Posted on September 25, 2012 at 2:31 pm by Lyle Denniston
Reinforcing its view that courts should try to stay mostly out of the way of politicians drawing new election districts, the Supreme Court on Tuesday — by an apparent unanimous vote — told lower-court judges not to insist on close-to-zero differences in the population of each of a state’s districts for choosing members of the U.S. House of Representatives. “Zero variance” in population is not the new constitutional norm for redistricting, the Court made clear. Just because computers can produce almost exactly equal-sized districts, the Constitution does not require it, the decision said.
After sitting on the case from West Virginia all summer long, the Court produced an eight-page, unsigned ruling that largely deferred to the wishes of that state’s legislature on how to craft the three districts for choosing its House delegation. The opinion can be found here. The new ruling came in the case of Tennant v. Jefferson County Commission (docket 11-1184). The Justices had temporarily blocked the lower-court decision at issue last January, so the legislature’s plan has been in use for this year’s House of Representatives in the state.
The new ruling marked the second time in this election year that the Court had overturned a lower federal court decision following the new round of legislative redistricting after the 2010 Census. On January 20, the Court found that a three-judge District Court in San Antonio had gone too far to substitute its own judgment for that of the legislature in Texas in drawing new boundaries for elections to Congress and to both houses of the state legislature (Perry v. Perez, docket 11-713).
Tuesday’s ruling gave state legislators constitutional permission to have some variation in size between congressional districts, if the lawmakers do so to protect incumbents from having to run against each other, to avoid splitting up counties, and to avoid moving many people into a new district from the one where they had previously cast their votes. In what appeared to be a novel new declaration, the Court stressed that lower courts should not demand that a state prove specifically how each of those goals would be satisfied by moving away from equally populated districts. And, in another legal innovation, the Court said that a variation that is not really very big does not become a constitutionally suspect one just because a sophisticated computer program could be used to avoid nearly all such variations.
If the difference between a state’s largest House district and its smallest one is small — such as the 0.79% deviation in the West Virginia plan — that does not become unconstitutionally large just because it could be avoided by “technological advances in redistricting and mapping software.”
The three-judge District Court in Charleston had nullified the legislature’s House plan, concluding that “zero variance” is now constitutionally required because it can be achieved by today’s computer technology. Since it is possible, it must be the legislature’s goal, unless it can trace variations from it to specific policy goals that are constitutionally acceptable. It ruled that the legislature had before it other plans that would have reduced the variance closer to zero, and that it has not justified the failure to do so.
West Virginia, after the 2010 Census, was in the same position that virtually all states are: a mobile population makes enough shifts over the span of a decade that maps drawn earlier to govern election boundaries become out of date, and old maps fail to satisfy the constitutional goal of working toward “one person, one vote.” West Virginia did not gain any seats in the House as a result of the shifts recorded in the 2010 Census, so it kept the three that it had.
The state’s legislature has often boasted that it strives, in new redistricting efforts, not to make broad changes in district boundaries, and claims proudly that it does not manipulate the boundaries to favor one party over the other. It also prides itself on not shifting population around between districts any more than seems minimally necessary. Thus, in the new plan it approved in 2011, it shifted only one county — Mason — into a new district.
An “ideal” House district in West Virginia would contain 617,665 people. The state’s largest district in the plan, the Second, had 3197 more people than that, and its smallest, the First, fell short by 1674 persons. That is what accounted for a total variance or deviation of 0.79%. The challengers to the plan contended that the legislature could have done much better; indeed, one plan before it would have had only one of three districts with less than the “equal” number, and it fell short by one single person. The legislature, however, did not accept that plan, because it found that it contradicted its policy goals of protecting incumbents, keeping counties intact, and minimizing population shifts between districts.
Tuesday’s decision in plain English:
Each federal Census, conducted every ten years, is followed by actions in state legislatures across the country to draw up new maps that define the boundaries of districts for electing members of the U.S. House of Representatives, state legislatures, and some other legislative and elective bodies. In the interval since the most recent prior Census, people tend to move around quite a bit, and so the population of districts may grow or decline, often with the result that some districts wind up with more than their equal share of political power in elections, and some would wind up with less. When that happens, there is a potential violation of the constitutional rule that the Supreme Court laid down years ago — that is, that each voter’s power at the polls should be equal; in other words, each person eligible to vote should have one vote that counts as much as the vote cast by any other eligible person. The same type of imbalance also can occur if an entire state gains or loses population; when that happens, it can mean that the state will gain more seats in the House of Representatives, or lose some that it had. The government decides how many House seats go to each state after a new Census, and the resulting shifts obviously require redistricting in those states.
Because of highly sophisticated computers, capable of gathering data about population down to a city block, or even to just one apartment building, it is actually possible to create maps that will have each district within a state holding the same number of people — absolute equality of representation. But the Supreme Court has often ruled that absolute equality sometimes can be sacrificed — at least to a small degree — so that those drafting new election districts (doing “redistricting”) can shape districts so as to avoid having candidates of one party running against each other in the same district. Another reason that legislatures can take into account in drawing new districts is that they do not like to split up counties or cities and put part of them in one district and part in another. Again, that is allowed under the Constitution, if the resulting differences in population between districts is not great. And a third reason is that some legislatures don’t like to make people give up the districts they were in, and find themselves in a new and unfamiliar one.
On Tuesday, the Supreme Court said once again that state legislatures can have some inequality in the population of districts, if that is done, within reason, to serve the other goals that redistricting can be arranged to meet. The Court said explicitly that the Constitution does not guarantee absolute equality in population of districts, even if that could be achieved by high-tech computers. It also cautioned judges around the country not to go too far to second-guess how legislatures work out the various and competing interests that they confront in redistricting.