‘Flip’ gets U. S. Supreme Court OK

WASHINGTON, D.C. – Critics say Tuesday’s decision by the U.S. Supreme Court upholding a controversial Congressional redistricting plan is bad news for the Eastern Panhandle.

Known as the “Mason County flip” – and described by one expert as “an abomination” and the product of gerrymandering – the high court ruled the plan is constitutional.
The court did not rule on whether the plan violates the West Virginia Constitution, however, leaving open the possibility that a lower federal court could throw out the plan a second time.
Critics argue that the ruling is an example of judicial activism which will work to undermine the 30-year-old Constitutional standard of “one person, one vote.”
In an unsigned decision, the court decided that a federal three-judge panel that had ruled the plan unconstitutional “failed to afford appropriate deference to West Virginia’s reasonable exercise of its political judgment.”
The plan was passed by the Legislature in a 2010 special session. The Select Committee on Redistricting, headed by Sen. John Unger passed the plan over Unger’s objections. The Legislature chose a plan that simply moved Mason County from the Second to the Third Congressional District over several other plans that more radically redrew the district maps.
The chosen plan also had a much higher population variance – at nearly 5,000 people – than alternatives considered, including some with a population variance of as little as 1 person.
Attorneys Stephen Skinner and David Hammer approached the Jefferson County Commission in late 2010, offering to challenge the constitutionality of the new plan pro bono. The commission unanimously agreed to file suit against the state in federal court.
Skinner and Hammer argued that the plan violated both the United States and West Virginia constitutions.
The .79 percent population variance involved in the plan, they said, was inconsistent with the constitutional principle of equal representation, often expressed in the phrase “one person, one vote.”
They also argued that the long, winding Second District, which runs from the Shenandoah to the Ohio River and is only 20 miles wide at its thinnest, was not a “compact” district, as is required by the state constitution.
They also called Kenneth Martis, a professor of geography at West Virginia University, a specialist in redistricting history who testified that the current district map was the result of gerrymandering in 1990, when U.S. Rep. Harley “Bucky” Staggers’ district was cut into three pieces. Martis called the map “an abomination” and said it was one of the few example academics could turn to for a clear case of “intra-party gerrymandering” since it was the result of Democrats working to eliminate one of their own House members.
The Legislature argued that the “Mason County flip” plan had achieved two important goals that plans with lower population variances had not: keeping counties whole, preserving the “cores” of the existing districts, and preventing a situation in which incumbent representatives would have to run against each other. The legislature also argued that it was impossible to have truly compact districts because of the irregular shape of the state’s borders.
In January 2011, the three-judge panel sided with the Jefferson County Commission in a 2-1 vote, finding that the state’s objectives did not outweigh the harms created by diluting the votes of the Second District.
In reversing the lower courts ruling, the Supreme Court said that the 79 percent variance was “minor” and could therefore be justified by other political objectives like refusing to split counties and preventing incumbents from running against one another. The court rejected an argument accepted by the three-judge panel that, because newer redistricting technology allowed states to achieve near-zero population variances easily, the standards for population equality ought to be increased.
“Despite technological advances,” said the court, “a variance of 0.79% results in no more (or less) vote dilution today than in 1983, when this Court said that such a minor harm could be justified by legitimate state objectives.”
Skinner argues that the court’s decision was an example of judicial activism which will have a negative impact the “one person, one vote” standard.
“They have basically overturned over 30 years of law to justify this under the federal constitution. This is going to have long-range repercussions for all redistricting,” Skinner said. “The rule has been that you need to try to make each district as equal as possible in terms of population. That used to be the law. Now other things can be taken into consideration that outweigh that.”
Skinner said he strongly disagrees that these considerations ought to outweigh equal representation.
“One of the other things that the Legislature said here is that protection of incumbents is a valid reason [to dilute votes],” Skinner said. “I don’t think protection of incumbents is a good reason for redistricting.”
But in the ruling made public Tuesday, the Supreme Court threw out only arguments that the plan was unconstitutional under the U.S. Constitution. Neither the lower federal court nor the Supreme Court has ruled on whether the plan violates the West Virginia Constitution. Skinner and Hammer say they will continue to fight for a new redistricting plan on those grounds.
“What the Supreme Court said is that because the federal court did not rule on our West Virginia constitutional claim, it is remanded for further proceedings,” Hammer said.
“We still have a question that goes back to the compactness of the districts, which is required by the West Virginia Constitution,” said Skinner, who said the Jefferson County Ccommission made a good case that the Second District was not compact. “I don’t think anybody can tell you that these districts are compact.”
Hammer said he expects the three-judge panel to issue a ruling on the issue of compactness soon.
“My view is that the federal panel will probably take up our state constitutional claims fairly quickly,” Hammer said. “The evidence is already closed and the briefing is completed.”
Skinner added that the Eastern Panhandle has a great deal at stake in the outcome of the case.
“They’re diluting the Eastern Panhandle by not including all of it in a Congressional district. That means that we have less power in choosing who we want for Congress,” Skinner said. “At the moment, Kanawha County is going to dictate who is going to represent us in Congress.”
“For all the state boards and commissions that are divvied up based on the congressional districts, we are put into the same district as Charleston, which means that more people for boards and commissions get appointed from Kanawha County. The redistricting completely disadvantages the Eastern Panhandle.”


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