Kessler, Thompson: Congressional redistricting plan is constitutional

By Jessica M. Karmasek | Dec 5, 2011




MARTINSBURG -- West Virginia Senate President Jeff Kessler and House Speaker Rick Thompson, in a filing Thursday, say they and the state Legislature have complied with "all applicable provisions" of state and federal law regarding a congressional redistricting plan.

Kessler and Thompson, in a joint answer filed in the U.S. District Court for the Northern District of West Virginia, admit the Senate Select Committee on Redistricting "considered but never agreed to" a plan in which the population variance from the least to the most populated district was 0.0 percent.

Last month, the Jefferson County Commission, president Patsy Noland and vice president Dale Manuel filed a lawsuit in federal court, suing the state over the current makeup of its three congressional districts.

The named defendants include Secretary of State Natalie Tennant, Gov. Earl Ray Tomblin, Kessler and Thompson.

The Jefferson commission argues the defendants have a duty under state law to ensure that the laws and constitution of the state are "faithfully executed." That includes, it says, 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 trouble began, the county says, 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 a bill, Senate Bill 1008, that 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 contends that the districts, as currently drawn, are unconstitutional.

In particular, it argues 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 their filing, Kessler and Thompson admit that SB 1008 has a difference of 4,871 people and a variance of 0.79 percent.

However, they argue that the plan is, indeed, constitutional.

In turn, Kessler and Thompson are asking that the court enter judgment confirming SB 1008's constitutionality.

And while they agree that it is "appropriate" for the federal court to convene a three-judge panel, as requested by the county, they deny it is entitled to any other relief.

In addition, they are requesting that the court transfer the lawsuit to the U.S. District Court for the Southern District of West Virginia in Charleston "for the convenience of the majority of the parties."

Meanwhile, the Jefferson commission is requesting that the panel enter a declaratory judgment that the existing districts violate their rights under state and federal law, and should be declared null and void.

It also is asking the court to enjoin the defendants from using the current district makeup in any future primary or general election.

In an order filed Tuesday, William B. Traxler Jr., chief judge of the U.S. Court of Appeals for the Fourth Circuit, designated Fourth Circuit Judge Robert B. King, U.S. District Judge John Preston Bailey and U.S. District Judge Irene Berger to serve on the panel.

On Wednesday, the court also granted South Charleston attorney Thornton Cooper's motion to intervene in the case.

Cooper, who was involved in lawsuits over the state Senate and House redistricting plans, says he is concerned the Jefferson commission's plan may involve the division of Kanawha County between or among different congressional districts.

Cooper is representing himself in the case.

Kessler is being represented by George E. Carenbauer of Charleston law firm Steptoe & Johnson. Thompson is being represented by Anthony J. Majestro of Charleston firm Powell & Majestro PLLC.

Stephen G. Skinner of the Skinner Law Firm in Charles Town and David M. Hammer of the Martinsburg firm Hammer, Ferretti and Schiavoni are representing the commission, Noland and Manuel.

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