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The Committee agreed that except in
rare and isolated circumstances a fifteen
percent deviation, a total of fifteen per-
cent in the aggregate, in either direction
from the ideal, would be the maximum de-
viation allowable. This represented a con-
sensus in the Committee between those who
wanted to write into the constitution a
specific maximum allowable deviation in
population between districts, and those who
wanted to use the more general terminology
such as "substantially equal" or "in effect
equal," or "as equal as possible," or "as
equal as practicable"; so we decided to use
in the constitution the more general descrip-
tion of "substantially equal", but, at the
same time, to define that insofar as we
were concerned as a 15 percent maximum
deviation between the lowest and the high-
est deviation in any redistricting scheme.
I might say here that the Supreme Court
has not as yet indicated what is or is not
constitutionally permissible in the way of
deviation. That particular subject matter is
still in limbo, and one of the arguments
which persuaded the Committee on the
Legislative Branch to avoid setting of a
specific mathematical number in the con-
stitution was the argument that the Su-
preme Court could come in later and adopt
some arithmetical formula which was dif-
ferent from and which might therefore be
in violation of the state constitutional
mathematical deviation maximum. In that
case the state constitution figure would fall
unless, of course, the state constitution
figure was more restrictive than the fed-
eral finding in this area, in which case no
doubt the state figure would apply, because
it would fall within the general mandate
of the Supreme Court. Nevertheless, we are
still waiting for the Supreme Court to come
upon and to fix once and for all, and for all
time, what the figure ought to be, and be-
cause it has not done so, we felt that using
the language "substantially equal" was a
better thing to do.
I might say here also that you do not
find in LB-2 any reference whatsoever to
how congressional districts shall be set up,
and I think it is important to note that
this was specifically avoided by the Com-
mittee on the Legislative Branch, even
though the Commission on the Constitu-
tional Convention did decide in its draft
that it was going to provide for congres-
sional districting.
We did not approach the problem of the
constitutionality of congressional districts
because of the extremely flexible situation
which exists in the Congress of the United
States today.
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An examination of the past will indicate
that Congress has from time to time de-
cided for itself what the test will be for
proper Congressional redistricting, and at
one time the Congress required that there
could not be any at large congressional
districts, that the districts had to be com-
pact, and that they had to be contiguous.
They were tests which the Congress applied
up until about 1929. In 1929 the Congress
in effect either repealed or ignored these
prior congressional tests for proper state
redistricting, and since that time has been
experimenting without arriving at any final
conclusions as to what the proper tests for
congressional districting ought to be. Here
I should say that in recent weeks Congress
has been working on the problem of
whether or not it will allow or disallow
Congress running at large, and the House
has adopted one version, and the Senate the
other, and they have not as yet come to a
common conclusion.
We felt under all the circumstances that
it was best not to get into this in the fed-
eral Constitution. Admittedly, the job of
drawing the districts is that of the legis-
lature and will remain that of the legis-
lature, but Congress does have the power,
when it decides to preempt the field, to tell
the legislatures of the states how they
shall do the redistricting of the congres-
sional districts.
Consequently, we have avoided that in
its entirety, but I should note that the
power does remain in the General Assembly
by virtue of the Constitution of the United
States.
Now, we have provided further that
there shall be redistricting consistent with
the standards provided in section 3.02
prior to the statewide general elections in
1970 and every twenty years thereafter,
and prior to the statewide general elec-
tions in 1982 and every twenty years there-
after; thereby providing for an average of
one redistricting minimum every ten years
during any twenty year period.
The reasons for these convolutions were
attempts to force the General Assembly to
redistrict prior to the 1970 election, be-
cause if it did not do so, then there would
be no statewide general election using the
new constitutional standards until 1974,
because 1970 federal census figures would
not be available in time to apply to the
1970 elections.
We could, as Judge Henderson had sug-
gested, use the 1960 figures, but we felt on
the basis of population information which
had been made available to us that these
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