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After a delay due to late-arriving U.S. Census data, City Council can move forward with the redistricting process.

Robert Loftin of McGuireWoods outlined the process during an Oct. 6 work session presentation. By law, the city cannot make any redistricting changes until after Election Day on Nov. 2. He walked council through the legal requirements for redistricting and provided an overview of the 2020 census data.

Council, according to city attorney William Hutchings, will give direction to McGuireWoods on things such as the number of options it wants, whether it wants incumbents to stay in their current borough, or whether there are certain areas the city council wants to keep in a particular borough.

Redistricting has to be done every 10 years in years ending in 1, according to the state’s constitution, with districts to be drawn using census data and must be equal in population. “That does not mean an exact equality,” Loftin said. “There’s an allowance. We’ll create a norm based on the overall population. And then, as a general rule, you’re allowed to be within 5% of that norm in each of the boroughs.”

Districts also can’t be drawn to discriminate based on race, and they must be contiguous and compact.

“The boundaries between the boroughs must be clearly observable,” Loftin said.

That means, Loftin said, they have to be on any named road or street, any road or highway that is part of the federal, primary or secondary state highway system, a body of water or other natural or constructed physical feature that is on a Virginia Department of Transportation map, U.S. Geological Survey topographical map or a Census Bureau polygon map.

The representation in each borough must be, as closely as possible, “in proportion to the population.”

Loftin said though it is widely litigated, there is no precise, statutory definition of what constitutes a borough being contiguous and compact. A contiguous area includes areas across roads and waterways, while the goal of a compact district is to avoid it being oddly shaped.

Based on the census data, borough boundaries will have to be redrawn, Loftin said.

District populations must be based on the whole number of people reported in the most recent census, and “shall be drawn to give racial and language minorities an equal opportunity to participate in the political process” and shall not dilute or diminish their ability to elect candidates of choice either alone or in coalition with others.”

Districts also cannot be drawn to make people in racial or language minority groups an “ineffective minority” of voters or concentrated into districts in which they make up an “excessive majority.”

They can also be struck down by courts for violating the Equal Protection Clause if they cannot be explained on grounds other than race, and it becomes “an unconstitutional gerrymander if race was the predominant factor in the drawing of its lines,” Loftin said. Though a district can be drawn to keep incumbents as residents in a district, the redrawn district must be compact and contiguous.

Loftin noted the redistricting process is subject to challenge in either state or federal court.

“We could do everything perfect, by the book, and there could still be litigation,” Loftin said. “I think it’s important at the outset to always recognize that whatever you do, it’s sort of like drafting a contract. No matter how good or how air-tight you think your contract is, there can still be a fight about it.”

Suffolk’s population, according to the 2020 census, is 94,324, up nearly 10,000 from its 2010 total. With the city having seven boroughs, the target redistricting population for each is 13,475. The population of those who identified as one race is 88,194 — those identifying as White alone number 44,723 and those identifying as Black or African American number 39,701.

Based on the census data, the Cypress, Holy Neck and Whaleyville boroughs are under their target population, with Whaleyville being 4,305 people under its target population. The Nansemond Borough, at 15,845 people, is 2,360 people above its target, and the Suffolk Borough, at 16,422 people, is 2,947 people above its target. Only the Sleepy Hole borough is currently within the 5% allowable deviation.

“Based on the current map, and the data that we have, the lines will have to be redrawn,” Loftin said. “What I would say is that you do not have the option of keeping the lines the way they are.”

The goal, he said, is to be as close to the target population as possible, with the goal of having all boroughs within the 5% margin of deviation for any option it presents to council. He said McGuireWoods would be able to give the city legally acceptable redistricting options.

“There are geographical issues in certain parts of the city of Suffolk,” Loftin said. “Ideally, we don’t break up census blocks. It’s possible to break up census blocks, but ideally, you try not to. There’s lots of components that go into this.”

There are several requirements in redistricting, and localities have two options in dealing with it. In the first option:

• At least 45 days before approving a redistricting plan, a locality must publish on its website a notice of opportunity to allow the public to comment on it, and publicize it via a press release and other media.
• Public comment must be accepted “no fewer than 30 days” by mail, fax or email, or through an online public comment forum on the city’s official website.
• One public hearing must be held during this period, and if changes are made, then those changes must be publicized again and another 15-day public comment period starts.

For option two:

• A locality can seek preclearance from the state attorney general.
• Attorney General certification of no objection is given if no one makes an objection within 60 days of the plan’s submission.
• Localities can ask for no objection sooner than the 60-day period for “good cause shown.”

Under both options, Loftin gave approximate timelines for the redistricting process. In each, he would take the council’s guidance by Oct. 20 regarding the number of redrawn maps and then around Nov. 3, present the redrawn maps to council.

At that point, in option one, the 45-day period begins and a public hearing has to be scheduled. At the end of the 45-day period, the council could formally vote around Dec. 18 and announce redistricting changes to take effect 30 days from the vote, which qualifies as the 30-day waiting period, and around Jan. 17, a new map may take effect.

In the 30-day waiting period, any resident could challenge the redistricting plan in Suffolk Circuit Court.

In option two, council could decide on maps, but then would have to seek clearance from the attorney general and would have to decide whether it will hold a public hearing. By around Nov. 10 it would then be able to seek a certification of no objection from the attorney general and could ask for approval ahead of the 60-day waiting period. A new map would not take effect until the attorney general gives the approval. By around Jan. 9, a new map could take effect at the end of the 60-day period.

Loftin said redistricting should be done by the end of the year, but added that the office of the attorney general has noted that most localities will not be done by then. He said he expected the city’s redistricting process would be complete by the end of January.

“Our goal,” Loftin said, “is to be as close to the target as possible within the legal requirements that we have to adhere to.”

City borough populations, redistricting target per 2020 U.S. Census

Redistricting target: 13,475

• Nansemond: 15,845, +2,370 above target
• Sleepy Hole: 13,741, +266 above target
• Chuckatuck: 14,602, +1,127 above target
• Cypress: 12,167, -1,308 below target
• Holy Neck: 12,377, -1,098 below target
• Whaleyville: 9,170, -4,305 below target
• Suffolk: 16,422, +2,947 above target