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Redistricting complete; now the lawsuits

By Staff | Nov 11, 2011

Three lawsuits have been filed regarding the recent redistricting of the West Virginia House of Delegates.

One lodges a general complaint that the entire plan is unconstitutional. The others are specific charges by three counties (Monroe, Mason and Putnam) that they were not treated in a constitutionally fair manner.

The West Virginia Supreme Court will unltimately decide both cases, unless either or both is appealed into federal court subsequent to our high court’s decision.

The “general” case is being pursued by Thornton Cooper, a Charleston lawyer often described in statewide media as a “professional gadfly.” I’ve known him for many years and he’s very bright. But he does often take on causes which seem hopeless in the beginning and turn out to be exactly that.

As best I can tell Cooper is contending that the legislature (a) split too many counties in too many different ways and (b) didn’t carve the House of Delegates up into 100 single-member districts.

As I’ve said before I believe the lower house of a bicameral legislature should be as close to the people as possible and that means among other things single-member districts. But I can find nothing in the West Virginia Constitution that mandates single-member districts for our House of Delegates.

Federal courts have had many opportunities to declare that single-member districts are required to fulfill the constitutional mandate of one person-one vote. While some have come close (and the federal court system as a whole is collectively getting closer to doing so), no federal court has yet said that. I do not suspect that the West Virginia Supreme Court is ready to move that particular ball forward.

The question of splitting counties gets us into less certain territory. I think we could have and should have split Mason and Putnam counties in a more sensible manner.

Mason County has over 27,000 people in it. A single-member delegate district has, on average, 18,500 people. Yet no one who calls Mason County home has sat in the House of Delegates for 20 years. That’s because Mason has been carved up into pieces and placed in multi-member districts in which each Mason piece constituted a minority.

We solved that this year by taking 14,000 of those Masonites and making them part of a single-member district with 4,500 people from Putnam. Logic says that whomever is elected beginning in 2012 will be a resident of Mason. But I think it would have been much better to have found another 4,500 Masonites and drawn a single-member district entirely within the borders of that county.

But was what we did unconstitutional? Anybody following the Maryland redistricting efforts would have to say that if what Maryland did with its congressional districts passes constitutional muster then surely what West Virginia did with Mason County in the House of Delegates must be as well.

I can think of one thing we did when we redistricted the House of Delegaets that might attract a court’s attention. We pared down a the biggest multi-member district we had (the seven-seat district in Kanawha County) into two smaller ones (a four and a three). We had the opportunity, had we chosen to make the four-seat district smaller, to create a single-member district that would have been very close to being a “minority-influence” district.

West Virginia has no “minority-majority” (more than 50 percent minority population) legislative districts. We do have one minority-influence (more than 33 percent minority population) delegate district. We have one other delegate district (here in Jefferson County, represented by Delegate Tiffany Lawrence) the population of which is very close to minority-influence but is just short of the mark for such a designation.

Federal courts are big on creating and preserving minority-majority and minority-influence districts. Since our state has none of the first and only one of the second I think it’s quite possible that a federal court might say “you really should have drawn that second ‘close-to-minority-influence’ district. Go back and do it.”

But will our State Supreme Court go that far? Aha!

There have also been lawsuits filed over State Senate and Congressional redistricting. We will take those up in a future column.

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