Redistricting case hits US court Three-judge panel hears arguments, testimony during 6-hour proceeding

Charleston Daily Mail (WV) - Thursday, December 29, 2011

Three federal judges said Wednesday they will soon decide whether lawmakers have justified the slight change made to West Virginia's congressional districts so that it passes state and U.S. constitutional muster. 

The panel fielded testimony and arguments at a six-hour hearing over whether the recently adopted redistricting plan provides equal representation as well as sufficiently compact districts. The 2012 candidate filing period begins Jan. 9. 

Judge Robert King of the Fourth U.S. Circuit Court of Appeals led questioning. U.S. District Court Judges John Bailey and Irene Berger, from each of the state's federal court districts, also quizzed lawyers and witnesses. 

Lawyers for legislative leaders urged the judges to consider that the plan passed overwhelmingly, following debate over several alternatives. The lawyers also argued that prior court rulings, including some that upheld earlier rounds of West Virginia redistricting, support the Legislature's approach. 

"The Legislature fully thought through the process," said lawyer George Carenbauer, representing Senate President Jeff Kessler. "Everything was discussed, and this was the ultimate policy decision." 

The Jefferson County Commission and two of its members filed the challenge. Kanawha County lawyer Thornton Cooper later joined the case. These plaintiffs object to the 2nd Congressional district, which includes both Jefferson and Kanawha. 

States have been revisiting their legislative and U.S. House of Representatives districts in response to the 2010 Census results. The Eastern Panhandle, which includes Jefferson County and is part of the 2nd Congressional District, led West Virginia in population growth. Areas suffering declines included the southern coalfields, in the 3rd District. 

The redistricting plan approved last August shifts Mason County from the 2nd District to the 3rd District. It leaves the remaining 1st District untouched. Stephen Skinner, a lawyer for the commissioners, said the result dilutes the votes of around 4,800 2nd District voters. He argued that violates the principle of one-person, one-vote that courts have found in the state and U.S. constitutions. 

Much of Wednesday's hearing focused on a 1983 U.S. Supreme Court ruling that requires legislatures to draw as equal districts as possible, unless they can prove they were pursuing a public policy goal. 

Senate Majority Leader John Unger, D-Berkeley, and Sen. Herb Snyder, D-Jefferson, testified that lawmakers passed the August legislation instead of alternatives that came much closer to providing equal districts. They also said the final bill lacks any written explanation of its approach. Unger voted against the bill, while Snyder initially opposed it before supporting final passage. 

But Senate Judiciary Chairman Corey Palumbo testified that he and other lawmakers had such policy goals as keeping counties whole, districts as intact as possible, and incumbents from having to run against each other. Palumbo, D-Kanawha, also said prior redistricting bills contain no legislative findings, but have been upheld by federal rulings of past decades. 

He also disagreed with Skinner that the 3nd District runs afoul of the state constitution's call for compact districts. 

"With the shape of the state and the population we have, it's hard to make a district look 'compact,' " Palumbo said. "I think the map we have now is as compact as we can make it." 

But a geography professor at West Virginia University, Kenneth Martis, condemned the district as an "abomination" when he testified. 

Martis published an historical atlas of U.S. congressional districts in 1982. The veteran scholar of the topic invoked the state constitutional language. 

"It was put in there by the founders so that mischief could be avoided," Martis said. "In the long run, gerrymandering is the bastardization of the process." 

Critics of the district's layout trace its purported flaws to the 1990s, when the Census results cost West Virginia a U.S. House seat. They allege fellow Democrats in the Legislature deemed then-Rep. Harley Staggers the odd man out, redrawing the districts to ensure his defeat in the next election. The Eastern Panhandle ended up in a district dominated by Kanawha, the most populous county and home to Charleston. 

The August legislation continues that status despite the region's growth, with the Legislature saying "too bad for the Eastern Panhandle," Skinner told the judges. 

Carenbauer agreed that Jefferson County's objections stem from the 1990s redistricting. But he showed the judges earlier maps to explain that the 2nd District first expanded greatly in size after the 1970 Census reduced the state's U.S. House delegation from five to four seats. The resulting redistricting left the 2nd District with 40 percent of West Virginia's area, Carenbauer said. 

The redrawing of congressional districts since then has gradually reduced its size. Starting with the 1990 Census results, lawmakers have also chosen horizontal boundary lines that stack the remaining three districts from north to south, he said. 

Carenbauer urged the judges to consider the latest changes within that historical frame. 

Both Carenbauer and Anthony Majestro, a lawyer for House Speaker Rick Thompson, noted that half the 34-member Senate served on the special committee that debated various maps before adopting the final plan over the one most favored by Jefferson County. The Senate and House passed that final plan by near-unanimous, bipartisan margins, they said. 

"Redistricting involves trade-offs," Majestro noted.