Cooper files redistricting petition

By Jessica M. Karmasek | Oct 14, 2011


CHARLESTON -- A West Virginia attorney says a new House of Delegates redistricting plan violates the West Virginia Constitution and "just barely" meets the requirements of equal representation set forth in federal case law.

Thornton Cooper of South Charleston filed his 40-page mandamus petition with the West Virginia Supreme Court of Appeals late Thursday.

Cooper, in his petition, says he wants House Bill 201, the plan redrawing House districts, deemed unconstitutional.

The bill was signed into law on Sept. 2.

"What they did was accommodate the members of the committee and protect incumbents," said Cooper, a Democrat.

"I don't think you should design county boundaries to protect incumbents. And you certainly shouldn't split precincts to protect incumbents."

The state's first redistricting plan passed the Legislature on Aug. 5, but flaws were found in the bill so then-Acting Gov. Earl Ray Tomblin was forced to veto it on Aug. 17. He then called for a second redistricting special session.

The second plan passed the House 56-30 on Aug. 20 and passed the Senate the next day. The plan calls for a total of 67 delegate districts.

Opponents of the law say the configuration violates the "one person, one vote" concept.

Cooper, in his petition, is asking the state Supreme Court to instead implement his own plan, which calls for 100 delegate districts.

"My plan would comply," he said. "But it's not necessarily the way we have to do it."

Cooper says the Court could simply declare the current plan unconstitutional and the Legislature would be forced to come up with a plan that would comply.

To do so, the Legislature must meet the equal representation requirements of both the state constitution and the Equal Protection Clause of the 14th Amendment, according to Cooper's petition.

It also, he says, is required to comply with a requirement in the state constitution that each county having a population "less than three-fifths of the ratio of representation for the House of Delegates, shall, at each apportionment, be attached to some contiguous county or counties, to form a delegate district."

The Legislature also, he says, must follow requirements of the constitution relating to the assignment of, at least, a specific number of delegates to each county or multicounty delegate district.

"These four constitutional requirements must be harmonized," Cooper wrote in his petition.

He alleges that HB 201 violates the state constitution because the populations in many of the districts in the bill "deviate more than 4 percent from the ideal population."

Under his proposal, he notes, no district has a deviation that is as much as 4 percent from the ideal population for that district.

Cooper also alleges that the Legislature's plan divides five counties, each of which has a population that is "less than three-fifths of the ratio of representation of the House of Delegates," and splits each between two separate delegate districts.

Under his plan, no county with a population that is less than 60 percent of that ratio of representation is split between two or more delegate districts.

The Legislature's plan, he alleges, also fails to assign at least the minimum number of a mandated delegates per county. In at least 17 counties, each has a population that is greater than the ratio of representation, he points out.

According to Cooper's plan, each of these counties is assigned at least the minimum number of mandated delegates.

He says HB 201 also violates the constitution because it imposes "delegate residency dispersal" requirements on exactly one multimember district in the state.

In addition to implementing his proposal, Cooper wants the Court to order Secretary of State Natalie Tennant to process any certificates of announcement by candidates for the House in 2012 as if they had been filed in the districts set forth in his plan.

That is, unless on or before Dec. 31 the Legislature has passed and Tomblin has signed a bill that redistricts the House of Delegates in accordance with the state constitution, he says.

"The Court is quite capable of knowing and understanding the timelines," Cooper said Friday.

"It will operate at its own speed. I've merely initiated the process. They're the ones who make the decisions."

Though he is unsure how the case will shake out, Cooper says no matter what he feels "very, very strongly" that what the Legislature did violated the state constitution.

"I don't have an ax to grind. I just want to see this done right," he said.

He's not the only one.

Putnam and Mason counties have already notified the state of its plans to challenge the law and will most likely file next week. Both contend it failed to establish single-delegate districts in their counties.

Putnam, in particular, argues it should be guaranteed more than one local representative.

"What they did in Putnam County was just absolutely unforgivable," Cooper said of the current plan. "That was an obvious gerrymander."

Last week, an attorney for the Monroe County Commission also notified the state of its plan to challenge the plan. It will most likely file later this month or early November.

The West Virginia Chamber of Commerce also has considered filing a lawsuit. It, too, prefers single-member districts, believing it will provide better representation.

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