Jensen v. Kentucky State Board of Elections

Jackson, Elections, Rebecca board County Clerk, M. James Jefferson PRATER, Appellant, v. Charles Sheriff, Vaughn, War Jefferson Elections, Yvonne ren Board Clerk, Jerry Guy, and Warren RESOURCES, CABINET FOR HUMAN Sheriff, Gaines, Appel Warren Kentucky; COMMONWEALTH lees. C.C.P.; B.L.P.; C.L.P., Ap D.P.J.; pellees. No. 96-SC-000291-TG.

No. 95-SC-413-DG. Kentucky. Kentucky. Supreme Court of April 1997. May 1997. As Amended

Feb. Sept. As Modified Appeals, 93- On from Court of No. Review Frazier, Dissenting Opinion of Justice CA-2116; Judge. Stephen Graves, 4, 1997. Sept. ORDER PETITION FOR GRANTING AND REHEARING WITHDRAWING

OPINION

Appellant’s Rehearing Petition for

above-styled action GRANTED. opinion

The original of this Court rendered July 25,1996, is withdrawn. 3,1997. February

ENTERED:

COOPER, GRAVES, JOHNSTONE, and

WINTERSHEIMER, JJ., concur.

STEPHENS, J., LAMBERT, J., C. STUMBO, J., sitting.

dissent. Stephens Robert F.

Is/

Chief Justice JENSEN, Appellant, L.

Thomas

v. BOARD OF ELEC-

KENTUCKY STATE Secretary Ken- of State of

TIONS Brown, Attorney

tucky, Y. III and John Kentucky, Albert B. Chan-

General Jody

dler, as a Member III and Richards Representatives, Kentucky Kentucky Repre- Speaker of House of Legislative and on behalf

sentatives Legislative Commission, Re-

Research Commission,

search Jefferson

772 ”);

in this I litigation as “Fischer Fischer v. Elections, Ky., State Board 879 S.W.2d of (1994) (“Fischer II”); 475 State Board of Fischer, Ky., Elections v. 910 S.W.2d 245 (1995) (“Fischer ”). III The General Assem- bly’s reapportion first effort to itself in accor- dance with the 1990 census was the 1991 Reapportionment challenging Act. An action constitutionality of that Act was filed in Campbell I, In Circuit Court. Fischer .Campbell we held that the Circuit Court was proper bring venue which to the action. II, In Fischer we held that Section 33 man- reapportionment accomplished dates Maddox, Dyche, Victor B. John David Ta- by of dividing the fewest number counties chau, Hovious, Louisville, Ap- & Maddox for maintaining a while maximum varia- pellant L. Thomas Jensen. plus-or-minus tion of 5% from the ideal Chandler, III, Gen., Atty. A.B. Scott (Based legislative lation district. on the White, Attorney General, of the Office Civil census, 1990 the ideal of a Senate Frankfort, Division, & Environmental Law 96,981 and the ideal Appellees Kentucky for State Board of Elec- 36,853.) Although House district is all of the tions; Secretary Kentucky, State John by House and Senate districts created Brown, III; Attorney Y. and General of Ken- Reapportionment populations Act had Chandler, tucky, III. Albert B. within 5% of ideal Yewell, Condon, David L. David C. Rum- redistricting Representa- of the House of Kamuf, Yewell, Condon, mage, &Pace Ow- forty-eight tives division of resulted ensboro, Jody Appellees for Richards as redistricting of the Senate and Kentucky Representa- Member of nineteen resulted in the division of tives; Speaker Jody Kentucky Richards upon proof Based that fewer counties could Richards, Representatives; Jody House of on maintaining have been divided while Commission; Legislative Behalf of Research plus-or-mi- maximum Legislative and Research Commission. 5%, nus Act we found the 1991 to be an Hinkle, IV, Stoll, Samuel D. Keenon & require- from the unconstitutional deviation Park, Louisville, Stoll, Kellerman, Robert W. ments of man- 33. Pursuant Section Frankfort, Park, Appellees Keenon & for II, Campbell date Fischer Circuit Elections; County Jefferson Board of Rebec- injunction enjoin- permanent Court issued a Clerk; Jackson, ca as Jefferson ing Reapportion- elections under the 1991 Vaughn James M. as Jefferson Sher- Act. ment iff. August the Governor the Com- Roemer, Patrick Asst. Warren C. Assembly into monwealth the General Green, called Appellees Atty., Bowling for Warren considering special purpose Elections; session for Guy Board Yvonne Clerk; reapportionment. inter alia Jerry the issue Gaines as Warren passed House both redistrict- County Sheriff. Senate and the Warren however, ing plans; the House bill was ve- COOPER, Justice. after the House had toed the Governor Meanwhile, adjourned August die. sine chapter latest appeal is the This Representa- House of member of the Assembly’s Kentucky effort to redis- General resigned and the Board Elections tives trict itself in accordance the 1990 census petitioned Campbell Circuit Court of Ken- 33 of the Constitution Section injunction permit See, permanent amend the tucky. v. State Elec- Fischer Board of (1993) (referred tions, vacancy. fill the That special election to Ky., 847 S.W.2d Twenty counties1 have petition was denied and we affirmed that on the 1990 census. 38,696, greater III. the 5% max- populations denial than Fischer permitted by imum thus deviation When the General convened addition, parties must divided. regular January its session on geographical agree loca- that because introduced, redistricting bills were House counties, twenty largest tion of the two addi- Bill 1 Bill Bill and House 164. House 164 nei- tional counties must be divided because was defeated in committee. Bill House County Calloway ther Bell nor can amended, Reappor- as the enacted 1996 joined county to a with another whole form signed tionment Act and was into law the permissible population district within the January Governor with an effective date of Thus, twenty-two is the minimum variation.2 date, 1996. On that two civil ac- same can be divided and number of counties which tions were filed in the Franklin Circuit permissible the maximum comply still with Jensen, Appellant Court. a member population deviation. Representatives House of from Laurel Coun- ty, Appellant premises filed Civil Action No. 96-CI-00071 seek- his constitutional chal- ing Reapportionment lenge to Act not have 1996 Act on the fact that 1996 does declared unconstitutional and to obtain a whole House within the create a district mandatory injunction requiring the General of either Pulaski or Lau- boundaries adopt pur- County, though Bill to House 164 for rel even both counties have (This reapportionment. large enough poses populations latter re- to accommodate a (The quest properly ignored by par- has been all whole Act also does create district. litigation; ties to this for the district issuance such whole within the boundaries injunction clearly County, greater popu- an would violate re- Christian which has quirement separation powers. Ky. lation than either Pulaski or Laurel Const., 27, 28, County.) Appellant asserts if a Sections 29. Section 38 as- that signs legislature reappor- duty population to the has a to contain whole sufficient itself.) Richards, boundaries, Appellees Speaker tion 33 re- of district within its Section Representatives, Legis- quires the House of and the that a whole district be created within words, Appellant lative Research Commission those In other filed Civil Action boundaries. seeking interprets guarantee any No. 96-CI-00076 declaration that Section 33 that greater January the 1996 Act is constitutional. with a within or On 23, 1996, Appellant permissible than maximum Jensen introduced House deviation redistricting plan Bill from ideal district will have at House Representatives. representative House of who is a This bill was not least one elected county. passed points out of committee. The two Franklin resident of that He House and, proof Bill result can be Circuit Court actions were consolidated 164 as 20, 1996, dividing only twenty-two judgment March was entered achieved while still declaring creating no with a the 1996 Act to be constitutional. counties and district granted plus-or-minus appealed greater transfer. lation variation than Jensen we CR 74.02. 5%. Repre- Appellant Act concedes those counties3

The 1996 divides House districts, populations one hundred to accommodate sentatives into each sufficient districts their re- containing within two or whole within guaranteed a spective cannot be of the ideal House district boundaries 5% 36,853. only without twenty- corresponding Act number districts further divides counties, twenty-two counties. dividing the minimum number which more than Thus, Bill which was drafted and redistricting plan in a based House can be divided Kenton, Hardin, Daviess, However, 1.Jefferson, Fayette, Act neither Bell divides County, Warren, Christian, McCracken, Calloway Pike, instead divides nor but Campbell, Boone, Madison, Trigg County once and Leslie twice. Pulaski, Bullitt, Boyd, Hopkins, Franklin, Floyd, and Henderson. Laurel Daviess, Hardin, Jefferson, Kenton, Fayette, Campbell, Pike. Warren and If, by Appellant making introduced House Bill 1 in this after section. said law, signed grant enacted into would inequality populations should un- each máximum avoidable, number whole advantage resulting there- permit. districts which its would given having from shall districts thirty Bill 350 divides coun- largest territory. part No aof accomplish Appellant ties to re- result. shall be added to another to make a quests that II we reconsider Fischer forming counties and the a district interpret require 33 to Section the division of added.) contiguous. (Emphasis only a minimum number after In Fischer held “[t]he mandate county large enough each contain whole of Section is to make full use of awarded the maximum number of maximum constitutional whole districts which can be accommodated [plus-or-minus as set forth 5%] herein and by population. its He that also notes we possible of divide fewest number coun- place greater emphasis could an even on the n preservation III, supra, ties.” Id. In Fischer at 479. at county integrity by permit- of 246, 1, fn. we reiterated that this was the ting slightly population greater variations 5%; and, indeed, holding long central of Fischer II. have We than other goals equali- that of plans population held when the greater state with deviations have been collide, ty inevitably county integrity held not to federal constitutional re- and violate quirements requirement equality where the deviations shown of approximate were of legitimate Matthews, to be “based on considerations in- lation must control. Combs v. (1963); cident to of a rational effectuation state Ky., Stiglitz 364 v. Schar S.W.2d 647 Sims, Reynolds 533, 579, policy.” dien, v. 377 U.S. 799, (1931); Ky. 239 40 S.W.2d 315 (1964). 1362, 1391, 12 84 S.Ct. L.Ed.2d 506 Anderson, 141, Ragland Ky. v. 125 100 S.W. Thomson, 835, also (1907). See Brown v. 462 U.S. fact, Kentucky recog 865 (1983); 2690, 103 S.Ct. 77 L.Ed.2d 214 Ma nized as one of the few states which held Howell, 315, 979, v. han 410 U.S. 35 Carr, prior to 369 82 Baker v. U.S. S.Ct. (1973). L.Ed.2d 320 apportion 7 L.Ed.2d 663 bodies, ing legislative equality population of The full text of 33 follows: Section is as priority has over subdivision bound after first General Dixon, Jr., aries. Democratic Robert G. adoption of this Constitution shall divide Representation: Reapportionment in Law thirty-eight the State Dis- into Senatorial (Oxford University Press, and Politics tricts, Representative and one hundred . 1968).4 this in Fisch priority We reiterated Districts, nearly equal population as as adopted plus-or-minus II when 5% er as dividing county, may ex- without maximum allowable cept county may where a include more creating House and Senate districts. This district, con- than one which districts shall recognized by the variation has been United Representative stitute the Senatorial as a deviation” States “minor years. Districts for ten Not more than prima out a facie case insufficient to make joined together two to counties shall v. Thom invidious discrimination. Brown Provided, Representative form a District: son, 842, 103 2696; supra, at at 462 U.S. S.Ct. doing principle requiring every so the Finch, 407, 418, 97 v. 431 U.S. S.Ct. Connor nearly equal to district be as (1977). 1828, 1835, L.Ed.2d 465 Fischer 52 may be not be violated. At shall require time, satisfying II then held that after expiration As- of that the General then, approximate equality population, sembly every years ment ten plan thereafter, priority reapportionment according the next the State to redistrict rule, county expressed preservation integrity, which is purposes and for large enough Despite reputation premised upon except our de- those to contain adding Stiglitz Ragland two or more districts and not excess cisions in v. Anderson v. Schardien, county county reapportionment supra, acts one 472; 139, p. strictly Acts "no division” make a Acts ch. 1918 and 1942 followed the district. 1942, Ex.Sess., 2, § dividing any requirement ch. of Section not county popula- possible with sufficient accomplished by dividing the foresee that fewest of counties. district within its number tion contain a whole might given such a district. borders not interprets Appellant the mandate Sec- However, delegates regardless of what tion the state redistricted “without .that foreseen, require- may may not have or dividing any county, except where a language not included ment was may include than one ...” to district upon by language 33. The relied Section popula- mean that if a has sufficient counties which Appellant simply limits those district, tion to accommodate can- whole populations suf- those can be divided to with not until such a be divided after districts, goal support at ficient to least reading created. the constitu- unachievable if the fewest which is concerning tional debates Section 33 reveals to be of counties are divided phrase number quoted that the was to intent required by II. Note that House preclude any division unless that Bill would create at least one had sufficient accommo- which merely popula- date suffi- two whole not district within each whole required tion in excess form one cient to contain a whole whole district. requirement specified in Section require thirty meaning adopted It would the division of the section Convention, by ambigui- that whatever proceedings An examination ty might cling, county no should be divid- clearly debates of 1890 convention shows I ed. think that convention is unani- delegates guaran- that did intend to regard, they in mous that that do not want by represented county tee must a that county any unless it is entitled to divided county. following The resident that words, representatives. two In other we rejected: proposed and amendments were part county do not want one added to popu- Representative A in the most 1. purpose securing repre- another Assembly shall lar branch of the General sentation. county each in the State. be chosen from Proceedings and Debates Constitutional represen- apportion 2. order 1890, at Convention 4423. What is clear Representatives in in tation the House of from language the debates and from the State, by the ratio to be ascertained delegates is Section 33 that did not in- dividing the entire State any territory county tend that one hundred, county by one and each county added to make a district. Representative; county one but each If a in have at least had excess of that required county having to form a the excess two ratios shall have two members, Representative for lation remained with that district unless the one District county. had sufficient to contain ratio in said each additional interpreted, two whole districts. As so Sec- county having Any 3. tion preclude 33 would division of Lau- thousand, voting population ten or rel, Yet, Pulaski Christian counties. be- thousand, to one member shall be entitled overriding principle equality cause of popular in most branch of the General population, recognized Fischer II Assembly. that this mandate cannot be achieved. Repre- Each shall have one 4. Twenty-one are now divided sentative. way populations are that remnants their Debates, Proceedings supra, at joined separate with other counties to form Laurel, fact, counties,6 fifty-two including delegates probably did not districts.5 Green, times, Fulton, Gallatin, Fleming, Grayson, eighteen Han- but 5. Jefferson is divided Hickman, Lawrence, Larue, Laurel, encompassed cock, eighteen Henry, are within the all districts borders, county. Leslie, Lewis, Lincoln, Lee, Lyon, of that Livingston, McLean, Menifee, Martin, McCreary, Magoffin, Anderson, Bracken, Adair, Allen, Bath, Breath- Owen, Nicholas, Metcalfe, Ohio, Owsley, Pendle- itt, Caldwell, Carlisle, Carroll, Clinton, Casey, Edmonson, Estill, Crittenden, Cumberland, Christian, including being awarded a whole district within its but not Pulaski or are out Nevertheless, presently represented by repre- the mere fact elected state boundaries. particular apportionment that a scheme sentatives who do not reside within their course, particular group for a borders. the mere fact that there makes it more difficult Of particular represen- only are 120 hundred House in a district to elect the counties and one guarantees many members counties will tatives of its choice does not render constitutionally infirm. represented by legislators who do not scheme Unconstitu- reapportionment oc- reside within their borders. tional discrimination only system the electoral is ar- curs when support proposition to find for his Unable ranged consistently in a manner that will S3, itself, language Appel- of Section degrade group of voters’ influ- a voter’s or significance lant attributes constitutional political process as a whole. ence on the an observation contained in footnote 5 Bandemer, 109, 131-133, Davis v. 478 U.S. to wit: 2797, 2810, 92 L.Ed.2d 85 recognize We division of some guar- (plurality opinion). the 1996 Act Since probable interpreted and have counties is repre- only antees nineteen7 of 120 counties permit Section 33 to such division to in the House sentation resident population requirements. Howev- achieve that the Representatives, the mere fact er, scarcely we can conceive of a circum- guarantee representation Act does not such part stance in which a or thereof and Laurel counties to the citizens of Pulaski lacks to consti- which sufficient impermissible not constitute discrimina- does subjected tute a district would be to multi- tion. ple divisions. per- There is a difference between what convention, delegates Like the to the 1890 is unconstitu- ceived to be unfair and what we could not envision that a Apportionment primarily tional. support sufficient a whole dis- legislative process. Gaffney v. Cum- might trict within its borders not be awarded 2321, 2329, mings, 412 U.S. a remnant such a or that or (1973). only in role 37 L.Ed.2d Our subjected multiple might thereof divi- particu- process a this is to ascertain whether did not hold in footnote sions. passes constitutional redistricting plan lar constitutionally prohibited. 5 that such is muster, plan not a better could whether fact, thought scarcely what we was conceiva- plan the constitutional crafted. This satisfies All proven has to be ble been unavoidable. and the mandate requirements of Section 33 redistricting plans, including Appel- three II make full use of the maxi- of Fischer “to lant’s own House Bill contain numerous mum variation constitutional “footnote 5 violations.” No one now so-called [plus-or-minus and di- 5%] set forth herein any redistricting plan could be suggests that of counties.” possible vide the fewest number multiple some such divisions. drafted without III, 479; supra, supra, Fischer at Fischer Appellant suggests in his brief that judgment of the Franklin at fn. 1. The County and multiple the divisions of Pulaski Circuit Court is affirmed. partisan of Laurel are the result gerrymandering, since both counties consist STEPHENS, JOHNSTONE, C.J., and registered Republicans and the primarily of WINTERSHEIMER, JJ., STUMBO and Representatives of was con 1996 House concur. course, majority. by a Democratic Of trolled LAMBERT, J., separate ignores dissents assertion the fact Christian GRAVES, J., joining opinion County, hardly Republicanism, with a bastían of subjected multiple dissent. divisions with- also was Todd, Rowan, ton, Powell, Robertson, the maximum Spencer, which has a within Trimble, Trigg, Washington and Wolfe. and thus constitutes 5% a district within itself. twenty largest remaining seventeen of the

7. The counties, Greenup, plus each of Harlan Justice, LAMBERT, principle dissenting. required, was of counties princi- integrity did cease to exist. That majority For its decision this case the ple, meet federal as modified to constitutional ignored holding has our central Fischer v. possi- requirements, that there be least is Elections, Ky., State Board 879 S.W.2d of Thus, or ble division of counties. (“Fischer II”), upon and seized may any at or not be divided all counties basis, thereby obiter dictum its decisional necessary than is to achieve placing imprimatur upon its dis- necessary, requirements. is Where division largest Kentucky’s memberment of of county integrity principle should be no counties. There should be misunder- be the maintained so that division will standing transpired about what and what the holding in disruptive. least This is majority County, approved. has Pulaski II. Fischer 49,489 population, has been divided among representative five and Lau- justification upholding re-appor- As 43,438 County, county population, rel has review, majori- plan tionment here under among representative been divided five dis- ty II upon relied dictum Fischer has tricts. In neither there opinion as follows: “The mandate of Section wholly contained within its borders notwith- 33 is to make full use the maximum consti- standing that both Pulaski and Lau- as set and di- tutional variance forth herein rel have well in excess of vide the fewest number of counties.” 36,853 required which is for a district. case, however, II As Fischer must argument map displayed At oral before light issues read before showing the Court the House at districts There no issue as whether Court. Except issue here. for House District 85 multiple of counties.1 there could be division portion which contains a substantial of both split only issue concerned number counties, Pulaski Laurel these counties stated, Simply counties. there was no reason apart are otherwise carved and added to anticipate multiple splits II contempt prin- other in utter for the larger This issue is brand new to ciple county political preservation integ- previously It has not before case. been rity, the heart and soul II. of Fischer misreading the Court. It serious provides Section 33 Constitution say Fischer II to authorizes what was Representatives that the done Our mandate to divide the fewest here. nearly divided into one hundred districts “as be number of counties must read equal population may in as be without divid- deciding. the context of case were We ing any county.” provides It also that “[n]o duty anticipate wholly had no to non-exis- part of a added to be another tent the multi- issue. Here issue whether county to make a district....” From the duty ple permissible. Our is to divisions are Convention, Debates of the Constitutional apply last where it the sentence of Section 33 Delegates there is no doubt that the meant says, part shall be added to “[n]o they to what said. Counties were not be to make a district.” However, with of the divided. the decision opinion validating In Supreme light majority of the United in Baker of the Court States Carr, 186, here, nothing place what will to v. 369 U.S. S.Ct. 7 L.Ed.2d took there (1962), Kentucky prevent multiple coun- the division other the Constitution yield allowing entirely it is that such to the extent of some ties and foreseeable forced to weapon, perhaps partisan used as a division of counties to achieve re- could be wholly beyond present in contem- quirements. ways of some our While the division prevent ty. sought Contrary n. the Court "balanc- to what some would consider sound budget” anticipate ing judicial practice, on the of a few small the Court did the the backs small, wholly possibility politically unantic- defenseless counties. what that some budget ipated for a was that the would balanced which lacked sufficient multiple large Any might subjected reasonable backs House district application reasoning guidelines n. 5 forbid satisfy population would divisions so as to single happened being here. divided coun- what while counted but plation.2 sought reinvigorate II A litical matters to the states. solution wor- thy concept county integrity exploration to the federal mandate as manifest Kentucky Section 33. We should not the Commonwealth of allow to be county, distorted to achieve other result. amend its Constitution to allow each Sec- Kentucky perhaps political larger tion 33 of unit in the Constitution of is our each counties, responsibility proportionately represented and we should it. to be defend Assembly. in the General Another reasons, For these I dissent. approach would to borrow from the feder- whereby apportioned al model one house is GRAVES, J., joins dissenting opinion. and the other on subdi- GRAVES, Justice, dissenting. vision. ” in, I, majority opinions “Fischer By placing precincts isolated from a ” ” III,

“Fischer and “Fischer as well containing larger within a district a much respective opinions, rep- dissents to those county effectively precludes well-qualified cit- good Kentucky resent faith efforts precincts izens the isolated from ever be- Assembly General and the courts of ing elected to due to the General satisfy increasingly Commonwealth to demographic disadvantages.

difficult mandates of the United States Su- Carr,

preme generated by Baker v.

369 U.S. 7 L.Ed.2d 663 progeny. my opinion and its It is

Baker v. takes far in Carr federalism too

imposing theory of “one man-one vote” as requirement legislative ap-

a constitutional

portionment. Compliance with Baker v. ASSOCIATION, KENTUCKY BAR challenges sovereignty

Carr of states and Movant, disrupts integrity many long estab- well-functioning legislative lished and dis- v. Compliance tricts. with the federal man- DONSKY, Respondent. Daniel achieving dates has demonstrated that federally-mandated “one man-one vote” re- No. 96-SC-303-KB. districting disrupts impairs identity, Kentucky. Court of continuity, community and sense of of units government represent established to Sept. constituency having common interests. As fluid, demographies complying more become CAUSE ORDER SHOW progressively with Baker v. will become Carr hereby Tuesday, It is ordered that on Oc- difficult, impossible. if a mobile 21,1997, p.m. at the tober hour of 1:00 society percent where less than 50 courtroom, Kentucky Supreme the Re- vote, egalitarianism people bother to de- spondent, Donsky, appear Daniel sired Baker is irrelevant. why show cause he should not be held comply proposed contempt scientists have of court for failure to Some 20, 1996, re- that the United States Constitution should be this Court’s order dated June jurisdiction quiring him amount pay amended to remove the restitution ($500) po- client United States Court to dictate five hundred dollars to his majority precincts, 38 of 2. The has made reference to the three- House District consists of 45 way indicating (KRS 5.208), division of Christian which are in Christian partisanship multiple division of lack precincts, the 9th House District consists of 275 it Pulaski and Laurel counties. What failed to (KRS 274 of which are in Christian say is that while Christian lacks sufficient 5.209). Any suggestion that the Christian representative to have two comparable division is to the division of Laurel virtually guarantee apportioned so as to misguided. and Pulaski counties is County. representatives from Christian The 8th

Case Details

Case Name: Jensen v. Kentucky State Board of Elections

Court Name: Kentucky Supreme Court

Date Published: Sep 4, 1997

Citation: 959 S.W.2d 771

Docket Number: 96-SC-000291-TG

Court Abbreviation: Ky.