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W.Va. officials say redistricting ruling worth U.S. SC review

By Jessica M. Karmasek | Mar 28, 2012





WASHINGTON (Legal Newsline) - Lawyers for a group of West Virginia officials argued in a filing with the U.S. Supreme Court this week that a federal panel's ruling in a congressional redistricting lawsuit is worthy of the Court's review.

A jurisdictional statement was being filed Tuesday with the Court by attorneys for Gov. Earl Ray Tomblin, Secretary of State Natalie Tennant, Senate President Jeff Kessler and House Speaker Rick Thompson.

The state officials already filed their notice of appeal with the Court Jan. 27.

Kessler and Thompson appeal the judgment in its entirety. Tomblin and Tennant join in the appeal insofar as it seeks reversal of the interim remedy imposed by the majority opinion.

"From 1971 through the enactment of the 2011 statute currently under challenge, the Legislature has sought to avoid contests among incumbent representatives, keep counties intact, and retain the core of the prior districts by making only minimal changes to both the number of counties and persons involved all while at the same time attempting to make the districts as compact as West Virginia's unique geography permits," attorneys for the officials wrote in this week's Supreme Court filing.

"Prior federal three-judge panels have recognized these aims and have previously approved West Virginia's congressional districts in a form that is essentially identical to the districts now found to be unconstitutional by the majority of the panel."

In January, a federal panel denied a motion by the officials asking for an immediate stay of a ruling issued in the redistricting lawsuit.

U.S. Circuit 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, 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 majority 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 Tennant could administer within the existing statutory framework," King and Berger wrote.

"The filing of an appeal by the Defendants likely makes it more difficult (or even impossible) for Secretary 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."

Kessler, D-Marshall, said in January that redistricting is "properly a legislative function."

"We believe the action taken by the West Virginia Legislature was constitutional and well considered," he said in a statement.

In this week's filing with the nation's high court, the state officials argue that the majority's decision "undercuts" the Supreme Court's holding that a state may adopt a plan with a minor variance to achieve "consistent and nondiscriminatory policy objectives."

"One theme underlies the questions presented by this appeal. Redistricting by a legislature involves balancing the state's sometimes conflicting policy goals while at the same time assuring that the plan meets the relevant state and federal constitutional requirements. There are almost an infinite number of district combinations," they wrote in their 31-page filing.

"The issue thus becomes a question of where to draw the line between the role of a federal court reviewing a redistricting plan and the proper deference accorded to the legislature to determine how to balance the often conflicting policies."

It is "clear," the officials argue, that the majority's decision does not align with the Court's own prior precedents.

"The majority opinion (and cases like it) draw the line in a manner that replaces the political judgment of elected officials with a formalistic rigor inconsistent with legislative deference and respect for the exercise of political judgment," they wrote.

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.

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

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