King

Berger

Bailey

CHARLESTON -- Federal judges who found population variances in West Virginia's congressional districts unconstitutional reacted to an appeal of the decision by mocking legislative leaders who expect the U.S. Supreme Court to reinstate the map.

Fourth Circuit Justice Robert King of Richmond and District Judge Irene Berger of Charleston denied a stay of an injunction against the map on Jan. 10, in an order they loaded with sarcasm.

"Defendants will be charged on appeal with persuading the Supreme Court that the state's enacted variance of 0.79 percent remains substantively tolerable in a national environment where variances much closer to true zero are the norm," they wrote.

"Defendants will have to convince the Court that the Legislature, which made no findings attempting to justify the variance, was entitled to neglect its procedural responsibility in the face of clear Court precedent obliging it to demonstrate that a particular objective required the specific deviations in its plan, rather than simply relying on general assertions," they wrote.

They wrote that at trial, counsel for House Speaker Richard Thompson said Karcher v. Doggett, a 1983 Supreme Court decision on population variances, "was a bad idea."

They didn't identify Thompson's counsel, but the docket shows Anthony Majestro of Charleston represents him.

They wrote that counsel said, "We think Justice White got it right in the dissent."

State Senate President Jeffrey Kessler evidently agrees, according to the judges..

They wrote that "we are obliged to ply our trade within the realm of 'what is' and not venture into the 'what ought to be.'"

They wrote, "Although the Supreme Court could concur in Speaker Thompson's endorsement of Justice White's position nearly 30 years after the fact and ultimately overrule Karcher, we would hardly characterize counsel's hopeful musings to that effect as the strong showing required to justify a stay."

Then they squeezed Thompson and Kessler into a tight spot by indefinitely postponing a Jan. 17 deadline for legislators to draw an acceptable map.

They wrote that they set the deadline in hopes of facilitating a plan that Secretary of State Natalie Tennant could administer within the existing statutory framework.

They practically dared legislators to pass a law delaying the current Jan. 28 filing deadline for Congressional candidates.

"The filing of an appeal by the defendants likely makes it more difficult, or even impossible, for Secretary Tennant, county officials, and potential candidates for Congress to comply with the current deadlines, but that is a choice reserved for the State, which certainly has the ability to modify those deadlines in aid of its litigation strategy," they wrote.

"Put succinctly, the decision to appeal appears to manifest the defendants' determination that the State's Congressional elections may be procedurally bifurcated from those contesting other offices and efficiently administered in a more fluid manner.

"In light of the defendants' display of confidence, we no longer perceive any pressing need, in the absence of State action, to impose a remedy by a specified time."

They deferred any and all action until after the Supreme Court has disposed of the forthcoming appeal.

"The Supreme Court may reject their appeal, after which we expect the State to enact a constitutional plan," they wrote. "Or the Court may accept the appeal and ultimately vacate our order.

"In either event, Secretary Tennant will no doubt have endured a certain amount of aggravation and inconvenience from having to accommodate and implement a plan on relatively short notice," they wrote.

They wrote that the injunction vindicated the rights of Jefferson County commissioners and lawyer Thornton Cooper of South Charleston, who challenged the map. They wrote that District Judge John Bailey of Wheeling, who dissented from the original order, would have granted a stay.

The map King and Berger rejected would have matched the one in force for the last ten years, except for transfer of Mason County from Second District to Third.

It would have provided for 615,991 persons in the First District, 620,862 in the Second, and 616,141 in the Third, deviating from equal population by 4,871.

King and Berger's first order found that a provision of the state constitution requiring formation of districts from "contiguous counties" doesn't rule out splitting of counties.

They wrote that no social, cultural, racial, ethnic or economic interests factored into the Legislature's decision.

"To the contrary, the emphasis was on preserving the status quo and making only tangential changes to the existing districts," they wrote. "Change is the essence of the apportionment process."

Dissenter Bailey wrote that they failed to give sufficient deference to the Legislature.

He wrote that keeping existing districts intact allows the public to know representatives and allows representatives to know their districts.

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