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More on redistricting suits

By Staff | Nov 18, 2011

We talked here last week about three lawsuits challenging the constitutionality of the redistricting of the House of Delegates this past August.

One of the lawsuits, filed by Thornton Cooper of Charleston, argues that the entire House of Delegates redistricting was unconstitutional because it (a) doesn’t sufficiently honor county lines and (b) doesn’t divide the House of Delegates into all single-member districts.

I failed last week to mention the remedy proposed to the State Supreme Court by Mr. Cooper. Anytime you file a lawsuit claiming a particular act of a legislative body or administrative agency of government is unconstitutional you’re supposed to suggest a remedy to the situation that you think would be constitutional.

Cooper’s proposed remedy is to run the 2012 election under the current House of Delegates districts. These are the districts drawn after the 2000 census. They have been in use since 2002.

Whew! The largest of these districts have populations that are twice the size of that of the smallest. If anything would be unconstitutional, this would be. Federal courts have ruled that the population of the largest state legislative district with the same number of representatives is permitted to be no more than 10 percent greater than the population of the smallest district.

Some “remedy.”

Another lawsuit seeks to have the redistricting of the State Senate overturned. That suit comes from Wood County (Parkersburg) and argues that the West Virginia Constitution mandates that no county may be divided among State Senate districts.

The State Constitution does indeed say that. But we’ve been dividing counties between State Senate districts for at least 20 years. Our current State Senate District, drawn in 2001, divides Berkeley County between two State Senate Districts. So, why have we been able to get away with so blatantly violating the State Constitution?

Federal courts have interpreted the United States Constitution to mandate as close to “one person-one vote” as practicable. If the only way to get all State Senate Districts within reasonable bounds of equal population is to divide some of those districts, then that’s what we have to do. The United States Constitution trumps the State Constitution anytime there’s a conflict between the two.

Local attorney Stephen Skinner has filed a lawsuit in federal court challenging the legislature’s redistricting of West Virginia’s three congressional seats.

The legislature took what I believe to be the easy way out on this issue by moving only one county, Mason, from the Second District (ours) to the First. Federal courts have mandated that there be no more than a 1 percent population differential among a state’s congressional districts. Moving Mason accomplished that.

But federal courts have also mandated that you must get the districts as close in population as humanly possible. Several proposals that the legislature rejected had closer population variances than the one finally chosen.

Federal courts have also said that districts should be geographically compact. Our district begins on the Ohio River (Jackson County) and runs through Charleston before snaking its way through the Monongahela National Forest and the Potomac Highlands to Harpers Ferry. The new Second District, just like the old one, runs from the depths of the Ohio to the peaks of the Blue Ridge. That certainly does not meet a “geographic compactness” standard.

Stay tuned. We’ll see what the West Virginia State Supreme Court says about the legislative redistricting lawsuits and what the federal courts say about the lawsuit over congressional redistricting.

Delegate John Doyle is a regular columnist for The Shepherdstown Chronicle. His opinions are his own and not that of the paper’s. He can be reached at johndoyle@wvhouse.gov.