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.