Tennant

CHARLESTON -- Legal challenges to West Virginia's new redistricting plan now have shifted to the Senate side of the Statehouse.

On Friday, Monongalia and Wood county residents Eldon A. Callen, Jim Boyce, Petra and John Wood and Frank Deem filed a petition for writ of mandamus with the state Supreme Court of Appeals.

Callen serves on the Monongalia County Commission. Deem is a former state senator.

The Charleston Gazette previously reported that the petition had been filed Oct. 28 and that current Delegate Barbara Fleischauer, D-Monongalia, was a party to the petition. However, Fleischauer was not one of the petitioners included in Friday's filing.

The named respondent, again, is Secretary of State Natalie Tennant.

In their 11-page filing, the petitioners take aim at Senate Bill 1006, also known as the Senate Redistricting Act of 2011.

They argue they have been "deprived" of their constitutional rights to participate in future elections as voters -- or candidates -- because of the state Legislature's failure to abide by mandatory provisions of the West Virginia Constitution.

In particular, they point to Article VI, which relates to the division of the state into senatorial districts. It provides, in part, that "the districts shall be compact, formed of contiguous territory, bounded by county lines and as nearly as possible, equal in population..."

The Senate plan, the petitioners argue, does not conform to those mandatory constitutional requirements.

According to The Associated Press, the new map, of 17 two-seat districts, splits 13 of 55 counties between more than one district. Monongalia would remain divided among three districts.

"Unconstitutional gerrymandering by ignoring county and precinct boundaries is exactly what happened in SB 1006," the Monongalia and Wood petitioners wrote.

Like those filing suit against the House of Delegates redistricting plan -- also known as House Bill 201 -- the petitioners want the state's high court to declare the Senate bill unconstitutional.

In addition, they are asking the Court to issue a temporary redistricting plan that is compliant with state constitutional requirements and/or to order "the responsible state officials" to redraw the senatorial districts in compliance with the state constitution.

Their complaint isn't the only one filed against the Senate plan.

South Charleston attorney Thornton Cooper, who filed the original lawsuit over the House plan, filed a separate, 37-page petition Monday.

Tennant's response

In response to the challenges over the House plan, Tennant said Friday it is her statutory duty as the state's chief elections officer to respond to the petitions filed by presenting a "full legal defense" to the plan enacted in HB 201.

"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," according to her 25-page response filed with the Court.

Most importantly, she says, are the "pressing" time issues involved with the case.

"Clerks, county commissions and candidates considering filing for office have imminent deadlines to accomplish certain required actions and to make personal and professional decisions," she wrote.

Potential candidates, Tennant says, must know for what delegate district they may file at least by the filing period, which starts Jan. 9, 2012 and lasts until Jan. 28, 2012 -- "and even sooner if they need to give the matter some study and thought before filing."

County commissions, she says, must have completed the redrawing of any precincts that include territory contained in more than one senatorial or delegate district no later than Jan. 21, 2012.

With respect to the second deadline, any proposed redrawing of precinct boundaries must be published as a legal notice at least one month before revised boundaries take effect, making Dec. 21 the last possible date of publication, she says.

Accordingly, Tennant's office is requesting a ruling from the Court by Dec. 1.

She also argues -- again, in light of the deadlines -- that the Court should dispense with oral argument and issue a memorandum decision permitting the 2012 elections to go forward under HB 201.

Any "defects" in the redistricting, she says, could be corrected by the Legislature in time for the next regularly scheduled election cycle.

In her response, Tennant notes that similar redistricting plans have been unsuccessfully challenged in the courts since 1973.

The challenges raised by these lawsuits are not materially different than those in the past, she says.

"Although some individuals may believe that they could have created a 'better' plan, the responsibility of creating the plan belongs to the Legislature and not to any individual," Tennant said in a statement.

In fact, HB 201 enacts a representative apportionment scheme that is "far more aligned" with the core constitutional principle of equal representation than the apportionment that it replaces, she argues.

"This Court should not permit the delay of West Virginia voters' constitutional right to equal representation by allowing these petitions, simply by their filing, to delay and derail duly-enacted redistricting legislation that indisputably serves to advance those rights," Tennant wrote.

Attorney General Darrell McGraw's office is representing the Secretary of State's Office in the challenge.

More News