BERNARD GROFMAN

Bernard Grofman

RICHMOND - Before this year's elections, a federal court is working to redraw 11 Virginia House of Delegates districts that were ruled unconstitutional in 2017 for violating racial gerrymandering laws.

Bernard Grofman, a "special master" appointed by the U.S. District Court in Richmond to oversee the redistricting process, has presented judges with a plethora of alternatives to the current map. The court hasn't reached a decision on which one it will use, if any.

At a hearing Thursday in U.S. District Court in Richmond, judges gave Grofman until the end of next week to submit a complete recommendation. Parties in the case will have time to respond to his final report, and the recommendation could be sent back to the special master for additional changes.

Toby Heytens, counsel for the Virginia State Board of Elections, said he hopes changes to the current legislative map are finalized by the end of January. All seats in the Virginia House are up for election in November, and the political parties may choose their nominees during June primaries.

The Virginia General Assembly and Gov. Ralph Northam were given an opportunity to redraw the map themselves by Oct. 30, but Democrats and Republicans couldn't agree on new boundaries for the districts. The task of redrawing the unconstitutional districts was then passed to the judicial branch.

The Office of the Attorney General recommended Grofman, a political science professor at the University of California, Irvine, because he redrew Virginia's 3rd Congressional District, which includes Hampton Roads, in 2015 after it was found to have violated racial gerrymandering laws.

Changes to the 3rd Congressional District made the 4th Congressional District, which includes Richmond and Southside Virginia, more Democratic and resulted in the election of Donald McEachin in 2016. McEachin won the 4th District with 58 percent of the vote. Republican J. Randy Forbes held the 4th District from 2001-2017.

The 11 Virginia House districts being redrawn in this case are located primarily in the eastern part of the state, between Richmond and Hampton Roads, and touch an additional 20 districts.

Thursday's hearing gave attorneys and interested parties on both sides an opportunity to comment on Grofman's proposed remedial maps. Attorneys were also able to question Grofman on the witness stand.

Grofman spent most of the morning defending his methodology against criticisms from attorneys for House Republicans.

Mark Braden, attorney for House Speaker Kirk Cox, R-Colonial Heights, attempted to show that Grofman acted improperly by using racial data to create the new districts, an allegation that Grofman flatly denied.

Grofman repeatedly said that race was not taken into account and that he relied solely on traditional redistricting criteria such as compactness, locality boundaries, election results and contiguity to redraw the 11 unconstitutional districts.

Katherine McKnight, also an attorney for Cox, contended that the remedial maps drawn by Grofman violated the Constitution by using racial data to create new district boundaries. McKnight said Grofman's maps showed "a fundamental misunderstanding of what needs to be remedied."

Judge Robert E. Payne pushed back against McKnight's remarks, however, and questioned her characterization of the special master's proposed changes.

"If there was no intentional application of race in [Grofman's] process, how can it violate the Constitution?" Payne asked.

Attorneys for Cox stated a preference for redistricting changes proposed in HB 7002, a bill proposed during a special legislative session last year, instead of the remedial maps proffered by Grofman. They say that HB 7002 remedies the constitutional violations in the 11 racially gerrymandered districts while impacting the fewest possible voters.

Kevin Hamilton, an attorney for the African-American voters who brought the case, equated HB 7002 with "tidying up a crime scene."

Allison Riggs, an attorney representing the Virginia State Conference of the NAACP, said the proposed remedial maps were an improvement from the existing lines but didn't go far enough in addressing racial gerrymandering.

In its initial ruling in the years-long case, the U.S. Supreme Court found that the districts in question had been racially gerrymandered by the 2011 General Assembly to dilute the voting power of African-American voters.

Legislators lost the authority to draw the new district lines, at least for the time being, because they couldn't reach a deal quickly enough.

Republicans appealed the U.S. Supreme Court's ruling and asked the court to delay the redrawing until it hears their appeal later this spring. The Supreme Court denied that request, giving the U.S. District Court the green light to continue redrawing the district maps.

The District Court's final decision will impact only the 2019 election. District lines will be redrawn statewide after the U.S. Census Bureau releases new demographic data in 2020.

Several lawmakers have introduced legislation to create an independent redistricting commission that would take the process out of the hands of lawmakers. Those legislators include Democrats such as Del. Steve Heretick of Portsmouth and Sen. Creigh Deeds of Bath as well as Republicans like Del. Mark Cole of Fredericksburg and Sen. Emmett Hanger of Augusta.

The Princeton Gerrymandering Project, a fair redistricting advocacy group, has taken an interest in the redistricting process in Virginia. In 2018, the group created an open-source data project that incorporated all the proposed remedial maps from the General Assembly. It has since been updated to include the special master's proposals.

"The Virginia state legislature has one of the strongest gerrymanders from the partisan standpoint in the country," director Sam Wang said.

"I think that, from a good government standpoint, it will lead to greater stability and greater competition if there are routes found that make redistricting either independent or nonpartisan."