McClure v. Secretary of the Commonwealth

Sosman, J.

(dissenting, with whom Greaney and Cowin, JJ., join). According to the 2000 census on which the challenged redistricting plan is based, the population of the town of Chelmsford is 33,858. The ideal population size of each district (in order to achieve perfect population equality across all 160 districts) would be 39,682. Thus, the entire population of Chelmsford comprises less than a single district and would, ideally, be combined with a portion of one other municipality to create a district of the perfect size. I understand that such ideal redistricting is impossible, and that compromises on both population equality and territorial integrity of the districts must be made in order to obtain a redistricting plan that, as a whole, satisfies both objectives of art. 101, § 1, as amended by arts. 109, 117, and 119 of the Amendments to the Massachusetts Constitution.

The Legislature has split Chelmsford into four separate districts (where it was previously contained within a single district, St. 1993, c. 273, § 1), placing 10,943 Chelmsford residents in the Second Middlesex district (total district population of 39,881), 7,759 Chelmsford residents in the Fourteenth Middlesex district (total district population of 39,509), 11,407 Chelmsford residents in the Sixteenth Middlesex district (total district population of 41,023), and 3,749 Chelmsford residents in the Seventeenth Middlesex district (total district population of 41,363). Chelmsford residents thus will comprise less than *628one third of the population of each of those districts.1 Chelms-ford’s territorial integrity has not been honored, nor has the pragmatic purpose underlying territorial integrity been met by creating any district in which Chelmsford residents predominate or even approach a majority.

The plaintiffs have submitted a proposed plan dividing Chelmsford into only two districts. The reconfiguration of the Second, Fourteenth, Sixteenth, and Seventeenth Middlesex districts proposed by the plaintiffs is virtually identical to the Legislature’s plan in terms of population equality and has no adverse impact on other districts. The plaintiffs have, by their proposed plan, met their initial burden of showing that a plan that protects Chelmsford’s territorial integrity can readily be formulated, and that such a plan can simultaneously satisfy the equally important art. 101 command of population equality, without causing undesirable “ripple effects” across other districts.2 See Brookline v. Secretary of the Commonwealth, 417 Mass. 406, 420-422 (1994). Where that burden has been met, the Legislature’s plain violates art. 101 if its division of Chelms-ford into more districts “is without justification.” Ante at 623. See Brookline v. Secretary of the Commonwealth, supra at 421.

The court today accepts as “justification” for this fragmenting of Chelmsford the claim that the Legislature’s plan achieves “a closer degree of population equality,” ante at 623, noting that “the Legislature . . . has the authority and the discretion to determine ‘the extent to which either of these requirements shall yield to the other.’ ” Ante at 624, quoting Merriam v. Secretary of the Commonwealth, 375 Mass. 246, 260 (1978).3 However, the claimed improvements in measurements of *629population equality are not only minuscule, but have been misapplied to the facts of this case in a fashion contrary to their use in other redistricting cases. Infinitesimal improvements in improperly calculated measures of population equality do not qualify as a legitimate excuse for doubling the number of divisions of a town that is itself smaller than a single district. Indeed, the population equality gains claimed are so trifling as to be mere coincidence, not the product of a legislative decision to give greater preference to such measurements of population equality at the expense of territorial integrity. Rather, this post hoc justification for fragmenting Chelmsford is contrary to the Legislature’s stated preferences as to how the balance between population equality and territorial integrity was to be struck. While I recognize that considerable deference must be accorded to legislative judgment in the complex redistricting process, the justification now proffered is devoid of any statistical significance and contrary to the Legislature’s expressed views on the subject.

The two sets of population figures compare as follows. For the Second Middlesex as configured in the redistricting statute, the district population is 39,881 (199 higher than the ideally sized district of 39,682), whereas the plaintiffs’ alternative plan for that same district gives it a population of 38,978 (704 lower than the ideal). For the Fourteenth Middlesex as designed by the statute, the population is 39,509 (173 lower than the ideally sized district), whereas the plaintiffs’ plan gives that district a population of 40,890 (1,208 higher than the ideal). For the Sixteenth Middlesex, the statute allocates a population of 41,023 *630(1,341 higher than the ideally sized district), whereas the plaintiffs’ plan gives that district a population of 40,981 (1,299 higher than the ideal). Finally, for the Seventeenth Middlesex, the redistricting statute assigns a population of 41,363 (1,681 higher than the ideally sized district), whereas the plaintiffs’ plan gives the district a population of 40,927 (1,245 higher than the ideal). Thus, the plaintiffs’ plan is closer to ideal size for two districts (Sixteenth and Seventeenth Middlesex), while the Legislature’s redistricting statute is closer to the ideal for the other two districts (Second and Fourteenth Middlesex). Moreover, the deviations in the plaintiffs’ plan are all smaller than the largest deviations for these four districts in the redistricting statute.4

The defendant argues, however, and the court today accepts as “justification,” that two statistical computations, applied to just these four districts in isolation, make the Legislature’s plan superior in terms of population equality. First, the defendant presents the calculation of the “average deviation” from the ideal across the four districts. Specifically, if we average the percentage by which the four districts as configured by the redistricting statute deviate from the ideally sized district, that “average deviation” is smaller than the “average deviation” calculated on the four districts in the plaintiffs’ plan. Under the. redistricting statute, the “average deviation” for the four districts is 2.14% (i.e., they are on average 2.14% off of the ideal district), whereas the “average deviation” for the same four districts under the plaintiffs’ plan is 2.81%. The difference between these two averages is thus .67, or two-thirds of one percentage point.

The other statistical measurement put forth to demonstrate the allegedly superior population equality of the redistricting *631statute is referred to as “maximum” or “total deviation,” which measures the difference between the largest and the smallest districts. Applying that measurement to just these four districts, the difference between the largest and smallest districts in the redistricting statute is 4.68%.5 Calculating that same measurement on the largest and smallest of these four districts in the plaintiffs’ plan, the difference is 5.04%.6 The difference between the two plans on this measurement applied to these four districts is a difference of .36, approximately one-third of one percentage point.

Thus, the alleged superiority of the redistricting statute in terms of population equality, that ostensibly justifies splitting Chelmsford (and Lowell) further than otherwise necessary, is measured in fractions of a single percentage point. While the Legislature is to be accorded great deference in weighing these competing interests, such de minimis improvements in population equality should not qualify as adequate justification for substantial derogation from the equally important constitutional requirement that territorial integrity be honored “as nearly as may be.” Art. 101, § 1.

Moreover, when we look at the proffered statistical measures applied to the two redistricting schemes as a whole, one of the claimed differences disappears entirely, and the other shrinks to near zero. The measurements of “average deviation” and “maximum deviation” are utilized in review of redistricting plans by applying them to the entirety of the plan being considered. All of the cases cited by the defendant in support of the use of these statistical measures apply them to the entirety of a districting scheme. See Abrams v. Johnson, 521 U.S. 74, 98-99 (1997) (applied to entirety of Georgia’s congressional districts); Brown v. Thomson, 462 U.S. 835, 838 (1983) (applied to entirety of Wyoming’s State representative districts); Karcher *632v. Daggett, 462 U.S. 725, 728 (1983) (entirety of New Jersey’s congressional districts); White v. Weiser, 412 U.S. 783,-785 (1973) (entirety of Texas’s congressional districts); White v. Regester, 412 U.S. 755, 761, 764 (1973) (Texas State representative districts); Gaffney v. Cummings, 412 U.S. 735, 737 (1973) (Connecticut State legislative districts). Not surprisingly, the defendant cites no authority for the proposition that these specific statistical measures are of any utility when applied to only a few districts within a much larger plan. A plan’s adherence to population equality requirements cannot be assessed by reference to anything less than the plan as a whole. After all, what is being assessed is the plan itself, not just some subset of districts within that plan. Thus, we should consider what difference in these statistical measurements for the entire plan would result if the plaintiffs’ alternative plan were to be adopted.

The measurement of “maximum deviation,” i.e., the difference between the largest and smallest districts in the entire plan, is the same under the redistricting statute as it is under the plaintiffs’ proposed alternative plan. Under either approach, the largest and smallest districts in the Commonwealth remain the same.7 Thus, viewing the plan as a whole, the maximum deviation measure of population equality is not any different under the redistricting statute than it is under the plaintiffs’ plan, and that measurement, properly applied, provides no “justification” whatsoever for doubling the divisions of Chelmsford.

Applying the measurement of “average deviation” to each plan as a whole yields an infinitesimal difference between the two. Specifically, the average deviation under the redistricting statute is 2.45%. In other words, considering all 160 districts, the average percentage by which they deviate from the ideal district size is 2.45%. Making the changes proposed in the plaintiffs’ alternative plan, the average deviation across the resulting 160 districts would be 2.47%, again meaning that, under that plan, the average percentage by which the districts *633over all would deviate from the ideal district size would be 2.47%. The difference between those two figures is a mere .02%, that is, two one-hundredths of one per cent. As illustration of the utterly de minimis quality of that figure, that magnitude of percentage difference, applied to the ideal district population of 39,682, amounts to an average difference of eight people per district. Given that the sizes of the various districts as configured by the statute differ by several thousand people, differences of only eight people per district are meaningless. The notion that Chelmsford’s fragmentation into four districts is justified by a desire to improve the distance from ideal population size by' a mere eight people per district is patently absurd.

The insignificance of this claimed superiority of the population equality provided by the Legislature’s redistricting statute may also be illustrated by comparing the magnitude of deviations tolerated by the Legislature in its redistricting statute to the magnitude of the deviations proposed in the plaintiffs’ plan. In the redistricting statute, the Legislature frequently accepted deviations from ideal population size far greater than the 1.77% to 3.37% deviations now proposed in the plaintiffs’ plan. The greatest deviation from ideal size in the plaintiffs’ plan is in their proposed Sixteenth Middlesex, with a population of 40,981 (or 1,299 higher than ideal). In the redistricting statute, there are twenty-four districts that are even larger than that (and thus even farther above the perfect district population of 39,682).8 Similarly, the statute has another twenty-six districts with a population that deviates by more than 1,299 below the ideal.9 Thus, there are fifty districts in the redistricting plan approved by the Legislature (or almost one third of the 160 districts) that are “worse” in terms of population equality than the “worst” of *634the deviations proposed in the plaintiffs’ plan. The plaintiffs’ plan is clearly well within what the Legislature viewed as an acceptable magnitude of deviation from population equality perfection, and there is no suggestion that the Legislature decided that territorial integrity had to yield in order to prevent deviations of the size presented by the plaintiffs’ plan.10

To the contrary, the Legislature expressly identified that its preference was to compromise population equality up to the maximum deviations permitted in order to preserve territorial integrity. As evidenced by the Joint Special Committee’s Report, the Legislature adopted the 5% standard (tolerating deviations from ideal size of up to 5% in either direction) as the appropriate population equality goal, and recognized that the “latitude” of the 5% measure had the desirable effect of allowing it “to keep together communities, which might be a bit smaller, as well as communities, which are a bit larger.” Joint Special Committee on the Redistricting and Reapportionment, Report Relative to a New Division of the Commonwealth into One Hundred and Sixty State Representative Districts, 2001 House Doc. No. 4700, at 5. There is no suggestion that the Legislature intended to split up communities in order to achieve imperceptible gains in “average population deviation.” The Joint Committee’s Report does not even mention the “average” deviation, let alone announce any goal of minimizing that “average.” Rather, the Legislature announced its intention to exploit the “latitude” of the 5% standard to “keep together communities.”11 That 5% standard accepts deviations from the ideal of up to 1,984 people per district, indicating that the *635Legislature had no desire to obsess over average differences on the order of eight people per district. In accordance with that standard, the Legislature accepted population deviations far larger than those in the plaintiffs’ plan and affirmatively utilized them so as to preserve and enhance territorial integrity. That is precisely what the plaintiffs’ plan does. As such, it is consistent with, not contrary to, the Legislature’s view of how the competing goals of population equality and territorial integrity are to be balanced.

There is no justification for the Legislature’s fragmenting of Chelmsford.12 We must show great deference to legislative judgment in the intensely political and highly complex matter of *636redistricting, but, in my view, the court today has improperly descended from deference to abdication. The eight person per district “gain” in average population deviation engendered by the Legislature’s plan is so de minimis as to be nonexistent, and reflects only mathematical coincidence, not legislative design. Meanwhile, the Legislature’s division of Chelmsford into four separate districts, with no district in which Chelmsford even comes close to a majority, deprives Chelmsford of any semblance of territorial integrity.13 The Legislature has broad discretion to balance the competing interests of population equality and territorial integrity. It does not have the discretion to abandon one of the mandates in art. 101 merely to achieve a couple hundredths of a per cent gain on one measure of the other competing mandate, nor did the Legislature indicate any intent to give any weight ■— let alone such inordinate weight — *637to that “average deviation” measure of population equality. Rather, the Legislature strived for, and the plaintiffs’ plan maintains, a total maximum population deviation of 9.68%, within the Federal standard, and claimed that it was using the “latitude” of that standard to preserve territorial integrity. It may not now point to its coincidental two one-hundredths of a percentage point improvement on a measurement it never even mentioned as the justification for depriving the town of Chelms-ford of anything resembling territorial integrity. The plaintiffs have shown, beyond a reasonable doubt, that there is no lawful justification for splitting Chelmsford into four districts and that the Legislature’s plan therefore violates art. 101. I therefore respectfully dissent.

Chelmsford residents will comprise 27% of the Second Middlesex district, 20% of the Fourteenth Middlesex district, 28% of the Sixteenth Middlesex district, and only 9% of the Seventeenth Middlesex district.

Beyond significantly improving Chelmsford’s territorial integrity, the plaintiffs’ plan places only wards of the city of Lowell in the Seventeenth Middlesex. Thus, the plaintiffs’ plan enhances the territorial integrity of Lowell as well.

The court’s attempt to minimize the importance of territorial integrity by reference to the evolution of art. 101 and to the history of ever increasing divisions of municipalities over the course of sequential redistricting plans is contrary to the express wording of the constitutional mandate at issue. “[S]uch districtjs] shall be formed, as nearly as may be, without uniting two counties *629or parts of two or more counties, two towns or parts of two or more towns, two cities or parts of two or more cities, or a city and a town, or parts of cities and towns, into one district” (emphasis added). Art. 101, § 1. The requirement of population equality is set forth in identical terms. The districts are to be formed “so that each representative will represent an equal number of inhabitants, as nearly as may be” (emphasis added). Id. Given that it is impossible to achieve both goals perfectly and simultaneously, the Legislature has the discretion to make compromises between the two as it configures the specific boundaries of the 160 districts. It does not have discretion to downgrade the importance of either of these constitutional mandates, which are of equal force and are required to meet the identical standard of “as nearly as may be.” The suggestion that the Legislature may simply treat territorial integrity as less important than population equality is contrary to the Constitution.

Specifically, the largest deviation in the plaintiffs’ plan is in the Sixteenth Middlesex, with a population of 40,981, or 1,299 higher than ideal. The redistricting statute has greater deviation from the ideal size in both the Sixteenth Middlesex (population 41,023, or 1,341 higher than ideal) and the Seventeenth Middlesex (population 41,363, or 1,681 higher than ideal). In percentage terms, the plaintiffs’ plan for these four districts deviates from the ideal by a maximum of 3.27%, whereas the statute’s provisions for these four districts has one district that is 4.24% higher than ideal and another district that is 3.38% higher than ideal.

That is, the largest district of these four, under the redistricting statute, is the Seventeenth Middlesex, at 4.24% higher than ideal, while the smallest district is the Fourteenth Middlesex, at .44% below ideal. The range between those two is thus 4.68%.

The largest district of these four, under the plaintiffs’ plan, is the Sixteenth Middlesex, at 3.27% higher than ideal, while the smallest district is the Second Middlesex, at 1.77% below ideal. The range between those two is thus 5.04%.

The largest district would still be the Twelfth Hampden district, at a population of 41,642, or 4.94% above the ideal district. The smallest district would still be the Twelfth Middlesex, at a population of 37,801, or 4.74% below the ideal district. The total deviation between those two extremes is thus 9.68% under either the redistricting statute or the plaintiffs’ plan.

Two of the districts that are larger than the plaintiffs’ largest proposed district are the statute’s Sixteenth and Seventeenth Middlesex districts, which also include portions of Chelmsford. Indeed, there are five Middlesex districts in the statute that are larger than the plaintiffs’ largest proposed district. The Legislature’s willingness to tolerate population deviations larger than those proposed by the plaintiffs is not explained by reference to some particular need in some distant part of the Commonwealth. These are deviations the Legislature viewed as acceptable in various parts of Middlesex County, including within Chelmsford itself.

Four of those twenty-five districts are within Middlesex County. See note 8, supra.

The deviations in the plaintiffs’ plan are also well within the deviations permitted under the Fourteenth Amendment. See Voinovich v. Quilter, 507 U.S. 146, 161 (1993), quoting Brown v. Thomson, 462 U.S. 835, 842-843 (1983). Both the statute and the plaintiffs’ plan are below the 5% mark set by Federal precedent (no more than 5% above or 5% below the ideal population size, for a maximum total deviation of 10%) and, as discussed above, it is the plaintiffs’ plan, not the redistricting statute, that keeps these four districts even further below that maximum permissible figure by almost a full percentage point (see note 4, supra). This is not a case where the population deviations from the ideal needed to maintain Chelmsford’s territorial integrity would be at (or even anywhere near) the 5% maximum allowed. Rather, they are all comfortably within the acceptable range.

The court today attempts to avoid the clear import of the Joint Committee Report by suggesting that somehow this comment was limited to those *635municipalities that could, by themselves, comprise a single district. Ante at 620. Nothing suggests that the Joint Committee was espousing such a cramped view of the utility of the 5% standard. Indeed, in the entire plan, there are only seven districts that are entirely comprised of the entirety of a single community, and six of those have a population that is within a few hundred of the ideal population of 39,682. Only one such single community comprising a single district required the “latitude” of the 5% standard to remain as a single district, that being the Fourth Worcester district, which is comprised of the entirety of Leominster, with a population of 41,303. The Report’s reference to the “latitude” of the 5% standard allowing it to “keep together communities,” identifying it as “an important facet of the map-making process,” does not refer to the configuration of only the Fourth Worcester district. Joint Special Committee on the Redistricting and Reapportionment, Report Relative to a New Division of the Commonwealth into One Hundred and Sixty Representative Districts, 2001 House Doc. No. 4700, at 5. Rather, the announced goal of “keep[ing] together communities” is a clear reference to the concept of territorial integrity, and the reference to the “latitude” of the population equality standard that allowed the Committee to “keep together communities” signals a clear intent to utilize that “latitude” in the interest of preserving territorial integrity. Id. The Joint Committee Report does not suggest that the 5% standard was only useful only to the extent that it allowed a perfect single municipality-single district match.

I agree with the court’s opinion, ante at 626, that the plaintiffs have failed to establish their claim that the Legislature’s plan constitutes a partisan political gerrymander in violation of equal protection guarantees, as they have failed to show that the plan “substantially disadvantages certain voters in their opportunity to influence the political process effectively” or that there has been “continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Davis v. Bandemer, 478 U.S. 109, 133 (1986) (opinion of White, J.). It is apparent, however, that splitting up Chelmsford in the way that the Legislature has done places portions of Chelmsford — which has historically voted for a Republican representative — into each of four districts that have historically voted for Democrats as representatives, with Chelmsford now *636comprising only a minority percentage of each of those four districts. The present Republican incumbent from Chelmsford will be placed within a district that is dominated by an incumbent Democrat from Lowell, and that Lowell incumbent was successful in obtaining a further amendment to the Legislature’s plan that served to increase his domination in the newly formed district. The apparent reason behind the Legislature’s plan — the favoring of one incumbent over another based on party affiliation — is not a legally acceptable justification for splitting Chelmsford into four districts, and the defendant did not proffer such a justification.

The court today suggests that Chelmsford’s loss of territorial integrity is somehow not a matter of concern because it is not the only small town that could have fit within a single district but was instead split among several different districts. Ante at 624 n.12. Of course, none of the towns listed has made any challenge to the redistricting statute, and we therefore know nothing of the merits of any challenges that could theoretically have been brought. In particular, we have no way of knowing whether, as has been shown here, those towns’ territorial integrity could have been better protected while simultaneously maintaining population equality and without causing any adverse ripple effects within neighboring districts and municipalities. In the absence of any challenges and any alternative plan, we must assume that the multiple divisions of those other towns was in fact necessary to satisfy some other legitimate goal. However, the plaintiffs here have met their burden of formulating an alternative plan that satisfies the tests laid out in Brookline v. Secretary of the Commonwealth, 417 Mass. 406, 420-421 (1994), quoting Merriam v. Secretary of the Commonwealth, 375 Mass. 246, 264 (1978) (Wilkins, J., dissenting). Having met their burden of proving that the division of Chelmsford into so many pieces is unjustified and therefore unconstitutional, it is no solace to Chelmsford that other towns have also been divided into many pieces. That fact should certainly not deprive Chelmsford of the relief to which it is entitled.