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Tuesday, February 07, 2012

As Expected By Many, Kentucky Judge Strikes Down Redrawn Legislative Redistricting Map.

Kentucky judge strikes down legislative remap plan
Written by Joseph Gerth

Ruling at a glance

• Franklin Circuit Judge Phillip Shepherd ruled that the House and Senate redistricting plans violate constitutional principles relating to “one man-one vote.”
• He refused to rule on whether it was constitutional for the Senate to arbitrarily renumber a Fayette County Senate district and said it needs more adjudication.
• He ordered that legislators run for re-election this year in the districts in which they have run for the past 10 years.
• He ordered that the filing deadline for state legislative races be extended until Friday at 4 p.m.
• House and Senate leaders haven’t decided whether to appeal Shepherd’s ruling.

FRANKFORT, KY. — A judge struck down Kentucky’s legislative redistricting plan as unconstitutional Tuesday and ordered that this year’s elections be run in the districts that have been in place for the last decade — unless the House and Senate can pass new plans that meet constitutional muster.

“The court … concludes that the redistricting cure of House Bill 1 is worse than the malapportionment disease that it is legally required to remedy,” Franklin Circuit Judge Phillip Shepherd wrote in ruling on a lawsuit filed by House Republicans and joined by one Senate Democrat.

The decision cast a cloud of uncertainty not only over the redistricting issue but over the remaining course of this year’s legislative session, which has been all but paralyzed by the challenge to the new House and Senate maps.

Leaders of the Democratic-controlled House and Republican-controlled Senate, who met after the ruling was handed down, said no decision was made about how to proceed.

And it was unclear whether the two sides would meet again Wednesday.

Shepherd found that both House and Senate plans violate constitutional “one-man, one-vote” provisions requiring the legislative districts to vary by no more than 5 percent from the ideal size and that the House plan splits more counties than necessary, thus violating a state constitutional provision.

He said there is “no controlling case law” to determine if the legislature violated the constitution when it switched numbers on two Senate districts — the effect of which was to disenfranchise more than 100,000 Fayette County residents for the next two years. But he said that question needs “full adjudication.”

Shepherd pushed the deadline to file for legislative seats back until 4 p.m. Friday.

Shortly after the ruling, House Speaker Greg Stumbo, D-Prestonsburg, huddled with Senate President David Williams, R-Burkesville, and Senate Majority Leader Robert Stivers, R-Manchester, to discuss it.

Stumbo seemed to be of two minds on whether there would be an appeal.

He said before the meeting that he expected the legislature would ask the Kentucky Supreme Court to overturn Shepherd’s order, saying that it is flawed in several respects and isn’t grounded in case law.

“I don’t believe that that ruling will stand in an appellate court,” he said.

But after the meeting, he said, “We will obey the court order and we will be prepared to run in the current districts.”

At the same time, Stumbo said he favors an appeal.

“But even if we appeal, there no gurantee of a decision in three days,” he said.

Stivers and Williams said after the meeting that no decision on an appeal has been made, and Stumbo said House Democrats had been told to be prepared to run in their current House districts.

“It’s up in the air,” Stivers said moments after the Senate adjourned for the day.

Williams said he hadn’t “completely read the ruling yet. That’s why we’ve got lawyers. Lawyers will be reading the thing.”

A cheer erupted from the House Republican offices moments after word of Shepherd’s order began circulating through the Capitol just after 3 p.m.

It was the House Republicans who initiated the lawsuit on grounds that the bill violated several requirements of redistricting plans found in both the state and U.S. constitutions. The House plan would force six Republican incumbents out of office, while the Senate plan would do the same to four incumbent Democrats.

House Republican Leader Jeff Hoover of Jamestown hailed the ruling as a victory but said the battle is far from over.

“We’re obviously very pleased with the judge’s decision,” he said. “He agreed with the argument that we made from Day One — that the House plan divided too many counties and it was above population variance.”

Sen. Kathy Stein, the Lexington Democrat who was effectively prohibited from running for re-election this year by the Senate plan, joined the Republicans in the suit, claiming the map drawn by the GOP majority was unconstitutional as well.

Stein, the Senate’s most liberal member, is scheduled to run for re-election this year from her 13th District, as are all other Senate members who represent odd-numbered districts. But the Senate plan moved the 13th District to northeastern Kentucky and renumbered her district as the 4th.

The 4th District is currently in Western Kentucky and is represented by Sen. Dorsey Ridley, D-Henderson, who isn’t up for re-election until 2014.

Stein was thus effectively prevented from seeking re-election this year, unless she moved to an odd-numbered district.

She said Tuesday that the disenfranchisement of her constituents under the Senate plan “does not comport with democracy.”

Stein flashed the “thumbs up” sign to supporters after hearing of the ruling and said, “I’m dancing. … I’m very pleased, absolutely. I was very optimistic that the arguments that we made were constitutionally valid, and I’m very happy that Judge Shepherd has agreed.”

Stein said she is resigned to the likelihood that she will be redistricted out of office if a new plan is passed but will consider it a victory if Fayette County isn’t represented by someone outside of the county.

Still, she added: “I’m very hopeful that the leaders of both houses will take instruction from the opinion.”

In his ruling, Shepherd said there is “no controlling case law” to determine if the legislature violated the constitution by switching the Senate district numbers and effectively disenfranchising 113,724 Fayette County residents for the next two years. But he said the issue needs “full adjudication.”

The judge appeared to kick-start the appeal of his own decision by suggesting that the Supreme Court reconsider a 1994 ruling that placed importance on keeping counties intact and not splitting them among multiple districts.

“It is apparent from the proceedings in this case that the constitutional value of population equality is significantly impaired by the requirement to preserve county integrity,” Shepherd wrote.

“Those considerations, however, must be addressed to the Kentucky Supreme Court, and not to a trial court that is required to apply the binding precedent” of past cases, he wrote.

Shortly after the decision was announced, two Senate Democrats who had decided not to seek re-election —Perry Clark of Louisville and Walter Blevins of Morehead — filed their papers to run.

Meanwhile, some legislators lamented that Shepherd’s ruling would further impede work in what is already a sluggish session of the General Assembly.

The legislature rarely takes up controversial measures until the deadline for filing to run for the legislature passes — and Shepherd’s ruling delays that deadline until Friday. If an appeal is filed, that could push the deadline to even later in the year.

“This just further delays other action,I think,in the General Assembly,” said Senate Minority Leader R.J. Palmer, D-Winchester, who added that few significant bills may pass this year.

“We run the risk of that. I don’t think we’re to that point yet,’ he said.

Said Stumbo, ““Well, I’d say it’s not going to be very good as far as getting things done.”

Editor's note: you can read the judge's opinion here (.pdf file requires Adobe Reader).

As I can quickly read from the court's opinion, judge Shepard feels duty bound to follow Fisher 11 precedent, and finds both the House and the Senate, in at least one county each, violated Fischer 11's -5% to +5% allowable deviation.

The judge sounds like he was unimpressed by the precedent he had to follow and urges (indirectly) for the litigants to appeal to the Supreme Court, where it is equally obvious the judge expects, or hopes, for a different opinion from the higher court.

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