W.Va. officials to appeal redistricting ruling to U.S. SC

Jessica M. Karmasek Jan. 6, 2012, 9:30am





CHARLESTON, W.Va. (Legal Newsline) - Those West Virginia officials named as defendants in a congressional redistricting lawsuit said Thursday they will ask for an immediate stay of a ruling earlier this week and seek an appeal from the U.S. Supreme Court.

"Redistricting is properly a legislative function," Senate President Jeff Kessler said in a statement.

"We believe the action taken by the West Virginia Legislature was constitutional and well considered."

A three-judge federal panel ruled Tuesday that West Virginia's newly drawn congressional districts are unconstitutional and must be redrawn in two weeks.

The panel, in a 2-1 ruling, said they would redraw the districts if lawmakers don't do so before Jan. 17.

"As I have consistently maintained, redistricting is by its very nature a legislative function," Gov. Earl Ray Tomblin said in a statement Thursday.

"By seeking this stay, the Legislature will have an opportunity to seek meaningful review of the split decision of the three judge panel striking down the Legislature's congressional redistricting plan."

House Speaker Rick Thompson said both he and Kessler and are "confident" that the redistricting plan, which was adopted by the Legislature with bi-partisan support, meets all constitutional requirements.

"All parties involved have consulted and are in agreement that we are compelled to ask for a stay of the judges' deadline and ultimately ask the U.S. Supreme Court to overturn the panel's ruling," he said Thursday.

Secretary of State Natalie Tennant said although her office's role in the case is considered a neutral one, the intended appeal -- which most likely will not be decided for several months -- may raise questions about the election process and what rules apply.

"Therefore, to clarify those matters, the Secretary of State has joined the other defendants in requesting an emergency stay of the court's ruling," Tennant said in a statement.

In November, the Jefferson County Commission, president Patsy Noland and vice president Dale Manuel sued the State over the new congressional redistricting plan. Kanawha County lawyer Thornton Cooper later joined the case, which objects to the redrawing of the Second Congressional District that includes both Kanawha and Jefferson counties.

The current plan shifts Mason County from the Second District to the Third District.

Kessler, Tomblin, Thompson and Tennant all were named in the lawsuit, originally filed in the U.S. District Court for the Northern District of West Virginia. The venue later was changed to the Southern District in Charleston.

The Jefferson commission argued the defendants have a duty under state law to ensure that the laws and constitution of the state are "faithfully executed." That includes, it said, the right to the election of representatives to U.S. Congress from districts that "shall be formed of contiguous counties, and be compact and... contain as nearly as may be, an equal number of population."

The commission said the trouble began during last year's first special session. The state Legislature was tasked with reapportioning congressional districts for the state's delegation to the U.S. House of Representatives based on 2010 U.S. Census figures -- the districts are redrawn every 10 years following the Census.

After creating a task force to develop a new congressional plan, senators eventually originated Senate Bill 1008, which provided for three districts of equal proportion.

Under the legislation, each had a population of about 617,665. According to the most recent Census, West Virginia has a total population of 1,852,994.

In August, the Legislature convened in another special session to adopt its plans for redistricting. Four different amendments to SB 1008 were proposed and debated.

Ultimately, the state Senate voted to pass the measure. However, the amended version of the bill moved Mason County from the current Second District into the current Third District.

The Second District, which includes Jefferson County, is now the most populous of the state's three congressional districts with nearly 5,000 more people than the other two districts. It is represented by Shelley Moore Capito, a Republican.

The Jefferson commission argued the districts, as currently drawn, are unconstitutional.

In particular, it argued that in placing Jefferson County in such an overpopulated district the Legislature has "deprived" the county's citizens and others in the Second District, and has "diluted" their vote.

"As enacted, the current statute results in an unconstitutionally high variance between the highest and lowest populated congressional districts," the commission wrote in its complaint.

On Tuesday, the federal panel said it is "loath to devise on our own a redistricting plan for the State of West Virginia, the 2012 congressional reelections will nevertheless be conducted under an interim plan promulgated by the court."

Fourth Circuit Court Judge Robert King and U.S. Southern District Court Judge Irene Berger ruled together, and U.S. Northern District Court Judge John Preston Bailey dissented.

Calling the Second District -- which stretches from the eastern Panhandle through central West Virginia toward the Ohio River -- "serpentine," the panel said their decision rectifies "a long-postponed reckoning of accounts" after the state's districts were redrawn from four to three in 1991.

"Erecting a figurative fence around a district's entire perimeter preserves its geographic core only in the grossest, most ham-handed sense that encasing a nuclear reactor in tons of concrete preserves the radioactive core of that structure," the panel wrote. "Indeed, with respect to the current Second District, snaking for the most part in a single-county narrowness across the breadth of the state, hundreds of miles of southwesterly from the Shenandoah River to the Ohio, identifying its core -- geographic or otherwise -- would prove virtually impossible.

"The anomaly brings to mind the old football adage that when a team decides it has two starting quarterbacks, it more precisely has none."

The filing period for candidates begins Monday and ends Jan. 28.

Candidates may choose to file before the final makeup of the three congressional districts are known. Candidates do not have to reside in the district for which they are running.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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