by Delegate Barbara Evans Fleischauer
Our state constitution uses mandatory language to spell out how redistricting is to be conducted. In Article 1, section 4 and Article 6, sections 4-10, the word “shall” is used 26 times. The West Virginia Supreme Court has held repeatedly that “shall means shall.”
Those constitutional provisions give our state legislature three duties following every national census: drawing new House of Delegates districts; new state Senate districts; and new U.S. House of Representatives districts.
Significantly, every section dealing with redistricting makes explicit reference to counties. The most specific language relates to state Senate districts, which must be “bounded by county lines.” Congressional districts must “be formed of contiguous counties” (counties that touch) and must be compact. And our constitution provides for two different types of House of Delegates districts — a district composed of one entire county or a district composed of two or more contiguous counties.
In the 1960s, the U.S. Supreme Court interpreted our federal Constitution to require the number of persons in each legislative district be substantially equal. Similar language is contained in our state constitution. Substantial equality for state legislative districts has been interpreted to mean plus or minus 5% difference.
The U.S. constitution is the supreme law of the land. But the West Virginia Legislature is required to act in compliance with the state constitution to the extent it can without conflicting with the federal constitution.
With respect to state redistricting, the Legislature has strayed from the mandatory language about counties in our state constitution, using the excuse that such departures are required by federal law. This has led to skewed results that look like gerrymandering.
Two examples demonstrate this. For some time, Monongalia County’s population has been close to justifying a senatorial district by itself. But instead of following the rule that state senatorial districts be “bounded by county lines,” Monongalia County currently has three senatorial districts (the 2nd, 13th and 14th) that span 19 counties. Because of population increases, there can be no debate Monongalia County should be entitled to its own senatorial district.
Putnam County has also been chopped up into several delegate districts. After the 2010 census, its population would have justified three delegates by itself, all within the boundaries of the county. Instead, Putnam County was divided into five delegate districts (the 13th, 14th, 15th, 22nd and 38th), spanning seven counties.
More than most states, West Virginians identify themselves as being residents of a particular county, rather than as residents of cities or towns. The state constitutional requirements that districts should respect counties conform to this view.
Further, redistricting along county lines makes it harder to gerrymander. County boundaries provide hard barriers that can limit mischief. For example, if county lines are ignored, district lines could be drawn placing an incumbent’s opponent in a district that includes large parts of another county where party registration is different, making it harder for the opponent to win.
Ironically, the Legislature has always been able to follow the state constitutional language about keeping counties whole when doing Congressional redistricting without violating federal constitutional requirements.
Some states have independent redistricting committees with neutral requirements for creating legislative districts. But our state constitution requires the Legislature to draw up and vote on legislative boundaries. Unless we amend our constitution, which can’t happen in time, we cannot have a completely independent redistricting process.
The word “shall” appears 15 times in the Bill of Rights. No one would ever suggest we could pick and choose whether to follow the mandatory language in the first or second amendment of the Constitution. Similarly, it is wrong to ignore the “shall” that appears over two dozen times in state constitutional provisions dealing with redistricting.
In completing its redistricting duties, the West Virginia Legislature must adhere to mandatory language in our state constitution relating to counties, or explain fully, in writing, why any deviation from those rules is necessary.
Delegate Barbara Evans Fleischauer, D-Monongalia, is a lawyer, was chair of the House Committee on Constitutional Revision for 18 years and was a member of the Joint Redistricting Committee in 2000 and 2010.
