Full Opinion

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS IN RE PETITION OF MARIA FRICA TUDELA PANGELINAN AND CHRISTINA-MARIE E. SABLAN FOR REAPPORTIONMENT AND REDISTRICTING SUPREME COURT NO. CV-07-0015-OA Cite as: 2008 MP 12 Decided June 27, 2008 Maria Frica Tudela Pangelinan and Tina-Marie E. Sablan, Saipan, Commonwealth of the Northern Mariana Islands, Petitioners. Ian Cattlet, Legal Counsel, Commonwealth House of Representatives, for Invited Amicus Curiae Commonwealth House of Representatives. Stephen Woodruff, Saipan, Commonwealth of the Northern Mariana Islands, for Invited Amicus Curiae Saipan Mayor’s Office. BEFORE: MIGUEL S. DEMAPAN, Chief Justice; ALEXANDRO C. CASTRO, Associate Justice; JOHN A. MANGLONA, Associate Justice PER CURIAM: ¶1 Maria Frica Tudela Pangelinan and Tina-Marie E. Sablan, as qualified Commonwealth voters, petitioned this Court to reapportion and redistrict the NMI House of Representatives pursuant to NMI Const. art. II, § 4(b). Petitioners argued the Reapportionment Act of 1991, 1 CMC §§ 1501-1504, impermissibly diluted Rota and Tinian votes in relation to Saipan because it apportioned the house of representatives by total population instead of by the number of United States citizens. Further, petitioners argued vote dilution was exacerbated by the increase in Saipan’s noncitizen population in the years since the 1990 United States Census, which formed the basis of the Reapportionment Act of 1991. Petitioners sought to exclude noncitizens from the population count for legislative apportionment purposes. ¶2 Petitioners proposed a reapportionment and redistricting plan based on the Commonwealth’s United States citizen population. Petitioners’ proposed plan would have reduced Saipan representatives from sixteen to twelve, each representative to be elected from one of twelve revised election districts. Conversely, the NMI House of Representatives, an invited amicus curiae, argued apportionment should be based on total population, including noncitizens. The house maintained that election districts should not be altered, but that Saipan should be apportioned two additional representatives in order to maintain sufficient population equality across then-current election districts. The Saipan mayor, also an invited amicus curiae, supported petitioners’ proposed election districts but agreed with the NMI House that Saipan must be apportioned two additional representatives. The Saipan mayor suggested electing twelve representatives from petitioners’ proposed districts and the remaining six from super districts, each comprised from two of the twelve election districts proposed by petitioners. ¶3 After considering briefs and arguments, we rejected petitioners’ and amici’s proposed reapportionment and redistricting plans in favor of our own. In re Pangelinan, 2007 MP 14. We concluded that all Commonwealth residents, including noncitizens, should be counted for purposes of apportioning the NMI House of Representatives. Id. ¶ 12. And based on the total Commonwealth population as reported in the 2000 United States Census, we apportioned Saipan two additional representatives and redrew Saipan’s election districts. Id. ¶¶ 13-14. However, given time constraints imposed by the upcoming 2007 election, we reserved jurisdiction to issue this supplemental opinion explaining our reasoning. Id. ¶ 8. I ¶4 The NMI Constitution requires the house of representatives to be reapportioned or redistricted 1 at least once every ten years to ensure sufficient representational equality between Commonwealth residents. NMI Const. art. II, § 4(a). The principal responsibility rests with the legislature, which must reapportion the house within 120 days after publication of a decennial census. Id. However, if the legislature does not act within its prescribed time, the governor is charged with curing the deficiency and must within 120 days promulgate a reapportionment plan. Id. § 4(b). If the governor fails to act, any person qualified to vote may petition this Court to establish such a plan. Id. ¶5 Prior to our decision in Pangelinan, the house of representatives was last reapportioned in 1991. 2007 MP 14 ¶ 4. The Reapportionment Act of 1991 relied on the 1990 United States Census. Id.; 1 CMC §§ 1501 - 1504. No similar reapportionment occurred after the 2000 census. Accordingly, petitioners requested that this Court reapportion and redistrict the house of representatives. However, petitioners went beyond simply requesting the Court correct legislative and executive inaction. Petitioners also argued that the Reapportionment Act of 1991, by apportioning based on total population, impermissibly diluted Rota and Tinian votes in relation to Saipan. ¶6 The Reapportionment Act of 1991 granted Saipan and the northern islands an additional three seats in the house of representatives. 1 CMC § 1503. The legislature’s stated purpose for reapportioning the house was to “comply with the ‘one man-one vote’ rule” requiring “each representative . . . represent approximately an equal number of residents in the Commonwealth.” 1 CMC § 1502(b). Petitioners, however, argued the legislature violated the one man-one vote rule by counting nonresident workers – who are not United States citizens and are ineligible to vote – for apportionment purposes. According to petitioners, the legislature should have considered the NMI’s unique status as the only United States jurisdiction where noncitizens outnumber citizens. Failure to consider this, petitioners argued, and failure to consider the vastly differing ratios of citizens to non-citizens on each island, caused the legislature to dilute the voting power of citizens on Rota and Tinian in relation to Saipan. By apportioning additional 1 Apportionment and districting refer to different methods of distributing representatives throughout a geographic area. Apportionment involves assigning a geographic area a certain number of representatives. Districting involves dividing a geographic area into separate election districts, each district electing its assigned number of representatives. Reapportionment and redistricting involve adjusting previous apportionment and districting plans. However, although the terms “reapportionment” and “redistricting” have distinct meanings, their common purpose of adjusting the distribution of representatives is often referred to as simply “reapportionment.” Accordingly, unless the context indicates either reapportionment or redistricting individually, we refer to both methods collectively as “reapportionment.” representatives to Saipan and the northern islands based on the influx of nonresident workers, the 17,201 citizens residing on Saipan and the northern islands enjoyed sixteen representatives; a ratio of one representative per 1,075 citizens. By contrast, Rota had a single representative for 1,595 citizens and Tinian had a single representative for 1,286 citizens. Thus, by petitioners’ logic, Rota and Tinian votes were diluted to sixty-seven percent and eighty-four percent, respectively, of Saipan votes. ¶7 The 2000 United States Census reported a total NMI population of 69,221, a significant increase from 1990. Petitioners point out, however, the ratio of noncitizens increased over the intervening decade, leaving citizens in the minority at 30,132. Thus, of the 62,398 people living on Saipan and the northern islands, only 25,909 were citizens. Of the 3,283 people living on Rota, only 2,266 were citizens. And of the 3,540 people living on Tinian, only 1,953 were citizens. Petitioners argued that if the house of representatives was not reapportioned to exclude noncitizens, vote dilution would continue. The sixteen representatives previously allotted to Saipan and the northern islands would represent 25,909 citizens, or one representative for every 1,619 citizens. Rota’s representative would represent 2,266 citizens. Tinian’s representative would represent 1,953 citizens. To remedy these alleged inequities, petitioners urged this Court to reapportion the house based solely on the number of United States citizens residing in the Commonwealth. Petitioners offered a reapportionment plan reducing Saipan and the northern islands to twelve representatives, each representative to be selected from one of petitioners’ twelve suggested election districts. ¶8 In contrast to petitioners, the house of representatives and the Saipan mayor, as invited amici curiae, argued apportionment should be based on total population. They maintained petitioners’ unconventional juxtaposition of “nonresidents,” an immigration status, to “residents,” as used by the NMI Constitution for apportionment purposes, was untenable. Further, the house of representatives argued: (1) Commonwealth apportionment has historically been based on total population; (2) this Court should follow the Ninth Circuit’s holding in Garza v. County of Los Angeles, 918 F.2d 763, 775 (9th Cir. 1990), requiring legislative apportionment based on total population; and (3) most states, if not all, apportion their legislatures based on total population. Amici maintained that the need for representational equality necessitated increasing house membership by two seats, both apportioned to Saipan and the northern islands. But, whereas the house of representatives argued that the then-current election districts should be maintained, the Saipan mayor contended petitioners’ election districts should be adopted and additional super districts created from them. ¶9 We found jurisdiction proper and established a modified reapportionment and redistricting plan. In re Pangelinan, 2007 MP 14 ¶¶ 7, 13-14. We concluded that, at least in the absence of contrary legislative action, apportionment should be based on the total number of persons residing in the Commonwealth. Id. ¶ 12. Based on these total population figures, we further concluded that Saipan should be apportioned two additional representatives in order to ensure “representation by each member . . . of approximately the same number of residents to the extent permitted by the separate islands and the distribution of population in the Commonwealth.” Id. ¶¶ 13-14 (quoting NMI Const. art. II, §4(a)). Moreover, we redistricted Saipan into five election districts by grouping United States Census blocks, our only source of population figures. Id. ¶ 14. We then created the districts to “ensure sufficient representational equality” while maintaining “populations with historically and/or geographically similar interests.” Id. ¶ 10 We recognized that the issues raised by petitioners involved “the historical, political, and legal relationship between the Commonwealth and the United States.” Id. ¶ 8. We acknowledged the need to discuss the NMI and United States Constitutions, as well as the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, 48 U.S.C. § 1801, note, reprinted in CMC at B-101 et seq. Id. However, because preparations for the November 2007 elections left little time to expound our conclusions, we reserved jurisdiction to release this supplemental opinion articulating our full reasoning. Id. ¶ 18. Accordingly, this opinion addresses our previous conclusions that all residents be counted for apportionment and that the house of representatives be enlarged and election districts redrawn in order to maintain sufficient representational equality. ¶ 11 Before discussing our conclusions, however, we first provide the necessary background against which they must be understood. United States courts rely on the one person, one vote principle when addressing legislative apportionment issues. The one person, one vote principle is the basis for petitioners’ and amici’s arguments regarding persons to be counted for apportionment and vote dilution. Section II of this opinion discusses the constitutional origins of the one person, one vote principle as it has evolved in federal courts. However, as with any constitutional standard, we may not simply assume one person, one vote applies in the Commonwealth, given our unique political-legal status. Instead, we must look to the Covenant in determining whether the constitutional provision giving rise to the one person, one vote principle is applicable in the NMI. Doing so requires an understanding of the basic structure of the United States-NMI relationship. Section III of this opinion outlines the balance between United States sovereignty and NMI local self-government. Section IV draws on Sections II and III to conclude the one person, one vote principle does not apply to NMI legislative apportionment in the same fashion as it applies in other contexts. Finally, Section V explains our previous conclusions by reference to the NMI Constitution. This brief synopsis is explained in more detail below. ¶ 12 Petitioners’ and amici’s arguments rest on competing interpretations of the one person, one vote principle. So too does our previous opinion. The one person, one vote principle requires votes to be apportioned based on population so that voting power is equally distributed throughout the constituent population. In practice, this is achieved by dividing the constituent population into sufficiently equal election districts. Perfect numeric equality across election districts is the goal, but since that would prove an impractical standard, judicial inquiry focuses on the degree of deviation from perfect equality. Judicial inquiry must also consider the nature of the population numbers from which election districts are devised. Specifically, courts must determine whether any class of persons may be excluded from the apportionment population. Numeric equality means little if election districts are created based on invalid population figures. Section II addresses these issues through its discussion of the sources and evolution of the one person, one vote principle as it is has come to be applied throughout the United States. ¶ 13 As its history reveals, the one person, one vote principle is not a clearly defined constitutional dictate, but rather an ideal, the precise contours of which are contextually based. The one person, one vote principle applies to both congressional and state legislative elections, but its application derives from different constitutional sources. These different constitutional sources are products of different historical settings and result in different standards regarding the nature and extent of acceptable population deviations across election districts. Similarly, if the one person, one vote principle applies to NMI elections, we must look to the source of its application and the historical context in which it arose to determine the nature and extent of its application. This, in turn, requires us to consider whether and how the Covenant applies the one person, one vote principle to the NMI. ¶ 14 But before considering the Covenant’s treatment of the one person, one vote principle, we step back to consider the Covenant’s broader context. Section III addresses the political-legal relationship between the NMI and the United States. It discusses Covenant provisions balancing United States sovereignty with NMI local self-government, the legal issues Covenant drafters navigated to achieve a balance, and subsequent cases addressing that balance. Specifically, Section III focuses on the Covenant’s attempts to limit congress’s legislative authority and the United States Constitution’s application in the NMI. ¶ 15 After discussing the history of the one person, one vote principle in federal jurisprudence, and after outlining the balance between United States sovereignty and NMI local self- government, Section IV returns to the specific issue before the Court. In Section IV we explain our conclusion that, based on the Covenant’s language and history, the NMI House of Representatives must be apportioned to a large degree based on population. However, the one person, one vote principle does not apply to NMI legislative apportionment in the same fashion as it applies to congressional or state elections. ¶ 16 Section V addresses the NMI Constitution’s requirements for apportioning the house of representatives. We conclude the NMI Constitution permits legislative apportionment based on total population, including nonresident workers. We also conclude that major deviations from perfect representational equality must be justified in light of the concerns upon which the NMI Constitution’s language regarding house apportionment was based. II ¶ 17 The United States Supreme Court’s apportionment cases provide the background against which petitioners’ and amici’s arguments, and our opinion, must be understood. In a series of cases beginning in the early 1960s the Court developed its one person, one vote rule. Broadly stated, one person, one vote requires voting power be equally distributed throughout the constituent population. The Supreme Court found one person, one vote applicable to both state apportionment and congressional districting plans, but its applicability in each instance derives from different constitutional sources. These different constitutional sources resulted in analogous but distinct requirements when implementing one person, one vote in each context. For instance, Supreme Court precedent makes clear that population deviations that are permissible across state election districts are only permissible across congressional districts if justified by a legitimate state interest. Karcher v. Daggett, 462 U.S. 725, 734 (1983). And, although it is unclear in either instance which persons, if any, may be excluded from the “population” upon which apportionment decisions are based, Burns v. Richardson, 384 U.S. 73, 92 (1966), the standard is likely lower for state election districts than for congressional districts. Kirkpatrick v. Preisler, 394 U.S. 526, 534 (1969). These issues are considered below. The constitutional origins of the one person, one vote principle ¶ 18 The Equal Protection Clause of the United States Constitution is the source of the one person, one vote principle in state elections. The Supreme Court first recognized the viability of equal protection challenges to apportionment plans in Baker v. Carr, 369 U.S. 186, 199 (1962). Plaintiffs in Baker, Tennessee voters, alleged their votes were debased because the Tennessee General Assembly’s 1901 apportionment, dubious even at that time, had not been modified despite Tennessee’s large population growth and redistribution. Id. at 192. The district court held it lacked authority to entertain the question. Id. at 197. The Supreme Court, however, disagreed. Refuting the district court’s reasoning, the Supreme Court found it had subject matter jurisdiction over the issue because plaintiffs’ equal protection claim was constitutional in nature. Id. at 200. Standing was proper since plaintiffs alleged a state action impaired their recognized constitutional right to vote. Id. at 207-08. And plaintiffs’ claim did not present a nonjusticiable political question, but was instead “within the reach of judicial protection under the Fourteenth Amendment.” Id. at 237. ¶ 19 Baker noted that judicial standards for addressing equal protection claims were “well developed and familiar.” Id. at 226. But the Court did not articulate those standards, much less apply them to state legislative apportionment schemes. The question was again considered in Gray v. Sanders, 372 U.S. 368 (1963), where the Supreme Court found unconstitutional Georgia’s primary system apportioning votes based on county units. The county unit system resulted in votes from more populous counties weighing less than votes from less populous counties. Id. at 379. The Court analogized voting disparity based on geographic location to vote dilution based on race or gender. Id. at 379. Just as the Fifteenth Amendment prohibits dilution of the black vote, and just as the Nineteenth Amendment prohibits dilution of the female vote, so too does the Equal Protection Clause prohibit dilution of votes based on those factors, as well as, among others, geographic location. Id. In language that would later become short-hand for its apportionment opinions, the Court noted, “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only on thing – one person, one vote.” Id. at 809. ¶ 20 Through its decision in Gray, the Supreme Court evidenced its willingness, first hinted at in Baker, to strike down state apportionment schemes weighing votes unequally as violative of the Equal Protection Clause. Yet Gray considered only voting equality between persons within a single state-wide election district. Id. at 808. It did not address whether similar concerns are implicated by population disparities across districts within a state. Id. at 806-07. Gray’s language arguably foreshadowed this next step, however, and the Court specifically took it up a year later in Wesberry v. Sanders. 376 U.S. 1 (1964). ¶ 21 Plaintiffs in Wesberry were Georgia voters who argued population inequities across Georgia’s congressional election districts diluted their votes in relation to those from less populous districts. Id. at 3. The Court agreed. Id. at 7. With language reminiscent of Gray, the Court condemned apportionment plans weighing certain votes greater than others based solely on geographic location within the state. Id. However, unlike Gray, Wesberry did not look to the Equal Protection Clause in requiring voter equality across congressional districts. Rather, Wesberry found one person, one vote applied to congressional districts by virtue of Article I, Section 2 of the United States Constitution. The Court determined “that, construed in its historical context, the command of Art. I, s 2, that Representatives be chosen ‘by the People of the several States’ means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Id. at 7-8. ¶ 22 Just four months after Wesberry, the Supreme Court released Reynolds v. Sims, 377 U.S. 533 (1964), its last major case extending the one person, one vote principle. 2 Reynolds involved plans to apportion both houses of the Alabama legislature by county, or by a combination of county and population. 377 U.S. at 537-45. The Court noted Gray and Wesberry offered guidance but were not controlling. Id. at 560. Gray established the principle of voting equality by requiring each vote in a state to be weighed equally. But Gray dealt only with state-wide elections, whereas Reynolds was concerned with voting equality across legislative districts within a state. Id. Wesberry established the principle of representational equality such that “representative government in this country is one of equal representation for an equal number of people.” Id. at 560-61. Yet Wesberry addressed representational equality as it pertained to the house of representatives and based its reasoning on United States Constitution Article I, Section 2. Wesberry, 376 U.S. at 7-8. Reynolds, by contrast, considered a state legislative apportionment scheme challenged on equal protection grounds. Reynolds, 377 U.S. at 561. ¶ 23 The Court defined its task in Reynolds as “determining the basic standards and stating the applicable guidelines for implementing . . . Baker v. Carr.” Id. at 559. And in reference to the facts before it, the Court questioned whether “any constitutionally cognizable principles . . . would justify departures from the basic standard of equality among voters in the apportionment of seats in state legislatures.” Id. at 560-61. In answering that question, the Court began by noting the right to vote is personal and fundamental. Id. at 561-62. Accordingly, “any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Id. at 562. Extending the reasoning of Gray and Wesberry, the Court stated: Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. . . . It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State’s voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally 2 The Court later extended one person, one vote to local elections. Avery v. Midland County, Tex., 390 U.S. 474, 484-85 (1968). sustainable. Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical. Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or 10 of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. Id. at 562-63. ¶ 24 The Court noted voting in state legislative elections is often the principal means by which citizens participate in their state’s representative government. Id. at 565. Voting equality in state legislative elections is therefore necessary to protect each citizen’s “inalienable right to full and effective participation in the political process of his State’s legislative bodies.” Id. All voters in a state enjoy the same right to legislative representation, and that right may not be circumvented through legislative apportionment. Accordingly, “[p]opulation is, of necessity, the starting point for consideration and controlling criterion for judgment in legislative apportionment controversies.” Id. at 567. The Court concluded that the Equal Protection Clause “demands no less than substantially equal state and legislative representation for all citizens, of all places as well as of all races.” Id. at 568. Moreover, the Court determined both houses of a bicameral state legislature were equally bound by the Equal Protection Clause’s requirement of population based apportionment. Id. “Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” Id. Population deviations across election districts ¶ 25 After Reynolds, the broad framework of the Supreme Court’s one person, one vote jurisprudence crystallized. The Equal Protection Clause requires state legislatures to be apportioned based on population. Similarly, Article I, Section 2 of the United States Constitution requires states to divide their population into substantially equal congressional districts. Yet, for both state and congressional election districts, the degree of population equality, and justifiable deviations from population equality, remained for later cases to refine. These later cases gave rise to divergent legal standards, both premised on the one person, one vote principle, but each based on its respective constitutional source. ¶ 26 Although the Reynolds Court established the ideal of mathematic equivalency between state legislative districts, it realized more flexible standards were needed. Id. at 577. Perfect numeric equality was impossible, and in some instances it might also be less desirable. “[A] State must make an honest and good faith effort” to apportion its legislature based on population, id. at 577, but there might also exist legitimate state interests justifying apportionment based on criteria other than population. Id. at 578. For instance, maintaining political subdivisions might be a legitimate objective, id., particularly if the goal in doing so is to protect a subdivision’s political voice. Id. at 580. Other apportionment goals not based on population might also be upheld, so long as they are “legitimate considerations incident to the effectuation of a rational state policy.” Id. at 579. However, the Court refrained from articulating a full constitutional standard. Id. at 578. It determined a case-by-case approach is the better alternative. Id. ¶ 27 In Gaffney v. Cummings, the Court determined the trend towards challenging ever- smaller population inequities meant it was “time to recognize . . . minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” 412 U.S. 735, 745 (1973). Accordingly, a maximum deviation of approximately eight percent is, by itself, insufficient to sustain an equal protection challenge. Id. at 751. Nor does a 9.9 percent maximum deviation make out a prima facie case of invidious discrimination. White v. Regester, 412 U.S. 755, 763 (1973). Indeed, “as a general matter . . . an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations.” Brown v. Thompson, 462 U.S. 835, 842 (1983); see also Conner v. Finch, 431 U.S. 407, 418 (1977). ¶ 28 Subsequent Supreme Court decisions also considered state interests justifying population discrepancies above the ten percent de minimis threshold. Where justification is required, the operative question “is whether the legislature’s plan ‘may reasonably be said to advance [a] rational state policy’ and, if so ‘whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.’” Brown, 462 U.S. at 843. Applying this standard, the Court determined a long-standing legislative policy of maintaining political boundaries justified a 16.4 percent population deviation between districts, although 16.4 percent “may well approach tolerable limits.” Mahan v. Howell, 410 U.S. 315, 329 (1973). ¶ 29 Tolerable limits are likely lower for congressional districts. Wesberry determined U.S. Const. art. I, § 2 requires “that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” 376 U.S. at 7-8. The Court realized perfect numeric equality would be an unworkable standard, but, unlike its later decision in Reynolds, the Court did not point to state interests justifying departure from perfect equality. To the contrary, Wesberry indicated a more stringent standard for congressional districts. Id. at 18. The Court stated, “[w]hile it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives.” Id. ¶ 30 Wesberry made clear a state must divide its population into nearly equal congressional districts, but the Court’s broad language provided little guidance for implementing this requirement. Recognizing the need to expound Wesberry, the Court noted in its next congressional districting case that it must “elucidate the ‘as nearly as practicable’ standard.” Kirkpatrick, 394 U.S. at 528. The Court began by rejecting the argument that, similarly to state legislative districts, there was a de minimus threshold below which a state need not justify population deviations across congressional districts. Id. at 530; Karcher, 462 U.S. at 734. Rather, “the command of Art. I s 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” Kirkpatrick, 394 U.S. at 531. ¶ 31 Population deviations “unavoidable despite a good-faith effort” has proved an exacting standard. Id. In Kirkpatrick, the Court determined it was “inconceivable” that a 5.97 percent deviation was unavoidable. Id. at 532. And the mere existence of alternative plans with lower deviations demonstrated a 4.13 percent deviation was avoidable. White v. Weiser, 412 U.S. 783, 790 (1973). Even a 0.7 percent deviation is impermissible where lesser deviations were readily achievable. Karcher, 462 U.S. at 739-40. However, avoidable deviations may be justified by legitimate, nondiscriminatory state interests, so long as the state demonstrates the deviation is required to secure its proffered objective. Id. at 740-741. “Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives.” Id. at 740. And the degree of justifiable variation depends “on the size of the deviations, the importance of the State’s interests, the consistency with which a plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely.” Id. at 741. Persons included in the apportionment population ¶ 32 In contrast to its decisions addressing allowable and justifiable population deviations, Supreme Court guidance is less clear regarding which segments of the population must be considered for purposes of representational equality. The Supreme Court indicates states have leeway to determine the population upon which their legislatures are apportioned. Burns, 384 U.S. at 92. Yet the federal circuits are split regarding deference to legislative apportionment decisions. And whether states may exclude any class of persons when crafting congressional districts remains uncertain. See Kirkpatrick, 394 U.S. at 534. ¶ 33 Burns v. Richardson is the only Supreme Court case considering which persons may be excluded from the “population” upon which a state legislative apportionment plan is based. Burns challenged an interim plan apportioning Hawaii’s senate based on registered voters. 384 U.S. at 81. Apportioning based on registered voters rather than total population had pronounced negative consequences for certain districts, due largely to Hawaii’s numerous non-registered military personnel. Id. at 90. Yet despite these disparities, the Court upheld the Hawaii legislature’s apportionment plan. ¶ 34 Writing for the majority, Justice Brennan distinguished Reynolds’s one person, one vote standard from the related question of which persons must be included in its calculus: We start with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured. Although total population figures were in fact the basis of comparison in that case and most of the others decided that day, our discussion carefully left open the question what population was being referred to. At several points, we discussed substantial equivalence in terms of voter population or citizen population, making no distinction between the acceptability of such a test and a test based on total population. Indeed, in WMCA, Inc. v. Lomenzo . . . decided the same day, we treated an apportionment based upon United States citizen population as presenting problems no di