Jefferson County Commission v. Tennant

876 F. Supp. 2d 682, 2012 WL 2899019
CourtDistrict Court, S.D. West Virginia
DecidedJanuary 4, 2012
DocketCivil Action No. 2:11-CV-0989
StatusPublished

This text of 876 F. Supp. 2d 682 (Jefferson County Commission v. Tennant) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jefferson County Commission v. Tennant, 876 F. Supp. 2d 682, 2012 WL 2899019 (S.D.W. Va. 2012).

Opinion

MEMORANDUM OPINION AND ORDER

ROBERT BRUCE KING, United States Circuit Judge and IRENE CORNELIA BERGER, District Judge:

The Jefferson County Commission and two of its commissioners, Patricia Noland and Dale Manuel, both of whom reside in Jefferson County, West Virginia, and each proceeding in his or her individual capacity, filed this suit on November 4, 2011, challenging the congressional apportionment enacted by the State of West Virginia following the 2010 census. In their Complaint, the plaintiffs name as defendants Secretary of State Natalie E. Tennant, Governor Earl Ray Tomblin, State Senate President Jeffrey Kessler, and Speaker Richard Thompson of the West Virginia House of Delegates, each in his or her official capacity. Pursuant to 28 U.S.C. § 2284, this three-judge district court was duly appointed by the Chief Judge of the Court of Appeals for the Fourth Circuit to consider the plaintiffs’ claims. The trial of the matter took place at The Robert C. Byrd United States Courthouse in Charleston on December 28, 2011, and it is now ripe for decision.

[684]*684Upon careful consideration of the parties’ written submissions and the testimony, evidence, and arguments of counsel, we conclude that West Virginia’s congressional apportionment was not accomplished in conformance with the Constitution of the United States. The plaintiffs are therefore entitled to have the enactment declared null and void, and, in turn, to have the Secretary of State permanently enjoined from conducting West Virginia’s elections for Congress in accordance therewith.

I.

A.

The 435 voting members of the United States House of Representatives are distributed among the several 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.” U.S. Const, art. I, § 2, cl. 3; see 2 U.S.C. § 2a (requiring that President employ algebraic “method of equal proportions” to calculate and transmit to 82nd Congress within one week of convening on January 3, 1951, and each fifth Congress thereafter, 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 Virginia’s case, the state constitution commands that congressional districts “shall be formed of contiguous counties, and be compact. Each district shall contain, as nearly as may be, an equal number of population, to be determined according to the rule prescribed in the constitution of the United States.” W. Va. Const, art. I, § 4; see W. Va.Code § 1-2-3 (identifying three current congressional districts, each comprised of contiguous whole counties). The “rule prescribed in the constitution of the United States” incorporates the requirements of Article I, Section 2, together with the Fourteenth Amendment, the latter of which, among other things, prohibits a state from denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1; see Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (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, President Kessler appointed seventeen state senators to a “Redistricting Task Force” (the “Task Force”), chaired by Senator (and Majority Leader) John Unger, which conducted a series of twelve public meetings throughout the state during the spring and early summer of 2011 to gather citizen input. On August 1, 2011, the West Virginia Legislature, at the proclamation of Governor Tomblin three days earlier, convened its First Extraordinary Session to determine state legislative and federal congressional districts. Senate Resolution No. 103, adopted at the outset of the special session, established the Select Committee on Redistricting (the “Committee”), comprised of the seventeen Task Force senators. See Joint Opening Brief of Defendants Jeffrey Kessler and Richard Thompson [hereinafter “D. Br.”], Exhibit M.

On August 3, 2011, the Committee was presented with an initial proposal providing for a virtually equal division of the State’s official 2010 population of 1,852,-994. Under that proposal, formally called [685]*685the “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 generally observed political boundaries at the county level, although it divided two counties — Kanawha and Harrison — between districts. See Plaintiffs’ Exhibit 8.

The following day, August 4, 2011, Committee members proposed alternatives to the Perfect Plan. The Committee ultimately rejected six such alternatives, including two by Senator Roman Prezioso (devised by the Democratic Congressional Campaign Committee, a/k/a the “DCCC”), three by Senator Brooks McCabe (suggested by attorney Thornton Cooper), and one by Senator Douglas Facemire (suggested by non-Committee member Senator Herb Snyder). The Committee reported to the full Senate an eighth proposal, Senate Bill (“S.B.”) 1008, propounded by Senator Clark Barnes, which retained the 2001 district boundaries, except for transferring Mason County from the Second District to the Third. On the Senate floor, Senator Snyder moved to amend the bill with a ninth proposal, but that motion was defeated. The Senate ultimately passed S.B. 1008 over the lone dissent of Senator Unger.1 The House of Delegates, under the stewardship of Speaker Thompson, approved the bill without debate, 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 for 615,991 persons in the First District; 620,862 in the Second; and 616,141 in the Third.2 The most populous of the three, the Second District, exceeds the mean (617,665) by 3,197 persons (0.52%), in contrast to a shortfall of 1,674 (0.27%) in the least populous First District, resulting in a total variance (a/k/a “Relative Overall Range” or “ROR”) of 4,871 (0.79%). As illustrated below, the ROR of the enacted apportionment was the eighth most severe of the nine proposals considered:

Rank_Proposal_ROR

1. Perfect Plan_0,00%

2. McCabe (Cooper) 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. 1008 (Barnes Plan)_0.79%

9.

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Bluebook (online)
876 F. Supp. 2d 682, 2012 WL 2899019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-county-commission-v-tennant-wvsd-2012.