William Baude

William Baude joined Stanford Law School in 2011 as a fellow in the Constitutional Law Center. Most recently he worked at Robbins Russell LLP, a litigation boutique in Washington, D.C. Before that, he clerked for then-Judge Michael W. McConnell on the United States Court of Appeals for the Tenth Circuit, and for Chief Justice John G. Roberts, Jr., on the United States Supreme Court. He graduated from the University of Chicago (as a math major) and from Yale Law School.

West Virginia Congressional Districts and Population Equality

October 2, 2012

Last Tuesday the Supreme Court issued a short, per curiam opinion in Tennant v. Jefferson County, which rejected a challenge to West Virginia’s recently redrawn Congressional districts.  The one-person-one-vote doctrine requires that legislative districts be close to the same size (so that each person’s vote is approximately the same share of the total), and there was a 0.79% difference between the smallest and largest district in West Virginia.  The Court concluded that under the circumstances, however, that difference was permissible.

On its own, that conclusion may seem unremarkable.  Sometimes it may prove impossible to reach perfect population equality.  But the Court’s reasoning suggests that something bigger may be afoot.  In West Virginia, it was possible to reach nearly-perfect population equality.  The state legislature considered and rejected a so-called “perfect plan” under which the districts would differ in size only by a single person.  In upholding the imperfect plan that West Virginia actually adopted, the Court held that it is okay to deviate from population equality not just where perfection is impossible to reach.  Rather, states can reject a more equal plan on normative grounds.

In particular, the Court concluded that it was legitimate to deviate from equal-sized districts, among other reasons, in order to ensure that districts lines could track county lines.  That’s notable because one of the potential problems with the one-person-one-vote rule is that it enables (or even encourages) gerrymandering.  State law often requires districts to follow county lines, which makes it harder to manipulate the exact boundaries of a district for political reasons.  But since county populations will almost never generate perfectly-equal districts, a perfect equality rule allows (and requires) redistricting states to ignore their own anti-gerrymandering rules.  By holding that perfect equality can be subordinated to the county-line principle, the Court creates more room for state anti-gerrymandering rules.

This point is driven home by another part of the opinion, which rejected the claim that technological advances (like the use of computers in redistricting) made the range of acceptable variation smaller.  The reason increased technology doesn’t shrink the range of acceptable variation is that the Court cares about why the state plan has the variations, not just whether they can be avoided.

To be sure, it is too soon to tell whether this is the start of a bigger change to the one-person-one-vote principle, or just a minor tweak in a fact-specific situation.  A previous decision, Karcher v. Daggett, had suggested that variations could sometimes be justified, but it was vague about when and how much (and rejected them in that case).  Two big questions going forward will be how big of a variance the Court is willing to permit in preserving values likes county lines, and whether Tennant is part of a bigger trend of federalism in federal election law.  Stay tuned.