Jefferson County Commission et al v. Tennant et al

Filing 68

MEMORANDUM OPINION AND ORDER concluding that West Virginia's congressional apportionment was not accomplished in conformance with the Constitution of the United States; the plaintiffs are entitled to have the enactment declared null and void, a nd to have the Secretary of State permanently enjoined from conducting West Virginia's elections for Congress in accordance therewith; pursuant to the foregoing herein, the Court is compelled to declare S.B. 1008, as codified at West Virginia Co de Section 1-2-3, in contravention of the Constitution of the United States; the enforcement of said section by the defendants is permanently enjoined; the 2012 congressional elections will be conducted under an interim plan promulgated by the Court, subject to the following conditions set forth herein; in the absence of successful compliance with one of the foregoing conditions herein, the Court will, on or after January 17, 2012, be constrained to identify an interim plan for use in the 2012 c ongressional elections in West Virginia from among those currently in the record of this case, either the so-called "Perfect Plan" or Cooper Plan 4; any interim plan adopted by the Court may be substituted for and superseded by the Legislat ure and the Governor, so long as such substitution complies with the applicable constitutional mandate. The Court will retain jurisdiction in this case for such other and further proceedings as may be appropriate pending further order. Signed by United States Circuit Judge Robert Bruce King and United States District Judge Irene C. Berger on 1/4/2012. (cc: attys) (taq)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON COMMISSION; COUNTY JEFFERSON PATRICIA NOLAND, as an individual behalf of all others and on similarly situated; and DALE MANUEL, as an individual and on others similarly behalf of all situated, Plaintiffs, and THORNTON COOPER, Intervening Plaintiff, Civil Action No. 2:ll-CV-0989 v. NATALIE E. TENNANT, in her capacity as the Secretary of State; EARL RAY TOMBLIN, in his capacity as the Chief Executive Officer of the State of West Virginia; JEFFREY KESSLER, in his capaci ty as the Acting President of the Senate of the West Virginia Legislature; and RICHARD THOMPSON, in his capacity as the Speaker of the House of Delegates of the West Virginia Legislature, Defendants. MEMORANDUM OPINION AND ORDER ROBERT BRUCE KING, United States Circuit Judge, and IRENE CORNELIA BERGER, United States District Judge: The Jefferson commissioners, County Patricia Noland Commission and Dale and Manuel, two both of its of whom reside in Jefferson County, West Virginia, in his or her individual capacity, 4, 2011, and each proceeding filed this suit on November challenging the congressional apportionment enacted by the State of West Virginia following the 2010 census. Complaint, Natalie the plaintiffs name as defendants Secretary of State Tennant, E. Governor President Jeffrey Kessler, Earl capacity. Court Pursuant court of was Appeals duly for plaintiffs' Robert Byrd Tomblin, State Senate 28 each in his or her official U.S.C. appointed by the 2284, § Fourth the this Chief Circuit to three-judge Judge of the consider the The trial of the matter took place at The claims. C. to Ray and Speaker Richard Thompson of the West Virginia House of Delegates, district In their United States Courthouse in Charleston on December 28, 2011, and it is now ripe for decision. careful Upon consideration and the testimony, conclude that submissions counsel, we apportionment was not of evidence, West parties' and Virginia's accomplished Constitution of the United States. the in arguments of congressional conformance with the The plaintiffs are therefore entitled to have the enactment declared null and void, turn, written and, in to have the Secretary of State permanently enjoined from conducting West Virginia's elections for Congress in accordance therewith. 2 I. A. The 435 voting Representatives are members of the among distributed United the States several House of states in numbers proportionate to each state's percentage of the nation's population, based upon an "actual Enumeration" first conducted in 1790 and repeated "every subsequent Term of ten Years." CONST. art. I, 2, § cl. 3; President employ calculate and transmit to convening on January see 2 U.S.C. 3, thereafter , algebraic "method 82nd of § (requiring that equal Congress 1951, 2a and U.S. proportions" within each one fifth week to of Congress results of most recent decennial census and number of representatives to which each State thereby entitled). Upon such certification by the Executive of the resultant number of representatives, each state establishes its own methodology for apportioning the corresponding districts within its borders. In West that Virginia's congressional counties, nearly as and may be case, the districts compact. be, an state "shall Each equal be constitution formed district number of of shall commands contiguous contain, population, to as be determined according to the rule prescribed in the constitution of the United States." Code each § W. Va. Const. art. I, § 4; see W. Va. 1-2-3 (identifying three current congressional districts, comprised of contiguous whole 3 counties). The "rule prescribed in constitution the the of incorporates the requirements of Article I, with the Fourteenth Amendment, things, prohibits jurisdiction amend. XIV, the § 1; a state equal United States" Section 2, together the latter of which, among other from denying "any person within protection see Baker v. of Carr, the laws." 369 U.S. 186 U.S. (1962) its CONST. (civil rights action alleging equal protection violations stemming from legislature's redistricting asserts justiciable Fourteenth Amendment claim). In response to the federal government's certification of the 2010 census and confirmation that West Virginia would remain entitled to three representatives in Congress, appointed seventeen Force" (the "Task Leader) state John Unger, President Kessler senators to a chaired by Senator Force"), which conducted a "Redistricting (and Task Majority series of twelve public meetings throughout the state during the spring and early summer of 2011 to gather citizen input. Virginia Legislature, three days earlier, at the On August 1, proclamation of 2011, the West Governor Tomblin convened its First Extraordinary Session to determine state legislative and federal congressional districts. Senate Resolution No. session, 103, adopted at the outset of the special established the Select Committee on Redistricting "Commi ttee"), comprised of the seventeen 4 Task Force (the senators. See Joint Opening Brief of Defendants Jeffrey Kessler and Richard Thompson [hereinafter "D. Br."], Exhibit M. On August 2011, 3, the Committee was presented with an initial proposal providing for a virtually equal division of the State's official proposal, 2010 population of 1,852,994. Under that formally called the "originating bill" but informally dubbed the "Perfect Plan," the First and Second Congressional Districts would each contain 617,665 persons, with the remaining 617,664 to reside in the Third. The Perfect Plan observed political boundaries at the county level, generally although it divided two counties - Kanawha and Harrison - between districts. See Plaintiffs' Exhibit 8. The following proposed day, alternatives ultimately rejected to six Senator Roman Prezioso Campaign Committee, McCabe Senator (suggested Douglas eighth Senator by such 2011, Perfect Committee The Plan. alternatives, members Committee including two by (devised by the Democratic Congressional attorney three by Senator Brooks Thornton (suggested Facemire proposal, Clark the 4, a/k/a the "DCCC"), by Cooper), and one non-Committee by member The Committee reported to the full Senate Senator Herb Snyder). an August Senate Barnes, Bill which ("S.B.") retained 1008, the propounded by 2001 district boundaries, except for transferring Mason County from the Second District to the Third. On the 5 Senate floor, Senator Snyder moved to amend the bill with a was defeated. ninth proposal, The Senate ultimately passed S. B. stewardship of Speaker Thompson, debate, 1008 over the The House of Delegates, lone dissent of Senator Unger. 1 the but that motion under approved the bill without and it was signed into law by Governor Tomblin on August 18, 2011. The resulting apportionment statute, appearing in codified form at West Virginia Code section 1-2-3, provides persons in in 616,141 in the the First Third. 2 District; The most 620,862 populous the of the for 615,991 Second; and three, the The nine alternatives considered by the Legislature were disposed of thusly: (a) the three McCabe (Cooper) Plans were presented to and implicitly rejected by the Committee at the Task Force stage, which adopted the Perfect Plan on August 3, 2011, as the "originating bill "; (b) the two Prezioso (DCCC) Plans were considered and rejected by the Committee on August 4, 2011; (c) on that same date, the Committee also considered and rejected the Facemire (Snyder) Plan; (d) the Snyder Floor Amendment was considered and rejected by the full Senate on August 5, 2011; and (e) the Barnes Plan was considered and approved by the Committee as an amendment to the Perfect Plan on August 4, 2011, and it was then enacted into law as S.B. 1008. Consequently, the Barnes Plan is the plan under challenge in these proceedings. 1 2 As provided by section 1-2-3, the counties of Barbour, Brooke, Doddridge, Gilmer, Grant, Hancock, Harrison, Marion, Marshall, Mineral, Monongalia, Ohio, Pleasants, Preston, Ritchie, Taylor, Tucker, Tyler, Wetzel, and Wood constitute the First District. The Second District is comprised of Berkeley, Braxton, Calhoun, Clay, Hampshire, Hardy, Jackson, Jefferson, Kanawha, Lewis, Morgan, Pendleton, Putnam, Randolph, Roane, Upshur, and Wirt Counties. The Third District encompasses the remaining counties, i.e., Boone, Cabell, Fayette, Greenbrier, Lincoln, Logan, Mason, McDowell, Mercer, Mingo, Monroe, (Continued) 6 Second District, (0.52%), least in exceeds contrast populous First to the a mean (617 665) f shortfall District, of by 1,674 resulting in a (0.27%) in total (a/k/a "Relative Overall Range" or "ROR") of 4,871 illustrated below, persons 3,197 the variance (0.79%). As the ROR of the enacted apportionment was the eighth most severe of the nine proposals considered: Rank Proposal ROR 1. Perfect Plan 2. McCabe Plan 3 0.04% 3. McCabe (Cooper) Plan 2 0.06% 4. McCabe (Cooper) Plan 1 0.09% 5. Snyder Floor Amendment 0.39% 6. Facemire (Snyder) Plan 0.42% 7. Prezioso (DCCC) Plan 2 0.44% 8. S.B. 9. Prezioso (DCCC) Plan 1 0.00% (Cooper) 1008 (Barnes Plan) 0.79% 1. 22% In accordance with a timetable imposed by statute, Va. Code § required Secretary thereafter Nicholas, Wyoming. 3-5-7, to of see W. a candidate for Congress in West Virginia is file a State, transmits Pocahontas, Certificate see to id. the § of 3-1A-6 (a) . clerks Raleigh, Announcement of Summers, 7 the The with Secretary fifty-five Wayne, the county Webster, and commissions a certification that the candidate is qualified to appear on the ballot. the upcoming January See id. statewide 9, 2012, and 3-5-9. § elections to The filing period for is scheduled conclude Candidates for Congress are obliged, on to begin January 28, on 2012. at the time of filing, to inform the public of the district in which they intend to run. See id. 3-5-7 (d) (2). § B. The plaintiffs commenced this action in the Northern District of West Virginia on November 4, 2011, against Secretary Tennant, Governor Tomblin, Thompson (collectively, President the "State" Kessler, or and the Speaker "defendants"), seeking a declaratory judgment that West Virginia Code section 1-2-3 fails States to (Count contravene comport One), the West with and the that Constitution the Virginia constitutional numerical equivalence and of compactness respectively) . The Complaint the as districts of United drawn requirements also of (Counts Two and Three, requests that the State be permanently enjoined from conducting its congressional elections in conformance suitable with alternative section be 1-2-3, substituted and as it the urges that a more State's official Thornton Cooper moved for leave to apportionment scheme. On November 22, intervene as an 2011, additional plaintiff, 8 and that motion was granted 2011, on November venue was submi tted for Subsequently, 2011. transferred Shortly Virginia. to on December the District on thereafter, Southern December 17, our consideration a of Third persons Districts, (0.00% resulting ROR), with a 617,663 total being West Cooper i. e., Cooper tenth proposal, in 15, 2011, That proposal divided Taylor County between the Plan 4. and 30, variance placed in First of the four First District; 617,667 in the Second; and 617,664 in the Third. II. A. The Constitutional directive that members of the House of Representatives be chosen "by the People of the Several States," U. S. CONST. that as art. I, nearly congressional Wesberry v. cl. 2, § as is election Sanders, has been interpreted to "mean [] 1, practicable to is one as be 376 U.S. worth 7-8 1, man's much (1964). as in vote a another's." Although "[t] he extent to which equality may practicably be achieved may differ from State to State and Consti tution nonetheless faith effort to Kirkpatrick v. Reynolds Sims, from "requires to that the State make precise achieve Preisler, district 394 U.S. district," mathematical 526, 530-31 a the good- equality." (1969) (citing The Kirkpatrick Court emphatically rejected the argument that small, unexplained v. 377 U.S. 533, 9 577 (1964)). disparities might be considered de minimis, instructing that "[uJnless population variances among congressional districts are shown to have resulted despite such effort, justify each variance, no matter how small." the State must Id. at 531. The Supreme Court has prescribed a procedural mechanism to implement the Sanders practicability standard. party challenging apportionment must of a population disparity that At the outset, a demonstrate "could have the been existence reduced or eliminated altogether by a good-faith effort to draw districts of equal proportion." (1983) . prove Karcher v. Daggett, 462 725, u.S. 730 Upon such a showing, the burden shifts to the state to "that each significant variance between necessary to achieve some legitimate goal." districts was Id. at 731. The Karcher Court identified several policies or objectives that might support a conclusion of legitimacy. U. S. at 740 ("Any policies might making number of consistently applied justify some variance, districts compact, including, respecting between incumbent Representatives."). State of plausible West of the connection they are manifested. between instance, boundaries, and avoiding contests Importantly, the onus is challenged apportionment - Virginia 462 legislative for municipal preserving the cores of prior districts, on the proponent See Karcher, to affirmatively the asserted here, demonstrate objectives and the a how As the Karcher Court emphasized, the State 10 must show "that deviations a particular in its plan, assertions." obj ecti ve required the specific rather than simply relying on general Id. at 741. B. At trial last week, (hereinafter plaintiffs have the State helpfully conceded that the their satisfied including the threshold burden demonstrate that the might been reduced. have December 28, 2011 O. 79% variance See intervening under at seven less consideration. 3 drastic of 43, State could hardly have argued otherwise, than Karcher enacted through Transcript [hereinafter "Tr."] plaintiff) alternatives S. B. Indeed, given that were 1008 Proceedings 84. no submitted to of the fewer for The State nonetheless maintains that the enacted variance is solely the result of its efforts to accommodate the legitimate goals of respecting county boundaries, preserving the cores of Republican extant primary districts, between and two avoiding of West a contest Virginia's in the incumbent Cf. Stone v. Hechler, 782 F. Supp. 1116, 1125 (N.D. W. Va. 1992) (per curiam), in which the three-judge panel, applying Karcher, reasoned that "if any plan (other than the one under judicial attack) would reduce or eliminate population differences among the congressional districts, the plaintiff has met its burden." The court continued, "[b]ecause seventeen other plans with a lower overall variance were before the Legislature . , the Court concludes that Stone has satisfied his burden." Id. at 1126. 3 11 representati ves, David McKinley and Shelley Moore Capito. We address each of these contentions in turn. 1. As initially Virginia provides congressional counties, nearly set for districts, and as forth be may supra, the be, an Constitution division which compact. the "shall Each equal of be formed district number of the of state of shall West into contiguous contain, population, to as be determined according to the rule prescribed in the constitution of the United States." W. Va. Const. art. I, § 4.4 The integrity of county boundaries has been characterized as a "West Virginia constitutional requirement," Stone v. Supp. 1116, 1123 (N.D. W. Va. 1992) probably emanating from the Hechler, 782 F. (per curiam), an observation quoted excerpt's reference to "counties" and not parts or portions of counties. The Stone court's comment in passing was not pertinent to the decision called into in that question case, if and its the Article accuracy is 1 excerpt wi thin the context of the entire document. in is any event interpreted In particular, the state constitution's Article 6 provision governing apportionment The compactness and equality requirements of Article I, Section 4 form the basis of the plaintiffs' claims under Counts Two and Three of the Complaint, and they will be briefly discussed infra in Part III. 4 12 for the purpose of electing the West Virginia Senate specifies that those Const. districts art. VI, § be 4. "bounded The by absence county of a lines." W. similarly Va. precise reference to "lines" in Article 1 casts doubt on the intended meaning therein of the word "counties," with the result that the provision should reasonably be construed to contemplate that counties may be subdivided, so long as the district's contiguity remains intact. 5 Upon the Perfect Plan being moved before the Committee, Senator Unger explained the legal basis for the plan's division of counties. See Tr. at 200. long-held assumptions to the Though challenging many members' contrary, the concept of county- splitting was more or less embraced by the Committee as a whole, engendering at least some preliminary discussion of conforming alternatives. See id. at 80-81, 173-74, 200-02. The parties indicated at trial that West Virginia Senate districts no longer observe county lines, owing to the indirect effect of a federal court decision that struck down as violative of the Fourteenth Amendment's Equal Protection Clause the State's apportionment of the House of Delegates. See Goines v. Rockefeller, 338 F. Supp. 1189, 1195 (S.D. W. Va. 1972) ("'When there is an unavoidable conflict between the Federal and a State Consti tution, the Supremacy Clause of course controls. ' " (quoting Reynolds, 377 U.S. at 584)). Though the "county lines" provision is no longer of practical effect, the construct of Article VI, Section 4 is nonetheless useful to discern the drafters' intent as to the slightly dissimilar provisions of Section 4 of Article I. 5 13 Whether mandated by the undisputed that, nearly 150 divided not, years ago, two with none or of more Karcher, its counties congressional then, maintaining have is ever been 6 In districts. the integrity county boundaries within congressional districts could, Virginia's case, it since West Virginia was admitted to the Union between accordance state constitution or of in West qualify as one of those "consistently applied" interests that the Legislature might choose to invoke to justify a population variance. To that end, Senator Judiciary Committee, Corey Palumbo, Chair of the testified at trial that "it was Senate important to, to a lot of people, whether it was a specific requirement or not, to try to avoid splitting up counties, boundaries." Tr. at 248-49. Though we give the due county credit to Senator Palumbo's testimony concerning his general understanding of the decisionmaking create a 1008's entire process, contemporaneous record 4,871-person the sufficient variance 6 Legislature or to neglected show even a that to S. B. discrete, The nation having largely adopted zero-variance congressional apportionment, see infra Part II.C, West Virginia and Iowa are the only remaining states that have never split counties between districts. See Tr. at 201. If we assume that the Karcher Court meant its reference to "municipal boundaries" to also include "county lines," the nationwide devaluation of county line integrity may portend the eventual deletion of municipal or county boundaries from the list of potentially legitimate justifications. See D. Br., Exhibit 0, at 24. 14 numerically precise portion thereof - was attributable to professed interest in keeping counties intact. testified record without far as justification for contradiction, as there legislation the the act was that of the Legislature the As Senator Unger "nothing in this the give would in any regard." rd. at 222.7 Moreover, of the eight other proposals under consideration, only the Perfect Plan transgressed county lines, Prezioso Plan 1 advocated for a greater variance. and only Consequently, the Legislature had before it seven al ternati ve proposals that would have operated consistently with its asserted interest in preserving counties inviolate, six of which would have been more in keeping with the constitutional archetype of "one person, vote." The rej ection have advanced the of more State's compliant interest at proposals least as that one would effectively as There was considerable discussion at trial concerning the need for the Legislature to include its findings wi thin the enactment, a practice that is generally "pretty common," Tr. at 222, but one that evidently has never been followed in relation to an apportionment bill, see id. at 255. We think it sufficient that the Legislature's rationale with respect to specific population variances and other relevant considerations, whether denominated "findings" or not, be plainly and accurately documented in the official legislative record. Such could take the form of a Joint Resolution expressing the contemporaneous thinking of the Legislature as a body, which would certainly be preferable to a court attempting to ascertain that thinking via the after-the-fact testimony of individual legislators. But even that minimum requirement was not satisfied here. 7 15 the less against compliant a one conclusion objectively good-faith 462 Karcher, conclusion u.S. that actually that the effort at militates Legislature that 739-40 plaintiffs adopted Karcher (approving had satisfied put strongly forth the requires. See court's district initial burden by demonstrating availability of plans with less extreme population deviations) . 2. Karcher acknowledged that preserving the core of existing districts may afford a legitimate basis for a state to justify a population variance among congressional The districts. word "core" has been defined as "the central or most important part of something, the part of something that is in particular central to its existence or character." Dictionary, 378 apportionment, (2d ed. 2005). The New Oxford American In the context of congressional the core of a district might be most comfortably conceived in geographic terms as being more or less the center In West Virginia, portion of a district map. however, a state whose irregular shape defies facile description and where most of its largest municipalities lie near its borders, a district's core might features, as readily be defined by more outlying geographic such as the panhandles in the north and the east, the coalfields in the south. See Tr. testimony that "we're all connected, 16 at 230 or (Senator Unger's but some of us are connected more than others I Panhandle has a very unique situation, think that the Eastern as well as the Northern Panhandle, as well as Southern West Virginia"). Beyond district's racial, of the discrete core can ethnic, the bounds also implicate which are termed 'communities Thornburgh, 207 Supp. plaintiffs' trial expert, F. explained [and] its probable (generally economic, geography, 2d "[s]ocial, subjects cultural, of 1280, of 1286 (D. "political, that cultural variables by metropolitan areas, and and even legislation Graham interest')." Kan. 2002). Tr. geographic, v. The social, can be used to look at at Dr. 114. Martis that communities of interest can be circumscribed, watersheds, a Professor Ken Martis of West Virginia communi ties of interest." initiatives, however, and economic interests common to the population area, University, of elaborated for example, by "vernacular" zones of shared economic by similarities environmental in policy. geologic See id. at features, 114-25; Plaintiffs' Exhibits 3-7. None of these particular concerns factored into the Legislature's decisionmaking, however. 220. quo significantly See Tr. at 129, To the contrary, the emphasis was on preserving the status and making districts. general only See id. resistance tangential at 180, to 241, change, changes 243. noting 17 to the existing Senator Unger cited the that the delegates from Mason County were among the few voting against even the minimal tweak that was eventually approved: my backyard.' [T]hey Congressional District. 03. Accordingly, "[Y]ou always have didn't want to to They didn't want to move." Senator Unger termed S. B. politically expedient. go 'not in the 3rd Id. at 202- 1008 as "the most It was one that we could do and move out and get out of town, easiest." Id. at 204. In that sense, the legislative evaluation of district cores in 2011 was reminiscent The Stone. definition court of in "core," of the Stone instead one chose twenty not deferring years to to earlier attempt the its in own Legislature's determination that "preserving district cores means keeping as many of the current congressional districts intact as possible." 782 F. Supp. fundamental that the at 1126. issue with concept The had plaintiff maintaining been therein intactness, misapplied to did not but contended preserve take current districts; he unsuccessfully urged the court to focus instead on safeguarding traditional districts, i.e., to preserve the essential political character "of those counties that have been together in the State." same district Id. Regardless of how congressional district, of the for most of the history of the whole. one perceives it must be, A core-Democratic 18 the "core" by definition, district is of a merely part bound to have Republican though voters; they there live in will a be churchgoers predominantly who attend Protestant Mass district; shopping malls and sports cars shall, at least in West Virginia, inevitably give way to cornfields and hay wagons. fashion, In a similar erecting a figurative fence around a district's entire perimeter preserves its geographic core only in the grossest, most ham-handed sense that encasing a nuclear reactor in tons of concrete preserves the radioactive core of that structure. Indeed, with respect to the current Second District, snaking for the most part in single-county narrowness across the breadth of the state, hundreds of miles southwesterly from the Shenandoah River to the Ohio, or otherwise County, the most together second would with most prove populated Berkeley virtually in the County, populous, which geographic impossible. state, has notwithstanding (Charleston and Martinsburg, apart by highway. identifying its core - is that recently that respectively) in Kanawha the district become county are about the seats 300 miles The anomaly brings to mind the old football adage that when a team decides it has two starting quarterbacks, it more precisely District's has excessive abomination." none. Taking elongation, Dr. note Martis of the called Second it "an Tr. at 127. We certainly rearranging a understand greater number that, of 19 as a counties general to proposition, achieve numerical equality in redistricting means that more citizens will need to accustom themselves imagine that modicum of the to a different acclimatization anxiety and congressperson. process inconvenience, may While give rise avoiding we to a constituent discomfort at the margins is not among those policies recognized in Karcher as capable of legitimizing a variance. That S. B. 1008 was the most effective proposal in maintaining the status quo, see Tr. at 181, is therefore beside the point. By its dogged insistence that change be minimized for benefi t State of the delicate citizenry, doth protest its posi tion from the perspective of relatively recent history. As reduction at of West seats to three, District, trial, much, the Virginia's at we think it likely that the evaluate demonstrated too the 1991 least when we apportionment allocation in effecting Congress from the four through its introduction of a serpentine Second strayed far from the traditional notions of what the state's congressional districts ought to look like. See Tr. 71, Dr. Martis 140; Intervenor's Exhibit 3. More specifically, testified that beginning with the state's creation in 1863, you look at all the districts Panhandle has been kept intact." up until 1991, Id. at 140. 8 the at "if Eastern From our vantage 8 The term "Eastern Panhandle" generally refers to the eight West Virginia counties of the Potomac River watershed, east of the Eastern Continental Divide, i.e., Jefferson, Berkeley, (Continued) 20 point, what the State now decries as a deviation from the norm could instead be described as a long-postponed reckoning of accounts. 9 Change is the essence of the apportionment process. is required over time to redress as experience people representational move significant toward apportionment nation expressing in or move demographic plans our with inequities and away, shifts. zero realization By variances, that Change that occur districts gravitating we resistance are to as a change merely for the sake of preserving the status quo is not a virtue to be celebrated and promoted as an end to itself. change for principle patriotic and the of sake "one endeavor, citizens of of observing person, one one we West that Virginia the bedrock constitutional is honorable vote" are will Conversely, an confident see fit the to and Legislature embrace. As Justice Black reminded us in Wesberry v. Sanders: It would defeat the principle solemnly embodied in the Great Compromise equal representation in the House for equal numbers of people for us to hold that, within the States, legislatures may draw the lines of Morgan, Mineral, Tr. at 143-45. Hampshire, Grant, Hardy, and Pendleton. See Asked whether he was "aware that the public particularly in the Eastern Panhandle is not happy with the current congressional plan," Senator Palumbo responded, "I have been made aware of that, yes." Tr. at 257. 9 21 congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others. 376 U.S. at 14. 3. Much was made at trial of the bipartisanship evidenced by the Democratic-dominated Legislature placing Republican incumbents district. at 183-84 See Tr. at 243-48, 259 laudable as it strove McKinley and Capito appears to avoid in the same (testimony of Senator Snyder); (testimony of Senator Palumbo). intent to have been id. The legislators' consistent with the latitude afforded by Karcher, but, as with the desire to respect county boundaries, we can point to nothing in the record linking all or a specific part of the variance with the interest in avoiding conflict between incumbents. of the seven more compliant al ternati ves Plan) particular Moreover, six (excepting the Perfect would have achieved the same avoidance goal as S.B. 1008, again calling into question the extent to which the Legislature conducted its apportionment in objective good faith. C. In defense of the process Palumbo Stone, 253-54. testified which In that upheld the addition, constitutionality of the employed by the Committee relied 1991 apportionment. Senator S.B. 1008 22 Palumbo's was buoyed State, extensively See Tr. confidence by Senator Karcher at in on 250, the itself insofar as Justice Brennan's majority opinion had characterized a prior West Virginia apportionment effort resulting in a nearly identical variance deviations." See as having Karcher, Civil Liberties Union v. (S.D. W. Va. 1972)); court-approved 462 u.S. at Rockefeller, Tr. at 256 that a variance of .788 . "minor 740-41 336 F. population w. (citing Supp. 395, ("[W]e knew for a Va. 398-400 fact was already found [in Rockefeller] to be a variance that could be justified."). The Committee was not left to depend on its own legal analysis. During its second meeting of the special session, August 2011, 4, the Committee expert Robert Bastress, at West Virginia precedents. explained At that heard the John W. University, the "[t]he outset, law concerning Professor applicable Bastress principle, of carefully course, Legislature make every effort to achieve perfect equality; that 0, requirement with the is, the the that congressional is constitutional Fisher II Professor of Law overriding redistricting from on [] perfect one person, one vote districts." at 8. Later on, in response to D. Br., Exhibit questioning, Professor Bastress reiterated that, following Karcher, [y]ou cannot deviate at all from perfect equality unless you've made a good faith effort to avoid any deviation and that the Legislature has found that any deviation whatsoever is necessary to achieve some legitimate interest. And the [C] ourt has said even a de minimis deviation has to be justified. 23 Id. at 17 testimony (emphasis that communicated, person, added); "[t]he at see two least to Tr. at 198 overarching the (Senator principles senators, first one vote principle out of the U. S. Unger's that we the one was constitution. And the second was the compactness principle."). There are undeniable parallels between the present dispute and that in Virginia's the 1991 Stone apportionment case, the last challenged was time in that federal West court. Stone, however, does not compel us to a particular result. Gasperini v. Center for Humanities, (relating (1996) district, "each proliferation of whom sits of judges alone and in New renders York 430 n.10 federal decisions not And we have already intimated what we binding on the others"). now state clearly: Inc., 518 U.S. 415, See we are unpersuaded by Stone's discussion of preserving the core of congressional districts. 1o The most situations, obvious though, is and critical that the difference court in between the Stone approved two the State's reapportionment resulting in a 0.09% variance, while the plan before us enacts a variance of O. 79%. The size of a deviation bears on the substantiality of the showing that must Before the Committee, Professor Bastress offered his opinion on Stone that "as the losing lawyer in that case of course I think the decision was wrong." D. Br., Exhibit 0, at 12. 10 24 be made to justify it. court commented that However the variance inconsequential The Stone 462 u.S. at 741. in that case correspondingly light." State's burden 1128. See Karcher, the 782 burden necessarily far more cumbersome in a rendered in F. "the Supp. Stone, it at is case like this one, when the variance to be justified is almost nine times greater. Cf. D. Br., Exhibit 0, at 23 (setting forth Professor Bastress's opinion that O. 79% is "a fairly significant deviation It would take more of a justification, significantly substantial justification, to support a .79 deviation") There argument, undoubtedly is some superficial more .11 appeal to the based on Karcher's endorsement of the 1972 result in Rockefeller, that a 0.79% variance in West Virginia is every bit as acceptable almost forty years later. Indeed, Senator Palumbo questioned Professor Bastress in the Committee proceedings as to whether the redistricting requirements had changed since Stone in 1991 had applied the general principles announced eight years before that in Karcher, and Professor Bastress replied that they had not. See D. Br., Exhibit 0, at 12. The bedrock legal principles may not have changed, precision with which they are applied undoubtedly but the has. Put another way, the O. 79% deviation (4,871 persons) this case is about 877% of the 0.09% deviation (556 persons) Stone. 11 25 The in in plaintiffs submitted apportionment census. a list efforts of at trial twenty documenting states See Plaintiffs' Exhibit 10. the following current the 2010 Of the listed states, only West Virginia and Arkansas have approved variances in excess of Fifteen 0.03%. process of Plan. the enacting, states have zero-variance associated Advances technology have made achieving more practicable decided. See D. Br., enacted, the these than Exhibit or are in like proposals with and much easier were of the Perfect advent sorts when 0, of of computer results Karcher at 13 the much and Stone (statement of Professor Bastress that "there has been a national trend towards almost perfect equality. That has been enabled by the development of some very sophisticated software"). The Legislature has its own permanent redistricting office, see Tr. until to, to at 166, the though Senator Snyder testified that, special have maps done," id. at 167. office can session, and so "few forth [legislators] of the generate real congressional Using Maptitude@ software, efficiently had at least desire districts the redistricting apportionment scenarios, observing any number of parameters such as political boundaries and compactness. See id. at 187, 26 213-16; Plaintiffs' Exhibit There 11.12 Virginia is, therefore, conducting its no technological apportionment barrier efforts as to West precisely as its sister states have. Moreover, a bit of history helps to place the Karcher Court's approval of the Rockefeller apportionment in the proper perspective. In the 1950s, congressional districts having percent. See Intervenor' s following the 1960 resulted in a West Virginia was divided into six and that, approached four percent. variance Exhibit census, variance a 1. The the while in excess state subsequent of lost eight a seat apportionment substantially smaller, yet See id. In light of the relatively large disparities confronted by West Virginia immediately prior to the apportionment occasioned by the 1970 representation surprising variance statement the census was that (in again the "it's Federal Court the reduced, Supreme in Rockefeller as that which to Court "minor." important to ruled in 1972 congressional state's four), referred See Tr. understand it to at the is hardly the 0.788% 159 (Cooper's context that in light of what had been the congressional redistricting population disparities before Senator Unger testified that legislative staff members had, early on, devised several distinct zero-variance models, and he assured us that similar proposals could be "generated very quickly." Tr. at 235. 12 27 that time"). a-changing, The times, as Bob Dylan once proclaimed, and what once was characterized as "minor" may now be considered "major." Put simply, S.B. 1008 was not enacted in conformance with the Constitution. are they are entitled to declaratory and As a result, inj uncti ve the plaintiffs relief as to Count One of their Complaint. III. The plaintiffs having prevailed on the federal challenge underlying Count One, we need not reach or address the merits of Counts law. Two and Three, premised on alleged violations of state We surmise only that, with respect to Count Two, the state constitutional requirement of practicable equivalence is no more stringent former than that specifically of the federal incorporates "the constitution of the United States." 4. By virtue protections of the against Constitution, rule in that prescribed in See W. Va. Const. art. incorporation, it would appear disenfranchisement afforded by the the I, § that the either is must, of of the of that conterminous with the other. The course, apportionment comport Constitution of with West that is ultimately the compactness Virginia. The emplaced requirement ul timate arbiter document is the state's Supreme Court of Appeals, which recently rebuffed a number of challenges 28 to the Legislature's redistricting of the State Senate, including an allegation that the districts were not compact within the meaning of Article I, See Order, Section 4. State ex reI. Cooper v. Tennant, No. 11- 1525, slip op. pending (W. Va. Nov. 23, 2011). At the confronted trial Dr. districts that of the Martis the case with Supreme at a bar, map Court counsel of the for 133. were not compact, The point conclusion as plaintiffs' was of Appeals had just to Count Congressional that senate the the districts contention Three District state in S.B. at Court's disposed that enacted as upheld, See Tr. Supreme here senate (the 6th and but instead elongated. argued State seventeen challenging his opinion that two of those districts the 12th) the of the Second the 1008 was insufficiently compact. We need not and do not decide that issue today. should nonetheless alternative bear to the unconstitutional, that evaluated in holistic districts in isolation. Martis can't the generally for purposes enactment terms and See not Tr. at in of identified proposal's a concurring just look at State in mind, possible be compact"). [means] by viewing 135-36 counsel's that In that regard, 29 devising an herein as compactness all is one best or two (testimony of Dr. suggestion one district" and opining that Constitution The State that "you "compact districts as in best the inclusion of two or three elongated districts among seventeen may be considerably more tolerable than one among three. IV. Pursuant to the foregoing, the Court is compelled to declare S.B. 1008, as codified at West Virginia Code section 12-3, in contravention of the Constitution of the United States. The enforcement of section 1-2-3 by the defendants is therefore permanently enjoined. 13 13 Our good friend Judge Bailey dissents from this declaration and would deny relief to the plaintiffs on all counts. Judge Bailey acknowledges that we "must determine whether the population deviation in the adopted plan was necessary to achieve the State's objectives." Dissenting Op. at 2. He cannot point, however, to a single speck of evidence in the record revealing any finding by the Legislature allocating a specific variance in population toward achieving each of the asserted obj ecti ves. Our friend cites no such evidence because it simply does not exist. It is not permissible for the State to say, for example, "If one examines the record, one could distill vague references to three Karcher interests, which, taken together with no indication of their relative importance, justify an aggregate variance of 4,871 persons." Judge Bailey chides us for declining to apply Karcher in a fashion flexible enough to approve of that sort of approach, though he dutifully echoes Karcher's admonition that "' [t] he State must show some specificity that a particular objective required the specific deviations in its plan, rather than simply relying on general assertions.'" Dissenting Op. at 2 (emphasis added) (quoting Karcher, 462 U.S. at 741). While Karcher indeed instructs that the "showing required to justify population deviations is flexible," id., such flexibility refers only to the "showing," which is subj ect to case-by-case balancing of individual and governmental interests. The "deviations" that are the subject of the showing, in stark contrast, must be documented with precision, and that was not done in this case. 30 Although we are loath to devise on our own a redistricting plan for the State of West Virginia, the 2012 congressional elections will nevertheless be conducted under an interim plan promulgated by the Court, subject to the following conditions: (1) The Court will defer further action with respect to a remedy for the constitutional defect identified herein until January 17, 2012; and (2) In the period prior to January 17, 2012, the defendants are encouraged to: (a) Seek the enactment of an apportionment plan that satisfies the applicable constitutional mandate; or (b) Present the Court with one or more alternative plans approved by the defendants for the Court's consideration as an interim plan. 14 In the absence foregoing conditions, of successful compliance the Court will, with one of the on or after January 17, 14 Any plans presented by the defendants under paragraph (2) (b) should be explained to the Court, and, if necessary, fully justified. Further, the plaintiffs should be accorded the opportunity to assess and offer comment to the Court with respect to any such plans. 31 2012, be constrained to identify an interim plan for use in the 2012 congressional elections in West Virginia from among those currently called in the "Perfect record Plan" of or this Cooper interim plan adopted by the case, likely 4. 15 Plan Court may be In complies with the the will retain so- event, any the any substituted superseded by the Legislature and the Governor, substitution either for and so long as such applicable constitutional mandate. Finally, for Court such other and further jurisdiction proceedings as may be in this case appropriate, pending further order. DATED: January 4, 2012. ROBERT B. KING United States Circuit Judge United States District Judge Senator Unger testified that legislative staffers worked with Professor Martis to conform the Perfect Plan in rough equivalence to the original three congressional districts drawn at West Virginia's creation in 1863, see Tr. at 207, and Dr. Martis confirmed that the Perfect Plan is, in his view, compact under the Constitution of West Virginia, see id. at 149. 15 32

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