Most people would think a difference of 19 persons or even 125 persons is insignificant in a district of over 700,000 persons. But the US Supreme Court is not most people.
The opinion of the US Supreme Court matters to Pennsylvania in the event the congressional districts are challenged. Map drawers, realizing this, typically keep in mind the interests and perspective of US Supreme Court when drawing maps.
The US Supreme Court defines population equality as numeric exactness. Districts may stray from precise equality, but each numeric difference must be justified by a legitimate state objective which passes their scrutiny. Do not be fooled. The Justices are meticulous.
Recognizing this dynamic, I made a second effort to keep all municipalities whole (other than Philly), keep county splits to a minimum, and get each district as close to 0 as possible. The result was a reduction from a difference of 125 persons to 17 persons.
In a world where the trend is toward maps with a zero deviation to the exclusion of everything else, does a map with a 17-person deviation pass legal muster? The Courts offered concerned citizens a clear but often overlooked beacon of hope in Vieth v. Pennsylvania decision (195 F. Supp. 2d 672 (M.D. Pa. 2002)).
On April 8, 2004, a US District Court weighed in on Pennsylvania congressional districts. This case clarifies the path toward justifiable population deviations and illustrates how those justifications can fail. This case has been misconstrued as to speak against any variance in district sizes being allowed. A closer reading of the case leads me to a different conclusion.
First, a quick recap of the case. The Pennsylvania State Legislature drew the 2002 congressional map with districts that varied in size by 19 persons. This map was challenged in federal court on the grounds it violated equality and included political gerrymandering. In the end, the court found it violated the rules on equality (for lack of “legitimate justification”) but did not violate political gerrymandering (for lack of judiciable standards).
In looking at the equality issue, the Courts referenced the standard created in Kirkpatrick v. Preisler decision:
“[T]he `as nearly as practicable’ standard requires that the State make a good-faith effort to achieve precise mathematical equality. Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small.” Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969)
This standard requires courts to examine constitutionality of the map in two steps: 1. Population Deviation and 2. Justification.
1. Was the population deviation avoidable? Was there a good faith effort to achieve exact equality?
The court found that clearly the population deviation was avoidable. Both the Plaintiffs and Defendants produced a map with a zero deviation. Nor was there a good faith effort to achieve a zero deviation (the person drawing the maps testified his supervisors told him to stop manipulating the maps once he reached the difference of 19 persons).
2. Is the population deviation in each district justifiable? Was it “necessary to achieve some legitimate goal”? 462 U.S. at 731, 103 S. Ct. at 2658 (citing Kirkpatrick, 394 U.S. at 530, 89 S. Ct. at 1228; Swann v. Adams, 385 U.S. 440, 443-444, 87 S. Ct. 569, 571-72, 17 L. Ed. 2d 501 (1967)).
The State tried to justify the 19-person difference in districts by claiming it was to avoid splitting voting precincts. The Court found this rational insufficient because another map achieved this goal with a zero deviation.
This conclusion by the court has created some confusion. It is true the court said no to the state’s rational. But it was not because a population deviation could not ever be justified. It simply could not be justified in this instance when another map with a zero-deviation achieved their purported goal.
The Court said, “the desire to avoid splitting precincts is a legitimate state interest which could justify a nineteen person deviation.” (emphasis added)
They went on to add, “Moreover, it is worth noting that of the maps presented at trial, Act 1 is that which least comports with the neutral legislative policies that the Karcher Court stated would justify a Congressional redistricting plan with some deviations.”
The neutral principles cited in Karcher are:
- Keep counties and municipalities whole
- Retain cores of prior districts
- Avoid contests between incumbents
Of any map in evidence, the 2002 congressional plan approved by the State was the least aligned with these principles. The Courts were clear the State 2002 map failed the two-step test. But they were equally clear that a map with a 19-person deviation might be justified on a neutral principle like keeping counties and municipalities whole.
Based on this case, the 17-person map shown here should stand up in court. Applying the two-step test to this alternative map, we find it clearly is not equal in population when a zero-deviation map was possible (that is what the state produced). The more significant question is whether each of the deviations is justifiable.
- There was a good-faith effort to make each district as close to a zero deviation as possible while adhering to neutral principles.
- It kept every municipality whole except Philadelphia, which exceeds the size of a congressional district.
Once again, we find Courts protecting common sense and preventing senseless district manipulations put forth by the State Legislature. A map, such as the one proposed above, offers a legal path toward restoring sanity to the current mapping madness.
Update 2/9: Post now references my latest map with 17-person deviation (originally included a map with a 21-person deviation)