3-Judge panel finds Congressional redistricting unconstitutional - Business, Government Legal News from throughout WV

3-Judge panel finds Congressional redistricting unconstitutional


Legislators have until Jan. 17 to come up with a new congressional redistricting plan after a three-judge panel ruled the current plan unconstitutional in a Jan. 3 decision.

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 congressional redistricting plan that places the Eastern Panhandle in a long district that stretches to the Ohio River.

"This is something we had really hoped for," said Stephen Skinner, representing the Jefferson County Commission. "We felt good when we walked out of there last week. I guess there was a reason to feel good."

He also said, "We're pleased and excited about the ruling. We hope we end up with a plan that looks a little better to the casual observer. Perhaps the Ohio River and the Shenandoah River should not be in the same congressional district."

If legislators do not come up with another plan by Jan. 17, the court will identify an interim plan for the 2012 Congressional elections. According to the order, this interim plan would either be the "Perfect Plan" proposed by state Sen. John Unger, D-Berkeley, or a plan offered by South Charleston lawyer Thornton Cooper.

 "The times, as Bob Dylan once proclaimed, they are a-changing, and what once was characterized as ‘minor' may now be considered ‘major,'" judges wrote. "Put simply, S.B. 1008 was not enacted in conformance with the Constitution."

Anthony Majestro, representing House Speaker Richard Thompson, said authorities are reviewing the decision to decide the next step.

Secretary of State Natalie E. Tennant said she appreciated the prompt announcement and said she is confident the Legislature will create a new plan that complies with all requirements.

"I am confident that West Virginia can achieve equal populations in its congressional districts," Tennant said. "The court has shown with this ruling that equal representation of all citizens in Washington is most important."

According to Tennant's office, candidates may choose to file before the final makeup of the three congressional districts are known. The filing period for running for office begins Monday, Jan. 9, and runs through Jan. 28. The Jan. 17 deadline for devising a new redistricting plan falls during the filing period.

Gov. Earl Ray Tomblin's office also released a statement Jan. 3.

"We are reviewing the court's order and will have further comment after we have undertaken a full analysis of the order and all of its requirements," Tomblin's office stated.

The three-judge panel took up the federal lawsuit in an eight-hour oral argument hearing Dec. 28 where parties' arguments centered on concepts of compactness, variance, preserving the core of historical districts and protecting incumbents from being pitted against each other.

In its complaint, the Jefferson County Commission stated new district boundaries violated the one-person one-vote rule, lacks compactness and unnecessarily splits the Eastern Panhandle between the 1st and 2nd congressional districts.

Defendants meanwhile argued 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 West Virginia University geography professor called the plan an "abomination" in his testimony.  

 "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."

This is not the first time the Eastern Panhandle has taken issue with against the plan. These two plans later were tossed, however.

"I have been opposed to this way of drawing lines since 1991," Cooper said. "I'm hoping legislators do not put Charleston and Charles Town in the same district again.

Skinner said a big problem with the current plan is the increased amount of population variance. The variance is in accordance with the one-person one-vote requirement, and, Skinner said, the Legislature has made no attempt to explain the 0.79 percent variance, or a difference of 4,871 people.

Skinner said the zero variance was achieved under Unger's plan, which was coined the "perfect plan." However, the "perfect plan" split county lines, which traditionally is not done in congressional redistricting. The plan also placed two Republican incumbents, Shelly Moore Capito and David McKinley, in the same district.

"There are tradeoffs to these plans," Majestro said in a Jan. 3 interview. "With zero variance in the ‘perfect plan,' they had two incumbents running against each other and it splits two counties."

 "It is possible to split county boundaries," Majestro added. "The question is which counties do you split and who decides."

In a Jan. 3 interview, Cooper said it would be nearly impossible to come up with a plan that would not split counties. Under his fourth plan, which judges would implement if legislators did not come up with an alternative, only Taylor County would be split.

"The Legislature is not going to come up with a plan that will not split county lines," Cooper said. "They have to split a county."

Only West Virginia and Arkansas have approved variances in excess of 0.03 percent. According to the opinion, 15 of the states have enacted or are in the process of enacting zero-variance proposals like the perfect plan.

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.

During the hearing, the state conceded that petitioners satisfied their burden to demonstrate the 0.79 percent population variance enacted in the bill could have been reduced.

"Indeed, the state could hardly have argued otherwise, given that no fewer than seven less drastic alternatives were submitted for consideration," the Jan. 3 opinion said.

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."

In his testimony, Martis explained communities of interest should have been considered when redrawing district lines. Martis explained a community of interest may share geographical, cultural, economic and social interests.

 "None of these particular concerns factored significantly into the Legislature's decision making, however," the opinion stated. "To the contrary, the emphasis was on preserving the status quo and making only tangential changes to the existing districts."


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