Tennant v. Jefferson County Commission , 133 S. Ct. 3 ( 2012 )

Cite as: 567 U. S. ____ (2012) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
NATALIE E. TENNANT, WEST VIRGINIA SECRETARY
OF STATE, ET AL. v. JEFFERSON COUNTY
COMMISSION, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
No. 11–1184. Decided September 25, 2012
PER CURIAM.
Plaintiffs in this case claim that West Virginia’s 2011
congressional redistricting plan violates the “one person,
one vote” principle that we have held to be embodied in
Article I, §2, of the United States Constitution. A three-
judge District Court for the Southern District of West
Virginia agreed, declaring the plan “null and void” and
enjoining West Virginia’s Secretary of State from imple-
menting it. App. to Juris. Statement 4. The state defend-
ants appealed directly to this Court. See 28 U. S. C.
§1253. Because the District Court misapplied the stand-
ard for evaluating such challenges set out in Karcher v.
Daggett, 462 U. S. 725 (1983), and failed to afford appro-
priate deference to West Virginia’s reasonable exercise of
its political judgment, we reverse.
* * *
Article I, §2, of the United States Constitution requires
that Members of the House of Representatives “be ap-
portioned among the several States . . . according to their
respective Numbers” and “chosen every second Year by the
People of the several States.” In Wesberry v. Sanders, 376
U. S. 1 (1964), we held that these commands require that
“as nearly as is practicable one man’s vote in a congres-
sional election is to be worth as much as another’s.” Id., at
7–8. We have since explained that the “as nearly as is
practicable” standard does not require that congressional
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districts be drawn with “precise mathematical equality,”
but instead that the State justify population differences
between districts that could have been avoided by “a good-
faith effort to achieve absolute equality.” Karcher, supra,
at 730 (quoting Kirkpatrick v. Preisler, 394 U. S. 526, 530–
531 (1969); internal quotation marks omitted).
Karcher set out a two-prong test to determine whether a
State’s congressional redistricting plan meets this stand-
ard. First, the parties challenging the plan bear the bur-
den of proving the existence of population differences that
“could practicably be avoided.” 462 U. S., at 734. If they
do so, the burden shifts to the State to “show with some
specificity” that the population differences “were necessary
to achieve some legitimate state objective.” Id., at 741,
740. This burden 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 alterna-
tives that might substantially vindicate those interests
yet approximate population equality more closely.” Id., at
741. As we recently reaffirmed, redistricting “ordinarily
involves criteria and standards that have been weighed
and evaluated by the elected branches in the exercise of
their political judgment.” Perry v. Perez, 565 U. S. ___, ___
(2012) (per curiam) (slip op., at 4). “[W]e are willing to
defer to [such] state legislative policies, so long as they are
consistent with constitutional norms, even if they require
small differences in the population of congressional dis-
tricts.” Karcher, supra, at 740.
In this case, plaintiffs claim that West Virginia’s redis-
tricting plan, adopted following the 2010 decennial United
States census, violates Article I, §2, of the United States
Constitution and, separately, the West Virginia Constitu-
tion. The 2010 census did not alter West Virginia’s alloca-
tion of three congressional seats. But due to popula-
tion shifts within the State, West Virginia nonetheless
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began redistricting to comply with the requirements in our
precedents.
In August 2011, the West Virginia Legislature convened
an extraordinary session, and the State Senate formed a
17-member Select Committee on Redistricting. The com-
mittee first considered a redistricting plan championed by
its chair, Majority Leader John Unger, and dubbed “the
Perfect Plan” because it achieved a population difference
of a single person between the largest and smallest dis-
tricts. That appears, however, to have been the only
perfect aspect of the Perfect Plan. State legislators ex-
pressed concern that the plan contravened the State’s
longstanding rule against splitting counties, placed two
incumbents’ residences in the same district, and moved
one-third of the State’s population from one district to
another.
The following day, members of the Redistricting Com-
mittee introduced seven additional plans. The committee
eventually reported to the full Senate the eighth proposal,
referred to as S. B. 1008. The full Senate rejected a ninth
proposal offered as an amendment on the floor and adopted
S. B. 1008 by a vote of 27 to 4. The House of Delegates
approved the bill without debate by a vote of 90 to 5.
Governor Earl Tomblin signed the bill into law on August
18, 2011.
S. B. 1008, codified at W. Va. Code Ann. §1–2–3 (Lexis
2012 Supp.), does not split county lines, redistrict incum-
bents into the same district, or require dramatic shifts
in the population of the current districts. Indeed, S. B.
1008’s chief selling point was that it required very little
change to the existing districts: It moved just one county,
representing 1.5% of the State’s population, from one
district to another. This was the smallest shift of any plan
considered by the legislature. S. B. 1008, however, has a
population variance of 0.79%, the second highest variance
of the plans the legislature considered. That is, the popu-
4 TENNANT v. JEFFERSON COUNTY COMMISSION
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lation difference between the largest and smallest districts
in S. B. 1008 equals 0.79% of the population of the average
district.
The Jefferson County Commission and two of its county
commissioners sued to enjoin the State from implementing
S. B. 1008. At trial, the State conceded that it could have
adopted a plan with lower population variations. The
State argued, however, that legitimate state policies justi-
fied the slightly higher variances in S. B. 1008, citing
this Court’s statement from Karcher that “[a]ny number
of consistently applied legislative policies might justify
some variance, including, for instance, making districts com-
pact, respecting municipal boundaries, preserving the
cores of prior districts, and avoiding contests between
incumbent Representatives.” 462 U. S., at 740. The State
noted Karcher’s approving reference to a District Court
opinion upholding a previous West Virginia redistricting
plan with a population variance of 0.78%—virtually iden-
tical to the variance in S. B. 1008. See id., at 740–741
(citing West Virginia Civil Liberties Union v. Rockefeller,
336 F. Supp. 395 (SD W. Va. 1972)).
The District Court nonetheless granted the injunction,
holding that the State’s asserted objectives did not justify
the population variance. With respect to the objective of
not splitting counties, the District Court acknowledged
that West Virginia had never in its history divided a
county between two or more congressional districts. The
court speculated, however, that the practice of other States
dividing counties between districts “may portend the
eventual deletion” of respecting such boundaries as a
potentially legitimate justification for population vari-
ances. App. to Juris. Statement 15, n. 6. The court also
faulted the West Virginia Legislature for failing “to create
a contemporaneous record sufficient to show that S. B.
1008’s entire 4,871-person variance—or even a discrete,
numerically precise portion thereof—was attributable” to
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the State’s interest in respecting county boundaries and
noted that several other plans under consideration also
did not split counties. Id., at 15, 16.
The court further questioned the State’s assertion that
S. B. 1008 best preserved the core of existing districts.
Preserving the core of a district, the court reasoned, in-
volved respecting the “ ‘[s]ocial, cultural, racial, ethnic, and
economic interests common to the population of the area,’ ”
id., at 17 (quoting Graham v. Thornburgh, 207 F. Supp. 2d
1280, 1286 (Kan. 2002)), not a “dogged insistence that
change be minimized for the benefit of the delicate citi-
zenry,” App. to Juris. Statement 20. The District Court
concluded that although acclimating to a new congressional
district and Congressperson “may give rise to a modicum
of anxiety and inconvenience, avoiding constituent discom-
fort at the margins is not among those policies recognized
in Karcher as capable of legitimizing a variance.” Ibid.With respect to preventing contests between incum-
bents, the District Court again faulted the legislature for
failing to build a record “linking all or a specific part of
the variance” to that asserted interest. Id., at 22. And the
District Court found that although 0.79% was a minor
variation when Karcher was decided, the feasibility of
achieving smaller variances due to improved technology
meant that the same variance must now be considered
major. Because the District Court concluded that the
redistricting plan was unconstitutional under Article I, §2,
it did not reach plaintiffs’ challenges under the West
Virginia Constitution.
Chief Judge Bailey dissented. He argued that the rec-
ord demonstrated the legitimacy of the State’s concerns,
and that no other plan satisfied all those concerns as well
as S. B. 1008. He also took issue with the majority’s dis-
regard for Karcher’s characterization of 0.78% as an ac-
ceptable disparity. App. to Juris. Statement 39.
We stayed the District Court’s order pending appeal to
6 TENNANT v. JEFFERSON COUNTY COMMISSION
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this Court, 565 U. S. ___ (2012), and now reverse.
Given the State’s concession that it could achieve smaller
population variations, the remaining question under Kar-
cher is whether the State can demonstrate that “the
population deviations in its plan were necessary to achieve
some legitimate state objective.” 462 U. S., at 740. Con-
sidering, as Karcher instructs, “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 substan-
tially vindicate those interests,” id., at 741, it is clear
that West Virginia has carried its burden.
As an initial matter, the District Court erred in conclud-
ing that improved technology has converted a “minor”
variation in Karcher into a “major” variation today. Noth-
ing about technological advances in redistricting and
mapping software has, for example, decreased population
variations between a State’s counties. See id., at 733, n. 5.
Thus, if a State wishes to maintain whole counties, it will
inevitably have population variations between districts
reflecting the fact that its districts are composed of un-
evenly populated counties. Despite technological advances,
a variance of 0.79% results in no more (or less) vote dilu-
tion today than in 1983, when this Court said that such
a minor harm could be justified by legitimate state
objectives.
Moreover, our cases leave little doubt that avoiding
contests between incumbents and not splitting political
subdivisions are valid, neutral state districting policies.
See, e.g., id., at 740. The majority cited no precedent for
requiring legislative findings on the “discrete, numerically
precise portion” of the variance attributable to each factor,
and we are aware of none.
The District Court dismissed the State’s interest in
limiting the shift of population between old and new dis-
tricts as “ham-handed,” id., at 19, because the State con-
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sidered only “discrete bounds of geography,” rather than
“ ‘[s]ocial, cultural, racial, ethnic, and economic interests
common to the population of the area.’ ” Id., at 17 (quoting
Graham v. Thornburgh, supra, at 1286). According to the
District Court, that did not qualify as “preserving the
cores of prior districts” under Karcher, 462 U. S., at 740–
741.
Regardless of how to read that language from Karcher,
however, our opinion made clear that its list of possible
justifications for population variations was not exclusive.
See id., at 740 (“Any number of consistently applied legis-
lative policies might justify some variance, including, for
instance, . . .”). The desire to minimize population shifts
between districts is clearly a valid, neutral state policy.
See, e.g., Turner v. Arkansas, 784 F. Supp. 585, 588–589
(ED Ark. 1991), summarily aff ’d, 504 U. S. 952 (1992).
S. B. 1008 achieves significantly lower population shifts
than the alternative plans—more than four times lower
than the closest alternative, and more than 25 times lower
than others.
None of the alternative plans came close to vindicating
all three of the State’s legitimate objectives while achiev-
ing a lower variance. All other plans failed to serve at
least one objective as well as S. B. 1008 does; several were
worse with respect to two objectives; and the Perfect Plan
failed as to all three of the State’s objectives. See App. to
Juris. Statement 43–45. This is not to say that anytime
a State must choose between serving an additional le-
gitimate objective and achieving a lower variance, it may
choose the former. But here, given the small “size of the
deviations,” as balanced against “the importance of the
State’s interests, the consistency with which the plan as a
whole reflects those interests,” and the lack of available
“alternatives that might substantially vindicate those in-
terests yet approximate population equality more closely,”
Karcher, supra, at 741, S. B. 1008 is justified by the
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State’s legitimate objectives.
Because the District Court did not reach plaintiffs’
claims under the West Virginia Constitution and the issue
has not been briefed by the parties, we leave it to the
District Court to address the remaining claims in the first
instance. The judgment of the United States District
Court for the Southern District of West Virginia is re-
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.