Federal Redistricting Case Submitted for Review - Business, Government Legal News from throughout WV

Federal lawsuit challenging W.Va.'s congressional districts awaits judges' ruling

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A three-judge panel said it will review a federal lawsuit challenging the constitutionality of congressional district lines in West Virginia after parties presented their cases in a Dec. 28 hearing.

In the eight-hour hearing, parties' arguments centered around concepts of compactness, variance, preserving the core of historical districts and protecting incumbents from being pitted against each other.

West Virginia was assigned three seats in the U.S. House of Representatives based on the 2010 census. In a unanimous vote Nov. 3, the Jefferson County Commission decided to seek legal remedy against the Legislature-approved congressional redistricting plan that places the Eastern Panhandle in a long district that stretches to the Ohio River.

The commission states the congressional plans violates the one-person one-vote rule, lacks compactness and unnecessarily splits the Eastern Panhandle between the 1st and 2nd congressional districts.

Defendants meanwhile argue the congressional district is compact because it is "similar to the district as constructed in 1991, which was upheld in Stone v. Hechler." According to the trial brief, the only difference is that the district has been reduced by three counties.

However, the 1991 plan was not a subject of unanimous consent. Plaintiffs' witness, Kenneth Martis, a geography professor at West Virginia University, called the plan an "abomination."

 "The 2nd district was gerrymandered to take a representative out of the picture — to take power away from a political group," Martis explained in his testimony. "The state Legislature decided one party had to go, and in 1991, they drew an elongated district from the Maryland border to the Ohio border. It's a classic case of intrapower gerrymandering. It's the origin of the problem here today."

Stephen G. Skinner, representing the Jefferson County Commission, said a big problem with the current plan is the increased amount of population variance. Skinner maintained any time a population variance is more than the gold standard number of zero, the Legislature must explain why.

This variance is in accordance with the one-person, one-vote theme, and Skinner said the Legislature has made no attempt to explain the 0.79 percent variance, or a difference of 4,871 people.

Parties also argued whether splitting county lines, a process never done in congressional redistricting, would be worth achieving a lower variance. Skinner argued the state has crossed boundaries for many years when apportioning House and Senate districts and would drastically reduce the variance to zero.

"The question arose of whether we could split counties because they had been cut for senatorial districts, but we wondered if it applied to congressional districts, too," Sen. Herb Snyder, D-Jefferson, said in his testimony, later adding that he was under the assumption that he had to keep counties intact.

"Iowa has cut counties recently to resolve the one-person, one-vote and compactness principles," Sen. John Unger, D-Berkeley, explained in his testimony.  

Unger additionally cited documents provided to redistricting committees by the National Conference of State Legislators.

"It demonstrates the one-person, one-vote with a zero variance," Unger said. "It's a compelling document that said West Virginia needed to get in line with other states with that zero variance."

Skinner said the zero variance was achieved under Unger's plan, which was coined the "perfect plan."

George Carenbauer, representing Senate President Jeffrey Kessler, D-Marshall, said even the so-called "perfect plan" has pitfalls. Although this plan has a zero variance, it also would pit two incumbents against each other, Carenbauer explained.

"Also, one-third of people would be waking up in a different district," Carenbauer said, noting another goal in redistricting is to avoid drastic changes in district lines.

Defendants also argued the 0.79 percent variance is "nearly identical" to the 0.78 percent variance in 1971 that was ruled constitutional in the case of West Virginia Civil Liberties Union v. Rockefeller.

"Redistricting involves tradeoffs," explained Anthony Majestro, a lawyer representing House Speaker Richard Thompson. "If we keep the Eastern Panhandle whole (as proposed under Unger's plan), we have to split Kanawha and Harrison counties."

Majestro said the reason the Legislature accepted the plan with a 0.79 percent variance is because other matters must be considered, such as preserving historical cores of districts, protecting communities of interest, and avoiding contests between incumbents.  

"The justification for using a plan with a larger variance was not making shifts in districts, communities of interests and keeping incumbents from running against each other," Sen. Corey Palumbo, D-Kanawha, explained in his testimony. "It's important to preserve county boundaries even if it's not required because boundaries serve as communities of interest."

Palumbo defined compactness as having a tighter geographical area and explained that compared to the 2001 map, the 2nd congressional district increased its compactness.

"With the shape of our state and our population, it's almost impossible to make a district that is completely compact," Palumbo explained, noting that even in the "perfect plan," none of the districts are "overly compact."

According to a response by the Secretary of State, the candidate filing period runs from Jan. 9 to Jan. 28. The deadline for Tennant to certify a list of candidates to county clerks is Feb. 8, and the deadline for printing and delivering ballots is March 23. 


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