In a 2 to 1 decision, a special 3-judge Federal Court has struck down as unconstitutional the plan for redistricting West Virginia's three Congressional districts. The Court has given the Legislature until January 17 to present an alternative or the Court will impose its own plan, but likely from others the Legislature had considered and rejected.
As passed by the Legislature in August, S.B. 1008 would have kept the 3 current districts intact, with the exception that Mason County would be moved from the 2nd District to the 3rd to accommodate changes in population under the 2010 census.
Ironically the Democratically controlled Legislature, with a 28-6 margin in the Senate and 65-35 in the House of Delegates, passed a plan that keeps in place three Congressional districts in which two of the seats are held by Republicans.
The Court majority, consisting of US Circuit Court of Appeals Judge Robert King and U.S. District Court Judge Irene Burger, held that the difference of over 4000 people between the largest and smallest of the 3 districts is too large to pass Constitutional muster, even though the variance is under 1 percent at .0079. It noted that most states have enacted plans with no difference in size among Congressional districts ? meaning no more than one person among them ? and that the Legislature had given insufficient reason for its variance which appears to be the largest or second largest in the nation.
The Court has said that it will defer final action until January 17, and gives the Legislature and Governor until that time to devise an alternative. If not, the Court will impose a plan, which most likely will be either the so-called ?Perfect Plan? offered by Senator John Unger, or Plan No. 4 offered by lawyer Thornton Cooper who intervened. Under the ?Perfect Plan?, incumbent Republican Representatives David McKinley and Shelley Moore Capito would reside in the same district, and both Kanawha and Harrison counties would be split. Under Cooper Plan 4, the map would be almost totally redrawn, such that Wheeling and Martinsburg would be in the same district, but none of the incumbents would be pitted against each other and only Taylor County would be split.
The majority also expressed concern about the state Constitutional requirement of ?compactness? under S.B. 1008 as passed, but did not make a final determination.
U.S. District Court Judge John Preston Bailey, the sole Republican judge, filed a dissent stating that S.B. 1008 is constitutional both as to population variance and compactness. The Senate President, Speaker of the House and Governor, who are the principal defendants in this case, could choose to file an appeal directly with the United States Supreme Court, rather than provide alternative redistricting plans as suggested by the majority of the three-judge panel.