Based on the recent redistricting saga in New Hampshire, I’ve published this essay at Real Clear Politics. Maine went through a similar extended saga with its two congressional districts in the 2010 round of redistricting. Here’s an excerpt:

In New Hampshire, a prolonged impasse between the Republican governor and the Republican legislature over how to redraw the state’s two districts to “correct” a tiny population imbalance wound up in the courts, and the state Supreme Court eventually appointed a special master to resolve it. To create a plan that satisfied federal constitutional doctrine requiring equally populated districts – the one-person, one-vote doctrine – the special master moved a total of 8,973 people between the two districts. The “ideal” population for a congressional district in New Hampshire is 688,765 people: 8,973 people represents 1.3% of that.This scenario, which is not unique – Maine went through a similar saga with its two districts in 2010 – raises two questions.

First, are there strong enough policy reasons to require a state to create new districts if the new census reveals that the existing districts are out of line with “perfect” population equality by such small amounts? Requiring new districts to be drawn even in the face of such tiny population disparities is not a painless fix – significant conflicts can result within legislatures, between legislatures and governors, and between courts and special masters. All this consumes significant political and judicial capital and can poison political relationships in the state. Are the benefits significant enough to offset that?

Second, does constitutional doctrine in fact require that states draw new districts, even when the variance between districts of about 700,000 people (the ideal district on a nationwide basis is around 761,000 people) reaches a total of only 2.6%, as in New Hampshire? Put another way, could New Hampshire have simply left its two prior districts intact, and would the U. S. Supreme Court have upheld that, despite these minor population deviations?

On the first question, the census numbers are themselves not accurate enough for us to know that one district is above or below the ideal population by 8,973 people. Indeed, the special master’s report itself goes out of its way to point that out, as if acknowledging the surreal nature of the process.

In New Hampshire, a prolonged impasse between the Republican governor and the Republican legislature over how to redraw the state’s two districts to “correct” a tiny population imbalance wound up in the courts, and the state Supreme Court eventually appointed a special master to resolve it. To create a plan that satisfied federal constitutional doctrine requiring equally populated districts – the one-person, one-vote doctrine – the special master moved a total of 8,973 people between the two districts. The “ideal” population for a congressional district in New Hampshire is 688,765 people: 8,973 people represents 1.3% of that.

Second, does constitutional doctrine in fact require that states draw new districts, even when the variance between districts of about 700,000 people (the ideal district on a nationwide basis is around 761,000 people) reaches a total of only 2.6%, as in New Hampshire? Put another way, could New Hampshire have simply left its two prior districts intact, and would the U. S. Supreme Court have upheld that, despite these minor population deviations?

On the first question, the census numbers are themselves not accurate enough for us to know that one district is above or below the ideal population by 8,973 people. Indeed, the special master’s report itself goes out of its way to point that out, as if acknowledging the surreal nature of the process.

People might also have moved out of state, of course, since the last census was taken. But even if these numbers were entirely accurate, is there any meaningful sense in which the votes of people in one district are diluted – which is what the one-vote, one-person doctrine is based on – when the larger district has 17,946 more people than the smallest one, in districts of nearly 690,000 people?

Beyond avoiding the political and legal conflict often caused by redistricting, leaving the prior districts intact in the face of tiny population variations has other advantages. Keeping districts as they are can preserve existing relationships and help voters know who their representative is; in New Hampshire’s case, the special master had to take five towns and move them from one district to another to produce two districts that differed in population by only one person.

What does Supreme Court doctrine say about all this? Court precedents can indeed be read literally to require perfectly equal populations for congressional districts. “States must draw congressional districts with populations as close to perfect equality as possible,” the court ruled in Evenwel v. Abbott (2016), and much earlier, in the 1983 Karcher v. Daggett case, it declared that “absolute population equality [is] the paramount objective.” In Karcher, the court held that “the ‘as nearly as practicable’ standard requires that the State make a good-faith effort to achieve precise mathematical equality,” maintaining that “Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small.”

But Supreme Court doctrine might not be as rigid as is widely assumed. In Tennant v. Jefferson County Commission (2012), the court unanimously upheld a West Virginia congressional plan even though the population variance was 0.79%, because the state successfully argued that this departure from perfect population equality enabled it to avoid splitting counties and preserve the core of existing districts. Tennant suggests that the court, rightly, thought that there should be a bit more flexibility in population requirements, for legitimate justifications, than the more rigid view seemingly demanded in other rulings.

Nonetheless, most redistricters continue to believe in the doctrine of perfect population equality for congressional districts; the safest thing for them to do to avoid the risk that a court might strike their plans down is to redraw districts to create (an illusory) perfect population equality. Thus, no state keeps its prior districts intact, even if there has been little population movement between them over the past decade. As a result, we will continue to see drawn-out, costly redistricting battles, such as that in New Hampshire, even when the largest and smallest districts differ by such tiny margins.