King

Berger

Bailey

CHARLESTON – A three-judge federal panel says West Virginia's newly drawn congressional districts are unconstitutional and must be redrawn in two weeks.

The panel, in a 2-1 ruling Tuesday, said they would redraw the district if West Virginia lawmakers don't do so before Jan. 17.

In November, the Jefferson County Commission, president Patsy Noland and vice president Dale Manuel sued the State over the new congressional redistricting plan. Kanawha County lawyer Thornton Cooper later joined the case that objects to the redrawing of the 2nd Congressional district that includes both Kanawha and Jefferson counties. The current plan shifts Mason County from the 2nd District to the 3rd District.

Gov. Earl Ray Tomblin, Secretary of State Natalie Tennant, state Senate President Jeff Kessler and House Speaker Rick Thompson all were named in the lawsuit, originally filed in the U.S. District Court for the Northern District of West Virginia. The venue later was changed to the Southern District in Charleston.

The Jefferson commission argued the defendants have a duty under state law to ensure that the laws and constitution of the state are "faithfully executed." That includes, it said, the right to the election of representatives to U.S. Congress from districts that "shall be formed of contiguous counties, and be compact and ... contain as nearly as may be, an equal number of population."

The commission said the trouble began during this year's first special session. The state Legislature was tasked with reapportioning congressional districts for the state's delegation to the U.S. House of Representatives based on 2010 U.S. Census figures -- the districts are redrawn every 10 years following the Census.

After creating a task force to develop a new congressional plan, senators eventually originated Senate Bill 1008, which provided for three congressional districts of equal proportion.

Under the legislation, each had a population of about 617,665. According to the most recent Census, West Virginia has a total population of 1,852,994.

In August, the Legislature convened in another special session to adopt its plans for redistricting. Four different amendments to SB 1008 were proposed and debated.

Ultimately, the state Senate voted to pass the measure. However, the amended version of the bill moved Mason County from the current Second Congressional District into the current Third District.

The Second District, which includes Jefferson County, is now the most populous of the state's three congressional districts with nearly 5,000 more people than the other two districts. It is represented by Shelley Moore Capito, a Republican.

The Jefferson commission argued the districts, as currently drawn, are unconstitutional.

In particular, it argued that in placing Jefferson County in such an overpopulated district the Legislature has "deprived" the county's citizens and others in the Second District, and has "diluted" their vote.

"As enacted, the current statute results in an unconstitutionally high variance between the highest and lowest populated congressional districts," the commission wrote in its complaint.

The federal panel said it is "loath to devise on our own a redistricting plan for the State of West Virginia, the 2012 congressional reelections will nevertheless be conducted under an interim plan promulgated by the court."

Fourth Circuit Court Judge Robert King and U.S. Southern District Court Judge Irene Berger ruled together, and U.S. Northern District Court Judge John Preston Bailey dissented.

Calling the Second District -- which stretches from the eastern Panhandle through central West Virginia toward the Ohio River -- "serpentine," the panel said their decision rectifies "a long-postponed reckoning of accounts" after the state's districts were redrawn from four to three in 1991.

"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 panel wrote. "Indeed, with respect to the current Second District, snaking for the most part in a single-county narrowness across the breadth of the state, hundreds of miles of southwesterly from the Shenandoah River to the Ohio, identifying its core -- geographic or otherwise -- would prove virtually impossible.

"The anomaly brings to mind the old football adage that when a team decides it has two starting quarterbacks, it more precisely has none."

After today's ruling, Tennant said she is glad the panel made a prompt decision, calling it "a great benefit to potential candidates, to local election officials, and the Secretary of State's Office."

"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."

The filing period for candidates opens Jan. 9 and ends 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.

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