Graham v. Adams

• Docket Number: 2022-SC-0522-TG,2023-SC-0139-TG
• Decision Date: 14 December 2023
• Parties: DERRICK GRAHAM; JILL ROBINSON; JOSEPH SMITH; KATIMA SMITH- WILLIS; KENTUCKY DEMOCRATIC PARTY; AND MARY LYNN COLLINS APPELLANTS v. SECRETARY OF STATE MICHAEL ADAMS; COMMONWEALTH OF KENTUCKY; AND KENTUCKY STATE BOARD OF ELECTIONS APPELLEES AND COMMONWEALTH OF KENTUCKY CROSS-APPELLANT v. DERRICK GRAHAM; JILL ROBINSON; JOSEPH SMITH; KATIMA SMITH- WILLIS; KENTUCKY DEMOCRATIC PARTY; KENTUCKY STATE BOARD OF ELECTIONS; MARY LYNN COLLINS; AND MICHAEL ADAMS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE COMMONWEALTH OF KENTUCKY CROSS-APPELLEES
• Court: United States State Supreme Court — District of Kentucky

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DERRICK GRAHAM; JILL ROBINSON; JOSEPH SMITH; KATIMA SMITH- WILLIS; KENTUCKY DEMOCRATIC PARTY; AND MARY LYNN COLLINS APPELLANTS
v.
SECRETARY OF STATE MICHAEL ADAMS; COMMONWEALTH OF KENTUCKY; AND KENTUCKY STATE BOARD OF ELECTIONS APPELLEES AND

COMMONWEALTH OF KENTUCKY CROSS-APPELLANT
v.
DERRICK GRAHAM; JILL ROBINSON; JOSEPH SMITH; KATIMA SMITH- WILLIS; KENTUCKY DEMOCRATIC PARTY; KENTUCKY STATE BOARD OF ELECTIONS; MARY LYNN COLLINS; AND MICHAEL ADAMS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE COMMONWEALTH OF KENTUCKY CROSS-APPELLEES

Nos. 2022-SC-0522-TG, 2023-SC-0139-TG

Supreme Court of Kentucky

December 14, 2023

ON MOTION TO TRANSFER COURT OF APPEALS NOS. 2022-CA-1403, 2022-CA-1451 FRANKLIN CIRCUIT COURT NO. 22-CI-00047

COUNSEL FOR APPELLANTS/CROSS-APPELLEES, DERRICK GRAHAM, JILL ROBINSON, JOSEPH SMITH; KATIMA SMITH-WILLIS, KENTUCKY DEMOCRATIC PARTY, AND MARY LYNN COLLINS: Michael P. Abate Casey L. Hinkle William R. ("Rick") Adams Kaplan Johnson Abate &Bird LLP

COUNSEL FOR APPELLEE/CROSS-APPELLANT, COMMONWEALTH OF KENTUCKY: Victor B. Maddox Deputy Attorney General Matthew F. Kuhn Solicitor General Heather L. Becker Executive Director Alexander Y. Magera Assistant Solicitor General

COUNSEL FOR APPELLEE/CROSS-APPELLEE, SECRETARY OF STATE MICHAEL ADAMS: Michael Adams Secretary of State Jennifer Scutchfield Michael R. Wilson

COUNSEL FOR APPELLEE/CROSS-APPELLEE, KENTUCKY STATE BOARD OF ELECTIONS: Taylor Austin Brown

COUNSEL FOR AMICUS CURIAE, PROFESSOR JOSHUA A. DOUGLAS: Kevin C. Burke Jamie K. Neal Burke Neal PLLC Derek S. Clinger State Democracy Research Initiative at the University of Wisconsin Law School

COUNSEL FOR AMICI CURIAE, NRCC, REPUBLICAN NATIONAL COMMITTEE, AND REPUBLICAN PARTY OF KENTUCKY: Philip J. Strach Thomas A. Farr Shaina D. Massie Nelson Mullins Riley &Scarborough LLP

COUNSEL FOR AMICI CURIAE, SPEAKER OF THE HOUSE DAVID W. OSBORNE AND SENATE PRESIDENT ROBERT STIVERS: D. Eric Lycan Office of Speaker of the House David E. Fleenor Office of the Senate President

COUNSEL FOR AMICI CURIAE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, BLACK LIVES MATTER LOUISVILLE, AND KENTUCKY EQUAL JUSTICE CENTER: Corey M. Shapiro Kevin Muench American Civil Liberties Union of Kentucky Foundation Kelsey A. Miller Ming Cheung Adriel I. Cepeda Derieux Sophia Lin Lakin Crystal Fryman Julie A. Murray American Civil Liberties Union Foundation, Inc.

COUNSEL FOR AMICUS CURIAE, CAMPAIGN LEGAL CENTER: Michele Henry Craig Henry PLC Mark P. Gaber Hayden Johnson Benjamin Phillips Campaign Legal Center

COUNSEL FOR AMICUS CURIAE, HONEST ELECTIONS PROJECT: James M. Yoder Todd &Todd PLLC Tyler R. Green Cameron T. Norris Conor D. Woodfin Consovoy McCarthy PLLC

COUNSEL FOR AMICUS CURIAE, PUBLIC INTEREST LEGAL FOUNDATION: Mark H. Metcalf Garrard County Attorney Charlotte M. Davis Public Interest Legal Foundation

COUNSEL FOR AMICUS CURIAE, THE NATIONAL REPUBLICAN REDISTRICTING TRUST: Andrew D. Watkins Holtzman Vogel Baran Torchinsky &Josefiak, PLLC

OPINION

BISIG, JUSTICE

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While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because, in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous

Miller v. Johnson, 92 Ky. 589, 18 S.W. 522, 523 (1892).

This appeal requires us to carefully balance our strong reluctance to adjudicate political questions with our solemn duty to consider claims that enactments of the General Assembly violate our Kentucky Constitution. The legislative apportionment statutes at issue are a tableau containing the lines and shapes of critical voting districts whose structures are the product of political inspiration. It constitutes a painting for which our courts possess neither palette nor brush. Regardless of how unusual or eye-raising it may be, we must not erase it unless it plainly leaves the four corners of our constitutional frame. In applying the substantially deferential standard we afford to purely political acts by a coordinate branch of government, we perceive no such constitutional infirmity and thus affirm the trial court's conclusion that the redistricting statutes pass constitutional muster.

FACTUAL AND PROCEDURAL BACKGROUND

Kentucky's General Assembly is composed of thirty-eight Senators and one hundred House Representatives, each elected from one of the Commonwealth's thirty-eight senatorial and one hundred representative districts, respectively. Ky. Const. §§ 33, 35. Section 33 of the Kentucky Constitution assigns to the General Assembly the task of reapportioning these districts once every ten years for the purpose of accommodating population

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shifts since the last apportionment, with a pronounced emphasis on the dual objectives of achieving population equality and maintaining county integrity in the crafting of the districts. The General Assembly undertakes a similar task with respect to Kentucky's federal Congressional districts, redrawing those boundaries every ten years pursuant to authority conferred by Article I, Section 4 of the United States Constitution. As with reapportionment of the state legislative districts, the redrawing of the Congressional districts is intended to account for population shifts and requires maintenance of population equality across the districts. See Evenwel v. Abbott, 578 U.S. 54, 59 (2016).

In its 2022 legislative session, the General Assembly passed House Bill 2 (HB 2) defining new boundaries for the General Assembly's one hundred House districts and Senate Bill 3 (SB 3) defining new boundaries for the Commonwealth's six Congressional districts.^[1] Governor Beshear vetoed both HB 2 and SB 3 (collectively, the Apportionment Plans). The General Assembly overrode the vetoes and enacted the Apportionment Plans with immediate effect. Later in the session, the Democratic minority introduced House Bill 191 (HB 191) as an alternative House redistricting proposal. That bill was unsuccessful, although its proposed maps are instructive in analysis of the issues presented in this appeal.

Appellants are the Kentucky Democratic Party (KDP), Democratic State House Representative Derrick Graham, and four Kentucky voters. They filed

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the present action in Franklin Circuit Court against Secretary of State Adams and the Kentucky State Board of Elections alleging that the Apportionment Plans violate the Kentucky Constitution. Attorney General Daniel Cameron intervened as a Defendant on behalf of the Commonwealth.

Before the trial court, Appellants alleged that HB 2 violates Section 33 of the Kentucky Constitution by splitting counties, adding portions of one county to another county, and including three or more counties in a single district more times than necessary to achieve population equality among the districts. Appellants also asserted the Apportionment Plans are the result of partisan gerrymanders violating Kentucky's constitutional guarantees of free and equal elections, equal protection, freedom of speech and assembly, and freedom from arbitrary government action. See Ky. Const. §§ 1, 2, 3, &6. The Commonwealth filed a counterclaim and crossclaim seeking a declaration that use in a future election of prior legislative apportionment maps enacted in 2012 and 2013 would be unconstitutional.

After denying preliminary motions for injunctive relief and to dismiss the case, the trial court held a three-day bench trial beginning April 5, 2022. At trial, Appellants presented proof that HB 2 splits counties a total of eighty times, while Democrats' competing HB 191 plan splits counties only sixty times. Appellants also showed that HB 2 includes forty-five districts composed of one portion of a county added to another county, while HB 191 includes only thirty-one such districts. Appellants' proof further demonstrated that HB 2 includes thirty-one districts composed of three or more counties, while HB 191

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includes only twenty-three such districts and simulated alternative maps on average include twenty-four such districts. Appellants thus argued that HB 2 violates Section 33 by splitting counties, adding portions of one county to another, and forming districts from more than two counties more times than necessary to achieve population equality.

In support of their claim that the Apportionment Plans are also unconstitutional partisan gerrymanders, Appellants presented expert Dr. Kosuke Imai who testified that a comparison of HB 2 with ten thousand simulated alternative maps demonstrates HB 2 is an effort to make Republican-leaning districts safer while reducing the Democratic advantage in Democratic-leaning districts. Dr. Imai also testified HB 2 results in more Republican-leaning districts while reducing Democratic-leaning districts. According to Dr. Imai, this is accomplished in part by the combining of Democratic voters in urban areas with suburban and rural Republican voters to create Republican-leaning districts. Plaintiffs also presented testimony from expert Dr. Devin Caughey that his analysis of certain metrics showed HB 2 to be highly partisan in favor of Republicans.

Dr. Imai also testified that SB 3's First Congressional District is uncompact, stretching from Fulton County in far western Kentucky all the way to Franklin County in north-central Kentucky. According to Dr. Imai, this District's 35% Democratic vote share is lower than 99% of his ten thousand simulated alternative maps.

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The Commonwealth presented testimony by experts Sean Trende and Dr. Stephen Voss that the metrics interpreted by Appellants' experts as an indication of partisan gerrymandering are better understood as a natural result of Kentucky's political geography.^[2] Trende also ascribed the unusual shape of the First...