By Rob Tyson
On April 20, the US Supreme Court held in Harris v. Arizona Independent Redistricting Commission that Arizona’s legislative redistricting plan with an 8.8% deviation did not violate the 14th Amendment. Justice Breyer delivered the opinion for a unanimous court.
In Harris, the plaintiffs claimed the independent commission which drew the plan, had not distributed the Arizona residents into districts of equal population, but, to the contrary, had put more people into Republican districts, and less people into Democratic districts. The plaintiffs claimed this assisted the Democrats by making it easier to be elected. The Court held that the deviation itself does not demonstrate a constitutional violation. Instead, as the Court explained, “the plaintiffs must show it is more probable than not that the deviation reflects the predominance of illegitimate reapportionment factors rather than ‘legitimate considerations.’”
The Supreme Court has held that population deviation up to 10% is constitutionally permissible when such deviation is justified by legitimate factors supporting a rational state policy. In Harris, although the deviation was less than 10%, the plaintiffs alleged the independent commission had manipulated the size of the districts solely to enhance the Democrat’s ability to elect more candidates, otherwise known as partisan gerrymandering.
At trial, evidence was introduced demonstrating the plan had been drawn to meet the requirements of the Voting Rights Act. Specifically, the plan maintained the number of “ability to elect districts” as mandated by the Voting Rights Act. The Court concluded “the population deviations were primarily the result of good-faith efforts to comply with the VRA.” As a result, the Court concluded, “the plaintiffs have not shown it is more probable than not that illegitimate considerations were the predominant factor…”
The impact of this ruling should be slight given that states traditionally have drawn plans with deviation up to 10% and with the understanding of the necessity to demonstrate legitimate redistricting criteria to support their plans.
 In a legislative district plan, the districts are required to have equal population, but for state legislative districts, they can have a deviation of 10%. In this context deviation of up to 10% allows a district to go over the desired goal by 5% or go under by 5%. For example, if a state had a population of 100,000 residents and had 10 legislative districts, the ideal size of each district would be 10,000 residents. Thus, a state could draw a district up to 5% less or 5% more of the ideal district of 10,000 residents.
Harris v. Arizona Independent Redistricting Commission, April 20, 2016 Slip Copy 2016 WL 1574579. See here.
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