W.Va. SC releases justice's dissent in redistricting case

Jessica M. Karmasek Jul. 23, 2012, 11:00am



CHARLESTON, W.Va. (Legal Newsline) - West Virginia Supreme Court Justice Brent Benjamin says he disagrees with a majority ruling in November that a redistricting plan for the state House of Delegates is constitutional.

On Nov. 23, the state Court of Appeals voted 5-0 not to change the state Senate districts. The justices voted 4-1 not to change the House districts. Benjamin dissented in a separate opinion released last week.

"Though I have lingering concerns about our westernmost senatorial district which extends from Mingo County to Mercer County, when viewed as a whole I do not disagree with the majority that the redistricting plan for the Senate, which creates only multi-member districts with two representatives from each district, satisfies minimum constitutional requirements," he wrote.

"However, I disagree with the majority's holding that the redistricting plan for the House of Delegates, which creates a strange mix of multi-member and single member districts, is constitutional."

The state's high court released Benjamin's six-page dissent Friday.

The justice explained that although not required by the U.S. Constitution, the state constitution requires that residents be afforded equal representation in the state's government.

"This particular mix of single- and multi-member district representation in the House of Delegates -- 47 single-member and 20 multi-member districts -- impermissibly degrades the influence which a citizen may have vis-à-vis citizens elsewhere in the state," he wrote.

"In my view, this mix of single- and multi-member districts is constitutionally unacceptable."

Simply put, the House plan gives greater voting power to residents of certain counties while giving little or no voting power to others, Benjamin contends.

"In West Virginia, the most logical grouping is the county in which one lives. When some groups are given an opportunity to aggregate their votes in an effective way while others are not, the votes of those who cannot aggregate their votes are diluted," he wrote.

"When dilution is so great that a citizen's vote does not effectively count, that person has effectively lost the benefit of his right to vote."

In February, the majority released its full opinion deeming the House and Senate plans constitutional. Justice Thomas McHugh authored the ruling.

"The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legislative redistricting plan is constitutional is to assess the validity of the particular plan adopted by the Legislature under both federal and state constitutional principles, rather than to ascertain whether a better plan could have been designed and adopted," McHugh wrote.

Five separate lawsuits alleged the Legislature was trying to gerrymander districts when lawmakers drew new district lines, which is done every 10 years following U.S. Census figures.

Two of the lawsuits were directed at the Senate plan, while the other three took aim at House plan.

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

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 lawsuits challenging the House plan.

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

All argued that the plans are unconstitutional, and wanted the Court to stop Secretary of State Natalie Tennant's office from implementing them.

Tennant was the primary respondent in the five cases. House Speaker Rick Thompson also was a respondent in the three House cases.

In its opinion, the majority pointed out that it was the duty of the state Legislature -- not itself -- to consider facts, establish policy and "embody that policy" in legislation.

"The role of this Court is limited to a determination of whether the Legislature's actions have violated the West Virginia Constitution," McHugh wrote.

In responding to the plaintiffs' arguments, the majority said it would "not endeavor" to apply a standard more strict than the 10 percent deviation standard.

It also noted that the idea of single-member districts has its advantages -- maintaining communities of interest, respect for local county policies, geographical compactness and equalizing the voting process.

However, it would not take a firm stance either way.

"Again, however, these are inherently political issues to be developed and debated in the legislative realm," McHugh wrote.

Multi-member districts and the splitting of county boundaries in the redistricting process are not per se unconstitutional, the majority said.

"While single-member districts and adherence to county lines may arguably be preferable from a policy standpoint, this Court will not engage in revision of a legislative decision on redistricting unless constitutional infirmity exists," McHugh wrote.

"Simply put, our state constitution simply does not prohibit a plan containing multi-member delegate districts."

As for claims of gerrymandering, the majority said it would "not intrude upon the province of the legislative policy determinations" to overturn the Legislature's redistricting plans based on such an assertion.

"Gerrymandering, in and of itself, is not unconstitutional and has clearly been deemed acceptable in legislative redistricting decisions," McHugh wrote.

"Lacking any authoritative standard by which to definitively judge such matters and absent compelling evidence that any unconstitutional partisan gerrymandering occurred in this matter, no relief is warranted, and petitioners' claims of gerrymandering must consequently fail."

The majority said it also was unwilling to disavow the "strong policy of deference to state legislatures in devising redistricting plans."

"Redistricting and reapportioning legislative bodies (are) a legislative task which... courts should make every effort not to preempt," McHugh wrote.

"State policies and state preferences are for a state's elected representatives to decide, and courts should not intercede unless there is a direct constitutional violation."

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

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