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either the so-called "Perfect Plan" or Cooper Plan 4; any interim plan adopted by the Court may be substituted for and superseded by the Legislat ure and the Governor, so long as such substitution complies with the applicable constitutional mandate.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)

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