Fischer v. State Bd. of Elections, 93-SC-807-TG

• Citation: 879 S.W.2d 475
• Decision Date: 23 June 1994
• Docket Number: No. 93-SC-807-TG,93-SC-807-TG
• Parties: Joseph M. FISCHER, Appellant, v. STATE BOARD OF ELECTIONS; Bob Babbage, Secretary of State; Campbell County Board of Elections; Jack Snodgrass, Campbell County Clerk, Appellees.
• Court: United States State Supreme Court (Kentucky)

Page 475

879 S.W.2d 475

Joseph M. FISCHER, Appellant, v. STATE BOARD OF ELECTIONS; Bob Babbage, Secretary of State Campbell County Board of Elections; Jack Snodgrass, Campbell County Clerk, Appellees.

No. 93-SC-807-TG.

Supreme Court of Kentucky.

June 23, 1994.

Joseph M. Fischer, II, Ft. Thomas, for appellant.

Chris Gorman, Atty. Gen., Lynne Schroering, Asst. Atty. Gen., Civ. Div., Frankfort, for appellees, State Bd. of Elections and Secretary of State.

Paul H. Twehues, Jr., Campbell County Atty., Newport, for appellees, Campbell County Bd. of Elections, and Jack Snodgrass, Campbell County Clerk.

LAMBERT, Justice.

This appeal is from the judgment of the Campbell Circuit Court which upheld the constitutionality of the 1991 Legislative Reapportionment Act (as amended effective January 1, 1993), KRS Chapter 5. The issue is whether the Act satisfies the mandate of Section 33 of the Constitution of Kentucky and in particular that portion which prohibits the division of counties between or among legislative districts. As this issue is of "great and immediate public importance," we granted transfer. CR 74.02.

This review is undertaken in the spirit of Rose v. Council for Better Educ., Inc., Ky., 790 S.W.2d 186, (1989), wherein we reiterated the strong presumption in favor of the constitutionality of acts of the General Assembly and declared our reluctance to interfere in matters of legislative discretion, the foregoing in obedience to Sections 27, 28 and 29 of the Constitution of Kentucky which fully preserve the separation of governmental power. ¹ In Rose, we nevertheless recognized that we must apply the Constitution, even to declare the failure of the General Assembly to discharge its constitutional duty, for to do otherwise would breach the social compact which binds us one to another and would amount to an abdication of judicial responsibility. In a compelling statement of constitutional principle, we said:

The judiciary has the ultimate power, and the duty, to apply, interpret, define, construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to do so. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court's view of the constitution is contrary to that of other branches, or even that of the public.

Rose, 790 S.W.2d at 208. Any doubt as to this Court's right and duty to review the constitutionality of legislative apportionment was long ago laid to rest in Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865 (1907):

[N]o matter how distasteful it may be for the judiciary to review the acts of a co-ordinate branch of the government their duty under their oath of office is imperative.

Id., 100 S.W. at 867. See also Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315 (1931), and Combs v. Matthews, Ky., 364 S.W.2d 647 (1963).

Appellant, pro se, brought this action for declaratory and injunctive relief and sought the court's judgment that the Reapportionment Act of 1991 was in violation of Section 33 of the Constitution of Kentucky. The essential evidence was stipulated and the trial court's findings of fact are not challenged. As found by the trial court, the Act apportions the House of Representatives into one hundred districts which contain a population deviation range of -4.97% to +4.94% from the ideal district population of 36,853. By the Act, forty-eight counties are divided. The trial court found that an alternative House apportionment plan ² would have resulted in a population deviation of -4.95% to +5.00% with only twenty-nine counties divided. Thus, by an increase of 0.04% in the population deviation range, division of nineteen fewer counties could have been accomplished.

Likewise, as found by the trial court, the Act apportions the Senate into thirty-eight districts which contain a deviation range of -3.26% to +3.09% from the ideal district population of 96,981. By the Act, nineteen counties are divided. The alternative Senate apportionment plan ³ would have resulted in a population deviation of -4.74% to +4.79% with only five counties being divided. Thus, by an increase of 3.18% in the population deviation range, division of fourteen fewer counties could have been accomplished.

Despite its factual findings as set forth hereinabove, the trial court upheld the constitutionality of the Act. For its conclusion, the court acknowledged the competing constitutional concepts of equality of district population without unnecessary division of counties, ⁴ but gave its highest priority to population equality and relegated county integrity to a decidedly diminished status. Among other things, the trial court considered "various political factors" such as "community of interest, voter registration, voter participation habits, and residence of incumbent legislators" as valid in the reapportionment paradigm. The trial court concluded that population equality was mandated and held that it could not be diminished to achieve any other constitutional objective.

Population equality may not be sacrificed in order to achieve another objective, whether that objective be restricting the number of counties that may be grouped together or reducing the number of counties that lie in two districts.

Fischer v. State Board of Elections, No. 91-CI-01400, slip op. at 5 (Campbell Circuit Sept. 28, 1993).

The relevant portion of the Constitution of Kentucky, Section 33, is as follows:

The ... General Assembly ... shall divide the State into thirty-eight Senatorial Districts, and one hundred Representative Districts, as nearly equal in population as may be without dividing any county....

The foregoing language is uncomplicated and leads immediately to the conclusion that as between the competing concepts of population equality and county integrity, the latter is of at least equal importance. The probability of population inequality is acknowledged, but the command with respect to the division of any county is absolute. This construction is confirmed by an examination of the Debates Constitutional Convention 1890. Delegate Bronston was quoted on page 4423 as follows:

It was the meaning of the section adopted by the Convention, that whatever ambiguity might cling, no county should be divided. I think that this convention is unanimous in that regard, that they do not want any county divided unless it is entitled to two representatives. In other words, we do not want one part of a county added to another for the purpose of securing representation.

Other portions of the Debates confirm this view and reveal a competition between urban and rural delegates with the compromise being that apportionment would be according to population as nearly as possible without the division of counties to achieve mathematical precision.

While the constitutional ink was yet barely dry, the 1906 session of the General Assembly enacted an apportionment plan which was truly extraordinary. At that time, an ideal House district had a population of 21,471, but some counties which had a population of less than one-half that number were given one representative while elsewhere multi-county districts were created which had a population of between 30,615 and 53,263. By the 1906 apportionment, a voter in Spencer County exercised in the Legislature more than seven times the influence of a voter in Ohio, Butler or Edmonson counties. Holding such gross violation of the requirements of Section 33 unconstitutional, the Court in Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865 (1907), declared that there must be equality of representation to the greatest extent practicable. The Court also held that nothing in Section 33 forbade the joinder of two counties to create one district for the purpose of achieving population equality. See Combs v. Matthews, supra. Since its rendition, Ragland has been understood to require substantial equality of representation for all citizens of Kentucky, a requirement we reiterate herein.

A generation after Ragland, the Court revisited the issue of legislative apportionment in Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315 (1931), wherein the constitutionality of the 1930 Reapportionment Act was challenged. According to the prevailing census, an ideal House district would have contained 24,166 citizens, but some districts had fewer than 15,000 while others had in excess of 50,000. Similar disparity prevailed in Senate districts. The Court noted that

Twelve [House] districts entitled to but six are in fact given twelve representatives.... Twelve districts [were] given only twelve representatives instead of twenty-two, to which they were entitled.

Id. 40 S.W.2d at 318. Holding the apportionment unconstitutional, the Court concluded that no attempt had been made to comply with the constitutional requirement of population equality, but commented that exactitude was not to be expected.

Approximation is the rule erected by the Constitution, but the Legislature may not escape its duty of approximation imposed by the Constitution on the ground that mathematical precision is not attainable.

Id. at 319.

The parties agree that Ragland and Stiglitz place primary emphasis upon population equality among legislative districts. They disagree as to the extent population equality should be controlling and the extent to which the constitutional requirement with respect to division of counties should be sacrificed.

Prior to addressing the state constitutional issue presented, it is necessary to briefly discuss federal authority in the arena of legislative apportionment. This is not because appellant makes any claim that the 1991 Reapportionment Act violates any provision of the United States Constitution. In fact, he admits that the Act would pass muster under the Constitution of the United States and relies entirely on Section 33 of the Constitution of...