by Chris Lewis

On Jan. 4, the U.S. District Court for the Southern District of West Virginia rejected the state’s new congressional map, the second state to have its map thrown out by the courts this redistricting cycle (Texas’ map was rejected in November). The 2-1 opinion from the U.S. District Court for the Southern District declared the maps unconstitutional due to population variance between the districts, a violation of the “one man, one vote” principle that has been in effect since the 1960’s. While it is commendable that the judges had this tenet in mind when crafting its decision, they deserve scrutiny for a result that will likely have little real impact outside of headaches for state officials and confusion for voters.

Unlike its counterpart in the Lone Star State, West Virginia’s map was passed without much acrimony, overwhelmingly approved by votes of 27-4 in the State Senate and 90-5 in the House of Delegates.  Though Democrats control both houses, just three Republicans voted against the new map, a stark contrast to other states that have seen redistricting turn into bitter partisan battles.  The legislature made just one change, shifting Mason County from the 2nd District (represented by Republican Shelley Moore Capito) to the 3rd District (represented by Democrat Nick Rahall).  The change represented about a one percent change in party affiliation in both districts.

As of the 2010 census, West Virginia’s population was 1,852,994.  If the state’s population were evenly divided among the three congressional districts each would contain about 617,665 citizens.  The rejected map would have had just under 5,000 more people in the 2nd District than in either of the other two.  While this figure may seem high, it is below the deviation of ten percent that has been the “cutoff point” typically held in cases of this nature, including in a challenge to West Virginia’s own redistricting plan in 1971.

It appears that the court has gone against precedent in this case.  While ideally, of course, each congressional district in a state would have the same population, courts have recognized the principle that redistricting is not required if population deviations are below ten percent.

In addition, the court’s ruling creates serious timing problems.  Originally, the court gave the legislature until Jan. 18 to draw a new electoral map, before it would create one itself.  With the 60-day legislative session not set to begin until Jan. 11, this would have given lawmakers less than one week to design, debate, and vote on the new map.  Though this deadline has since been eliminated, it has functionally only been moved 11 days back to Jan. 28, the state’s filing deadline.  While West Virginia law does not require that one live in a district to run as a representative of it, surely the potential to have a radically changed map—as Senate Majority Leader (an opponent of the original plan) has proposed—creates uncertainty for those considering to challenge the incumbent Representatives in either the primary or general election.

Secretary of State Natalie Tennant has outlined further election problems that could result from the court’s order.

“Even though the panel implied that an election is merely an event which takes place on one day and that the secretary has nearly four months to prepare, many mandated deadlines exist prior to May 8,” Tennant said in a statement released Jan. 10., “Absentee ballots are required by federal law to be mailed to overseas and military voters no later than March 23. Before ballots can be mailed, they must be designed, positions selected by lot, proofed and approved and candidates must have time to file.”

Considering these issues, it appears that the court’s rejection was ill-advised.  While the court plays an important role in assessing the fairness of electoral maps, it cannot and should not supersede the right of the legislature to create fair congressional districts.  While West Virginia’s three districts may not have had equivalent populations under the original map, the deviation was within the boundary normally considered to be acceptable in the redistricting process.  And when taking into account important electoral deadlines that are fast approaching, it appears likely that the court may be forced to craft the new map itself.  Such a move should be reserved for times when a state legislature cannot pass any fair map, not in situations where one is passed with wide bipartisan majorities.

Chris Lewis is a first-year student at William and Mary Law.


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