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One mystery, one order on elections

The Supreme Court has left town for the summer, and in doing so, has left the state of West Virginia waiting in suspense over the fate of a federal court ruling that would have required its legislature to come up with new, equal population districts for electing its three members of the U.S. House of Representatives this year.   But the Court has definitely put a stop, for this year’s elections, at least, to Arizona’s plan to require voters to prove they are U.S. citizens before they may register to take part in elections there.

The Justices have been weighing an appeal, filed in March by West Virginia state officials, challenging a three-judge District Court ruling that ordered state legislators to come up with new congressional districts, or else that court would do so itself.  The state officers’ appeal raised a significant issue over whether the Constitution now requires that the difference in population between House districts must either be absolutely zero, or as close to that as possible.  That is what the District Court had declared, on the theory that Census data and computer science are now so refined that absolute equality can be achieved.

On January 20, before that appeal actually had arrived at the Court, the Justices put the District Court ruling on hold until the state appeal could be filed, and resolved.   Preliminary briefing in the case was completed on June 5, and the case was scheduled for consideration by the Justices at their private Conference on June 21.   So far as anyone in the public knows, the Court has taken no action on the case, and the case was not scheduled to be considered on Thursday with the final Conference of the Justices before the summer recess.  There is no word at the Court on what is happening with the case.

It is not customary for the Court to leave a case like that dangling over the summer recess.  And the underlying constitutional dispute would not be resolved merely by the stay order issued in January, although that had the effect of putting into effect the plan adopted by the legislature.  The primary election, using that plan, has been held, so those districts will remain in effect for the general election in November.   That plan was found unconstitutional by a divided three-judge court because the majority of the judges said the legislature either had to do better to come close to zero variation, or else justify the failure to do so with explicit reliance on public policy goals served by the failure to achieve zero variation.

The maximum variation between the largest of the three districts and the smallest created by the legislature-approved plan was .79 percent, or a deviation of a total of 4,871 persons from the ideal, equal population figure of 617,665 for each of the three districts.  Of the nine different redistricting plans that the legislature had considered, seven had a lower total variation, while only two had higher comparisons.  The District Court found that it would be possible to get closer to zero, and that would be required, unless remaining variations were explained away.

West Virginia officials contended in their appeal that their state legislature has had a long tradition of shying away from partisan fights over the drawing of congressional district lines, and has been in the habit, after each Census is taken, in making as few changes as necessary in the districting array.

While that case remains in an uncertain state on the Court’s docket, the Court has turned aside a request by Arizona officials to postpone a Ninth Circuit Court ruling striking down an eight-year-old mandate that voters must prove they are U.S. citizens in order to get on the election registration rolls.  (The Justices issued that order on Friday, over the dissent of Justice Samuel A. Alito, Jr., but the order was overlooked in the excitement over the Court’s health care decision.  The text of the order denying a stay, and eliminating an earlier stay issued by Justice Anthony M. Kennedy, is here.)

State officials in Arizona had asked the Court to allow election aides to demand proof of citizenship before registering any individual to vote.  The Ninth Circuit had ruled in April that the citizenship proof requirement conflicts with a 1993 federal law passed to make it easier for individuals to register to vote — the National Voter Registration Act.

Recommended Citation: Lyle Denniston, One mystery, one order on elections, SCOTUSblog (Jun. 29, 2012, 12:56 PM),