No stay of ruling on West Virginia's Congressional districts

Jessica M. Karmasek Jan. 11, 2012, 2:45pm


CHARLESTON (Legal Newsline) - A federal panel on Tuesday denied a motion by a group of West Virginia officials asking for an immediate stay of a ruling issued last week in a congressional redistricting lawsuit.

Federal appellate judge Robert B. King and U.S. District Judge Irene Berger, in an eight-page order filed in the U.S. District Court for the Southern District of West Virginia, also modified their original order, filed Jan. 3.

In its 2-1 decision last week, the three-judge panel ruled West Virginia's newly drawn congressional districts are unconstitutional.

King and Berger ruled together, while U.S. District Judge John Preston Bailey dissented.

In its order, the panel said the state's new districts must be redrawn in two weeks, and that they would redraw the districts if lawmakers did not do so before Jan. 17.

"By establishing an initial two-week window for corrective action on a redistricting plan, we hoped to facilitate the State's implementation of a plan that Secretary (of State Natalie) Tennant could administer within the existing statutory framework," King and Berger wrote in their new order.

"The filing of an appeal by the Defendants likely makes it more difficult (or even impossible) for Secretary (of State Natalie) Tennant, county officials and potential candidates for Congress to comply with the current deadlines, but that is a choice reserved for the State, which certainly has the ability to modify those deadlines in aid of its litigation strategy."

Those state officials named as defendants in the lawsuit -- Senate President Jeff Kessler, House Speaker Rick Thompson, Gov. Earl Ray Tomblin and Tennant -- last week asked for an immediate stay of the panel's original ruling. They also said they would seek an appeal from the U.S. Supreme Court.

"Redistricting is properly a legislative function," Kessler, D-Marshall, said in a statement.

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

In light of the defendants' "display of confidence," the panel said Tuesday it no longer perceived "any pressing need, in the absence of State action, to impose a remedy by a specified time."

"Therefore, reiterating our strong preference that the State act on its own behalf in redistricting, we shall defer any and all action with respect to a remedy until after the Supreme Court has disposed of the Defendants' forthcoming appeal," King and Berger wrote.

"The State, however, continues to be enjoined from conducting its 2012 congressional elections pursuant to section 1-2-3 as currently enacted."

The Supreme Court could reject the defendants' appeal, forcing the State to enact a constitutional plan.

Or, it could accept their appeal and ultimately vacate the panel's order, which could mean reinstating the newly drawn districts.

In either case, Tennant's office will be the one most affected, King and Berger said.

"Secretary Tennant will no doubt have endured a certain amount of aggravation and inconvenience from having to accommodate and implement a plan on relatively short notice," the judges wrote.

"Although a final remedy is forestalled, the continuing injunction against current section 1-2-3 reemphasizes the vindication of the Plaintiffs' (and the Intervening Plaintiff's) rights and helps to ameliorate any injury they and the citizens of West Virginia may suffer by virtue of the delay occasioned by the Defendants' decision to pursue an appeal."

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.

The Jefferson commission argued the four state officials 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.

The filing period for candidates began 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.

On Wednesday, Kanawha County Commission President Kent Carper said the commission, along with County Clerk Vera McCormick, will conduct a hearing for the public to review and comment on any proposed redistricting maps.

Carper said the hearing will be held at the Kanawha County Courthouse once new maps are prepared. Plenty of notice will be given, he said.

"We held a similar public hearing on the West Virginia Senate and House of Delegates redistricting maps this summer," he said.

"We must give the public an opportunity to see the congressional redistricting maps before their final approval by the West Virginia Legislature."

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