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New view on one-person, one-vote?

In its second ruling Friday on courts’ power to draw new election districts, the Supreme Court in a West Virginia case raised doubts about the authority of federal District Courts to require states to achieve absolute equality of population in drafting new voting boundaries.   In a brief order, found here, the Court blocked a federal court order that insisted that “zero variance” in population was now the constitutional norm in new redistricting cases in order to satisfy the one-person, one-vote mandate.

The 2-1 ruling January 4 by a three-judge District Court in Charleston will remain on hold, the Justices’ order said, until the Court has received and decided an appeal of that ruling.  The practical effect seems to be that West Virginia can go ahead with elections this year under a plan crafted by its state legislature for election districts used in choosing the state’s three members of the U.S. House of Representatives.  There very likely is insufficient time for the appeal to be processed and decided during the current Court Term, running through late June.

The Charleston court said that it is now possible, with more sophisticated computer software, to draw election districts with virtually zero population differences between them, and since that is possible, it is constitutionally necessary — unless a state can justify any deviations from zero as necessary to satisfy a specific redistricting policy in that state.  The majority of the panel found that the West Virginia legislature had not met that test, and, in fact, had not justified any deviation at all from equality of population among the three congressional districts.

The District Court had not adopted a substitute plan of its own, and, in fact, stayed further proceedings after state officials had gone to the Supreme Court for a stay of the ruling.  The primary election in West Virginia is set for May 8, and candidates who wish to run in that primary are now filing their papers, and may continue to do so through January 28.  The candidates must specify the district in which they will run, and Friday’s Supreme Court appeared to assure them that the district lines will be those laid down by the state legislature.  One of the goals of the legislature’s plan was to assure the state’s two Republican members of the House — Reps. Shelley Moore Capito and David McKinley — that they would not have to run against each other in the GOP primary for the same seat.

Because the Supreme Court’s order delaying the lower court decision contained no explanation, there is no way to know just why the Justices acted.  But the core issue raised by state officials in their stay application (Tennant, et al., v. Jefferson County Commission, et al., 11A674) was whether state legislatures in drawing new congressional maps must do everything they can to achieve absolute equality in the population assigned to each district.   A stay order, however, is not a guarantee that the Supreme Court will ultimately overrule the lower court and reject the equal population principle as that court applied it.  One factor that the Court does consider in granting a stay, though, is whether there is a reasonable likelihood that the lower court will be overturned at the end of the review process.

The Court’s one-two action in new redistricting cases Friday were the first it has issued as a new wave of redistricting has occurred across the country in the wake of the 2010 federal Census.  When a new Census is taken, it often shows that a mobile population has shifted in the intervening years, and district boundaries grow out of date and new maps need to be drawn.  In the Court’s first ruling Friday morning, it laid heavy stress upon its view that, when a new redistricting map is challenged in federal court, the court should not “take up the legislature’s task” for itself.   Redistricting, the Court said once again, quoting prior precedent, “is primarily the duty and responsibility of the state.”

In fact, in the Texas opinion that emerged Friday, the Court made a passing mention of its doubts about the need for federal courts to push for absolute equality in new districts’ populations.  One of the reasons the lower court in the Texas case had erred, the opinion said, was in altering a state legislature’s map “to achieve de minimis population variations” without a legal reason to do so.   A “de minimis” variation, of course, is not zero variation, but something above that.

In the West Virginia congressional redistricting map crafted by its state legislature, the population variation that the District Court found to be unconstitutional was 0.79 percent.  The state officials, in challenging the ruling that this much variation was too great, noted that the Supreme Court in a prior ruling had said that a variation of that size was “minor” and thus could be tolerated even under the one-person, one-vote principle.

It thus appeared that the challengers to the West Virginia legislature’s map may have a difficult time convincing the Justices that 0.79 percent variation, by itself, is invalid.

Under the Court’s Rules, the state officials who obtained the stay on Friday have 60 days after they file a formal notice of appeal in the District Court to file an appeal with the Supreme Court.  In the West Virginia case, if the full time allowed is actually taken, the appeal would not reach the Justices until early March.  Unless the case were put on an exaggeratedly expedited schedule, it could not be heard and decided in the current Term.

The request for a stay by West Virginia officials had been filed with Chief Justice John G. Roberts, Jr., who acts as the Circuit Justice for the part of the nation that includes West Virginia (the Fourth Circuit).  The Chief Justice shared the issue with his eight colleagues, resulting in the order Friday afternoon.  There was no sign that any Justices opposed the order.



Recommended Citation: Lyle Denniston, New view on one-person, one-vote?, SCOTUSblog (Jan. 20, 2012, 12:32 PM),