UPDATED: U.S. SC upholds W.Va. congressional redistricting

By Chris Dickerson | Sep 25, 2012





WASHINGTON – The United States Supreme Court on Tuesday reversed a lower court ruling, saying the congressional redistricting plan adopted by state leaders last year is fine.

The Court says the three-judge District Court panel "failed to afford appropriate deference" to the West Virginia Legislature's "reasonable exercise of its political judgment" when it redrew the districts following the 2010 Census.

The Jefferson County Commission originally filed the suit, alleging the redistricting plan violated the "one person, one vote" principle of the U.S. Constitution. The commission argued that a small population variance between the state's three congressional districts was too great.

In January, the three-judge panel denied a motion by West Virginia Senate President Jeff Kessler, House of Delegates Speaker Rick Thompson, Gov. Earl Ray Tomblin and Secretary of State Natalie Tennant officials for an immediate stay of a previous ruling issued in the redistricting lawsuit when U.S. Circuit Judge Robert B. King and U.S. District Judge Irene Berger ruled the districts unconstitutional, and U.S. District Judge John Preston Bailey dissented.

In Tuesday's unsigned opinion, the Justices said the adopted plan the population variations are too small to trigger constitutional concerns about the principle of "one person, one vote."

"I'm pleased that the Supreme Court has upheld the work of the West Virginia Senate and the West Virginia Legislature in the exercise of its political decision on how best to divide our congressional districts," Kessler, D-Marshall, said Tuesday. "I am happy to see that it did not defer to a judicially redrawn district and recognized that the Legislature is a separate but equal branch of government. I proudly guard the power of the Legislature.

"Is this plan perfect? No. Is there a perfect mathematical division of the districts? No, but it is very close to what we had done in the past. Do we still have strange looking division? Yes, but it's part of the way the state is made up. Someone's always going to be sticking out like a sore thumb."

Anthony Majestro, Thompson's attorney in the case, said he was happy with the ruling, but noted that the Court left open the question of whether the congressional redistricting plan complied with state constitutional requirements. Tuesday's opinion returned the case to the lower court panel to resolve that issue.

"I am happy that the Supreme Court recognized that reviewing courts should give deference to legislative determinations made in the course of creating redistricting plans," he said.

Majestro, who served as the case's counsel of record before the Supreme Court, was pleased to participate as lead counsel in a case before the highest court in the nation.

"It was a high honor to be able to present constitutional arguments to the United States Supreme Court and even a greater honor to win a unanimous decision from the Court," Majestro said, adding that he looks forward to seeing the case to conclusion after it is remanded back to the lower court for a resolution of the remaining state law claim.

Tennant also was happy with Tuesday's ruling.

"This decision validates the congressional districts being used in this current election and therefore changes none of the election preparation work of the Secretary of State's Office," Tennant spokesman Jake Glance said. "The 2012 Congressional Election has proceeded under this plan and will continue to do so.

"This decision has put to rest any questions regarding the Legislature's congressional redistricting plan and brought clarity to the Congressional District map."

In January, the U.S. Supreme Court already blocked the lower-court ruling to allow West Virginia to conduct elections under the redrawn map. The redrawn map shifted Mason County from the Second District to the Third District and allowed all three incumbents to run in their separate districts.

Last 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, which objected to the redrawing of the Second Congressional District that includes both Kanawha and Jefferson counties.

George Carenbauer, an attorney who represented Kessler in the case, said the Supreme Court ruling acknowledged that the Legislature's rationale and reasoning was "entirely consistent" with the landmark 1982 ruling in Karcher vs. Daggett.

That was a New Jersey case in which the court held that, even though the population differences in the districts were slight, they were unconstitutional because they "were not the result of a good-faith effort to achieve population equality." Justice William Brennan upheld past Supreme Court decisions and argued that relying on a strict numerical standard of populations to assess district equality would be misguided.

"What the West Virginia Legislature did was entirely proper and justified," Carenbauer said. "They were not being arbitrary and capricious. They acted in a way with its long-standing principles. West Virginia never has split a county in congressional districts. ... The plaintiffs were asking for a radical departure."

Carenbauer said he also thinks the U.S. Supreme Court acknowledged that the Legislature was being "absolutely apolitical" despite the fact that the state Senate is 82 percent Democrats and the House is two-thirds Democrats.

"They adopted a plan that kept in place the congressional districts where two of our three representatives are Republican," he said.

While he was pleased with the ruling, Carenbauer admitted that he was eager to argue the case in front of the U.S. Supreme Court, if only for one reason.

Justice Clarence Thomas rarely speaks from the bench, and he asks questions during oral arguments even less frequently. It has been more than six years since he asked a question during arguments. Carenbauer said he was eager to try to coax Thomas out of his shell.

"I've been practicing what I planned to say," Carenbauer said. "My line was, 'Justice Thomas, I'd be happy to answer any questions you may have.'"

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