One Person, One Vote in Mississippi: Maybe Next Year . . .
posted by Michael Pitts
The decennial redistricting cycle always creates some interesting litigation. While it is still quite early in the cycle, one of the more interesting opinions issued thus far is Mississippi NAACP v. Barbour. Barbour involves the equal protection principle of one person, one vote that requires state legislative districts to have roughly equal population numbers.
Mercifully, the basic facts are fairly simple. Mississippi last redrew its district lines in 2002. In February of this year, the State received census data showing that its current state legislative districts clearly violate one person, one vote. Despite having this data, the Mississippi legislature adjourned without revising the legislative district lines. Mississippi has legislative elections scheduled for this year (a primary in August followed by a general election in November). For this reason, the Barbour plaintiffs rather sensibly went to the district court and asked for relief that would require the elections this year to be held from districts that complied with one person, one vote.
If you had presented me with this situation in a law school hypothetical, I would have said the answer would seem to be fairly clear: on these facts, Mississippi needs to have a redistricting plan that complies with one person, one vote before it holds elections this year. It should come as no surprise, then, that three federal judges think the exact opposite and have decided to allow Mississippi’s legislative elections to go forward based on a plan that everyone agrees violates one person, one vote.
The three federal judges reached this decision in Barbour by creating what amounts to a 10-year safe harbor for one person, one vote challenges to state legislative redistricting plans. In essence, these three federal judges read the landmark redistricting case of Reynolds v. Sims as holding that redistricting once every 10 years is enough. Because Mississippi redistricted in 2002 and it’s only 2011, that falls within the 10-year safe harbor window and, thus, presents no constitutional violation that needs to be remedied prior to this year’s legislative elections.
The opinion is odd from a precedential perspective. To the best of my knowledge, no court has ever created a 10-year safe harbor for a state legislative redistricting plan, and the precedent the Barbour court cites for its 10-year rule is weak (and that’s being charitable). Moreover, the trend in one person, one vote cases is away from establishing “safe harbors.” The 2004 decision of Larios v. Cox (that was summarily affirmed by the Supreme Court) seemed to eliminate a safe harbor previously thought to have been granted to state legislators under one person, one vote.
Indeed, the 10-year safe harbor rule doesn’t make much practical sense. Imagine this scenario—for partisan reasons, Democrats in California decide to redistrict in 2008 using 2000 Census numbers. According to the holding of Barbour, California would not have to redistrict again until 2018. Lest one think that this is a hypothetical that could never happen, just last year, Republicans in Marion County, Indiana (Indianapolis) were actively considering redistricting in 2010 using 2000 Census numbers.
The Barbour case is really about federal judges not wanting to get involved in the redistricting process, and I wonder if the lack of involvement has to do with the partisan affiliation of the judges involved. All three of the judges in Barbour are Republican appointees. This puts them in a tight spot. If they draw a plan that favors Republicans, they will be criticized for doing so. If they draw a plan that does not favor Republicans, they will take heat from their Republican brethren. These judges are probably in a lose-lose situation.
But federal judges get paid (and life tenure) to make such hard decisions. If given the opportunity, the Supreme Court should take up this case (which goes to that court on direct appeal) and ensure that Mississippi’s elections this year are held from districts that comply with one person, one vote.
June 6, 2011 at 9:48 am
Tags: Constitutional Law
Posted in: Election Law
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Responses (11)
dave hoffman - June 6, 2011 at 9:57 am
Hi Michael,
Interesting post. I wonder, though, whether it’s fair to infer from the fact that the judges were “Republican appointees” that they therefore are or have “Republican brethren”? Seems to me that maybe if we avoid explicitly partisan explanations for judicial decisions, we’d probably be better off — especially since it comports with how judges themselves often talk about their jobs.
Michael Pitts - June 6, 2011 at 10:17 am
Fair enough, Dave. And to the extent that we should be careful about placing too much emphasis on party affiliation, I would agree. That said, without empirical evidence to prove so, I suspect that federal judges run in certain social circles. And I suspect that Democratic judges tend to run in social circles with other Democrats and Republican judges tend to run in social circles with other Republicans. If that’s the case, I would think that it’s only human to avoid (perhaps unconsciously so) swimming against the tide of one’s social circle.
Gerard Magliocca - June 6, 2011 at 10:48 am
Dave,
So how do you explain the fact that all of the district judges that have upheld the individual health insurance mandate were appointed by Democrats and the ones who struck it down were appointed by Republicans? Coincidence? Nothing wrong with noting partisan affiliations in my book, though of course that often explains nothing.
Franita Tolson - June 6, 2011 at 12:22 pm
Mike, interesting post. I haven’t read Barbour yet, but it seems to me like the court’s willingness to find a ten year safe harbor for state legislative redistricting plans could follow from the ten percent safe harbor that states have for population deviations. Since the Supreme Court endorsed this initial deviation from the equi-population principle in the state legislative redistricting context, then it seems possible that it may be willing to accept that a safe harbor exists for compliance with the equipopulation principle. In any event, all of this ties in to the original problem with recognizing the constitutionality of mid-decade redistricting in the first place.
Michael Pitts - June 6, 2011 at 12:41 pm
Hi Franita,
That’s the import of Larios v. Cox, though. You’re right that there used to be the notion that 10% deviation was a safe harbor for a state legislative redistricting plan. But Georgia’s plan with a 9.9% deviation was rejected by a three-judge panel and that decision was summarily affirmed by the Supreme Court.
Franita Tolson - June 6, 2011 at 1:03 pm
Georgia’s deviation was rejected because the state was trying to insulate Democratic incumbents from competition. While this may be an impermissible ground to base a deviation, this does not prevent a state from deviating for other reasons. And perhaps the very fact that they can deviate, which is impermissible for any reason for congressional districts, justifies the Court’s position that there should be a ten year safe harbor. I don’t necessarily agree with this, but it seems to me that the argument is certainly out there.
Norman Williams - June 6, 2011 at 1:06 pm
Interesting post agreed, but I think Michael is being too hard (and perhaps partisan) in several respects. First, the order was authored by Judge Jolly of the Fifth Circuit, who is no partisan hack and who is hardly likely to pull a punch because of some future ambition to be elevated to the Supreme Court. Second, Michael seems to endorse the rule that the Equal Protection Clause requires state legislative reapportionment in the year following the census. The Supreme Court has never said that state legislative reapportionment must take place that year, and the notion of allowing states to reapportion in the second year after the census hardly seems like a recipe for wholesale malapportionment.
I agree with Michael’s concern about a 10-year safe harbor rule as applied to a state that engages in a second round, mid-decennial redistricting, but that hypothetical scenario can best be remedied when it comes up. There is a difference between a state refusing to reapportion in a reasonable time after the census figures become available (because it claims that its prior, mid-decennial redistricting exempts it from such responsibility) and a state waiting until the second year after the census figures are available in part because it conducts elections in the odd-numbered years.
Michael Pitts - June 6, 2011 at 1:29 pm
Hi Norman,
I have nothing against Judge Jolly and know nothing of his reputation. And it could just as easily have been Democratic judges making the same type of decision. As for my own “partisanship”, some think I attacked the Obama Administration in my first post on this blog, so it probably goes both ways. And, I think it’s clear in my response to Dave’s comments that I wasn’t insinutating that Judge Jolly (or the other two judges) wanted any future post somewhere–instead it’s more general social approprobation that could be an (unconscious) issue.
I agree that the Supreme Court has never said redistricting has to occur the year following the Census. I’m just saying that in the forty-plus years since Reynolds was decided that no lower court has ever interpreted Reynolds that way and that the weight of authority clearly is in the other direction.
In my opinion, the three judges should have appointed a special master to draw new districts for this year. Interestingly, the Barbour opinion notes that the judges initially expressed an inclination to impose an interim remedy for this year’s elections. To me, that means their first instinct in the case was the same as mine. I wonder why it changed.
I do think that this is a case of a legislature not engaging in redistricting within a reasonable time. They conducted hearings in 2010; they had census data in February; they had several plans on the table that the legislature considered and rejected. I don’t see why the voters of Mississippi should have to wait until 2015 to elect a legislature from districts not in violation of one person, one vote.
Norman Williams - June 6, 2011 at 2:35 pm
Michael,
I have no doubt that it would be preferable as a policy matter for Mississippi to require redistricting in the first year after the census is conducted (rather than the second year as its constitution requires), but that’s a different issue from whether the Equal Protection Clause requires it to do so. Mississippi is somewhat unique in that its entire Legislature is elected only once every four years, so I agree that the consequence of Barbour will be that a properly apportioned legislature will not convene until 2016, but that consequence flows only every other decade. In 2022, the Legislature must redistrict before elections held in 2023, the first post-census election in that cycle.
Perhaps my sympathies would be different if the malapportionment were truly great (rather than just outside the +/-5% de facto rule established by the Supreme Court). In that case, perhaps a Legislature would have a duty to redistrict immediately after the census figures are released, but waiting one election cycle to move a few hundred residents around doesn’t seem to rise to the same level of damage to political equality as Reynolds and Lucas (and other malapportionment cases) addressed.
As to partisan influence (or the judges’ concern for social standing), I didn’t mean to suggest that you were too partisan but that you were too ready to see a partisan bias lurking in the Court’s decision. In that vein, I think the fact that the court rejected the Republican party’s proffered remedy undermines the suggestion that the court’s decision can be ascribed to a concern (conscious or unconscious) among the judges about their standing in conservative Republican social circles. My read on the decision is that it’s a run-of-the-mill “we are not getting involved in redistricting unless the Supreme Court caselaw is directly on point in directing us to do so” decision. One might fault it for being too conservative (in a judicial, not political sense), but that’s a different issue, and one that applies equally to Democratic appointees as well.
Michael Pitts - June 6, 2011 at 3:33 pm
Norman,
Maybe you’re right that this decision is fine in this particular context, but I don’t think that’s what the opinion purports to do. The opinion says that federal equal protection law creates a blanket 10-year safe harbor–that’s a decision that applies to Mississippi as well as potentially to every other state. The opinion doesn’t make any caveats about their being other cases out there that might go in a different direction based on particular facts and circumstances.
And just because the Court rejected the Republican remedy doesn’t mean that the decision isn’t necessarily pro-Republican. Maybe keeping the existing lines actually helps Republicans more than a court-ordered redistricting would. Indeed, the court admits in its opinion that it does side with a Republican take on the matter–the position of Republican Secretary of State Delbert Hoseman. Thus, I don’t think rejection of the Republican plan serves as definitive proof of lack of partisanship. (Of course, I recognize that the Barbour decision itself also does not provide any sort of definitive proof of partisanship.)
Michael Pitts - June 7, 2011 at 10:14 am
Just to follow up a bit on this . . . In his comment above, Norman asserted that the malapportionment of the existing Mississippi legislative districts was not all that great (“just outside . . . +/-5%”). However, unless I am misreading something, the website of the Mississippi state legislature (http://www.msjrc.state.ms.us/index.html) shows that the overall deviation in the existing House plan using 2010 census statistics is about +/-134% and in the existing Senate plan the overall deviation is about +/-69%. Those are pretty large disparities.
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