Analysis: Lawyers ready to battle over numbers, zig-zags and the future of Ky.'s legislative maps

02/03/2012 03:59 PM

Percentage points, district divisions, zig-zags and strips are at the heart of the redistricting map challenges that will play out in court again on Monday.

Attorneys for House Republicans and a Senate Democrat and those lawyers defending the maps will make their case to Franklin Circuit Court Judge Phil Shepherd. Sheryl Snyder, one Kentucky’s most prominent attorneys, will represent the Legislative Research Commission in defending the maps. And the case could go all the way to the Kentucky Supreme Court.

At stake is whether the newly-approved House and Senate districts are constitutional. That, obviously, affects candidates for those legislative seats. They are supposed to have filed their candidacy papers by 4:30 p.m. on Feb 7.

And the numbers will play a big part in Monday’s arguments.

Size Matters

Lawyers for the House Republicans will continue to argue that the House map is invalid because the new 24th District — covering Larue, Marion, and Washington counties — violates the Kentucky guidelines that say a district can’t be more than 5 percent bigger than the ideal House district or below 5 percent under that population level.

The 24th District under the new House plan has 45,730 residents and the target population is 43,394 which put the map at a 5.38 percent population deviation, which is over the 5 percent called for.

Look for Democrats to agree that District 24 is at 5.38 percent in population but argue the rules to divide the population only call for a “floating” 10 percent margin between the least populated district and the district with the most people. Indeed, the three least populated districts are -4.62 percent off from the ideal district (the 5th District in western Kentucky, the 39th District in Jessamine and Fayette counties, and the 67th District in Campbell County).

So the battle, at least on this point, will rest on the federal versus Kentucky guidelines to redistricting. The Kentucky guidelines developed out of the legal challenge brought by Republican Rep. Joe Fischer in the 1990’s. He is one of the House Republicans bringing the challenge this time.

Divided and Conquered?

The number of counties being divided among districts will also be contested. Section 33 of the Kentucky Constitution calls for the smallest number of counties to be divided. Twenty-two counties have more people than the 43,394 of an ideal House district.

The House plan carves up 28 counties, and the Republicans drew a map that divided just 24 counties.

If that debate sounds familiar, Fischer and House Speaker Greg Stumbo had it out over that on the House floor when the House first approved the new districts on Jan. 12:

Separation Anxiety

Republicans are also challenging the maps for drawing weird lines to link disparate counties.

Specifically, the complaint points to two districts in southern Kentucky that include a thin strip of a county in order to link others together.

The 80th District skirts along the northern Pulaski County line to connect Casey County with Rockcastle County and western Madison County. The suit calls that section “the Pulaski County strip.”

The 89th District includes a “Laurel County zig-zag,” according to the suit, that connects McCreary County along the Tennessee border to Jackson County.

No one challenged a similar formation of the 18th House District in the map that was used for the last decade. And no state law explicitly bars such configurations.

Lexington lawyer Scott White also has joined the suit against the legislative maps — but is challenging the Senate’s map. White contends that constituents of the 13th Senate district have been disenfranchised because the new map basically booted Democratic Sen. Kathy Stein of Lexington out of her district. The map moved the 13th District to a northeastern Kentucky district of Harrison, Robertson, Mason, Lewis, Nicholas, Fleming, Bath and Montgomery counties.

The Lexington district was renumbered the 4th district. Senators run for a particular numbered Senate district and are elected for four years. And White has argued that by moving Stein, the map strips those Lexington voters of being represented by the Senator they elected.

The Supremes Could Reflect

White also will challenge the population deviation in the Senate’s 8th District, which would now cover Daviess and Ohio counties.

As drawn, that district has a population of 120,498. The ideal population for a Senate district is 114,194 putting the 8th District’s population at 5.52 percent — or 6,304 people — over the ideal population.

Judge Phil Sheperd will hear these arguments and testimony on Monday. But whatever ruling he gives, the result will likely be appealed to a higher court.

And if the case makes its way to the Kentucky Supreme Court things could get even more interesting as Republican Minority Floor Leader Jeff Hoover pointed out on the House floor on January 12th, 2012:

So what happens if the case is appealed to the Kentucky Supreme Court?

Justices would have to make a decision on whether or not to recuse themselves from ruling on this case. If two or more justices recuse themselves, Gov. Steve Beshear can appoint temporary replacements for this case. If all seven justices recuse then seven new judges would be brought in to decide the fate of the map.

And, as the General Assembly has shown so far in 2012, just about anything is possible with redistricting.


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