Opinion of the Court by Chief Justice MINTON.
Applying legal precedent established nearly twenty years ago in Fischer v. State
The LRC asks us to overrule the constitutional standards for redistricting legislative districts delineated in Fischer II by (1) allowing the General Assembly to divide more than the mathematically minimum number of counties necessary to achieve the population deviation goal and (2) establishing that an overall population deviation among legislative districts of less than 10 percent satisfies the requirement for population equality. The LRC also asks us to overturn the trial court's temporary injunction because it is predicated upon an erroneous conclusion of law.
After carefully considering the important constitutional issues, we affirm the trial court's decision. House Bill 1 violates Section 33 of the Kentucky Constitution in two ways: (1) it fails to achieve sufficient population equality and (2) it fails to preserve county integrity.
The Kentucky House of Representatives and Kentucky Senate redistricting plans of House Bill 1 both contain at least one district with a population deviation greater than 5 percent from the ideal district. And the LRC has not carried its burden of proving this excessive population variation is a result of a consistently applied rational state policy. Both plans also divide more than the mathematically minimum number of counties necessary to achieve approximate population equality.
Because House Bill 1 is unconstitutional and to ensure the orderly administration of the approaching 2012 elections, we remand the case to the trial court to enjoin permanently the conduct of any election under the district boundaries established by the Bill. Because the propriety of the trial court's injunction is not at issue in this appeal, we do not reach the questions of county contiguity and voter disenfranchisement.
Joseph Fischer, Jeff Hoover, Kim King, Frey Todd, and Anthony Gaydos filed suit in Franklin Circuit Court asserting various state and federal constitutional challenges to the Kentucky House of Representatives' reapportionment plan adopted by the Kentucky General Assembly in House Bill 1. The trial court granted the motion of David B. Stevens; David O'Neill; Jack Stephenson; Marcus McGraw; and Kathy Stein to intervene as plaintiffs under Kentucky Rules of Civil Procedure (CR) 24.01. As Intervening Plaintiffs, they raised similar constitutional challenges to the Kentucky Senate's redistricting plan contained in House Bill 1. Both Plaintiffs and Intervening Plaintiffs sought to enjoin the Kentucky Secretary of State and Kentucky State Board of Elections from proceeding with the 2012 elections under the redistricting plans of House Bill 1.
Pending its decision on the motion for temporary injunction, the trial court issued
Following an evidentiary hearing, the trial court issued a temporary injunction based on its findings that House Bill 1 violated Section 33 of the Kentucky Constitution as construed by Fischer II and that substantial issues of law existed concerning the contiguity of counties and disenfranchisement of voters. The trial court designated its finding of unconstitutionality final and appealable and reserved ruling on all other claims and defenses.
The trial court's findings of fact are largely uncontested on appeal. Using the population data from the 2010 census introduced into evidence, the trial court found that the ideal district for the House of Representatives would contain a population of 43,394; and the ideal district for the Senate would contain 114,194 people. Under the reapportionment plans created by House Bill 1, House District 24 contains a population of 45,730, which deviates from the ideal House district by 5.38 percent; and Senate District 8 contains a population of 120,498, which deviates from the ideal Senate district by 5.52 percent.
House Bill 1 also divides 28 counties in the House plan and 5 counties in the Senate plan. The record demonstrates that it is possible to divide as few as 24 counties in the House districts and 4 counties in the Senate districts. The House redistricting plan of House Floor Amendment 1 to House Bill 1 divides only 24 counties, and the Senate redistricting plan contained in Senate Floor Amendment 1 to House Bill 1 divides only 4 counties.
Under House Bill 1, the overall deviation among the House districts is 10 percent
The trial court also made findings of fact pertinent to the issues of county contiguity and disenfranchisement of voters under House Bill 1.
Based on these factual findings, the trial court concluded the following: House Bill 1 violates Section 33 of the Kentucky Constitution because at least one House district and one Senate district have a population variance greater than 5 percent of the ideal districts and because it fails to divide the fewest number of counties in the House and the Senate. The plaintiffs below raised a substantial issue of law regarding
The trial court enjoined the Secretary of State and the Board of Elections from implementing the House and Senate Districts set forth in House Bill 1. Accordingly, the districts as enacted in the 2002 redistricting plan, codified in KRS 5.200, et seq., would remain in place until the General Assembly passes constitutional redistricting legislation. The trial court also extended the filing deadline set forth in KRS 118.165 to allow all candidates and potential candidates the opportunity to make the required candidacy filings under the temporary injunction.
The LRC appealed the trial court's final judgment to the Court of Appeals and filed a CR 65.07 motion for emergency and interlocutory relief from the temporary injunction entered by the trial court. The LRC then moved this Court to transfer its appeal of the trial court's final judgment from the Court of Appeals to the Supreme Court. It also filed with this Court (1) a motion for emergency relief, under CR 65.07(6), to dissolve the temporary injunction entered by the trial court and (2) a CR 76.33 motion to stay enforcement of the trial court's partial judgment declaring House Bill 1 unconstitutional.
On recommendation of the Court of Appeals, under CR 74.02(5), we granted transfer to this Court from the Court of Appeals the LRC's motions to obtain interlocutory and emergency relief. And we entered an order denying the motions for emergency relief and to stay enforcement, leaving the temporary injunction intact. Under CR 74.02(1), we accepted transfer of the LRC's appeal of the final judgment. We expedited briefing and heard oral arguments. Because time was of the essence, following oral arguments, we issued an order affirming the lower court's decision and reiterating that the terms of the injunction entered by the trial court remained in place. This opinion elucidates our order to give the General Assembly guidance in its efforts to timely enact redistricting legislation.
Kentucky legislative reapportionment plans are governed by both the federal and state constitutions. Section 33 of the Kentucky Constitution and equal protection principles under the Fourteenth Amendment of the United States Constitution require that every citizen's vote carries the same voting power.
"[A] claim asserted under the Equal Protection Clause challenging the constitutionality of a [s]tate's apportionment of seats in its legislature ... [is] a justiciable controversy subject to adjudication by federal courts."
Section 33 of the Kentucky Constitution, in relevant part, requires that every 10 years "[t]he ... General Assembly ... shall divide the [s]tate into thirty-eight [s]enatorial [d]istricts[] and one hundred [r]epresentative [d]istricts, as nearly equal in population as may be without dividing any county[;] ... and the counties forming a district shall be contiguous." Well before federal "one person, one vote" principles were applied to the states, Kentucky's highest court interpreted Section 33 of the Kentucky Constitution to prioritize "substantial equality of representation" over county integrity.
Independent of the federal standard under the Fourteenth Amendment, Section 33 imposes a dual mandate that Kentucky's state legislative districts be substantially equal in population and preserve county integrity. A reapportionment plan satisfies these two requirements by (1) maintaining a population variation that does not exceed the ideal legislative district by -5 percent to +5 percent and (2) dividing the fewest number of counties possible.
We do not violate the separation of powers doctrine by finding House Bill 1 unconstitutional. "Our only role in this process is to ascertain whether a particular redistricting plan passes constitutional muster[.]"
Fischer II requires division of the fewest number of counties mathematically possible in reapportionment plans.
Contrary to the LRC's argument, this Court did not retreat from the importance of county integrity in Jensen.
Although the concern for population equality overrides the maintenance of county integrity, Section 33 of the Constitution mandates county integrity. The LRC is correct that Section 33 does not require division of the fewest number of counties possible; it actually prohibits the division of any county. Although we cannot uphold the mandate of Section 33 without violating equal protection, we also cannot ignore the drafters' goal of preserving county integrity.
Applying these principles, we are not free to disregard the drafters' intent to preserve county integrity by striking the provision from Section 33.
House Bill 1 violates Section 33 of the Constitution because it fails to divide the fewest number of counties possible. The record demonstrates that alternative plans were proposed in both chambers to divide as few as 24 counties in the House districts and 4 counties in the Senate districts.
The LRC asks us to relax the plus-or-minus 5 percent rule and adopt a federal standard, which generally finds an overall population deviation of less than 10 percent so insignificant that a court may overlook it when assaying redistricting issues.
In support of this argument, the LRC suggests the Fischer II Court meant to adopt this federal standard but erroneously articulated it as plus-or-minus 5 percent deviation from the ideal district. The
This Court did not intend to adopt the federal standard for population deviation as the test under the Kentucky Constitution. The Fischer II Court stated, "[I]t is safe to say that so long as the maximum population deviation does not exceed -5 [percent] to +5 [percent], and provided any such deviation is in furtherance of state policy, no violation of the Constitution of the United States will be found."
We decline the LRC's invitation to embrace the federal standard for Kentucky because the 5 percent rule appropriately ensures population equality. For purposes of Section 33 of the Kentucky Constitution, the 5 percent rule remains the standard to judge the constitutionality of population deviation in redistricting plans. But recognizing that "great difficulty and delicacy attends the performance of the duties imposed upon the General Assembly by [S]ection 33 of the Constitution,"
We take this opportunity to explain that the 5 percent rule is not an absolute mandate by which any population deviation greater than 5 percent from the ideal district is automatically unconstitutional. Rather, complying with the 5 percent deviation rule presumptively satisfies the population
When a reapportionment plan exceeds the plus-or-minus 5 percent variance, the legislature has the burden of proving that the plan consistently advances a rational state policy. The Supreme Court stated in Brown v. Thomson,
There are also limitations to acceptable population variance. Redistricting plans cannot pursue other rational policies at the total expense of population equality. This would violate Section 33 of our Constitution and the Equal Protection Clause of the Fourteenth Amendment. For example, a redistricting plan that divides no counties but results in large population inequality would be unconstitutional. When districts exceed plus-or-minus 5 percent population variance from the ideal district, the ultimate question is whether the plan consistently advances a rational state policy and, if so, whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.
We find that House Bill 1 does not comply with the Fischer II 5 percent rule because at least one district in both the House and Senate exceeds 5 percent population deviation from the ideal district. So the appellees have made a prima facie case that the Bill is unconstitutional, and the burden lies with the LRC to show the reapportionment plan consistently advances a rational state policy.
The LRC argues that the House reapportionment plan exceeds the federal 10 percent rule in order to prevent division of LaRue County.
Finally, the LRC argues the 5 percent rule of Fischer II is flawed because "it requires every Kentucky reapportionment plan to begin the decade at the maximum population deviation permitted by federal constitutional law." It complains that by starting out with a variance of -5 percent to +5 percent, the population among the districts quickly becomes malapportioned.
In Fischer II, the challenged Senate redistricting plan divided 19 counties and achieved a population deviation range of -3.26 percent to +3.09 percent.
Redistricting plans need not start at the maximum population deviation of 5 percent as long as they divide the fewest number of counties possible. The General Assembly must divide the smallest number of counties necessary to comply with the 5 percent rule. But dividing the fewest number of counties while achieving greater population equality fully complies with Section 33 of the Kentucky Constitution.
The LRC asks this Court to dissolve the trial court's temporary injunction because it is predicated upon an erroneous conclusion of law. On February 17, 2012, this Court entered an order denying this same request in the LRC's motions to stay enforcement and seeking interlocutory and emergency relief. We now reiterate that the LRC's motions to dissolve the temporary injunction are denied.
The LRC argues that it is inappropriate to hold the upcoming 2012 elections using the 2002 districts because they violate Section 33 of the Kentucky Constitution. According to the LRC, House District 60, under the 2002 reapportionment plan, deviates from the ideal House district by 42.7 percent; and Senate District 11 deviates from the ideal Senate district by 22.2 percent. Instead, the LRC posits that the districts established by House Bill 1 should take effect until the General Assembly passes new redistricting legislation. Although we do not doubt the LRC's population deviation numbers among the 2002 districts, these are the only legislative districts capable of implementation at this juncture.
As an unconstitutional statute, House Bill 1 is null and void. The Bill no longer exists and cannot be implemented. Subject to exceptions that are inapplicable here,
We recognized as much in Int'l Harvester Co. of Am. v. Commonwealth
Although we have not clearly enunciated this rule in our redistricting precedent, our decisions have been consistent on this point. In Ragland, the appellants argued that if the redistricting plan of 1906 was found unconstitutional, then the existing 1893 Act must also be declared so because it created unequal representative districts.
The Stiglitz court upheld the trial court's ruling that the 1930 redistricting plans were unconstitutional and void.
And, in Fischer II, the trial court had not enjoined the 1991 redistricting plan, which it found constitutional.
Unlike Fischer II, the interest of an efficient election process does not compel us to postpone the effective date of our opinion or dissolve the trial court's temporary injunction. Here, the trial court enjoined the Secretary of State and Board of Elections from implementing the districts established under House Bill 1. While the LRC pursued appellate relief, the 2012 elections proceeded under the districts established by the 2002 redistricting plan, not under the unconstitutional 2012 reapportionment plan. To reverse course now "would disrupt the orderly process"
According to the Secretary of State's brief, February 27, 2012, was the deadline by which she was required to certify to all 120 county clerks the name, place of residence, and party affiliation of each candidate running in the 2012 primary election. Were this Court to order implementation of the districts drawn by House Bill 1, the Secretary asserts she would be required to recertify the candidates and conduct another drawing for ballot positions. And the Secretary of State asserts on brief that many counties would likely require substantial time to redraw precinct boundaries, transfer voter registration records, and notify voters of precinct changes. The Secretary of State also suggests that the filing deadline would have to be extended again to ensure candidates have time to withdraw, obtain the necessary signatures, and re-file in the appropriate district according to the new plan. So not only is House Bill 1 void ab initio, practically speaking, it is now too late to conduct the 2012 elections under the Bill's districts.
"[I]t is within the province and the power of the courts to declare void and ineffective for any purpose all [A]cts of the General Assembly in violation of an express
House Bill 1 violates Section 33 of the Kentucky Constitution because it does not achieve sufficient population equality or preserve county integrity. The Kentucky House of Representatives and Kentucky Senate redistricting plans fail to divide the fewest number of counties mathematically possible. Each plan also contains at least one district with a population deviation greater than 5 percent from the ideal district. And the LRC has not carried its burden of proving the excessive population deviation is a result of a consistently applied rational state policy. House Bill 1 is null and void; and to ensure the orderly process of the upcoming elections, we will not dissolve the injunction entered by the trial court.
For the foregoing reasons, we affirm the judgment of the trial court and remand this case to the trial court with directions to enjoin permanently the conduct of any election under the district boundaries established under House Bill 1.
MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, and VENTERS, JJ., sitting. CUNNINGHAM, NOBLE, SCHRODER, and VENTERS, JJ., concur. ABRAMSON, J., concurs but thinks the discussion of the election calendar is solely informational given that House Bill 1 is unconstitutional and the election was already proceeding under the 2002 Act. SCOTT, J., not sitting.