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August 20, 2013

Redistricting Kentucky

State lawmakers convene in Frankfort Monday

CORBIN — By Ronnie Ellis / CNHI News Service

A federal court ruling has complicated the schedule and process of the special session of the General Assembly that convened Monday with the intention of passing redistricting maps by Friday.

The General Assembly is defending two federal suits — one by northern Kentucky individuals and the other by the American Civil Liberties Union — seeking to force it to pass constitutionally-appropriate maps or in the alternative asking the federal judges to draw new maps.

Last Friday, federal Judges William Bertlesman, Gregory van Tatenhove and Danny Boggs issued an order declaring the existing legislative maps drawn in 2002 unconstitutional and prohibiting their use in any future elections.

That set off a weekend of motions by Democratic House Speaker Greg Stumbo, D-Prestonsburg, asking the court to withdraw or amend the order by Monday afternoon.

But after an unusual teleconference late Monday afternoon, during which the judges heard arguments from attorneys from all sides, the court granted the plaintiffs until 5 p.m. Tuesday to file briefs opposing Stumbo’s motions.

Under the U.S. Constitution, state legislatures must draw new legislative districts to reflect essentially equal populations every 10 years following the U.S. Census count.

In 2012, the General Assembly passed new legislative maps, but they were subsequently declared unconstitutional by state courts. While the House passed a new map for its districts this past spring, the Senate declined to act upon it.

Subsequently, the two federal lawsuits were filed and a Sept. 23 trial date was set by the federal panel. That prompted Gov. Steve Beshear to call the special session that convened Monday to pass new, constitutionally-appropriate maps the court could review before the Sept. 23 hearing.

Then came Friday’s order declaring the 2002 maps immediately void.

According to Stumbo and his attorneys — Pierce and Anna Whites — that leaves no way to conduct special elections for any vacancies that might occur before the 2014 elections. It would also require that the maps enacted in the special session contain an emergency clause that would make them effective immediately.

Whites filed a motion Saturday arguing the emergency clause requires 51 votes in the House to pass the bill — 11 more than the minimum necessary for passage of ordinary legislation — and that could mean the difference between passage or failure of the bill.

Then late Monday, Whites filed a second motion, asking the court to amend its Friday order to allow the 2002 district lines to be used if any special elections become necessary before 2014.

The judges held an unusual impromptu teleconference on the motion Monday to allow attorneys for all sides to argue the motions.

Whites argued during that teleconference that without the requested amendment there now are no legislative district lines under which to have a special election. Such elections, he said, are to fill unexpired terms of those elected by the people living in the previous map’s district, and the Friday order eliminates those districts.

If the special election were held under the new lines, the winner would be elected by voters who weren’t eligible to vote for the representative being replaced. It might even be possible, Whites said, for some districts to have two representatives while another had none.

Chris Wiest, attorney for the northern Kentucky plaintiffs, and William Sharp, representing the ACLU, argued against the motion, saying a previous Kentucky Supreme Court provided for such an eventuality — a statewide, at-large election. Presumably, that might mean votes in 120 counties for one legislative district seat, although that wasn’t immediately clear Monday. They also asked for time to file briefs in response to the two motions.

Van Tatenhove suggested if a special election became necessary, the legislature might petition the court, but Whites objected saying that would be a clear constitutional violation of the separation of powers.

After conferring among themselves, the judges issued the ruling around 7 p.m. Monday, giving plaintiffs 24 hours to file briefs but did not rule on the motions themselves.

Their ultimate ruling and its timing could conceivably extend the special session, Whites said, because each chamber must pass its bill with its own map by mid-day Wednesday, in time for the other to act upon it in the minimum amount of time.

Each additional day would cost taxpayers an extra $60,000.

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