Desena v. State

• Decision Date: 21 June 2011
• Docket Number: Civil Action No. 1:11–cv–117.
• Citation: 793 F.Supp.2d 456
• Parties: William DESENA and Sandra W. Dunham, Plaintiffs,v.State of MAINE et al., Defendants.
• Court: U.S. District Court — District of Maine

793 F.Supp.2d 456

William DESENA and Sandra W. Dunham, Plaintiffs,

v.State of MAINE et al., Defendants.

Civil Action No. 1:11–cv–117.

United States District Court, D. Maine.

June 21, 2011.

Timothy C. Woodcock, Eaton Peabody, Bangor, ME, for Plaintiffs.Paul Stern, Office of the Attorney General, Phyllis Gardiner, Maine Attorney General's Office, Augusta, ME, for Defendants.Janet T. Mills, Preti, Flaherty, Beliveau, Pachios & Haley, LLP, Augusta, ME, for Intervenor Defendant Maine Democratic Party.Before SELYA,^* Circuit Judge, HORNBY and SINGAL, District Judges.

MEMORANDUM AND ORDER

SELYA, Circuit Judge.

This case, brought in the aftermath of the 2010 decennial census, posits that population shifts have made Maine's two congressional districts unequal and that, given Maine's redistricting format, the disparity will not be rectified before the 2012 election. The upshot, the plaintiffs say, is unconstitutional vote dilution.

To put this claim in perspective, we begin with an overview of Maine's approach to congressional apportionment. Following each federal decennial census, Maine (like every other state) receives population data and an allotment of congressional seats from the federal government. See 2 U.S.C. § 2a(a)-(b). For many years, Maine traveled a well-worn path, see Nat'l Conf. of State Legis., Redist. Law 2010 180–86 (2009), and redrew district lines in the interlude between the release of the official census data and the next congressional election. See Opinion of the Justices, 283 A.2d 234, 235 (Me.1971).

In 1975, Maine veered from this path. The genesis of this deviation can be traced to an amendment to the state constitution requiring that state legislative reapportionment be completed in 1983 and at ten-year intervals thereafter. See Me. Const. art. IV, pt. 2, § 2; see also In re 1983 Legis. Apport. of House, Senate, and Cong. Dists., 469 A.2d 819, 822–24 (Me.1983). The legislature subsequently enacted a statute that made the same time line applicable to congressional redistricting. See Me.Rev.Stat. tit. 21–A, § 1206.

Under this blueprint, the legislature convening in the third year after each decennial census is tasked with establishing a bipartisan apportionment commission (the Commission). Id. § 1206(1). The Commission is charged with reviewing the census data and submitting a recommended redistricting plan. Id. If the legislature fails to adopt either the Commission's plan or a surrogate within a prescribed time frame, the obligation to reapportion becomes the responsibility of the Maine Supreme Judicial Court. Id. § 1206(2). In either event the redrawn districts take effect for use in the election cycle that occurs in the fourth calendar year following the census year. For example, when the results of the 2000 census were received, reapportionment took place in 2003; and the new district lines (congressional and legislative) were first used in the 2004 election cycle.

At all times material hereto, Maine has been allotted two seats in the United States House of Representatives. According to the 2000 census, it had 1,274,923 residents. After a legislative stalemate, the Supreme Judicial Court drew the district lines. See In re 2003 Apport. of the State Senate and U.S. Cong. Dists., 827 A.2d 844, 845 (Me.2003). As apportioned, the first congressional district contained 637,450 residents and the second district contained 637,473 residents. These districts were used for the 2004, 2006, 2008, and 2010 congressional elections.

In March of 2011, Maine received the 2010 decennial census data from the federal government. These figures revealed that the state's population had swelled to a total of 1,328,361 residents. The population of the first district had grown to 668,515, whereas the population of the second district had only increased to 659,846. Thus, the population differential between the two districts had widened from 23 residents to 8,669 residents.

The next regularly scheduled congressional election will occur in November of 2012. Pursuant to Maine law, the lines demarcating its two districts will not be redrawn until 2013.

The plaintiffs, William Desena and Sandra Dunham, are residents of, and registered voters in, Cape Elizabeth (a community that lies wholly within Maine's first congressional district). Four days after Maine received the 2010 census data, they sued the state, a state agency, and a coterie of state officials.¹ They challenge the constitutionality of Maine's congressional redistricting scheme on its face and as applied. The district court found the constitutional challenge colorable and, upon its certification to that effect, the Chief Judge of the United States Court of Appeals for the First Circuit convened a three-judge court. See 28 U.S.C. § 2284(a). The court allowed the Maine Democratic Party to intervene as a defendant.

Following a preliminary hearing, the parties stipulated to the facts and engaged in extensive briefing. On June 9, 2011, the court heard oral arguments and, at the conclusion of the hearing, ruled ore tenus that Maine's current congressional apportionment is unconstitutional and that the 2012 congressional election cannot go forward under that apportionment. The court informed the parties that it would issue an explicative opinion at a later date. This rescript is intended as the fulfillment of that promise.²

Refined to bare essence, the plaintiffs claim that the Maine legislature has a constitutional obligation, following the receipt of new decennial census data, to reapportion the state's congressional districts in time for the next election (the facial challenge) and that, in all events, the legislature has an obligation to reapportion the current congressional districts in light of received data from the 2010 census showing a significant inter-district disparity in population (the as-applied challenge). The state defendants concede the force of the as-applied challenge, but the intervenor insists that Maine's scheme passes constitutional muster both on its face and as applied. Because we conclude, on the facts of this case, that the state's failure to redraw the district lines in time for the 2012 election violates Article I, Section 2 of the Constitution, we need not address the plaintiffs' facial challenge.

Congressional apportionment demands an exacting balance. The Constitution requires that each congressional district within a state should be equal in population. U.S. Const. art. I, § 2; see id. amend. XIV, § 2. While absolute equality is not required—the command of Article I, Section 2 is aspirational rather than literal—the state must seek “to achieve precise mathematical equality.” Kirkpatrick v. Preisler, 394 U.S. 526, 530–31, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). The goal is that “as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.” Wesberry v. Sanders, 376 U.S. 1, 7–8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The goal, then, is to make congressional districts within the state as nearly equal as is practicable under all the circumstances.

The Supreme Court has choreographed a two-step pavane for demonstrating that a state's congressional districts do not achieve this goal. First, a challenger must show that a population disparity exists, which “could have been reduced or eliminated altogether by a good-faith effort to draw districts of equal population.” Karcher v. Daggett, 462 U.S. 725, 730, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983). Once the challenger makes that showing, the devoir of persuasion shifts to the party defending the apportionment to justify the population differential. Kirkpatrick, 394 U.S. at 531–32, 89 S.Ct. 1225. If no such showing is made, the apportionment fails. We follow this burden-shifting model here.

The initial question is whether a significant population disparity exists. The plaintiffs have the burden of proof on this issue. Karcher, 462 U.S. at 730–31, 103 S.Ct. 2653. Where, as here, a numerical disparity exists, the plaintiffs' burden is not a heavy one: the Supreme Court has explained that, in the context of congressional apportionment, even “ de minimis population variations” offend the command of Article I, Section 2. Id. at 734, 103 S.Ct. 2653.

The existence of a numerical disparity is beyond question. According to the 2010 census, Maine's first congressional district has 8,669 more residents than Maine's second congressional district. This amounts to a deviation of 0.6526 percent.³ This variation is significant; it is greater, in both absolute and percentage terms, than variances previously deemed unconstitutional by the Supreme Court in congressional apportionment cases. See, e.g., Karcher, 462 U.S. at 728, 734, 103 S.Ct. 2653 (rejecting disparity of 3,674 residents and deviation from ideal of 0.1384 percent); Kirkpatrick, 394 U.S. at 529–30 & n. 1, 89 S.Ct. 1225 (rejecting deviation from ideal of 0.19 percent as not per se de minimis).

In an effort to blunt the force of this reasoning, the intervenor argues that the disparity here falls within acceptable limits because the Court occasionally has approved larger variances. See, e.g., White v. Regester, 412 U.S. 755, 764, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Gaffney v. Cummings, 412 U.S. 735, 740–41, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). This argument rests on quicksand. The cases to which the intervenor adverts are, without exception, cases dealing with the reapportionment of state legislative districts, not congressional districts. This difference renders those cases inapropos. States enjoy materially greater latitude in apportioning state legislative districts—a process vetted under the general provisions of the Equal Protection Clause—than they do in apportioning congressional districts a process vetted under the specific provisions of Article I, Section 2. See White v. Regester, 412 U.S. at 763, 93 S.Ct. 2332; see also Brown v. Thomson, 462 U.S. 835, 850 n. 2, 103 S.Ct. 2690,...