Bluefield Daily Telegraph, Bluefield, WV

State News

November 7, 2011

Capital Focus: West Virginia redistricting plans under legal fire

CHARLESTON (AP) — All three of West Virginia’s new redistricting plans now face legal challenges, and the state’s chief election official says there’s less than a month to resolve them in order to keep the 2012 balloting calendar on track.

Three separate petitions ask the state Supreme Court to block the redrawn map for the House of Delegates. One of those cases was filed Friday. Another filing that day seeks the same result for the state Senate redistricting plan. A federal lawsuit, also filed Friday, targets the tweaking of district lines for the state’s three seats in the U.S. House of Representatives.

At least one more challenge may be on the way. Kanawha County lawyer Thornton Cooper, among those suing over the House of Delegates plan, said he hopes to file another petition Monday opposing the Senate plan.

Cooper has been among the critics of the House’s handling of the redistricting process, while praising senators for holding a series of public hearings around the state in advance of the Legislature’s actions this summer.

“They did everything right and the House did everything wrong when it comes to input,” Cooper said Friday. “But I don’t think either one of them complied with the state constitution.”

The state Supreme Court also heard Friday from Secretary of State Natalie Tennant. As West Virginia’s elections chief, she must carry out the district changes and help county officials do the same. As a result, each case seeks to stop her office from acting.

“Secretary Tennant accepts this responsibility even though she personally does not necessarily agree with the process by which the legislation was created, or the contents of the legislation,” her Supreme Court filing said.

Responding to the two initial House challenges, Tennant offered Dec. 1 as “the effective go/no-go date for conducting the 2012 election in accord with” the House redistricting plan. She referred to that month’s deadlines for publishing notice of new voting precinct boundaries. Would-be House candidates, meanwhile, must know where the districts fall by Jan. 9, when the filing period begins, she told the justices.

Each pending challenge alleges the Legislature violated constitutional provisions when it realigned district boundaries in response to the 2010 Census. All five invoke the West Virginia Constitution’s mandate for equal representation. Other cited provisions that require districts to be compact and contiguous, and govern when counties share delegates or are entitled to their own.

Several of the cases also look to the U.S. Constitution and the equal protection clause of its 14th Amendment. The U.S. Supreme Court has ruled that this principle of one person, one vote requires “substantially equal legislative representation” and for congressional districts to be equal in population “as nearly as is practicable.”

The U.S. House redistricting plan makes the slightest changes among the three. It shifts Mason County from the 2nd District to the 3rd District to adjust their populations. The resulting lawsuit, filed by Jefferson County commissioners, argues that senators wrongly chose this plan over one that yielded nearly identical populations among the three districts. It also questions how the 2nd District can be considered compact if it stretches across the state from the Ohio River to the Blue Ridge Mountains.

Cooper, a Democrat, is among those who championed single-delegate districts for all 100 House seats. The new plan instead distributes the delegates among 67 districts. While 47 are single-seat and another 11 have two members, the remaining nine each have between three and five delegates.

Of the other two House challenges, Putnam and Mason officials filed one jointly while one from Monroe County officials arrived Friday. Each county contests the sharing of its delegate districts with neighbors.

Residents of Monongalia and Wood counties, including former Sen. Frank Deem, are contesting the Senate plan. That new map, of 17 two-seat districts, splits 13 of 55 counties between more than one district. Monongalia County would remain divided among three different districts.

Tennant’s response argues that the House petitions second-guess the Legislature regarding a duty that it alone must perform. She also questions whether these pending lawsuits differ much from unsuccessful challenges to previous rounds of once-per-decade redistricting. Both Deem, R-Wood, and Mason County’s commission sued after the previous round of redistricting in 2001. Cooper has also been involved in prior redistricting challenges.

“There is not a single line in either Petition asserting that the methods, principles, considerations and practices used in (the House plan) represent a novel or significant departure from prior Legislative practice,” said her filing, written by Assistant Attorney General Tom Rodd, a former Supreme Court law clerk.

Echoing some of these arguments is House Speaker Rick Thompson, allowed to intervene in the petitions challenging the new delegate district map. His Friday filing, from Charleston lawyer Anthony Majestro, also notes that legislative districts can vary somewhat from the ideal population size as identified by the Census results. Each House district falls within 5 percent above or below that ideal, a range allowed under U.S. Supreme Court rulings, the filing said.

Friday’s petitions targeting the state Senate and congressional plans are expected to prompt similar responses. As for the two initial House challenges, the justices must decide whether they have enough merit to prompt further review. If the court calls for a more thorough defense of the redrawn delegate districts, it could also suspend that plan from taking effect until the challenges are resolved.

“The court has a wide range of options,” Cooper noted Friday.

Lawrence Messina covers the statehouse for The Associated Press. Follow him at http://twitter.com/lmessina

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