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A new test on redistricting

Even as the Supreme Court ponders what to do about a complex controversy over legislative redistricting in Texas, the Court has been drawn into another such dispute, considerably simpler but with its own major implications.  In a filing on Friday, officials of West Virginia asked the Justices to step into a case over new districts for electing West Virginia’s three members in the U.S. House of Representatives.  It focuses mainly on a single issue: whether state legislatures in drawing new congressional maps must do everything they can to achieve absolute equality in the population assigned to each district.

Challenging a split decision January 4 by a three-judge U.S. District Court in Charleston, the state officials urged the Justices to block that ruling until a formal appeal can be pursued directly to the Supreme Court.   The application, Tennant, et al., v. Jefferson County Commission, et al. (docket 11A674) is here; an appendix containing the District Court’s rulings is here.

The majority of the District Court, relying on the availability of sophisticated new computer software, concluded that is now possible to draw districts with virtually zero population differences between them.  It ruled that this goal must be pursued under the Court’s one-person, one-vote mandate and the Court’s 1983 ruling in Karcher v. Daggett, unless a state can justify any deviations from zero by citing long-standing redistricting policies in that state.   The majority found that the West Virginia legislature did not meet that test, and thus the District Court barred a plan approved by the legislature on August 5.

The District Court was moving toward adopting an “interim” plan of its own, if the legislature did not draw up a valid one first, but then put the case on hold after state officials asked the Supreme Court to postpone the lower court’s ruling.   In the meantime, though, the state may not use the legislature’s plan.

The primary election in West Virginia is set for May 8.  The filing period for candidates to seek one of the three House seats opened on January 9, and is to continue until January 28.  In order to file, candidates must specify the district in which they plan to run.  However, as of now, with the state legislature plan blocked by the District Court and without a replacement yet created, there is no plan in effect.  The state officials said they may have to wind up using an out-of-date map created after the 2000 census.

The state officials took the case to the Supreme Court after the District Court, again splitting 2-1, refused last Tuesday to delay its decision against the legislature’s map.    Because the officials had gone to the Supreme Court in the meantime, however, the District Court said it would proceed no further toward drawing a map on its own, but it left intact its order that the legislature’s map could not be used.

If the state were to be divided into three congressional districts each with the same population, each would have 617,655 people assigned to it.  Under the legislature’s map, the First District would have 615,991, the Second 620,862, and the Third 616,141.  There is a total variance between the smallest and the largest districts of 4,871 people — 0.79 percent.

The District Court ruled, however, that the legislature could have done better and that, in fact, it had rejected seven other plans that would have had a lower variance.  One of those, informally called “the Perfect Plan” during legislative debates, had zero variance.  Of the other six rejected plans, the variance ranged from a low of 0.04 to a high of 0.44.  Only one plan considered by the legislature, with a total variance of 1.22 percent, had a larger population difference than the one the legislature drafted.

After the legislature’s plan was challenged in the District Court, state officials defended the legislature’s map with the argument that its deviation from zero variance was the result of honoring three policies:  it did not split any county between districts (a policy the state insists it has followed for 150 years), it did not put any of the three incumbent members of the House in the same district, and it made as little change as possible in the prior post-2000 plan in order to keep intact “the core” of the prior districts.

The District Court majority, however, doubted that the state had actually proved that it followed those three policies, and did not show how each policy separately justified the variance from zero.   But the main key to its ruling was its disapproval of the 0.79 percent variance in population between the smallest and largest districts on the map.   Even though the Supreme Court, in its decision in Karcher v. Daggett, had said that a variance of 0.788 percent was “minor” and could be justified by state redistricting policies, the District Court majority said times had changed since 1983.  Even more refinement can be done in dividing up districts with new computer software, the majority said.  And, besides, it added, there is a trend being followed by a number of states of drafting plans with zero variance.

State officials, in asking the Justices for a stay of that ruling, made the command to pursue equal-sized districts their main constitutional complaint.  That command, the application said, creates a new standard that deviates from the Karcher ruling. thus raising an important new constitutional question in the redistricting field.

The application, though, also found three other constitutional issues lurking in the zero variance standard: (1) whether a legislature is required, when it relies upon multiple state policies, to separately justify how each such policy requires a variance, (2) whether the District Court majority used a flawed definition in what constitutes a “core” of a district when the legislature says that preserving such a core is one of its aims, and (3) whether the District Court should have blocked the legislature’s plan and ordered creation of a new one “on the eve of an election.”

Any zero-variance plan that might be imposed as an alternative to the legislature’s map, the application argued, is likely to split up at least two counties, and is almost sure to pit the state’s two incumbent Republican members of the House — Reps. Shelley Moore Capito and David McKinley — against each other in the GOP primary.   The state has argued that, even though its legislature is overwhelmingly dominated by Democrats, it worked in a non-partisan spirit to try to avoid as much change in the existing districts as possible.

The legislature’s map was challenged by two members of the local governing body in Jefferson County, and that County Commission itself.  Under the legislature’s plan, Jefferson County would be in the state’s Second District.

In the ruling by the District Court, Judges Robert Bruce King and Irene Cornelia Berger were in the majority.   In dissent, both on the merits and on the denial of a stay, was Chief Judge John Preston Bailey.

Presumably, the Supreme Court will await a response from the challengers before ruling on the stay request.


Recommended Citation: Lyle Denniston, A new test on redistricting, SCOTUSblog (Jan. 16, 2012, 7:07 PM),