W.Va. SC hears redistricting arguments

Jessica M. Karmasek Nov. 18, 2011, 11:00am


CHARLESTON, W.Va. (Legal Newsline) - The legal battle over West Virginia's new legislative redistricting plan moved to the courtroom Thursday.

The West Virginia Supreme Court of Appeals, the state's highest court, heard arguments from both sides of the House of Delegates and state Senate redistricting plans.

Monroe County Commissioners Michael Shane Ashley, Clyde Gum Jr. and William Miller, Putnam County Commissioners Stephen Andes and Joseph Haynes, Putnam County Clerk Brian Wood, Mason County Commissioners Bob Baird, Myles Epung and Rick Handley, and Mason County Clerk Diana Cromley filed a lawsuit challenging the House plan.

Monongalia and Wood county residents Eldon A. Callen, Jim Boyce, Petra and John Wood, and Frank Deem filed a suit challenging the Senate plan. Callen serves on the Monongalia County Commission. Deem is a former state senator.

South Charleston attorney Thornton Cooper filed petitions to both House and Senate plans.

All argue that the plans are unconstitutional, and want the state Supreme Court to stop Secretary of State Natalie Tennant's office from implementing them. Tennant is the primary respondent in the five cases. House Speaker Rick Thompson also is a respondent in the three House cases.

Attorneys for each side spent about two and a half hours arguing their points before the Court's five justices.


The three lawsuits over the new House plan center on House Bill 201, the plan redrawing delegate districts.

The bill was signed into law on Sept. 2.

The state's first redistricting plan passed the Legislature Aug. 5, but flaws were found in the bill so Gov. Earl Ray Tomblin was forced to veto it on Aug. 17. He then called for a second redistricting special session.

The second plan passed the House 56-30 on Aug. 20 and passed the Senate the next day. The plan calls for a total of 67 delegate districts.

Opponents of the law say the configuration violates the "one person, one vote" concept.

"The problem isn't that (the Legislature) violated the Equal Protection Clause (of the 14th Amendment)," Cooper told the justices. "The problem is that they violated Article VI of the West Virginia Constitution."

According to the state constitution, each county having a population "less than three-fifths of the ratio of representation for the House of Delegates, shall, at each apportionment, be attached to some contiguous county or counties, to form a delegate district."

Cooper, in his petition filed last month, said the populations in many of the districts in the bill deviate more than 4 percent from the ideal population.

He again asked the Court on Thursday to instead implement a plan of his own, which calls for 100 delegate districts.

Or the Court, he said, could declare the current plan unconstitutional and the Legislature would be forced to come up with a plan that would comply.

"I gave you the building blocks," Cooper told the justices.

Winfield attorney Jennifer Scragg Karr, who is representing Putnam and Mason counties, argued Thursday the Legislature's priority should have been complying with the state constitution -- then try to "harmonize" its plan with the 14th Amendment.

"Our state constitution is clear," she told the justices. "Redistricting occurs along county boundary lines, not political party lines."

To do anything but constitutes political gerrymandering, Karr said.

Politics can be considered when redrawing lines, she admitted, but to make it a priority is wrong.

"You can look at politics and partisanship to maintain fairness and the two-party system we have," she said. "But if you are intentionally trying to harm one particular party, that's where you get into trouble."

Under the new plan, Putnam County is to be divided among five districts. Only one of these districts consists solely of Putnam residents. And of the remaining four, Putnam residents will be outnumbered by other county residents in all but one.

That means Putnam County could end up with only one delegate for the next 10 years.

Moreover, the one district Putnam currently has all to itself contains two incumbent delegates. Coincidentally, these two delegates are Republicans.

Justice Menis Ketchum, in response to Karr's allegations of gerrymandering, noted there was no evidence of such wrongdoing.

"How do I sit here and say (the Legislature is) intentionally trying to harm a party if I don't have any evidence? How can we be asked to do that?" he asked.

A majority of justices expressed similar concerns throughout the hearing.

"Can we really get into people's intentions?" Chief Justice Margaret Workman asked at one point.

Justice Thomas McHugh expressed his reservations about taking on the case many times Thursday.

"What if we, the Court, say, 'OK, do this.' Where do we go from there? We can't take care of everybody. And even if we solve one person's problems, we won't be able to solve someone else's," he said.

But McHugh's concerns didn't stop attorney Jeffry A. Pritt from arguing for small counties like Monroe.

Like Cooper and Karr, he argued that Article VI includes "mandatory, restrictive language" that the Legislature has to abide by and didn't.

"I think it's critically important to small counties because they already have less of a voice in state government," Pritt said.

However, as Ketchum was quick to point out, the county also has fewer people.

"True," Pritt admitted. "But I'm not asking that Monroe get a delegate all to itself. I'm asking that the county stay a whole county."

Monroe County is one of the smallest in West Virginia, having a total population of 13,502, according to 2010 U.S. Census figures.

It should not be permissible, Pritt argued, to place a smaller county like Monroe into a multi-member district where the voting power of its citizens are further diluted.

Under the new House plan, Monroe voters are split between two different delegate districts.

Ketchum, playing devil's advocate, suggested that residents might actually be better off. "In this case, you'll have two delegates instead of one," he said.

"You're making the assumption that just because a delegate lives over the county line they might not take care of the people on the other side of the line," the justice said.

It is a logical possibility, Pritt argued.

"We want someone who is responsive to our local needs," he said. "We don't want to have to drive over an hour away to get to someone."

Anthony Majestro of Charleston law firm Powell & Majestro PLLC, who is representing Thompson in the House cases, conceded the redistricting process is difficult.

"It's difficult everywhere, but especially in West Virginia," he said, noting the geographical landscape, the state's borders and its diverse populations.

"It's a puzzle that doesn't have a clear solution."

However, the U.S. Supreme Court has made it "very clear" that state legislative districts must adhere to the 14th Amendment, Majestro argued.

"And the petitioners have already acknowledged their plans, their alternatives can't comply with the Equal Protection Clause without splitting up counties," he said.

Still, there needs to be a balance, Justice Brent Benjamin said.

"That's what we're looking at here, is if that balance was actually achieved," he said.

"There's a common sense issue here at some point."

The justice pointed to the South Hills district in Kanawha County. Under the new plan, the district would get three or four delegates. Meanwhile, a person living about 60 miles away in Point Pleasant would only get one.

"That means when someone in Point Pleasant has a problem, they only have one person to call up. Someone in South Hills has three," Benjamin explained.

"You don't see that as a problem? My guess is a lot of West Virginians do."

Majestro argued that, proportionately, there are more people in South Hills than Point Pleasant.

"I think we disagree your honor," he told Benjamin.

The Legislature, Majestro said, didn't just make up a plan on its own. It set up a task force, a webpage and sought public comment on the issue.

He likened the process to painting. "It's not a paint-by-numbers," he said.

"What the petitioners are asking you to do is draw the lines and then have the Legislature color them in how they want."

Thomas W. Rodd, who is representing Tennant, argued for "rapid resolution" with a ruling from the Court by Dec. 1.

"Clerks, county commissions and candidates considering filing for office have imminent deadlines to accomplish certain required actions and to make personal and professional decisions," Tennant's office wrote in a Nov. 4 response.

Potential candidates, Tennant has explained, must know for what delegate district they may file at least by the filing period, which starts Jan. 9, 2012 and lasts until Jan. 28, 2012 -- "and even sooner if they need to give the matter some study and thought before filing."

County commissions also must have completed the redrawing of any precincts that include territory contained in more than one senatorial or delegate district no later than Jan. 21, 2012.

With respect to the second deadline, any proposed redrawing of precinct boundaries must be published as a legal notice at least one month before revised boundaries take effect, making Dec. 21 the last possible date of publication, Tennant has said.


The petitioners in the Senate cases take aim at Senate Bill 1006, also known as the Senate Redistricting Act of 2011.

They argue they have been deprived of their constitutional rights to participate in future elections as voters -- or candidates -- because of the Legislature's failure to abide by mandatory provisions of the West Virginia Constitution.

Like those petitioners in the House case, they point to Article VI of the constitution.

The new map, of 17 two-seat districts, splits 13 of 55 counties between more than one district. Monongalia County would remain divided among three districts.

"Unconstitutional gerrymandering by ignoring county and precinct boundaries is exactly what happened in SB 1006," the Monongalia and Wood petitioners wrote in their filing earlier this month.

Dan Lattanzi, who argued on behalf of the two counties, said Thursday the divisions are "not incidental."

"The Senate, in complying with federal requirements, violated the state constitution, in particular crossing county lines," he said.

"They went too far to the left at the expense of many West Virginia communities."

But as Workman pointed out, the petitioners' arguments shouldn't be focused on individuals.

"All of us are elected people," she said. "We're just temporary personnel."

Rodd, who also is representing Tennant in the Senate cases, admitted the new Senate plan might have protected incumbents. But doing so is "a perfectly valid purpose," he said.

"It's about more than that, though," he said, noting the importance of continuity. "It's really about preserving political relationships."

Rodd pointed out that the 2001 Senate plan and the newest version are not all that different.

"When the Senate said it was 'tweaking' the system approved in 2001, it's true. That's what they did," he said. "And of course then it favors incumbents. But that's not unconstitutional."

Cooper, who also dislikes the Senate plan, said just because the two plans are similar doesn't make the new one right.

"If you want to perpetuate the status quo, then go ahead," he told the justices. "All I'm saying is that the state constitution has criteria and theirs doesn't follow it."

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