Attorney General's Opinion
Attorney General, Richard Blumenthal
January 26, 2001
Mark A. Stepleton, Esq.
Chief, Office of Legal Affairs
State Department of Education
165 Capitol Avenue
Hartford, CT 06106
Dear Mr. Stapleton:
In your memorandum dated November 16, 2000, you have in essence asked us for an update of an informal opinion dated March 18, 1991 regarding the maximum permissible deviation from strict mathematical equality courts have allowed in reapportionment plans. Your inquiry comes in connection with the Commissioner of Education's statutory duty under Conn. Gen. Stat. §10-63q to notify each regional board of education and each chief executive officer of each town within a regional school district whether or not representation on the respective regional boards of education is "consistent with federal constitutional standards." This duty arises every ten years, following receipt of the latest census data. The next census data is expected in March or April, 2001.
In our earlier memorandum, we cited the United States Supreme Court's rulings in Mahan v. Howell, 410 U.S. 315 (1973) and Connor v. Finch, 431 U.S. 407 (1977). In Mahan, the Court approved a legislative reapportionment plan in Virginia that resulted in a 16.4% maximum deviation from mathematical equality, based on preserving, within reason, the territorial integrity of municipalities and counties. In Connor, the Court rejected a reapportionment plan in Mississippi that resulted in maximum deviations of 16.5% and 19.3%, noting that they "e;substantially exceed the 'under 10%' deviations the Court has previously considered to be of prima facie constitutional validity only in the context of legislatively enacted apportionments." Connor, 431 U.S. at 418; accord, Brown v. Thomson, 462 U.S. 788, 842-849 (1983); see also, Board of Estimate v. Morris, 489 U.S. 688 (1989).
We also noted in our earlier memorandum that in Logan v. O'Neill, 187 Conn. 721, 735 (1982), our state Supreme Court, citing Connor, 431 U.S. at 407, reiterated that while not a "bright line test," a plan with a maximum deviation of 10% or less is presumed to meet the federal equality requirement, and once over 10%, a violation is presumed unless it is sufficiently justified as necessary in furtherance of a permissible state policy. The Logan Court let stand a plan providing for a maximum deviation of 8.36%.
Case law since our earlier memorandum has remained consistent with these principles. In Voinovich v. Quilter, 507 U.S. 146 (1993) the United States Supreme Court, citing Connor, Brown and Mahan, reversed a trial court's decision that rejected out of hand a plan that contained a maximum deviation greater than 10%. As described by the Voinovich Court,
Voinovich, 507 U.S. at 161 (quoting Brown, 462 U.S. at 842-843, in turn quoting Mahan, 410 U.S. at 328).
Similarly, the validity of the Connecticut Supreme Court's ruling in Logan, 187 Conn. at 721, was reaffirmed in Fonfra v. Reapportionment Commission, 222 Conn. 166 (1992). Relying heavily on Logan, the Fonfara Court reiterated that
Fonfara, 222 Conn. at 188 (quoting Logan, 187 Conn. at 736).
Thus, the reasoning and standards set forth in our earlier memorandum remain valid. It appears that a maximum deviation of 10% or less is presumptively constitutional, while those in excess of that percentage must be justified as necessary in furtherance of an important and permissible state policy. While no "bright line" maximum allowable deviation can be determined, it is useful to bear in mind the Logan and Fonfara courts' admonition that the goal is to achieve equality to the maximum extent practicable, not to achieve the greatest inequality that can survive a court challenge.
We would be happy to discuss this matter with you at your convenience.
Very truly yours,
Ralph E. Urban
Assistant Attorney General