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Redistricting: Why legislature must do it

December 3, 2010
Delegate John Doyle

This is the third installment in a four-part series on the redistricting of state legislative and congressional seats which must be done by the legislature this year.

In the 1960s the U.S. Supreme Court decided several cases on the question of "one person-one vote." The best known of these, and the first, was Baker v. Carr, in 1962.

The U.S. Constitution mandates that seats in the U.S. House of Representatives be reapportioned among the states every 10 years, immediately subsequent to the decennial census. But prior to the court decisions of the 1960s states were under no rules governing how their U.S. House members or state legislators were to be elected. All that changed with these court decisions. The first mandated redistricting happened after the 1970 census.

The high court said that congresspeople had to be elected from single-member districts and that these districts had to be made as close to equal in population as possible after each census. In the past, some states had (by not changing lines) allowed congressional districts to become extremely unequal in population. Others, like Alabama, had elected all congresspeople "at large" (everybody ran statewide and the winners were however many of the top votegetters equalled the number of seats the state had).

The court also said that legislative seats had to be made equal in population every 10 years. Before, many states had allowed districts to stand for so long that some had many times the number of residents as others. This seriously overrepresented rural areas. Pete Seeger wrote a song in which an Illinois state senator brags that he can do as he pleases because "all of my constituents are cows and pigs and trees."

I was a political science major at Shepherd University during the 1960s, and I followed the redistricting cases with great interest. The idea that one citizen's vote should be equal to that of others was quite controversial.

Many conservatives argued that representatives to legislative bodies represented "geographic areas" as well as people, and that great differences in populations from district to district should be legitimate. They used the U.S. Senate, in which each state has two senators no matter its size, as an example. But the Supreme Court noted that the states are sovereign within the federal framework, having originally joined to create the union. Political subdivisions, such as counties and cities, are, by contrast "creatures of the state." Therefore no geographic area within a state may enjoy the same deference as states have under the U.S. Constitution. Today, most Americans accept the idea of "one person-one vote" as plain common sense.

In the late 1800s the British Parliament came under intense criticism and even ridicule because the district lines had not changed to reflect population changes. The "constituencies" that had few people in them were known as "rotten boroughs." Neither we nor the Brits have that any more.

Since the decisions of the 1960s which laid out the basics of "one person-one vote," other court decisions have refined this concept. Congressional districts must vary from each other within a state no more than 1 percent (that's much tighter than the "5 percent either way from the optimum" variance permitted for state legislative districts). Standards which can be used to make a congressional or legislative districting plan acceptable include contiguity, commonality of interest, geographic compactness and (surprise to some) incumbent protection. Yes, the federal courts will allow you to draw a district a certain way for the expressed purpose of protecting an incumbent.

While the U.S. Supreme Court has never ruled that state legislative districts must be single member, it has strongly hinted so more than once. And all states found to discriminate against minorities under the Voting Rights Act of 1965 are required by federal court order to elect their legislators in single-member districts.

Some have suggested that the legislature should not be in charge of redistricting itself and our congressional seats since the legislature's involvement makes the process too "political." Some states have set up so-called "independent" commissions to do redistricting. I'm skeptical of this.

Redistricting is thoroughly political no matter who does it. Having some supposedly non-political body do it only hides the politics. Better the politics be out in the open, to my mind. And I fear the Eastern Panhandle will fare less well under a redistricting plan done by such a commission than under one done by the legislature, precisely because the politics will be camouflaged.

Since we talked about redistricting the House of Delegates two weeks ago and the State Senate last week, we'll take up congressional redistricting next week.



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