"One person, one vote" still an unsettled question for states (excerpted)

By Josh Goodman, Stateline 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.

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.

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….

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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….

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