Tuesday, September 25, 2012

Supreme Court Validates Constitutionality of West Virginia's Redistricting Plan

In a per curium reversal of a three judge court, the United States Supreme Court today issued its brief opinion in Tennant v. Jefferson County Commission. 

The issue was not whether West Virginia itself was unconstitutional - - - as some have entertained - - - but whether the latest redistricting plan of its state legislature was constitutional.  The constitutional argument centered on the “one person, one vote” principle the Court has held to be "embodied" in Article I, §2, of the United States Constitution.  

Reversing, the Court held that the three judge court misapplied the standard of Karcher v. Daggett, 462 U. S. 725 (1983), requiring first, that the parties challenging the plan bear the burden of proving the existence of population differences that “could practicably be avoided," and then if so, the burden shifts to the State to “show with some specificity” that the population differences “were necessary to achieve some legitimate state objective.”

West_Virginia_CountiesThere was no dispute that the new plan had a population variance of 0.79%, the second highest variance of the plans the legislature considered.  Instead, there was disagreement over whether this was necessary to achieve some legitimate state objective. The state had several other objectives, including not splitting county lines, redistricting incumbents into the same district, or requiring dramatic shifts in the population of the current districts.  

As to county lines, the Court noted:

With respect to the objective of not splitting counties, the [Three Judge] District Court acknowledged that West Virginia had never in its history divided a county between two or more congressional districts. The court speculated, however, that the practice of other States dividing counties between districts “may portend the eventual deletion” of respecting such boundaries as a potentially legitimate justification for population variances.

[emphasis in original].  As those who have ever resided in West Virginia know, counties are quite important as demographic markers in the state.  The Court thus seems to nod to the state's individual circumstances, as well as also acknowledging its relatively small population. 

A good source for all the background of the redistricting of West Virginia is available on LawProf Justin Levin's  "All about Redistricting" website.

[image: West Virginia counties map via]


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This is clearly a case where the lower court badly misread the precedents. Yes, in neighboring Pennsylvania, the Supreme Court held that a much smaller variation than 0.79% was unconstitutional in Vieth v. Jubelierer, but it must be remembered that that happened in a context of a plan that not only split up counties, but cities, wards, even individual voting precincts among several Congressional Districts after the 2000 census. The Court has consistently held that redistrictors have two options - respect community borders and communities of interest, OR be held to an exact standard of population equality. It is a CHOICE. Pennsylvania chose to carve up communities. They get held to a high standard. West Virginia chose the less cumbersome, wiser path - respect commmunity borders. They get judicial forebearance. Note the distinction well, states.

Posted by: V. Kurt Bellman | Sep 26, 2012 8:12:42 AM

Eight years from now, when the next redistricting begins, what do you think the courts will do when a State follows Abrams and Tennant? If a State has a smallest to largest CD population difference of 0.33%, and this was only due to that State using main roads, highways, rivers etc. for their boundary lines, do you think a court will honor these legilatively drawn CDs?

Posted by: Forrest Darby | Oct 10, 2012 2:29:39 PM

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