A History of Legislative Apportionment

Prior to 1962

Beginning in 1777, the Vermont Constitution mandated a Vermont House apportioned on the basis of one representative from each municipality. When the State Senate was created in 1836, each county was accorded one senator, with the remaining sixteen senators apportioned among the counties on the basis of population.

As early as 1785, the Council of Censors, the sole body that could propose constitutional amendments, worried about "the probability of a disproportionate increase of population" among the towns that would undermine equality of representation. Their proposal for proportional representation was defeated by the constitutional convention, which was apportioned on the basis of one town/one delegate.

Uneven growth among the towns and counties did create growing imbalances in terms of representation. The 1856 Council of Censors, for example, calculated that towns holding one-quarter of the population could wield a legislative majority. By the early 1960s, these imbalances were even greater. In 1963, the 38 residents of Stratton had one representative in the House as did the 35,531 residents of Burlington. A House majority could be achieved by representatives from towns holding only 9% of Vermont's population. Conversely, Vermont's twenty-two largest municipalities were represented by less than 9% of the house members. Those twenty-two communities also paid 64% of the State's income tax and over half the property tax.

The Senate was less malapportioned but Senate delegations did not reflect shifts in county populations. The constitutional requirement that each county have one senator resulted in Grand Isle County's 2,927 residents having one senator in 1963, while Chittenden County had five senators to represent 74,425 people—or one senator per 14,885 residents.

1962–1965

In 1962, the U.S. Supreme Court ruled in Baker v. Carr that cases concerning legislative apportionment were not strictly political questions but instead were matters that could be heard by the courts. Numerous cases subsequently were filed across the country that challenged the apportionment of state legislatures. In light of the Baker ruling, Governor F. Ray Keyser, Jr. called a special session of the General Assembly in 1962 to reapportion the Vermont Senate which the General Assembly had failed to accomplish during the regular session in 1961. The General Assembly also enacted legislation during the special session that created a commission to study the reapportionment of both chambers.

In January 1963, T. Garry Buckley of Bennington filed a complaint in U.S. District Court which formally challenged the manner in which Vermont's 246-member House and 30-member Senate were apportioned. While the court was deciding that case, the U.S. Supreme Court in June 1964 issued its decision in Reynolds v. Sims which ruled that state legislatures had to be apportioned based on population. In August, the district court ruled in Buckley v. Hoff that the apportionment of the Vermont General Assembly as outlined in the Vermont Constitution contravened the equal protection clause of the Fourteenth Amendment and was thus unconstitutional. In January 1965, the court ordered the General Assembly to reapportion itself by July of that year.

The Vermont General Assembly had been studying the question of reapportionment since 1962. The preliminary report issued by the study commission in March 1963 outlined the situation and offered potential solutions pending the outcome of the various court cases. With the court order in January 1965, the General Assembly however was moved to act quickly.

The debates on reapportionment were contentious and emotional. Many representatives opposed the plan for fear that the new apportionment system would leave small towns voiceless. Others opposed reapportionment as Federal interference in Vermont government. Representing the 113 residents of Stannard, Frank Hutchins had tears in his eyes as he argued from the floor of the House against the measure: "When outsiders come into this parlor and tear us to pieces, I regret it." He urged his colleagues "Don't forget Stannard."

On May 17, 1965, the House voted 163 to 62 to reapportion itself. It reduced the number of representatives from 246 to 150 and established a system of representative districts. On June 17, Governor Hoff signed that bill into law as Act 98 in addition to two other bills. Act 97 established the process by which both chambers of the General Assembly would be periodically reapportioned. Act 96 reapportioned the Senate. Act 96 is particularly notable because it included two alternate provisions to bring about equal representation if the first or second measures outlined in the act were declared unconstitutional. Those provisions however never went into effect.

A special election was held in November 1965 under the new system. Representatives and Senators served for a one-year term until regular elections were held again in 1966.

1971–1974

The reapportionment process instituted in 1965 called for the Senate to be reapportioned after every decennial census and the House to be reapportioned after every second Presidential election. In 1971, the Legislative Apportionment Board drafted a reapportionment plan for the Senate and submitted it to the General Assembly. The General Assembly substituted its own plan (bill S. 177) and enacted it as Act 248.

The plan subsequently was challenged and the Vermont Supreme Court ruled that it failed to meet constitutional standards (In Re Senate Bill 177, 294 A.2d 653). In devising plans that apportioned 30 senators and faithfully adhered to county lines, neither the Board nor General Assembly plans could achieve substantially equal representation. The court gave the Legislative Apportionment Board two weeks to devise a new plan and even recommended that the Senate be reduced to 29 members to help meet the mathematical standards.

The Legislative Apportionment Board's revised plan included senate districts that crossed county lines for the first time. While entire counties previously had been combined to create senatorial districts (like Chittenden–Grand Isle and Essex-Orleans), individual towns had not been separated and adjoined to neighboring counties to create districts. In light of pending elections, the potential disruption to the election process that the proposed plan might create, and its failure to meet standards related to equal representation, the new plan was rejected (In Re Senate Bill 177, 294 A.2d 657). The Supreme Court instead decided to adopt the original apportionment plan in Act 248 for the limited purpose of conducting the 1972 elections. It further ordered the Legislative Apportionment Board to draft yet another plan to submit to the General Assembly in 1973.

The 1973 plan offered by the Legislative Apportionment Board included a majority of small, single-member districts compared to the previous plans that had large districts based on county boundaries. The General Assembly however enacted a plan (Act 80) that primarily preserved county lines but nevertheless had districts that crossed county lines. This plan also was challenged. The Supreme Court found this plan to meet the established standards (In Re Senate Bill 177, Public Act 80, and Senate Bill 83, 318 A.2d 157)

The House plan was enacted as Act 210 in 1974. It went unchallenged. The Vermont Constitution also was amended in 1974 to reflect the changes in apportionment that were enacted in 1965. Due to the ten-year time-lock on constitutional amendments, the Constitution could not be changed prior to that time. As a result, the Vermont General Assembly technically was in violation of the Constitution between 1965 and 1974.

1981–1982

Legislation enacted in 1981 amended the reapportionment process. Act 30 of that year required that the house be reapportioned at the same time as the senate rather than after every second presidential election. It also changed the apportionment standard of the House by requiring that it be based on the total population of a district rather than on the number of registered voters as originally outlined.

The Senate plan proposed by the Legislative Apportionment Board in 1982 offered three options. First, it proposed all single-member districts save for one two-member district and one three-member district in Chittenden County. The second alternative offered one- and two-member districts only. The third alternative mirrored the plan finally adopted in 1973 which created senatorial districts which adhered to county lines except in a few instances. The General Assembly enacted a plan that reflected this third alternative.

Like the 1974 House plan, the 1982 House plan created 106 districts overall. Due to population shifts, however, only 4 of the 52 districts which comprised one or more entire towns in 1974 remained unaltered in 1982.

No challenges to either the House or Senate plan in 1982 reached the courts.

1991–1993

In 1992, the General Assembly again passed legislation that amended the reapportionment process. By Act 116, the General Assembly assumed the authority for (1) reviewing and accepting proposals submitted by Boards of Civil Authority to subdivide multi-member districts, and (2) revising any plans overturned by the courts. The Legislative Apportionment Board previously was responsible for both of these functions. In addition, the General Assembly amended language to provide that the Board submit a "proposal" for reapportionment rather than a "plan".

The 1991 Legislative Apportionment Board's Senate proposal included three options. All three alternatives reflected schemes that closely adhered to county boundaries. The main variation among the options involved how to redistrict Orange, Caledonia, Essex, and Orleans Counties. The final system enacted by the General Assembly amended the 1982 Senate plan by moving a total of five towns from one district to another.

The House plan in 1992 was enacted in two steps. First, the initial districts were enacted into law by Act 116. It created 73 initial districts compared to the 77 initial districts established in 1982. Twenty-eight of the initial districts created in 1982 remained unchanged by the 1992 plan. House reapportionment was then completed with the enactment of Act 147 which subdivided the multi-member districts created by Act 116.

The 1992 reapportionment plans faced several court challenges. Five separate petitions were filed against the House plan and one petition was filed against the Senate plan. The Vermont Supreme Court's ruling on all six petitions, In re Reapportionment of Town of Hartland (1993), closely examined the nonmathematical criteria for creating districts. In the end, the court dismissed four of the five petitions concerning the House plan and the lone petition in opposition to the Senate plan.

The court however returned the House plan to the General Assembly for reconsideration after finding that the Town of Montgomery's inclusion in a district with Orleans County towns did not satisfy constitutional or statutory requirements. While the proposed district conformed to the mandate that districts have substantially equal representation, the spine of the Green Mountains effectively separated Montgomery from the Orleans County towns of Jay, Troy, Westfield, and Lowell with which it was combined. Citing that districts must take into consideration patterns of geography, social interaction, trade, political ties and common interests, the court directed the General Assembly to attempt to revise the plan.

The General Assembly reviewed the plan and held additional hearings. Due to the ripple effect that changes in a single district can create across the state, the General Assembly informed the court that the plan as enacted was the plan that best satisfied all of the constitutional and statutory requirements. The court accepted the General Assembly's findings and the Town of Montgomery remained in the same district as originally enacted.

2001–2002

The Senate proposal put forth by the Legislative Apportionment Board in 2001 contained slight modifications to the existing apportionment system based on county boundaries. In contrast, a proposal developed by the House Government Operations Committee proposed creating fifteen two-member districts. The final Senate apportionment scheme adopted by the General Assembly (Act 151) shifted a total of 9 towns between senatorial districts that were otherwise based on county lines.

The House plan enacted in 2002 established 83 initial districts (Act 80). Twenty-six initial districts that were established under the 1992 reapportionment scheme remained intact under the 2002 plan. The 2002 House plan marked the first time that individual towns were subdivided by initial districting. As in 1992, the General Assembly passed a second law (Act 151) to subdivide multi-member initial districts in order to complete the reapportionment process.

There were no challenges to the 2002 Senate apportionment plan, and one court challenge to the 2002 House apportionment plan. In In re Reapportionment of Towns of Woodbury and Worcester, 177 Vt. 556 (2004), residents of the Washington County towns of Woodbury and Worcester challenged the reapportionment of their districts, arguing that placing their towns in the new Lamoille-Washington-1 two-member district violated the requirements of compactness and contiguity. The Supreme Court rejected the challenged.

2011–2012

At the beginning of the adjourned session in 2012, the Senate resolved to create a temporary Senate Committee on Reapportionment. As in the 2001-2002 redistricting, Act 74 was passed to establish the initial districts of the House, and later Act 93 was passed to adopt the senatorial districts and to subdivide the initial districts of the House.

The Legislative Apportionment Board questioned what the goals of redistricting were meant to be — practical fixes or maintaining voter interests. They studied reports from past boards and examined the differences between one-member districts and two-member districts. Single-member districts better represent the voter, having fewer constituents. But, maintaining single-member districts runs the risk of dividing communities with common interests. The board received extensive feedback from the local Boards of Civil Authority. Many towns expressed that they were connected with their neighbors, historically and culturally, arguing against dividing two-member districts.

The Board’s proposal went onto discussion in both the house and the senate. The amendments they proposed resulted in a plan that the media called a “radical departure” from previous reapportionment cycles. The amended plan called for the creation of many single-member districts. A lawsuit was threatened by the chairman of the GOP, who felt that were it to go forward as amended, Vermont’s legislative districts would have high deviation and be among the most unequal in the country.

Ultimately, there was no court case. The plan went into a conference committee, and the committee’s report was enacted by the General Assembly. Overall, many of the house districts remained the same or were only slightly redrawn from the boundaries set in 2002. However, more significant realignments took place in Rutland and Bennington Counties, and an increase in population resulted in the addition of another house member to the city of Burlington. In a few cases, some of the redistricting under Act 74 was reverted to the original 2002 reapportionment in Act 93. The final plan resulted in a decrease in single-member districts from the previous reapportionment. Senatorial districts for the counties of Bennington, Caledonia, Franklin, Grand Isle, Orange, and Washington remained unchanged from 2002 reapportionment.