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February 7, 2012

Shepherd hopes to make ruling today

Feb. 7, 2012 — FRANKFORT – A Franklin Circuit Judge said Monday he hopes to issue a ruling by Tuesday on some lawmakers’ challenge to a state legislative redistricting plan passed by the General Assembly and signed into law by Gov. Steve Beshear.

House Republicans contend the plan splits more counties than necessary and some districts exceed a previous court standard that districts not deviate from the average district population size by more than plus or minus 5 percent.

Judge Phillip Shepherd last week allowed Sen. Kathy Stein, D-Lexington, to join the suit after the Republican Senate majority moved her district to another part of the state and assigned an even number to the new district in which she lives, thereby making her ineligible to run for re-election because only odd-numbered districts are on this year’s ballot.

The House Republicans are seeking an injunction against implementing the new district boundaries and delaying the filing deadline for this year’s legislative elections until a remedy is achieved. Instead, Shepherd last week issued a restraining order delaying the deadline until Tuesday so he could review briefs and hear arguments Monday from both sides. He said if he should be unable to issue the ruling by Tuesday, he would again extend the filing deadline.

The case presents conflicting issues and state and federal court rulings seem at times to offer conflicting guidance. Section 33 of the Kentucky Constitution prohibits splitting counties but that is difficult under federal court rulings that districts must be drawn equally in population to reflect “one man, one vote.” To do that, Kentucky must divide 22 counties which exceed the average district size in population. Because of the mathematical requirements of 100 House districts among 120 counties, and the 22 counties which exceed the population size, the minimum number of counties that can be split is 24.

Subsequently, in the 1990s the Kentucky Supreme Court ruled in a previous challenge over re-districting that the legislature must divide the fewest number of counties “possible” while drawing no district that is more than 5 percent less or 5 percent more than the average state House district.The Democratic controlled House plan splits 28 – the same as the previous plan and Republicans say at least one district is more than 5 percent larger in population than the average size.

House Republicans submitted alternative plans during the debate over re-districting which split only 24 counties and stayed within the 5 percent deviation. Those plans were submitted to Shepherd as part of the Republicans’ arguments. One of the Senate districts – drawn by Republicans – also apparently exceeds the 5 percent deviation.

Sheryl Snyder, attorney for the legislature, argued that the 5 percent standard established by the Kentucky Supreme Court is based on federal law which did not require each district to be within 5 percent of the ideal size but rather that the smallest district could be no more than 10 percent smaller than the largest. Snyder said the plans passed by the legislature fall within that range, at least if the largest is rounded from just over 10.01 percent.

He also argued that the 28 split counties represent a “good faith” effort to split the fewest number of counties and that question is a political question reserved for the legislative branch.

But Victor Maddox, attorney for the House Republicans, said the previous court rulings say every deviation must be justified and the first priority of the map makers should be equality (the one man, one vote principle) and the second must be “county integrity.”

The Republicans also contend some districts were “gerrymandered,” including small strips in Pulaski and Laurel counties serving simply to connect two other counties in order to meet the constitutional requirement that district must be contiguous.

Shepherd seemed especially interested in why Stein’s district had to be re- numbered in such a way that voters in that district would have to go six years between elections for a four-year senator.

“There are people who will not have voted for a senator for six years and is that depriving them of their rights?” Shepherd asked Snyder.

Snyder said moving districts as populations shift is inevitable and has happened in numerous previous plans. He said statewide more than 400,000 people were moved to districts in which they will vote for their senator two years earlier than under the old map while 350,000 will have to six years between elections for their senator.

Shepherd said if he does not rule by Tuesday, he will again extend the filing deadline. He also said he will rule on the merits of the state constitutional arguments to allow either side to seek an expedited appeal to the state Supreme Court.

Meanwhile, back at the Capitol House Speaker Greg Stumbo, D-Prestonsburg, and Senate Majority Leader Sen. Robert Stivers, R-Manchester, said there remains no agreement between the two chambers on a congressional re-districting map which is contained in separate legislation from the state legislative districts. Both said lawmakers are likely again to extend the filing deadline in those races.

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

 

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