UPDATE: Three-judge panel rules West Virginia congressional redistricting plan unconstitutional
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UPDATE: 4:58 p.m. – Added comment from spokesperson for Rep. Shelley Moore Capito.
By Steven Allen Adams | West Virginia Watchdog
CHARLESTON — A three-judge panel ruled that West Virginia’s congressional redistricting plan violates the U.S. Constitution, and instructed the West Virginia Legislature to submit a new plan.
In a 2-1 ruling, a three-judge federal panel said that a redistricting plan, which left the state’s three congressional districts virtually unchanged, violates the U.S Constitution’s Equal Protection Clause by not having equal representation in each district.
The court gave the West Virginia Legislature until Jan. 17 to submit an interim redistricting plan, or the panel would choose its own plan.
The Jefferson County Commission filed suit last year against the redistricting plan, citing population differences between each district and the continued break-up of the Eastern Panhandle, which gained population according to the 2010 Census.
“We are pleased and excited that the Court heard the plea of the Jefferson County Commission,” said Stephen Skinner, attorney for the Commission. “We hope that the Legislature avoids the 20-year-old gerrymander if it chooses a new plan by January 17th.”
The current congressional district configuration has been around since 1991, when West Virginia went from four districts to three districts. During an August 2011 special session, legislators only moved one county from the 2nd district to the 3rd District. The new 2nd district has 3,197 more people than it should, while the 1st district had a shortfall of 1,674 people: a variance of .79 percent
The court said the Legislature focused too much on maintaining the status quo instead of making each district as equal in population as possible. Out of nine plans proposed in August, including one that had zero variance, the Legislature chose the plan with the second highest variance.
The 2nd District, which includes part of the Eastern Panhandle, stretches over 300 miles, from the Potomac River in the east to the Ohio River in the West.
“Erecting a figurative fence around a district’s entire perimeter preserves its geographic core only in the grossest, most ham-handed sense that encasing a nuclear reactor in tons of concrete preserves the radioactive core of that structure,” the ruling said.
The Legislature also didn’t provide any policy reasoning in writing for keeping the districts the same and not choosing one of the seven other plans which came closest to zero variance.
“The onus is on the proponent of the challenged apportionment – here, the State of West Virginia – to affirmatively demonstrate a plausible connection between the asserted objectives and how they are manifested,” the ruling said.
“The Legislature neglected to create a contemporaneous record sufficient to show that S. B. 1008’s entire 4,871-person variance or even a discrete, numerically precise portion thereof – was attributable to the professed interest in keeping counties intact.”
The court also said the Legislature has a duty to make changes to congressional districts, even if it doesn’t want to.
“By its dogged insistence that change be minimized for the benefit of the delicate citizenry, we think it likely that the State doth protest too much,” said the court.
Senate President Jeff Kessler (D-Marshall) said he didn’t see any problems with getting another redistricting plan passed out of the Legislature in a week.
Do I think it can be done? Yes,” Kessler said. “The time frame is certainly fast approaching. There isn’t a lot of time for daddling around. We’d have to move and move fairly quickly, but it’s not some foreign issue or topic for us. We have clarification from the Court on what they’d like to see us do.”
Senate Majority Leader John Unger (D-Berkeley), who represents several Eastern Panhandle counties and drafted the zero variance plan, said he expects the Legislature to act quickly and come up with a more constitutional redistricting plan.
“The federal court looked at the product the West Virginia Legislature produced and declared that it was unconstitutional,” Unger said. “Now the Legislature is charged with going back and doing it right. I’m cautiously optimist that we will.”
Secretary of State Natalie Tennant, who played no role in coming up with the original redistricting plan, said her office would abide by the Court’s decision.
“I am confident that West Virginia can achieve equal populations in its congressional districts,” Tennant said. “The court has shown with this ruling that equal representation of all citizens in Washington is most important.”
All three of West Virginia’s representatives are up for re-election: 1st District Rep. David McKinley (R-W.Va), 2nd District Rep. Shelley Moore Capito (R-W.Va.) and 3rd District Rep. Nick Rahall (D-W.Va.). A spokesperson for the Capito campaign said the court usurped the authority of the Legislature.
“She’s obviously extremely disappointed and frustrated the Courts would overturn the will of the Legislature and the action of the Governor,” said campaign spokesperson Kent Gates. “I think it’s another example of a purely political judicial system in West Virginia that hurts the state.”
McKinley’s office had no comment, and a request for comment from Rahall’s office was not returned.
The filing period for candidates opens on Monday, Jan. 9, and ends at midnight on Jan. 28. Candidates may choose to file before the final makeup of the three congressional districts are known. Candidates do not have to reside in the district for which they are running.
- West Virginia congressional redistricting plan gets its day in federal court (westvirginia.watchdog.org)
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