Brown v. Ky. Legislative Research Comm'n

• Decision Date: 16 August 2013
• Docket Number: Civil Nos. 13–cv–68 DJB–GFVT–WOB, 13–cv–25 DJB–GFVT–WOB.
• Citation: 966 F.Supp.2d 709
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: Kenny BROWN, individually and in his official capacity as the Boone County Clerk, et al., Plaintiffs, v. KENTUCKY LEGISLATIVE RESEARCH COMMISSION, et al., Defendants. Martin Herbert, et al., Plaintiffs, v. Kentucky State Board OF Elections, et al., Defendants.

966 F.Supp.2d 709

Kenny BROWN, individually and in his official capacity as the Boone County Clerk, et al., Plaintiffs,

v.KENTUCKY LEGISLATIVE RESEARCH COMMISSION, et al.,¹ Defendants.

Martin Herbert, et al., Plaintiffs,

v.Kentucky State Board OF Elections, et al., Defendants.

Civil Nos. 13–cv–68 DJB–GFVT–WOB, 13–cv–25 DJB–GFVT–WOB.

United States District Court,

E.D. Kentucky.

Aug. 16, 2013.

Christopher David Wiest, Crestview Hills, KY, Benjamin W. Carter, Ben Carter Law PLLC, William Ellis Sharp, ACLU of Kentucky, Louisville, KY, Edward Jason Atkins, Richard A. Brueggemann, Hemmer Defrank PLLC, Ft. Mitchell, KY, M. Laughlin McDonald, ACLU Voting Rights Project, Atlanta, GA, Dale E. Ho, ACLU Voting Rights Project, New York, NY, for Plaintiffs.

Laura Hromyak Hendrix, Gregory Allen Woosley, Legislative Research Commission, Frankfort, KY, Lynn Sowards Zellen, Noel Embry Caldwell, Kentucky Secretary of State, Frankfort, KY, Jonathan T. Salomon, David B. Tachau, Katherine E. McKune, Tachau Meek PLC, Louisville, KY, for Defendants.

Before BOGGS, Circuit Judge; VAN TATENHOVE, District Judge; and BERTELSMAN, Senior District Judge.

MEMORANDUM OPINION & ORDER

PER CURIAM.

Plaintiff voters from various counties of the Commonwealth of Kentucky claim that mal apportionment of the state's legislative electoral districts has unconstitutionally diluted their voting power. [R. 67]. These Plaintiffs seek summary judgment declaring that the current Kentucky House and Senate districts violate the “one person, one vote” guarantee of the Fourteenth Amendment's Equal Protection Clause, and permanently enjoining state officials from using them in future elections. The Kentucky Legislative Research Commission, the President of the Senate, the Speaker of the House of Representatives, the Secretary of State, and the Kentucky State Board of Elections, have responded in opposition on various grounds. [R. 75; R. 84; R. 86; R. 81]. For the reasons set forth below, this three-judge district court shall GRANT Plaintiffs' Joint Motion for Summary Judgment, DECLARE that the 2002 state legislative electoral districts are presently unconstitutional, and permanently ENJOIN any future election from being conducted pursuant to these districts. Importantly, this Order does nothing to prevent the Kentucky General Assembly from crafting redistricting legislation during the August 19, 2013 special legislative session. What it does do is prevent the General Assembly from falling back on lines that will be over a decade old if they fail.

I

In the 2012 regular legislative session, the Kentucky General Assembly undertook the task of redistricting, and passed House Bill 1, the 2012 Reapportionment Plan. However, shortly thereafter the plan was challenged in the Franklin Circuit Court, which pronounced the plan unconstitutional and issued a temporary injunction preventing its use. The Legislative Research Commission, among others, appealed that decision to the Kentucky Supreme Court. Due to the “expedited nature of these actions” the Kentucky Supreme Court issued a summary opinion on February 24, 2012, setting forth its decision, and stating that a full opinion would soon follow. Legislative Research Comm'n v. Fischer, 2012–SC–091–TG, 2012 WL 952983 (Ky. Feb. 24, 2012). Importantly, the Kentucky Supreme Court characterized its holding as follows:

Before this Court is the decision of the Franklin Circuit Court, which held House Bill 1 (2012), the reapportionment act of 2012, unconstitutional under Section 33 of the Kentucky Constitution and further enjoined the implementation of the new legislative districts for the 2012 elections. Having considered the briefs filed by the parties and having heard oral argument thereon, this Court concludes that House Bill 1 (2012), the reapportionment act of 2012, is facially unconstitutional in violation of Section 33 of the Kentucky Constitution, as construedby Fischer v. State Board of Elections, 879 S.W.2d 475 (Ky.1994). Accordingly, we affirm the trial court.

Id. (emphasis added).

Subsequently, the Kentucky Supreme Court set forth its reasoning in a detailed opinion which represents the fourth and most recent installment of the Fischer Reapportionment Cases, Legislative Research Comm'n v. Fischer, 366 S.W.3d 905, 908 (Ky.2012)( Fischer IV ). In its analysis, the Kentucky Supreme Court reaffirmed its commitment to the state constitutional standards of Fischer II, stating:

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.

Id. at 911. Applying these rules to population figures derived from the 2012 Census, the Kentucky Supreme Court concluded that “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.” Id. at 908. It is critical to note that in reaching this decision the Kentucky Supreme Court expressly states, “Our holding that House Bill 1 is unconstitutional is based not upon federal law, but upon Section 33 of the Kentucky Constitution.” Id. at 911.

In affirming the Franklin Circuit Court, the Kentucky Supreme Court also upheld its injunction that prohibited the upcoming elections from being conducted pursuant to the districts of the unconstitutional 2012 plan. In its stead, the court held that “the 2012 elections will be conducted using the districts as enacted in the 2002 Ky. Acts and codified in KRS 5.200, et seq.” Id. at 917. In a passage that is important in light of this case, the Kentucky Supreme Court characterized and then responded to the LRC's objection to this remedy as follows:

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.

Id. at 917. Because the 2012 Reapportionment Plan was found unconstitutional and prohibited from use by an injunction, the 2012 general election was conducted under the 2002 lines as ordered by the court.

Following the initial order of the Kentucky Supreme Court that declared the 2012 reapportionment plan unconstitutional, the Governor called a special legislative session. However, the items on the agenda, as set by the Governor, did not allow for consideration of redistricting legislation. Therefore, the 2012 Special Session came and went without action taken by the legislature to substitute the 2002 lines with a plan based on the most recent census data. In addition, the 2013 Regular Legislative Session adjourned without the passageof redistricting legislation by both houses of the General Assembly.

Having been pressed back into service by order of the Kentucky Supreme Court, the previously unchallenged 2002 reapportionment plan was contested twice by May of 2013. Brown v. Commonwealth, Case No. 2:13–CV–068–WOB–GFVT–DJB; Herbert v. Kentucky State Board of Elections, Case No. 3:13–CV–25–GFVT–WOB–DJB. The Plaintiffs in these two actions, which were ultimately consolidated, are voters who claim that the 2010 Census revealed significant population shifts that were not accounted for in the 2002 legislative districts that had been used in the past and that were currently in force. Plaintiffs claimed that, as a result, this legislative mal apportionment had and continued to unconstitutionally dilute their voting power. Among other things, these Plaintiffs brought claims against various state actors pursuant to 42 U.S.C. § 1983 for violation of the “one person, one vote” right guaranteed by the Equal Protection Clause of the federal Constitution.

Each district court petitioned the Chief Judge of the Sixth Circuit Court of Appeals to constitute a three-judge panel as required by 28 U.S.C. § 2284. [R. 25]. Once appointed, this three-judge district court conducted a scheduling conference with all parties present on June 21, 2013. [R. 27]. The day of this scheduling conference, the Governor called a special legislative session for August 19, 2013 for the purpose of considering redistricting legislation. Though the court denied a motion to stay this proceeding pending the outcome of the special session, the Scheduling Order did account for it. [R. 49]. The court allowed an initial dispositive-motion period for filing, “All dispositive motions, including those contesting the 2002 state redistricting plan as unconstitutional.” [ Id.] However, the court also provided for a final dispositive-motion period following the special legislative session for the parties, “to file any final statements on contentions regarding plans passed during the Extraordinary Legislative Session scheduled to commence on August 19, 2013.” [ Id.] The Scheduling Order also accounted for a pretrial conference and bench trial to be conducted if necessary. [ Id.]

During the initial dispositive-motion period, several motions were filed, including the Plaintiffs' Joint Motion for Summary Judgment that is currently pending before this court. [R. 67]. In that motion, the Plaintiffs request very narrow and particular relief. Specifically, the Plaintiffs “seek...