Prof. Justin Levitt's Guide to Drawing the Electoral Lines
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Summary

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Equal population

The U.S. Constitution requires that each district have about the same population: each federal district within a state must have about the same number of people, each state district within a state must have about the same number of people, and each local district within its jurisdiction must have about the same number of people. Congressional districts. The standard for congressional districts allows relatively small deviations, when deployed in the service of legitimate objectives. States must make a good-faith effort to draw districts with the same number of people in each district within the state, and any district with more or fewer people than the average must be justified by a consistent state policy. But consistent policies that leave a relatively small spread from largest to smallest district will likely be constitutional. In 2012, for example, the Supreme Court approved a congressional plan in West Virginia with 0.79% population variation based on keeping county lines intact. These population counts are calculated based on the total number of people in each state, including children, noncitizens, and others not eligible to vote. After the Civil War, we amended the Constitution to ensure that each and every individual present in the country would be represented in federal districts. On July 21, 2020, the President purported to suggest that he had the authority to exclude undocumented individuals from the census count — if valid, that could end up affecting not only how many districts the states get, but how those districts are divided within a state. But the President’s memo isn’t likely to hold up: both the Constitution and federal statutes are clear about who gets counted for Congress. Litigation over the issue is well underway. State and local legislative districts have a bit more flexibility on the numbers; they have to be “substantially” equal. Over a series of cases, it has become accepted that a plan will be constitutionally suspect if the largest and smallest districts are more than ten percent apart. This is not a hard line: a state plan may be upheld if there is a compelling reason for a larger disparity, and a state plan may be struck down if a smaller disparity is not justified by a good reason. Some states hold their state districts to stricter population equality limits than the federal constitution requires. Colorado, for example, allows at most five percent total deviation between the largest and smallest districts; Missouri asks districts to be no more than one percent above or below the average, except that deviations of up to three percent are permitted to maintain political boundaries. Iowa both limits the total population deviation to five percent, and also sets the overall average deviation at no more than one percent. As far as who is counted for purpose of equalizing state and local districts, the Supreme Court has been less definitive about what the Constitution requires. In 2011, each and every state counted the total population. But some have suggested other measures, including voting-age population (“VAP”), citizen voting-age population (“CVAP”), or registered voters. Each of these alternatives depends on a logic of exclusion, denying representation to those who pay taxes and who are expected to live by our laws. Though the Supreme Court has formally left this question for a future case, their last word in the area left serious question as to whether such measures would be constitutional.

Content on this page last updated on Feb 22, 2021