'One Person, One Vote' Still an Unsettled Question for States
By Josh Goodman, Staff Writer
Legislatures will begin tying themselves in knots in a matter of weeks as they redraw the boundaries of their own districts. The difficult, costly, contentious once-a-decade process occurs for one reason: Population has shifted over the past ten years, giving some districts too many people and some too few. To abide by the principle of "one-person, one-vote," district populations must be made equal — more or less.
But just how equal is equal enough? For state legislative districts, that's a key legal issue that remains unresolved. The muddle comes from two relatively obscure court cases originating in the last redistricting cycle.
A decade ago, Democratic dominance in Georgia was waning. The party still controlled the state Legislature, though, and as a result had the power to draw state House and Senate lines to try to perpetuate its hold on power a little bit longer. That's just what the Democrats did. One of their tactics was to create suburban Republican-tilting districts that were over-populated — they had more people than the statewide average — while under-populating Democratic seats in cities and rural areas. The most populous districts had almost 10 percent more people than the smallest ones. The end result was more Democratic districts and fewer Republican ones.
Predictably, Republicans cried foul. A federal district court agreed with them, throwing the map out on one-person, one-vote grounds in a case called Larios v. Cox . The U.S. Supreme Court upheld the decision.
In New York, the Republicans who controlled the state Senate also were clinging to power in a state Democrats increasingly dominated. Their redistricting plan looked a lot like the one in Georgia. They stretched their power by underpopulating Republican-leaning upstate districts, while over-populating Democratic seats in New York City. Once again, the population deviations were just under 10 percent. This time, though, in the case of Rodriguez v. Pataki, a U.S. district court said the plan was constitutional. The U.S. Supreme Court upheld that decision, too.
Given the conflicting Supreme Court judgments, which occurred just five months apart, courts are nearly certain to revisit the issue this cycle. What's at stake is how much power legislators have to draw maps for partisan ends. If the courts follow Larios , and limits variations even in the 10 percent range, political gerrymandering will be harder. If they follow Rodriguez , it will be easier.
Population deviations, though, aren't all about partisan politics. States often draw legislative districts with unequal populations in order to keep communities intact or make life more convenient for election administrators. State lawmakers hope they'll be able to keep that power.
Ten percent cushion
For congressional districts, courts have been clear as to what they expect to see out of redistricting: an absolute adherence to population equality. That standard is so strict that a congressional redistricting plan was deemed unconstitutional in Pennsylvania in 2002 because the most populous district had 19 more people than the least populous one. State lawmakers have internalized that message. No state in the 2000s had a congressional map drawn with the largest district even 1 percent more populous than the smallest one.
Redistricting and the U.S. Supreme Court
Redistricting is almost always done with one eye on the courts. Here are six cases that have the biggest impact on today's map-makers.
Baker v. Carr (1962) The Supreme Court rules that redistricting is an appropriate subject for judicial oversight, reversing earlier rulings that had deemed it a "political question" that the courts should avoid.
Reynolds v. Sims (1964) The Court rules that state legislative districts must be roughly equal in population under the "one-person, one-vote" principle and in doing so sets the stage for redistricting to be required after each Census. The same principle applies to U.S. House districts.
Davis v. Bandemer (1986) The Court rules for the first time gerrymandering for a party's electoral advantage is an appropriate subject for judicial oversight, but creates a very high bar for proving that a partisan gerrymander is unconstitutional.Shaw v. Reno (1993) The Court rules that redistricting plans based primarily on racial considerations deserve strict scrutiny, clarifying the difficult balance that map-drawers must strike: They must consider race in accordance with the Voting Rights Act, but can't allow it to override all other factors.
Vieth v. Jubelirer (2004) In a 5-4 decision, the Court maintains its reluctance to throw out maps drawn for partisan advantage.
LULAC v. Perry (2006) Ruling on a controversial mid-decade redistricting plan in Texas, the Court says that states are allowed to redraw districts more than once per decade, and continues to reject claims against partisan gerrymandering under its new Chief Justice, John Roberts.
For state legislative redistricting, courts have offered more leeway. In general, as long as the most populous district wasn't more than 10 percent larger than the least populous one, states felt they were on safe ground. In the last cycle, according to data from the National Conference of State Legislatures, 32 states ended up with legislative districts that had population deviations over 9 percent. Only four dared to exceed 10 percent.
That's why it was significant that a court threw out Georgia's map in Larios, even though the population deviation was under 10 percent. The safe harbor that states had counted on suddenly didn't look so safe.
Since both cases were, in U.S. Supreme Court parlance, "summarily affirmed," neither counts as a binding precedent. Nor did the justices have to write detailed opinions spelling out just what separated Georgia's map from New York's. "We don't know why. We don't know particularly what concerned them," says Justin Levitt, a professor at Loyola Law School in Los Angeles "Overall, what we've got now are indications that are hard to read." He adds: "It has at least put people on notice that courts generally will be looking at plans within the 10 percent deviation."
E. Mark Braden, for one, thinks he understands the court's message. Braden, a Republican redistricting lawyer, litigated both the Larios and Rodriguez cases. He doesn't hesitate as to which case he thinks states should pay attention to this cycle: Larios . His point is that while there were other legal issues involved in Rodriguez that occupied the court's attention, Larios was a clear test — and rejection — of a hard 10 percent rule.
The Larios ruling wasn't significant just because it shifted conventional wisdom on population deviations, though. It also suggested a new angle on a longstanding legal question: When, if ever, should courts throw out district maps as unconstitutional because they were drawn for clearly political reasons?
For decades, courts have struggled with the issue. In a 1986 Supreme Court case, Davis v. Bandemer, a majority of the court agreed that if a map was a severe enough partisan gerrymander, courts could step in. Since then, however, the court has never found a gerrymander sufficiently severe to meet the standard. Legal challenges to redistricting plans brought on grounds of partisan unfairness continued to fail throughout the 2000s.
Following those precedents, the Georgia federal court in Larios rejected an explicit challenge to the Democrats' legislative plan because it was a partisan gerrymander. Indirectly, though, that's precisely why they threw it out.
What the court said was that Georgia officials couldn't explain their population deviations based on traditional redistricting criteria — things like keeping districts compact or keeping counties in one district. Instead, the map was drawn to favor a particular party and particular regions of the state. Those goals, the court said, couldn't justify stretching the meaning of one-person, one-vote by having districts with unequal population.
If that legal logic becomes broadly accepted, it would make a real, if subtle, difference in state legislative mapmaking. Population deviations frequently allow one party to gain an advantage, even without drawing bizarrely shaped districts that look like salamanders or sea monsters. "It's one of the very effective techniques of gerrymandering," Braden says.
That's clear from looking at New York state Senate elections after the challenge to the state's Republican map was rejected. With the benefit of their partisan-tilted districts, Republicans stayed competitive in the state Senate all decade, even as the party was routed in elections for Congress, president and virtually everything else. Today, the GOP holds a 32-to-30 Senate majority.
None of that means, however, that the only reason to draw districts with unequal population is to give one political party an advantage. To see why, you only have to look at the debate over "canoe districts" in Hawaii ten years ago.
Initially, Hawaii's bipartisan redistricting commission came up with a plan for state legislative districts that kept population deviations down by drawing districts that spanned multiple islands. But these so-called "canoe" districts faced a voter backlash. People hated the idea of being represented by someone who did not live on their island. "Each island is a unique political entity," explains David Rosenbrock, a employee of the state elections office who served as reapportionment project manager. "We're very proud of our home rule."
So, the commission drew new maps that eliminated most of the canoe districts. The end result was that Hawaii had the largest population deviations in the country. The deviations hit 38.9 percent for the Senate, although, in a creative balancing act, the state did try to make sure places that were over-represented in the Senate were under-represented in the House and vice versa. Even without anything close to equal population, the new plan won broad acceptance. It wasn't challenged in court.
While most states don't have to worry about canoe districts, they all face equivalent practical pressures against strict population equality. When they slice up a state 50 or 100 or 150 ways, it becomes very difficult to avoid scrambling county representation or splitting towns in two if each district has to have exactly the same number of people.
The logic of Larios — and earlier court cases — is that, within limits, it's fine to have deviations for those sorts of reasons. Redistricting experts say that the lesson from the case for the next decade isn't that all population deviations are out, but that states need to be more cautious. To be legally safe, line drawers will have to make sure that even small deviations can be justified. Those justifications, they say, may need to be something more compelling than the interests of Democrats or Republicans.