Readying Virginia for Redistricting After a Decade of Election Law Upheaval

Readying Virginia for Redistricting After a Decade of Election Law Upheaval

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Introduction

Henry L. Chambers, Jr.*

Until Virginians approved Constitutional Amendment 1 in November 2020, the Virginia Constitution required the General Assembly redraw Virginia’s state legislative and congressional electoral districts every ten years in the wake of the national census.1 Redistricting culminated in the adoption of legislation redefining those districts. If the redistricting process had worked as intended after the 2010 census, electoral districts would have been redrawn and adopted by the General Assembly in 2011, approved by the Governor, and used for the ensuing decade. The redistricting process did not work as the Virginia Constitution contemplated. The General Assembly redrew, and the Governor approved, state Senate and House of Delegates districts in 2011. The state Senate districts remained substantially unchanged during the 2010s. Conversely, pursuant to litigation, a court-appointed special master  redrew many of the House of Delegates districts the General Assembly had drawn in 2011. The current House of Delegates districts were finally fully implemented in 2019. The General Assembly redrew, and the Governor approved, Virginia’s congressional districts in 2012, one year after the Virginia Constitution mandated. Pursuant to litigation, a court-appointed special master redrew multiple districts in that plan. The current congressional districts were finally fully implemented in 2016.

The chaos surrounding the post-2010 census redistricting process has led to uncertainty regarding the post-2020 census redistricting process. The last redistricting process helped trigger a constitutional amendment that gives primary redistricting responsibility to a newly created Virginia Redistricting Commission (“VRC”). The Virginia Constitution now requires the VRC redraw electoral districts in the wake of the 2020 census, approve the districts by supermajority, and submit them to the General Assembly. The General Assembly must enact the VRC’s redistricted maps without changes before the new districts can be used. The Supreme Court of Virginia would draw the districts if the VRC could not agree on maps to submit to the General Assembly or if the General Assembly declined to approve the VRC’s maps. The Governor of Virginia no longer has any role in redistricting.

Post-2020 census redistricting is uncertain because the substantive law of redistricting has changed over the last decade. The laws that governed redistricting a decade ago—the Virginia Constitution, the Fourteenth and Fifteenth Amendments, and the Federal Voting Rights Act—will govern redistricting in 2021. However, significant legal developments in the last decade have changed and clarified the doctrine regarding those enactments. For example, the Supreme Court of the United States deemed part of the Voting Rights Act unconstitutional, releasing Virginia from compliance with the Act’s preclearance requirement to which Virginia had been subject for over fifty years. Preclearance required certain jurisdictions to ask permission from the United States Department of Justice (“DOJ”) or the United States District Court for the District of Columbia before using new election laws or making voting changes, such as using new redistricting maps to ensure those changes did not harm the rights of minority voters. That change may significantly alter how race is considered in redistricting. Whatever entity redraws the Commonwealth’s electoral districts in 2021 will need to comply with fewer rules than the General Assembly did a decade ago, but that may not make redistricting easier.

The General Assembly was aware of the complexity surrounding 2021 redistricting and used its 2020 session to prepare. It passed legislation directing how electoral districts are to be redrawn and approved and sent the aforementioned constitutional amendment to voters for approval. The new legislation is sensible and addresses some issues of partisanship and race in redistricting but does not fully address the changes in the law of redistricting over the last decade that might affect the substance of the upcoming redistricting. The General Assembly may use its 2021 session to address lingering issues. However, it should have considered and resolved those issues in 2020. Addressing lingering issues in the 2021 session, as the redistricting process begins, may be deemed contrary to an attempt to eliminate politics from the redistricting process.

This Essay considers the changes in redistricting law that have occurred since Virginia redrew its electoral districts after the 2010 census, what those changes might mean for Virginia’s redistricting in 2021, and how the General Assembly did and did not address those changes in its 2020 session. Part I discusses the legal regime in place for redistricting after the 2010 census. Part II notes how the General Assembly redistricted after the 2010 census. Part III explains how the law of redistricting has changed since Virginia last redistricted. Part IV analyzes how the General Assembly used its 2020 session to prepare for redistricting in 2021, noting the issues it addressed and those it did not address. 

*Professor of Law, University of Richmond School of Law. The author thanks Joleen Traynor and Zanas Talley for their research assistance.

 

Wills, Trusts & Estates

Wills, Trusts & Estates

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Introduction

The 2020 Virginia General Assembly addressed a wide variety of matters affecting wills, trusts, and estates, ranging from a new article of the Virginia Uniform Trust Code and an expanded partition procedure to a $2 increase in the circuit court clerk’s recordation fees. Among the most helpful were new rules that clarify and expand the powers and responsibilities of non-trustees who may direct the trustee on certain issues and a revised procedure for partitioning real property while protecting the rights and interests of co-owners. The legislature also dealt with fiduciary issues, including express authorization for multiple-party bank accounts, additional duties for children’s guardians ad litem, relationships that may disqualify a lawyer as guardian or conservator, protections against suspected financial abuse of adults, reliance on qualification certificates, and requirements for certain fiduciaries’ accounts. The General Assembly also authorized beneficiary designations for ABLE savings accounts, allowed the substitution of a bank for a related trust company in multiple fiduciary roles, broadened disclosure rules for certain gifts to state colleges and universities, expanded the list of documents a notary may accept as identification, and allowed transfer on death (“T.O.D.”) designations for motor vehicles with multiple owners.

J. William Gray, Jr. *
Katherine E. Ramsey **

 * Senior Counsel, Whiteford Taylor & Preston LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.
** Member, Virginia Estate & Trust Law, PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

 

 

Taxation

Taxation

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Introduction

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact their clients. However, it does not address many of the numerous minor, locality-specific, or technical legislative changes to Title 58.1 of the Virginia Code, which covers taxation. 

Craig D. Bell *
Michael H. Brady **

* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University. 

** Counsel, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, The University of Texas School of Law; B.S., 2006, Liberty University. Following law school, Mr. Brady clerked for Chief Justice Cynthia D. Kinser of the Supreme Court of Virginia from 2009–2011. He then served as the assistant solicitor general in the Office of the Attorney General of Virginia from 2011–2014, joining McGuireWoods LLP in 2014.

 

 

Employment Law

Employment Law

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Introduction

Against the backdrop of a year that saw the COVID-19 pandemic alter the American workplace in an unprecedented way, the employment law landscape in Virginia also underwent a recent sea change. Historically considered an employer-friendly state, the General Assembly shifted away from tradition by enacting several significant pieces of employee-friendly legislation, which will surely have a long-lasting impact on Virginia employees, businesses, and Virginia’s economy at large. This Article highlights these critical developments in Virginia employment law. It does not provide an in-depth analysis of every development but highlights the most significant changes affecting employers and employees in the Commonwealth. Part I of this Article provides a brief overview of the added employee protections from the federal legislation passed pursuant to the COVID-19 pandemic and discusses Virginia’s efforts in creating the nation’s first COVID-19 workplace safety mandate. Part II briefly highlights legislation enacted in 2019, which set the stage for the General Assembly’s activism in 2020, and then discusses in detail Virginia’s new employment laws. Part III then addresses two recent landmark employment law decisions from the Supreme Court of the United States of which employees and employers alike should be aware.

D. Paul Holdsworth*

* Associate, Jackson Lewis P.C., Richmond, Virginia. J.D., 2015, University of Richmond School of Law; B.A., 2012, Brigham Young University

 

Criminal Law & Procedure

Criminal Law & Procedure

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Introduction

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Brittany A. Dunn-Pirio*
Timothy J. Huffstutter **
Sharon M. Carr ***
Mason D. Williams ****

 * Assistant Commonwealth’s Attorney, Special Victims Unit, Loudoun County Commonwealth’s Attorney’s Office, Commonwealth of Virginia. J.D., 2016, Washington & Lee University School of Law; B.A., 2013, University of Notre Dame.
** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2012, William & Mary School of Law; B.A., 2007, College of William & Mary.
*** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2011, William & Mary School of Law; B.A., 2008, George Mason University.
**** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2017, Washington & Lee University School of Law; B.A., 2014, Transylvania University. 

 

Civil Practice & Procedure

Civil Practice & Procedure

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Introduction

This Article analyzes the past year of Supreme Court of Virginia opinions, revisions to the Virginia Code, and Rules of the Supreme Court of Virginia affecting Virginia civil procedure. It is not fully comprehensive but does endeavor to highlight changes and relevant analysis regarding Virginia civil procedure. The summarized cases do not reflect all changes in Virginia jurisprudence on civil procedure and, at times, focus on emphasized reminders from the court on issues it analyzed. The Article first addresses opinions of the supreme court, then new legislation enacted during the 2019 General Assembly Session, and, finally, approved revisions to the Rules of the Supreme Court of Virginia.

Christopher S. Dadak*

*Associate, Guynn, Waddell, Carroll, & Lockaby, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University.

 

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