CHARLES TOWN — The challenge of a congressional redistricting plan by the Jefferson County Commission has moved one step further toward a possible hearing before the U.S. Supreme Court.
The commission has filed its response to an appeal filed by state officials – including Senate President Jeff Kessler and House Speaker Rick Thompson – who lost their bid to defend the ‘Mason County Flop’ plan before a federal three-judge panel in a split decision. The state now has ten days to file a rebuttal.
The Mason County Flop – under which the panel allowed the 2012 elections to be conducted – left prior congressional district boundaries largely unchanged, only moving Mason County from the Second District to the Third District. Detractors say the plan preserves an act of gerrymandering during the prior round of redistricting and point out that the plan has by far the highest population variance of any plan in the country.
They also complain that the current redistricting plan keeps the long, winding and narrow Second Congressional District, which runs from Jefferson to Kanawha County, in the same basic form.
Federal case law requires that redistricting plans eliminate population variance – the difference between the most- and least-populated districts – to the greatest degree possible. It allows such variances to remain in place only when justified by substantial and legitimate state objectives.
In its appeal of the three-judge panel’s decision, the state argued that the legislature had been motivated by three important objectives, which it said justified the plan’s .79 percent population variance: not dividing counties between two congressional districts, preserving the cores of the existing districts and avoiding conflicts between incumbent representatives.
“The principle question is whether or not a variation of .79 percent is a kind of minor variation that a legislature can have for justifiable reasons,” said George Carenbauer, Kessler’s attorney. “The … path that West Virginia has followed is to say that there are higher objectives than a zero population variance.”
The legislature did not attach any ‘legislative findings’ to the plan, however, which spelled out these objectives. The County Commission argues that these objectives were come up with after the fact to justify a plan that had largely been drawn up for convenience’s sake.
The Commission’s response asserts that the official record of the legislature’s deliberations shows that legislators were motivated by a desire to finish quickly so they could either go home or attend a meeting of the National Coalition of State Legislatures. The response quotes the assessment of Senate Majority Leader John Unger, a vocal opponent of the Mason County Flop, who said it was “the most politically expedient [plan]. It was one that we could do and move out and get out of town.”
It also quotes Senate Minority Leader Mike Hall, who stated on the floor “it’s late in the game… [E]veryone wants to go home. Hopefully, tonight.”
“Amending (the Mason County Flop) in the Senate … would have required spending more time, a prospect the legislature resisted. As one senator noted, ‘[i]f we [amend it], we’re probably going to be here a few more days,’” states the response.
Carenbauer argues that the legislature’s redistricting plan effectively avoided any political motivation.
“The easier choice of the zero population variance does not in any way cure the political manipulation that legislatures can engage in,” Carenbauer said in an interview. “We have chosen the more difficult and far less political path, which is to say that we have the values of keeping county lines in tact, not having incumbents run against each other, (etc.) We are probably the least political of the redistricting states. We may have a higher variance, but we also have zero politics.”
The Commission has been represented so far by local attorneys Stephen Skinner and David Hammer. As the appeal moves toward the Supreme Court, however, they have enlisted the help of several outside attorneys with experience arguing before the highest court in the country.
Daniel Ortiz and James Ryan of the University of Virginia Law School’s Supreme Court Litigation Clinic have joined up to help with the case, as have two attorneys from Washington, D.C. and one from New York City.
“What we have gotten for the county are some of the high-level appellate lawyers who practice in front of the United States Supreme Court all the time, along with the students that they are teaching. We all collaboratively worked on the brief,” Skinner said. “It is very exciting to get this level of help for the case. The case is of national interest.”
Skinner expects that by end of June the Supreme Court will decide whether to take up the case. If it declines, the legislature must redraw the lines again. If it agrees to take up the case, oral arguments will likely be heard some time in the fall.
“We feel good because we know that we’re right,” Skinner said. “In order for us to be wrong, the Supreme Court would have to overturn 30 years of constitutional law.”
“Every state follows the law the way it is set up, where it is ‘one person, one vote.’ West Virginia did not do that. In order for the state to be right, the Supreme Court would have to be activist in its approach.”