Daily Independent (Ashland, KY)

June 22, 2013

Federal judges clear on issue of redistricting

CNHI News Service
Associated Press

FRANKFORT — A panel of three federal judges said Friday they prefer Kentucky lawmakers draw new legislative maps, but they made it clear they will do it if the General Assembly fails for a third time to pass constitutionally permissible maps during an August special session.

“We hope the legislature does it, but if they don’t we will reluctantly do it,” Judge William O. Bertelsman told attorneys for all sides.

The General Assembly passed maps in 2012, but those were deemed unconstitutional by the Kentucky Supreme Court because they violated the Kentucky Constitution by splitting too many counties and the U.S. Constitution’s requirement for equal representation among districts.

In 2013, the state House, controlled by a Democratic majority, passed a map governing its members’ districts but the Senate, controlled by a Republican majority, didn’t take up the plan or pass one of its own.

Soon after the 2013 General Assembly, two groups separately sued the legislature. Friday’s hearing was the first for both suits.

In response to potential action by the federal courts, Gov. Steve Beshear Thursday called a special session for Aug. 19 to pass new maps which meet guidelines laid out in last year’s Kentucky Supreme Court ruling.

At Friday’s hearing before Bertelsmann, Judge Gregory Van Tatenhove and Judge Danny Boggs an attorney for House Speaker Greg Stumbo asked them to delay action until the legislature can act during the special session.

Bertelsman acknowledged “the governor has called a special session which will have some effect on these motions” but all three judges seem to imply the court should pursue “a parallel process,” collecting evidence and preparing to act if the legislature again fails to pass a permissible plan.

“It seems unlikely it would reach that point,” said Pierce Whites, representing Stumbo and the House, noting lawmakers now have guidance from the Kentucky Supreme Court. But Bertelsman said the possibility “is not speculative because it’s happened before.”

Chris Wiest, an attorney for northern Kentucky plaintiffs in one suit, said the court should proceed with evidence so it can be prepared to act before Nov. 4 if the legislature again fails to pass a constitutional plan. In Kentucky candidates must live in their district for a year prior to election. The next state legislative election will occur on Nov

Wiest argued potential candidates may wish to move their residences in order to be eligible for election within a newly drawn district. Stan Cave, representing Senate President Robert Stivers, said courts have previously ordered new maps which then weren’t approved a full year before the next election.

But a question from Van Tatenhove suggested the court intends to resolve the matter before Nov. 4.

“It appears to us there is a drop-dead date before Nov. 4,” he said.

Repeatedly the judges asked the attorneys to stipulate that no election can be conducted under the 2002 maps, the ones so far in effect until a new one is in place. But they didn’t have much luck – the attorneys said they were not prepared to answer that question.

The judges succeeded in getting Wiest to drop motions for damages, but they couldn’t get full agreement to consolidate the two cases.

It was apparent from Wiest’s argument his clients want to challenge the number of Republican minority members of the House which are paired in the same district to make it impossible for both to be re-elected. Both the 2012 and 2013 House plans pit Republican incumbents against others.

Whites quoted a U.S. Supreme Court case which said courts should defer to legislatures on political questions and stating that redistricting is inherently political.

Wiest said afterward, however, courts have held legislative majorities can pit incumbents against each other, “but if it is done in a consistently punitive manner it is unconstitutional.”

Asked how likely his clients are to return to court regardless of what the legislature does, Wiest said, “Oh, about 70 percent.”

It also seemed clear the House isn’t entirely resigned to counting federal prisoners in the new maps. The House did not count them in the map it passed in 2013, but the 2012 congressional map counts them.

Stumbo, Stivers and Beshear have all said they will use a consistent set of population data for all the maps and Beshear didn’t include the congressional map in his call.

Whites said if the Senate insists on counting the prisoners, the House is likely to go along but the governor could amend the call to include the congressional map if the Senate will agree with the House.

Bertelsman said the court will take the motions and arguments under submission and issue a ruling soon.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.