts from being “drawn in such a way that members of a racial or language minority group are dispersed into districts in which they constitute an ineffective minority of voters or are concentrated into districts where they constitute an excessive majority.”  [Va. Const. art. II, § 6; Va. Code § 24.2-304.04]  The language, new in 2020, has not yet been construed by the courts.

Beyond those requirements, the Virginia Constitution demands that congressional and state legislative districts be contiguous and compact; the latter provision includes a great deal of discretion to the legislature to select any standard that is not arbitrary. [Va. Const. art. II, § 6; Vesilind v. Va. State Bd. of Elections, 813 S.E.2d 739 (Va. 2018); Jamerson v. Womack, 423 S.E.2d 180 (Va. 1992)]   Further statutory protections require that districts preserve communities of interest (not including political affiliation), and specify that districts must be drawn “employing one or more standard numerical measures of individual and average district compactness, both statewide and district by district.”  A district plan as a whole may not unduly favor or disfavor any party.  [Va. Code § 24.2-304.04]  The legislature may modify these statutory requirements if it wishes.

Coming soon.

In the 2010 cycle, Virginia was subject to preclearance under the federal Voting Rights Act.

The state legislature deadlocked on a congressional plan in 2011; after the 2011 elections, with unilateral Republican control, the state legislature passed HB 251 on Jan. 20, 2012, which was signed by the Governor on Jan. 25, 2012, and precleared on Mar. 14, 2012.  [Little v. Va. State Bd. of Elections, No. CL11-5253 (Va. Cir. Ct. Feb. 27, 2012)]

The congressional plan was challenged, and on Oct. 7, 2014, the plan was struck down based on an unjustified predominant use of race; on Jan. 7, 2016, the court drew a remedial plan itself.  [Personhuballah v. Alcorn, 155 F. Supp. 3d 552 (E.D. Va. 2016); Page v. Va. State Bd. of Elections, No. 3:13-cv-00678, 2015 WL 3604029 (E.D. Va. 2015), appeal dismissed for lack of standing sub nom. Wittman v. Personhuballah, 136 S. Ct. 1732 (2016)]

The state legislature first passed a legislative plan (HB 5001), vetoed by the Governor on Apr. 15, 2011.  The legislature then passed a legislative plan (HB 5005), which was signed by the Governor on Apr. 29, 2011, and precleared on June 17, 2011.  In 2014 and 2015, the legislature passed multiple bills modifying the legislative districts (SB 310, HB 1332, HB 1417, HB 1699, SB 986, SB 1084, and SB 1237); all were vetoed by the Governor.

The state legislative plan was challenged in state court and upheld; the state House plan was also challenged in federal court, and struck down on June 26, 2018, based on an unjustified predominant use of race.  On Feb. 14, 2019, the court implemented its own remedial plan.  [Bethune-Hill v. Va. State Bd. of Elections, 368 F. Supp. 3d 872 (E.D. Va. 2019), appeal dismissed for lack of standing sub nom. Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019); Bethune-Hill v. Va. State Bd. of Elections, 326 F. Supp. 3d 128 (E.D. Va. 2018); Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017); Vesilind v. Va. State Bd. of Elections, 813 S.E.2d 739 (Va. 2018)]

In the 2000 cycle, Virginia was subject to preclearance under the federal Voting Rights Act.

Virginia’s legislature passed a congressional plan (HB 18), signed on July 19, 2001, and precleared on Oct. 16, 2001; a state Senate plan (SB 1), signed on Apr. 21, 2001, and precleared on July 9, 2001; and a state House plan (HB 1), also signed on Apr. 21, 2001, and precleared on June 15, 2001.

The state plans were challenged in state court, and the congressional plan was challenged first in state court (the suit was withdrawn), and then in federal court.  Each was upheld.  [Wilkins v. West, 571 S.E.2d 100 (Va. 2002); Hall v. Warner, Case No. CH02-100 (Petersburg Circuit Ct.); 314 F.Supp.2d 1357 (N.D. Va. 2004); Hall v. Virginia, 385 F.3d 421 (4th Cir. 2004)]