A Quick Way to Enable More Natural Congressional Districts
Courts should relax the threshold for congressional districts within a state having nearly identical populations to the more flexible standard used for state-level legislative districts.
In a previous article, I introduced the notion of baseline congressional districts: compact and cohesive[1] natural-looking districts largely composed of entire counties instead of long meaningless lists of thousands of tiny precincts. In doing so, I assumed that the populations of congressional districts within a state could vary a little (5% or less). This would, however, be a change from current rulings.
This article describes current requirements for the equality of congressional districts and why they should change as I imagined.
The landmark case Reynolds v. Sims in 1964 the Supreme Court used the Equal Protection Clause of the 14th Amendment to establish the principle of “one person, one vote” ruling that congressional and state legislative districts had to have roughly equal populations. The Court granted more flexibility to states with respect to what “roughly equal” meant for their legislative districts. In practice, this has meant that deviations of 5–10% may be permissible.
In contrast, however, congressional districts have been required to “as nearly as practicable” be equal in population using the decennial census data, no deviation being too small to worry about if it could have been avoided.[2] Consequently, this has led to arguably extreme equality of population. As Exhibit 1 shows, seven of the most persistently gerrymandered states in the country encompassing over 60 million people had deviations of no more than one person across their congressional districts following the 2010 census!
This focus on nearly strict equality of congressional district populations requires states to use very fine-grained pieces of geography in the redistricting process, and that paves the way for gerrymandering. The essence of gerrymandering is assembling (bigger) districts from myriad small(ler) pieces of geography, intentionally optimizing the collection of assembled pieces for partisan advantage.
Moreover, this hyper focus on the congressional districts within a state having equal populations ignores the variations of congressional district populations across states. As Exhibit 2 shows, the populations of congressional districts in different states vary widely due to apportionment.
The smallest districts are 26% less populous than the median district, while the largest are 40% more populous. In other words, the gap between the largest and smallest districts is 2/3’s the population of the median district. “One person, one vote” takes on a very different meaning when looked at nationally, and the focus on strict equality of congressional district populations within states makes little sense, considering the wide variations between sizes across states.
Hence, courts should allow states to have the populations of their congressional districts vary somewhat, just like their legislative districts, when that enables more compact and cohesive districts.
This is the fifth in a series of articles on redistricting and partisan gerrymandering.
[1] “Cohesive” is shorthand for the traditional districting principle of respect for political boundaries & topographical features, e.g., regions, counties, cities, towns.
[2] Karin MacDonald, “The Traditional and the less Conventional, but never dull, Cast of Redistricting Principles,” Slide 11.
