VCC Spring 2021

V irginia C apitol C onnections , S pring 2021 10 Then the political gods answered unstated Republican prayers and crashed the Obamacare website launch the next month. Surprise! This ignited an otherwise uninspired GOP base along with some swing suburban voters. This almost propelled Cuccinelli to a miraculous comeback. In sum, having a Democrat in the White House created an enthusiastic GOP base even though Republicans were heavily outspent. Moreover, the House Republicans won 67 out of 100 seats in that same election. Think about that math. How did Republicans win two out of every three House seats and still manage to lose statewide? Just four years later, the Virginia GOP would lose fifteen House seats as Ralph Northam was elected governor. Two years after that, in 2019, they would lose the majority outright and now they have just 45 House seats. Donald Trump fueled so much Democratic turnout that the Republicans lost 22 House seats. And now that fuel is gone. The question for Democrats is how routinized are their voters in the Post Trump Era. Will they continue to show up as they did while Trump was in office? The answer is not a simple, “No, of course not.” It is, “Of course not, but to what degree?” That’s the big unknown for Democrats. It’s also their great fear in this election because politics is about the future, not the past. In 2017 and 2019, they were going to stop Donald Trump. That was a very simple electoral narrative and it was future based. Now, Democrats are running on “See! Look at all the things we just did for you! Send us back because we did so much!” That won’t sell come the fall because it’s not even selling within their own party given the number of House primary challenges going on. Even Terry McAuliffe has FOUR nomination opponents and he left office with an 88% approval rating among Democrats. The Democratic base might want even more progress but the mandate of 2017 and 2019 was essentially, “Don’t be Trump. Stop Trump.” Recent polling of Virginia voters by Christopher Newport’s Wason Center revealed that Virginia voters self identify as 47% Center Right to 42% Center Left. If the Republicans can nominate a strong well funded statewide ticket along with a more diverse group of House candidates, they could very well run the table this fall. So buckle up all you Election Nerds! Virginia’s back in the national political spotlight. Again. Chris Saxman is a former member the House of Delegates and is President of Virginia FREE www.vafree.org csaxman@vafree.org Who Will Win? Virginia’s Back in the Spotlight from page 7 Is Virginia Now a Beacon of Electoral Reform? Yes, but… By Mark Rush In early April, The New York Times reported that Virginia had become a “bastion” of voting rights and reform. Gov. Northam Signed the Virginia Voting Rights Act (“VVRA”) into law and, in so doing, amended Section 24 of the Code ofVirginia. Among other things, the new provisions enhance access to the polls, create processes by which voters may challenge electoral practices that appear to have discriminatory impacts on minorities, and call for the publication of voting instructions in multiple languages. Overall, the new law embodies tremendous steps forward to ensuring that democracy and elections in Virginia are free, open, and truly instruments of the people. In addition, Virginia’s redistricting commission is moving through the timeline for drawing new voting districts (https://www. vpap.org/redistricting/timeline/ ). By mid-Fall 2021, it is scheduled to produce new maps that will go to the General Assembly for Approval. All in all, the Commonwealth has moved from a state that was once subject to preclearance under the federal Voting Rights Act to one that is on the forefront of modernizing and reforming electoral practices for a 21st century democracy. The VVRA draws upon the text and spirit of the original federal VRA of 1965 and its subsequent amendments. The impact and scope of that law were curtailed by the U.S. Supreme Court in Shelby County v. Holder (570 U.S. 529) in 2013. There, the court stated that relying on decades old data for the purposes of preclearance was not constitutional. In so doing, it rendered section 4 of the VRA (which set forth the terms of preclearance coverage) and, by extension, section 5 (the actual preclearance provision) unconstitutional. While Congress had and still has the power to update the Voting Rights Act, it failed to take steps towards doing so in the wake of the Shelby County decision until the current term where it is now debating the “For The People Act” (H.R. 1). In this respect, Virginia has moved forward despite Congress’s inaction. That said, I offer some cautionary notes. There is no discounting the impact of the federal Voting Rights Act or the empowerment of minority voters under the auspices of theVVRA. As well, the creation of a redistricting commission will remove the veneer of conflict of interest that inheres in a practice that enables elected officials are able to draw the districts from which they are returned to office. But, the VVRA focuses on electoral processes and the Redistricting Commission focuses on district composition and boundaries only. As a result, while the VVRA and Redistricting Commission manifest a commitment to improving democracy and elections in Virginia, they embody only the first (though unquestionably necessary) steps towards meaningful electoral reform. As noted, the Redistricting Commission removes the veneer of conflict of interest in the redistricting process. Nonetheless, drawing district lines that do not appear to be “gerrymandered” is only part of the political battle. “Gerrymandering” takes on many forms that are much more subtle than the simple, superficial appearance of jagged district boundaries. In 2018, for example, it required a federal court decision in Fitzgerald v. Alcorn (“the most important gerrymandering case that no one continues to talk about” (https:// www.pilotonline.com/opinion/columns/article_e8637a32-3ce5- 11e8-8773-5733eabb638a.html)) to strike down an incredibly powerful gerrymander known as the Virginia “incumbent protection act.” That law empowered incumbents to decide the manner in which they would stand for renomination. As a result, primaries were astonishingly scarce in the Commonwealth. The law had not resulted in the creation of gerrymandered districts. Nor did it prevent people (of any race, class, etc.) from registering to vote or accessing the polls on Election Day. But, it essentially rendered the vote that much more meaningless insofar as it enabled incumbents to minimize or remove competition from within their districts and political parties. In this respect, the incumbent protection law was the most pernicious of gerrymanders because of its subtlety: no bizarre district shapes here. Instead, there was a subtle, powerful barrier to electoral competition. In the same spirit, the VVRA forbids the use of at-large elections if they “[impair] the ability of… a protected class…to elect candidates of its choice or its ability to influence the outcome of an election” Continued on next page V