King

Berger

Bailey

CHARLESTON – Redistricting means change, federal judges declared as they shredded a new map of West Virginia congressional districts, and no one knows what changes the next map will bring.

On Jan. 3, Fourth Circuit Justice Robert King and District Judge Irene Berger wrote that they will adopt an interim map for this year's elections on Jan. 17, unless legislators offer an acceptable one.

Time grows short because candidates must file by Jan. 28.

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.

Berger and King found the districts deviated from equal population by 4,871, and they branded the deviations as a violation of the U. S. Constitution.

Legislators argued that the necessity of following county lines justified the deviations, but Berger and King found seven other map proposals that would have yielded lesser deviations without splitting counties.

They wrote that if they must choose a map, they would likely choose between those of South Charleston lawyer Thornton Cooper and State Sen. John Unger of Martinsburg.

That spelled vindication for Cooper and Unger, who dared to split counties.

Unger would have split Kanawha and Harrison counties between two districts, and Cooper's current map would split Taylor County.

Unger cast the Senate's only vote against the map the Legislature enacted.

Cooper sued the Legislature on behalf of himself, by intervening in a similar suit that Jefferson County commissioners filed in federal court at Martinsburg.

The commissioners claimed legislators improperly elongated the Second District, violating a requirement of compactness in the state constitution.

They figured Charles Town is closer to New York City than to Ripley, in the same district, and Ripley is closer to Indianapolis than to Charles Town.

They asked the Fourth Circuit in Richmond, Va., for a three judge hearing, and Fourth Circuit Chief Judge William Traxler granted it.

He picked King, a former district judge from West Virginia, along with Berger of the Southern District and Chief Judge John Bailey of the Northern District.

Bailey transferred the case from Northern District to Southern, and the panel held trial in Charleston on Dec. 28.

The state conceded it could have reduced the deviations without splitting counties, but it presented two other justifications for the deviations.

First, the state argued it preserved the cores of prior districts in keeping with the Karcher decision of the U.S. Supreme Court, allowing minor deviations for that purpose.

Second, the state claimed its map improved on others that would place incumbent Republican Representatives David McKinley of Wheeling and Shelley Moore Capito of Charleston in the same district.

Unger's map would produce that result, and Cooper's would not.

Berger and King apparently worked harder through the change of year than most folks, for they crafted a 32-page decision in six days.

They ruled that a provision of the state constitution requiring districts to be "formed of contiguous counties" doesn't rule out splitting of counties.

They wrote that "the provision should reasonably be construed to contemplate that counties may be subdivided, so long as the district's contiguity remains intact."

They wrote that state Senate districts no longer follow county lines. 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.

They wrote that identifying the core of the snaking Second District would prove virtually impossible.

"We certainly understand that, as a general proposition, rearranging a greater number of counties to achieve numerical equality in redistricting means that more citizens will need to accustom themselves to a different congressperson," they wrote.

"While we imagine that the acclimatization process may give rise to a modicum of anxiety and inconvenience, avoiding constituent discomfort at the margins is not among those policies recognized in Karcher as legitimizing a variance.

"By its dogged insistence that change be minimized for the benefit of the delicate citizenry, we think it likely that the state doth protest too much.

"From our vantage point, what the state now decries as a deviation from the norm could instead be described as a long postponed reckoning of accounts.

"Change is the essence of the apportionment process."

They brushed off the business about keeping McKinley and Capito apart, finding nothing in the record linking any variance to that particular interest.

They found that six maps with lesser deviations would have kept McKinley and Capito apart, and they wrote that this called into question the good faith of legislators.

Bailey dissented, writing that King and Berger failed to give sufficient deference to the Legislature.

"I disagree that the state has failed to demonstrate a proper justification for the variance," he wrote.

"Taken together, there can be no question that the objectives considered by the Legislature are not only legitimate but of great importance," he wrote.

"Keeping the existing districts intact allows the public to know their elected representatives and allows the representative to know his or her district, its problems and needs," he wrote.

He wrote that avoiding contests between incumbents is a valid interest.

He found no evidence that the state's objectives were pretextual.

"In fact, this judge was greatly impressed by the Legislature's efforts to address its redistricting duties in a non partisan manner," he wrote.

He wrote that no effort was made to provide a competitive advantage to either party. He wrote that Democrats ignored their power and approved a Republican amendment.

He wrote that the Senate passed the map by 31 to one, and the House of Delegates passed it by 90 to five.

"When one considers that these legislative bodies speak for the people of West Virginia, this court should be hesitant to thwart that will," he wrote.

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