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Author Topic: US House Redistricting: West Virginia  (Read 12424 times)
Torie
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« Reply #150 on: April 01, 2012, 12:54:16 pm »
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Because they need to take it if they want to overrule the lower court (which did find a pressing need, for whatever bizarro reasons)? They can't just stay the lower court's decision indefinitely, can they?

Oh SCOTUS stayed the appellate court decision?

Yes, indeed it did. So I guess that is the equivalent of granting cert. I very much doubt SCOTUS is going to fly speck the state law, or try to decide if a lower population deviance is appropriate given the alternatives, etc. They may just hold that deviations of less than 0.5% or whatever are Constitutional if there is some reasonable reason for it under state law, like not splitting counties, or precincts, or whatever, and defer to the state courts as to whether the map comported with state law. I just can't see them evaluating a bunch of maps.  So I suspect the map the legislature drew will be upheld, since the grounds it was bounced was only based on the equality of population issue. My guess is that SCOTUS will hardly even look at the maps.

The WV Supreme Court itself deferred to the state legislature on the legislative districts, refusing to involve itself as to whether other maps better implemented the state law.

One question they may engage in is whether a whole county plan with a range of 0.79% should stand when there are many alternative plans with whole counties and significantly less deviation (like 0.04% in Cooper 3). The state will argue that their plan also preserved the maximum number of counties because it shifted only one county. Does that state interest justify the larger deviation?

Who knows, but I really doubt SCOTUS wants to micromanage that way. If it were me, I would just set a bright line limit of 1.0% deviation, or 0.5% (maybe using your statistical approach of say what is the one or two standard deviation variance in population change between the census date and the election date in 95% of the cases, as to what that percentage is).  It is next to pointless to do case by case litigation over such small percentage variations. The Courts have better things to do, and SCOTUS doesn't like Courts being involved in redistricting anyway if it can reasonably be avoided. Somehow I suspect 1.0% might be it because it 1) is a whole integer, and 2) saves the WV map.
« Last Edit: April 01, 2012, 01:21:36 pm by muon2 »Logged
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« Reply #151 on: April 01, 2012, 01:25:57 pm »

Because they need to take it if they want to overrule the lower court (which did find a pressing need, for whatever bizarro reasons)? They can't just stay the lower court's decision indefinitely, can they?

Oh SCOTUS stayed the appellate court decision?

Yes, indeed it did. So I guess that is the equivalent of granting cert. I very much doubt SCOTUS is going to fly speck the state law, or try to decide if a lower population deviance is appropriate given the alternatives, etc. They may just hold that deviations of less than 0.5% or whatever are Constitutional if there is some reasonable reason for it under state law, like not splitting counties, or precincts, or whatever, and defer to the state courts as to whether the map comported with state law. I just can't see them evaluating a bunch of maps.  So I suspect the map the legislature drew will be upheld, since the grounds it was bounced was only based on the equality of population issue. My guess is that SCOTUS will hardly even look at the maps.

The WV Supreme Court itself deferred to the state legislature on the legislative districts, refusing to involve itself as to whether other maps better implemented the state law.

One question they may engage in is whether a whole county plan with a range of 0.79% should stand when there are many alternative plans with whole counties and significantly less deviation (like 0.04% in Cooper 3). The state will argue that their plan also preserved the maximum number of counties because it shifted only one county. Does that state interest justify the larger deviation?

Who knows, but I really doubt SCOTUS wants to micromanage that way. If it were me, I would just set a bright line limit of 1.0% deviation, or 0.5% (maybe using your statistical approach of say what is the one or two standard deviation variance in population change between the census date and the election date in 95% of the cases, as to what that percentage is).  It is next to pointless to do case by case litigation over such small percentage variations. The Courts have better things to do, and SCOTUS doesn't like Courts being involved in redistricting anyway if it can reasonably be avoided. Somehow I suspect 1.0% might be it because it 1) is a whole integer, and 2) saves the WV map.

If they do it will be a departure from precedent. They have been willing to say how much is too much, but never how little is close enough. I'd like it if they did, but for now I'm a skeptic. I think they will have to find that the additional state goals justified the additional deviation, since it seems like they would rather leave the map in place.
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« Reply #152 on: April 01, 2012, 01:43:07 pm »
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Doesn't a 1.0% deviation save the map?
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« Reply #153 on: April 01, 2012, 06:21:51 pm »
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Why on earth would SCOTUS take this case, particularly since it would not be heard and decided this year, which means a redraw for the next election, and all over basically nothing (there is hardly a pressing need to find if a population deviation of more than a few people but less than 1% is Constitutional)?  I don't think so.
The SCOTUS was irritated that the lower court quoted Dylan, and used absolutely absurd logic regarding the splitting of counties.  And population equality had nothing to do with the original complaint, which was filed by Jefferson County, which is the easternmost county in the eastern panhandle, which was tired of being in a district with Charleston.

Justice Harlan in his dissent in the OMOV cases warned that the courts would forever be stuck adjudicating redistricting cases, and he was right.  The Supreme Court has tried to to stop the use of the courts as a weapon in redistricting, which was what happened here.
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« Reply #154 on: April 01, 2012, 08:48:04 pm »
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Doesn't a 1.0% deviation save the map?

If that were the de minimis standard it would, but the deviation in Maine (the difference in population between the largest and smallest existing congressional district in Maine as a percentage of the ideal Maine congressional district population) was only 0.65% (8,669 people) and the three-judge court trashed the Democrats in their opinion when the Democrats argued that the existing districts could be used for the 2012 elections.

What is the absolute and percentage deviations in the congressional plan the West Virginia state government adopted again?
« Last Edit: April 01, 2012, 08:53:12 pm by Kevinstat »Logged
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« Reply #155 on: April 01, 2012, 10:07:20 pm »

Doesn't a 1.0% deviation save the map?

If that were the de minimis standard it would, but the deviation in Maine (the difference in population between the largest and smallest existing congressional district in Maine as a percentage of the ideal Maine congressional district population) was only 0.65% (8,669 people) and the three-judge court trashed the Democrats in their opinion when the Democrats argued that the existing districts could be used for the 2012 elections.

What is the absolute and percentage deviations in the congressional plan the West Virginia state government adopted again?

The range from largest to smallest is 0.79% of the ideal population. That's the number argued about in this case. There were at least 7 other plans with no county splits presented during legislative hearings before the map was adopted. Those plans ranged from 0.44% down to 0.04%.
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« Reply #156 on: April 01, 2012, 10:28:21 pm »
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Doesn't a 1.0% deviation save the map?

If that were the de minimis standard it would, but the deviation in Maine (the difference in population between the largest and smallest existing congressional district in Maine as a percentage of the ideal Maine congressional district population) was only 0.65% (8,669 people) and the three-judge court trashed the Democrats in their opinion when the Democrats argued that the existing districts could be used for the 2012 elections.

What is the absolute and percentage deviations in the congressional plan the West Virginia state government adopted again?

Maine did not combine whole counties.
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« Reply #157 on: September 07, 2012, 03:19:41 pm »
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since DRA has Obama/McCain numbers.. a Dem gerrymander with some county splitting



CD1: 617570 (McCain 54.1, Obama 44.3) [was 57/42 McCain]




CD2: 617606 (McCain 60.7, Obama 37.6) [was 55/44 McCain]




CD3: 617818 (McCain 51.9, Obama 46.3) [was 56/42 McCain]




the split in Harrison county



the split in Kanawha county

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« Reply #158 on: September 07, 2012, 05:26:49 pm »
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Out of curiosity, what would a Republican gerrymander look like? 
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« Reply #159 on: September 07, 2012, 05:37:21 pm »
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The 2008 numbers are nice to have for WV, though I think Manchin/Raese would have been more useful.

Out of curiosity, what would a Republican gerrymander look like?  

Probably actually similar to RBH's Democratic map.

For a solid 2-1, I'd probably pack Democrats tighter into CD3 while splitting Marion and Monongalia counties between CD1 and CD2. CDs 1 and 2 would each need to be at least 57% McCain, IMO.



CD1- 58.5/39.9 McCain
CD2- 57.3/41.1 McCain
CD3- 51.0/47.2 McCain

For 3-0, I'd guess some kind of vertical baconmander could work for the GOP.
« Last Edit: September 07, 2012, 06:08:37 pm by MilesC56 »Logged


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« Reply #160 on: September 07, 2012, 06:47:59 pm »
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Out of curiosity, what would a Republican gerrymander look like? 

if you're doing 3-0 and having all 3 districts near the statewide Pres numbers, then the current map with some modifications seems like a capable R-friendly map. If you wanna get rid of Rahall, then do the same premise while slicing Southern WV. Drop Rahall in a district with North/Central WV. Dilute the Coal Counties between the 3 districts.
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« Reply #161 on: September 26, 2012, 10:45:01 am »
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The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.
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« Reply #162 on: September 26, 2012, 01:18:33 pm »
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Doesn't a 1.0% deviation save the map?

If that were the de minimis standard it would, but the deviation in Maine (the difference in population between the largest and smallest existing congressional district in Maine as a percentage of the ideal Maine congressional district population) was only 0.65% (8,669 people) and the three-judge court trashed the Democrats in their opinion when the Democrats argued that the existing districts could be used for the 2012 elections.

What is the absolute and percentage deviations in the congressional plan the West Virginia state government adopted again?

What is the absolute variation the Supreme Court has permitted state legislative elections, and federal Congressional elections?

The Supreme Court, I suggest, set the higher variation for state legislatures because it did not want to strike down whole-county provisions in a number of states. West Virginia has a whole-county provision for federal Congressional districts. I doubt it wants to either strike down whole-county provisions, or demand bizarre shuffling of counties to form non-compact districts just to acheive marginal increases in population equality.
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« Reply #163 on: September 27, 2012, 10:28:56 pm »

The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.

Here's the text of the decision. This is a big win for states that wish to apply neutral criteria and avoid arbitrary splits or groupings solely to minimize population deviation. It reverses the trend towards the need for computers to minimize population deviations. In principle, a commission like in CA could have avoided a number of municipal splits that were needed for exact equality.
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« Reply #164 on: October 05, 2012, 11:52:20 pm »
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Because they need to take it if they want to overrule the lower court (which did find a pressing need, for whatever bizarro reasons)? They can't just stay the lower court's decision indefinitely, can they?

Oh SCOTUS stayed the appellate court decision?

Yes, indeed it did. So I guess that is the equivalent of granting cert. I very much doubt SCOTUS is going to fly speck the state law, or try to decide if a lower population deviance is appropriate given the alternatives, etc. They may just hold that deviations of less than 0.5% or whatever are Constitutional if there is some reasonable reason for it under state law, like not splitting counties, or precincts, or whatever, and defer to the state courts as to whether the map comported with state law. I just can't see them evaluating a bunch of maps.  So I suspect the map the legislature drew will be upheld, since the grounds it was bounced was only based on the equality of population issue. My guess is that SCOTUS will hardly even look at the maps.

The WV Supreme Court itself deferred to the state legislature on the legislative districts, refusing to involve itself as to whether other maps better implemented the state law.

One question they may engage in is whether a whole county plan with a range of 0.79% should stand when there are many alternative plans with whole counties and significantly less deviation (like 0.04% in Cooper 3). The state will argue that their plan also preserved the maximum number of counties because it shifted only one county. Does that state interest justify the larger deviation?

Who knows, but I really doubt SCOTUS wants to micromanage that way. If it were me, I would just set a bright line limit of 1.0% deviation, or 0.5% (maybe using your statistical approach of say what is the one or two standard deviation variance in population change between the census date and the election date in 95% of the cases, as to what that percentage is).  It is next to pointless to do case by case litigation over such small percentage variations. The Courts have better things to do, and SCOTUS doesn't like Courts being involved in redistricting anyway if it can reasonably be avoided. Somehow I suspect 1.0% might be it because it 1) is a whole integer, and 2) saves the WV map.

If they do it will be a departure from precedent. They have been willing to say how much is too much, but never how little is close enough. I'd like it if they did, but for now I'm a skeptic. I think they will have to find that the additional state goals justified the additional deviation, since it seems like they would rather leave the map in place.

The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.

Here's the text of the decision. This is a big win for states that wish to apply neutral criteria and avoid arbitrary splits or groupings solely to minimize population deviation. It reverses the trend towards the need for computers to minimize population deviations. In principle, a commission like in CA could have avoided a number of municipal splits that were needed for exact equality.

So, for you (Muon2) and also others (chiefly jimrtex), has the Supreme Court "departed from precedent" at all in this case.  There's still no defined always acceptable range of deviation (or a range within which the burden of proof would be 100% on the plaintiffs; the so-called de minimis range or something like that), right?  Was this a broader decision than you expected?  How much guidance that wasn't already there do district courts now have in malapportionment lawsuits?  I know this was a per curiam opinion, which sometimes are kind of like "duh" when one considers Supreme Court opinions that have already been given (like the recent Montana "mini-Citizens United" case, maybe).
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« Reply #165 on: October 06, 2012, 09:29:44 pm »

Because they need to take it if they want to overrule the lower court (which did find a pressing need, for whatever bizarro reasons)? They can't just stay the lower court's decision indefinitely, can they?

Oh SCOTUS stayed the appellate court decision?

Yes, indeed it did. So I guess that is the equivalent of granting cert. I very much doubt SCOTUS is going to fly speck the state law, or try to decide if a lower population deviance is appropriate given the alternatives, etc. They may just hold that deviations of less than 0.5% or whatever are Constitutional if there is some reasonable reason for it under state law, like not splitting counties, or precincts, or whatever, and defer to the state courts as to whether the map comported with state law. I just can't see them evaluating a bunch of maps.  So I suspect the map the legislature drew will be upheld, since the grounds it was bounced was only based on the equality of population issue. My guess is that SCOTUS will hardly even look at the maps.

The WV Supreme Court itself deferred to the state legislature on the legislative districts, refusing to involve itself as to whether other maps better implemented the state law.

One question they may engage in is whether a whole county plan with a range of 0.79% should stand when there are many alternative plans with whole counties and significantly less deviation (like 0.04% in Cooper 3). The state will argue that their plan also preserved the maximum number of counties because it shifted only one county. Does that state interest justify the larger deviation?

Who knows, but I really doubt SCOTUS wants to micromanage that way. If it were me, I would just set a bright line limit of 1.0% deviation, or 0.5% (maybe using your statistical approach of say what is the one or two standard deviation variance in population change between the census date and the election date in 95% of the cases, as to what that percentage is).  It is next to pointless to do case by case litigation over such small percentage variations. The Courts have better things to do, and SCOTUS doesn't like Courts being involved in redistricting anyway if it can reasonably be avoided. Somehow I suspect 1.0% might be it because it 1) is a whole integer, and 2) saves the WV map.

If they do it will be a departure from precedent. They have been willing to say how much is too much, but never how little is close enough. I'd like it if they did, but for now I'm a skeptic. I think they will have to find that the additional state goals justified the additional deviation, since it seems like they would rather leave the map in place.

The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.

Here's the text of the decision. This is a big win for states that wish to apply neutral criteria and avoid arbitrary splits or groupings solely to minimize population deviation. It reverses the trend towards the need for computers to minimize population deviations. In principle, a commission like in CA could have avoided a number of municipal splits that were needed for exact equality.

So, for you (Muon2) and also others (chiefly jimrtex), has the Supreme Court "departed from precedent" at all in this case.  There's still no defined always acceptable range of deviation (or a range within which the burden of proof would be 100% on the plaintiffs; the so-called de minimis range or something like that), right?  Was this a broader decision than you expected?  How much guidance that wasn't already there do district courts now have in malapportionment lawsuits?  I know this was a per curiam opinion, which sometimes are kind of like "duh" when one considers Supreme Court opinions that have already been given (like the recent Montana "mini-Citizens United" case, maybe).

It seems that SCOTUS has not so much departed from precedent but instead rolled back to their views at the time of Karcher. Karcher placed a burden on the plaintiffs to show that deviations could be avoided, then if they did the ball was in the State's court to show that there was a necessary objective requiring them. Since Karcher the window for the state seemed to get increasingly narrow with each decision. Now that window has widened again.

As I read it, once the the state creates its goals, a plaintiff would now have to show that their alternative redistricting plan meets the same goals but with a smaller population deviation. I think future cases will explore what goals are legitimate, but political goals (cores of existing districts) can now be included alongside purely geographic goals.
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« Reply #166 on: October 11, 2012, 06:52:22 am »
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The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.
Here's the text of the decision. This is a big win for states that wish to apply neutral criteria and avoid arbitrary splits or groupings solely to minimize population deviation. It reverses the trend towards the need for computers to minimize population deviations. In principle, a commission like in CA could have avoided a number of municipal splits that were needed for exact equality.

This is the key part of the decision where the Court quotes from Karcher v Daggett:

Quote from: SCOTUS in Tennant v Jefferson County Commissioners
This burden [the burden on the State] is a “flexible” one, which “depend(s) on the size of the deviations, the importance of the State’s interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely.”

Most States are going to have difficulty demonstrating that they have consistently reflected those interests, both over time and within a plan.
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« Reply #167 on: October 11, 2012, 08:30:34 am »

The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.
Here's the text of the decision. This is a big win for states that wish to apply neutral criteria and avoid arbitrary splits or groupings solely to minimize population deviation. It reverses the trend towards the need for computers to minimize population deviations. In principle, a commission like in CA could have avoided a number of municipal splits that were needed for exact equality.

This is the key part of the decision where the Court quotes from Karcher v Daggett:

Quote from: SCOTUS in Tennant v Jefferson County Commissioners
This burden [the burden on the State] is a “flexible” one, which “depend(s) on the size of the deviations, the importance of the State’s interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely.”

Most States are going to have difficulty demonstrating that they have consistently reflected those interests, both over time and within a plan.

That's why I think the decision may lend itself to use by commissions such as CA. They had a number of principles that were consistently applied and had to violate them to achieve exact population equality. If the population deviations were small otherwise the burden would shift to the plaintiffs to show that there was another viable plan that met the principles, but reduced the deviation.

As the WV case shows the plaintiff's burden requires meeting all of the state's valid criteria, which in their case included minimal population shifts between districts. Meeting only the historically consistent goal to keep counties intact was not sufficient to overturn the WV map.
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« Reply #168 on: October 11, 2012, 08:12:47 pm »
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The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.
Here's the text of the decision. This is a big win for states that wish to apply neutral criteria and avoid arbitrary splits or groupings solely to minimize population deviation. It reverses the trend towards the need for computers to minimize population deviations. In principle, a commission like in CA could have avoided a number of municipal splits that were needed for exact equality.

This is the key part of the decision where the Court quotes from Karcher v Daggett:

Quote from: SCOTUS in Tennant v Jefferson County Commissioners
This burden [the burden on the State] is a “flexible” one, which “depend(s) on the size of the deviations, the importance of the State’s interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely.”

Most States are going to have difficulty demonstrating that they have consistently reflected those interests, both over time and within a plan.

That's why I think the decision may lend itself to use by commissions such as CA. They had a number of principles that were consistently applied and had to violate them to achieve exact population equality. If the population deviations were small otherwise the burden would shift to the plaintiffs to show that there was another viable plan that met the principles, but reduced the deviation.

As the WV case shows the plaintiff's burden requires meeting all of the state's valid criteria, which in their case included minimal population shifts between districts. Meeting only the historically consistent goal to keep counties intact was not sufficient to overturn the WV map.

The California Constitution itself makes a distinction between congressional and legislative districts.

Quote from: California Constitution Article 21 Section 2(d)(1)
(1) Districts shall comply with the United States Constitution.  Congressional districts shall achieve population equality as nearly as is practicable, and Senatorial, Assembly, and State Board of Equalization districts shall have reasonably equal population with other districts for the same office, except where deviation is required to comply with the federal Voting Rights Act or allowable by law.

It is plausible that a California court would read the distinction as having a specific purpose.

I think the simplest solution would be for Congress to establish limits:

(1) Maximum 1% deviation;
(2) Maximum standard deviation 0.5%;

Neutral criteria approved by the legislature 5 years before the Census.

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« Reply #169 on: October 13, 2012, 09:24:15 am »

The Supreme Court has unanimously approved the population deviation present in the WV remapping plan.
Here's the text of the decision. This is a big win for states that wish to apply neutral criteria and avoid arbitrary splits or groupings solely to minimize population deviation. It reverses the trend towards the need for computers to minimize population deviations. In principle, a commission like in CA could have avoided a number of municipal splits that were needed for exact equality.

This is the key part of the decision where the Court quotes from Karcher v Daggett:

Quote from: SCOTUS in Tennant v Jefferson County Commissioners
This burden [the burden on the State] is a “flexible” one, which “depend(s) on the size of the deviations, the importance of the State’s interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely.”

Most States are going to have difficulty demonstrating that they have consistently reflected those interests, both over time and within a plan.

That's why I think the decision may lend itself to use by commissions such as CA. They had a number of principles that were consistently applied and had to violate them to achieve exact population equality. If the population deviations were small otherwise the burden would shift to the plaintiffs to show that there was another viable plan that met the principles, but reduced the deviation.

As the WV case shows the plaintiff's burden requires meeting all of the state's valid criteria, which in their case included minimal population shifts between districts. Meeting only the historically consistent goal to keep counties intact was not sufficient to overturn the WV map.

The California Constitution itself makes a distinction between congressional and legislative districts.

Quote from: California Constitution Article 21 Section 2(d)(1)
(1) Districts shall comply with the United States Constitution.  Congressional districts shall achieve population equality as nearly as is practicable, and Senatorial, Assembly, and State Board of Equalization districts shall have reasonably equal population with other districts for the same office, except where deviation is required to comply with the federal Voting Rights Act or allowable by law.

It is plausible that a California court would read the distinction as having a specific purpose.

I think the simplest solution would be for Congress to establish limits:

(1) Maximum 1% deviation;
(2) Maximum standard deviation 0.5%;

Neutral criteria approved by the legislature 5 years before the Census.



I assume the CA SC would read the language as SCOTUS has, which is that there is a distinction, but as just decided practicable must take into account other neutral factors used to make the map. The use of practicable is now taken to mean that another plan that meets the criteria but achieves lower deviation should be considered instead.

I like the suggestion for Congress to set some guidelines to constrain redistricting for that body. By deviation, I assume you mean the total deviation from largest to smallest. You might substitute average deviation for standard deviation since that has been the practice in those states that explicitly use that criteria. I would also add a fallback provision in the law outlining neutral criteria to be used if that state failed to meet its timely obligation.
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« Reply #170 on: October 16, 2012, 09:33:41 pm »
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The California Constitution itself makes a distinction between congressional and legislative districts.

Quote from: California Constitution Article 21 Section 2(d)(1)
(1) Districts shall comply with the United States Constitution.  Congressional districts shall achieve population equality as nearly as is practicable, and Senatorial, Assembly, and State Board of Equalization districts shall have reasonably equal population with other districts for the same office, except where deviation is required to comply with the federal Voting Rights Act or allowable by law.

It is plausible that a California court would read the distinction as having a specific purpose.

I think the simplest solution would be for Congress to establish limits:

(1) Maximum 1% deviation;
(2) Maximum standard deviation 0.5%;

Neutral criteria approved by the legislature 5 years before the Census.



I assume the CA SC would read the language as SCOTUS has, which is that there is a distinction, but as just decided practicable must take into account other neutral factors used to make the map. The use of practicable is now taken to mean that another plan that meets the criteria but achieves lower deviation should be considered instead.

I like the suggestion for Congress to set some guidelines to constrain redistricting for that body. By deviation, I assume you mean the total deviation from largest to smallest. You might substitute average deviation for standard deviation since that has been the practice in those states that explicitly use that criteria. I would also add a fallback provision in the law outlining neutral criteria to be used if that state failed to meet its timely obligation.

California senate districts are larger than congressional districts, and assembly districts are over 50% as large.   If "practicable" means more exact than "reasonable", then congressional districts would be expected to be more precisely equal in size than legislative districts.

When the California constitution was amended, "practicable" was understood to mean almost exactly equal, even if that understanding was based on an erroneous reading of Karcher v Daggett - or alternatively a poorly articulated standard by by the SCOTUS.

So a California court could go either way - determining that authors had a particular standard in mind, or they intended to recognize an ever-evolving standard.

I think that error should be measured from the mean (I would permit ±1%, rather 1% maximum minus minimum).   Use of standard deviation rewards aiming for the mean, while permitting deviation for more exceptional cases.   Use of average deviation says that +max deviation is just as good as zero deviation.  It suggests that one really wasn't shooting for the center of the target.

A State would not be obligated to define a neutral criteria.  They would be given the opportunity to define a neutral criteria, which would permit them greater flexibility.
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