Jensen v. Kentucky State Bd. of Elections, No. 96-SC-000291-TG

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtCOOPER; STEPHENS; LAMBERT, J., dissents by separate opinion with GRAVES; LAMBERT; GRAVES; GRAVES
Citation959 S.W.2d 771
Docket NumberNo. 96-SC-000291-TG
Decision Date24 April 1997
PartiesThomas L. JENSEN, Appellant, v. KENTUCKY STATE BOARD OF ELECTIONS and Secretary of State of Kentucky, John Y. Brown, III and Attorney General of Kentucky, Albert B. Chandler, III and Jody Richards as a Member of Kentucky House of Representatives, as Speaker of Kentucky House of Representatives and on behalf of Legislative Research Commission, Legislative Research Commission, Jefferson County board of Elections, Rebecca Jackson, Jefferson County Clerk, James M. Vaughn, Jefferson County Sheriff, Warren County Board of Elections, Yvonne Guy, Warren County Clerk, and Jerry Gaines, Warren County Sheriff, Appellees.

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959 S.W.2d 771
Thomas L. JENSEN, Appellant,
v.
KENTUCKY STATE BOARD OF ELECTIONS and Secretary of State of
Kentucky, John Y. Brown, III and Attorney General of
Kentucky, Albert B. Chandler, III and Jody Richards as a
Member of Kentucky House of Representatives, as Speaker of
Kentucky House of Representatives and on behalf of
Legislative Research Commission, Legislative Research
Commission, Jefferson County board of Elections, Rebecca
Jackson, Jefferson County Clerk, James M. Vaughn, Jefferson
County Sheriff, Warren County Board of Elections, Yvonne
Guy, Warren County Clerk, and Jerry Gaines, Warren County
Sheriff, Appellees.
No. 96-SC-000291-TG.
Supreme Court of Kentucky.
April 24, 1997.
As Amended May 29, 1997.
As Modified Sept. 4, 1997.
Dissenting Opinion of Justice
Graves, Sept. 4, 1997.

Page 772

Victor B. Maddox, John David Dyche, Tachau, Maddox & Hovious, Louisville, for Appellant Thomas L. Jensen.

A.B. Chandler, III, Atty. Gen., Scott White, Office of the Attorney General, Civil & Environmental Law Division, Frankfort, for Appellees Kentucky State Board of Elections; Secretary of State of Kentucky, John Y. Brown, III; and Attorney General of Kentucky, Albert B. Chandler, III.

David L. Yewell, David C. Condon, Rummage, Kamuf, Yewell, Pace & Condon, Owensboro, for Appellees Jody Richards as a Member of Kentucky House of Representatives; Jody Richards as Speaker of Kentucky House of Representatives; Jody Richards, on Behalf of Legislative Research Commission; and Legislative Research Commission.

Samuel D. Hinkle, IV, Stoll, Keenon & Park, Louisville, Robert W. Kellerman, Stoll, Keenon & Park, Frankfort, for Appellees Jefferson County Board of Elections; Rebecca Jackson, as Jefferson County Clerk; and James M. Vaughn as Jefferson County Sheriff.

Patrick C. Roemer, Asst. Warren County Atty., Bowling Green, for Appellees Warren County Board of Elections; Yvonne Guy as Warren County Clerk; and Jerry Gaines as Warren County Sheriff.

COOPER, Justice.

This appeal is the latest chapter in the Kentucky General Assembly's effort to redistrict itself in accordance with the 1990 census and Section 33 of the Constitution of Kentucky. See, Fischer v. State Board of Elections, Ky., 847 S.W.2d 718 (1993) (referred to in this litigation as "Fischer I "); Fischer v. State Board of Elections, Ky., 879 S.W.2d 475 (1994) ("Fischer II "); State Board of Elections v. Fischer, Ky., 910 S.W.2d 245 (1995) ("Fischer III "). The General Assembly's first effort to reapportion itself in accordance with the 1990 census was the 1991 Reapportionment Act. An action challenging the constitutionality of that Act was filed in the Campbell Circuit Court. In Fischer I, we held that the Campbell Circuit Court was a proper venue in which to bring the action. In Fischer II, we held that Section 33 mandates that reapportionment be accomplished by dividing the fewest number of counties possible while maintaining a maximum variation of plus-or-minus 5% from the ideal population of a legislative district. (Based on the 1990 census, the ideal population of a Senate district is 96,981 and the ideal population of a House district is 36,853.) Although all of the House and Senate districts created by the 1991 Reapportionment Act had populations within plus-or-minus 5% of the ideal district, the redistricting of the House of Representatives resulted in the division of forty-eight counties and the redistricting of the Senate resulted in the division of nineteen counties. Based upon proof that fewer counties could have been divided while maintaining the maximum population variation of plus-or-minus 5%, we found the 1991 Act to be an unconstitutional deviation from the requirements of Section 33. Pursuant to the mandate of Fischer II, the Campbell Circuit Court issued a permanent injunction enjoining elections under the 1991 Reapportionment Act.

In August 1995, the Governor of the Commonwealth called the General Assembly into special session for the purpose of considering inter alia the issue of reapportionment. The Senate and the House both passed redistricting plans; however, the House bill was vetoed by the Governor after the House had adjourned sine die. Meanwhile, on August 3, 1995, a member of the House of Representatives resigned and the Board of Elections petitioned the Campbell Circuit Court to amend the permanent injunction to permit a special election to fill the vacancy. That

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petition was denied and we affirmed that denial in Fischer III.

When the General Assembly convened for its regular session on January 2, 1996, two redistricting bills were introduced, House Bill 1 and House Bill 164. House Bill 164 was defeated in committee. House Bill 1, as amended, was enacted as the 1996 Reapportionment Act and was signed into law by the Governor with an effective date of January 11, 1996. On that same date, two civil actions were filed in the Franklin Circuit Court. Appellant Jensen, a member of the House of Representatives from Laurel County, filed Civil Action No. 96-CI-00071 seeking to have the 1996 Reapportionment Act declared unconstitutional and to obtain a mandatory injunction requiring the General Assembly to adopt House Bill 164 for purposes of reapportionment. (This latter request has been properly ignored by all parties to this litigation; for the issuance of such an injunction would clearly violate the requirement of separation of powers. Ky. Const., Sections 27, 28, 29. Section 33 assigns to the legislature the duty to reapportion itself.) Appellees Richards, Speaker of the House of Representatives, and the Legislative Research Commission filed Civil Action No. 96-CI-00076 seeking a declaration that the 1996 Act is constitutional. On January 23, 1996, Appellant Jensen introduced House Bill 350, another redistricting plan for the House of Representatives. This bill was not passed out of committee. The two Franklin Circuit Court actions were consolidated and, on March 20, 1996, judgment was entered declaring the 1996 Act to be constitutional. Jensen appealed and we granted transfer. CR 74.02.

The 1996 Act divides the House of Representatives into one hundred districts, each containing a population within plus-or-minus 5% of the ideal House district population of 36,853. The Act further divides only twenty-two counties, the minimum number which can be divided in a redistricting plan based on the 1990 census. Twenty counties 1 have populations greater than 38,696, the 5% maximum deviation permitted by Fischer II, thus must be divided. In addition, the parties agree that because of the geographical location of the twenty largest counties, two additional counties must be divided because neither Bell County nor Calloway County can be joined with another whole county to form a district within the permissible population variation. 2 Thus, twenty-two is the minimum number of counties which can be divided and still comply with the maximum permissible population deviation.

Appellant premises his constitutional challenge on the fact that the 1996 Act does not create a whole House district within the boundaries of either Pulaski County or Laurel County, even though both counties have populations large enough to accommodate a whole district. (The Act also does not create a whole district within the boundaries of Christian County, which has a greater population than either Pulaski County or Laurel County.) Appellant asserts that if a county has a population sufficient to contain a whole district within its boundaries, Section 33 requires that a whole district be created within those boundaries. In other words, Appellant interprets Section 33 to guarantee that any county with a population within or greater than the maximum permissible deviation from the ideal House district will have at least one elected representative who is a resident of that county. He points to House Bill 164 as proof that this result can be achieved while still dividing only twenty-two counties and creating no district with a population variation greater than plus-or-minus 5%.

Appellant concedes that those counties 3 with sufficient populations to accommodate two or more whole districts within their respective boundaries cannot be guaranteed a corresponding number of districts without dividing more than twenty-two counties. Thus, House Bill 350, which was drafted and

Page 774

introduced by Appellant after House Bill 1 was enacted and signed into law, would grant each county the maximum number of whole districts which its population would permit. However, House Bill 350 divides thirty counties to accomplish this result. Appellant requests that we reconsider Fischer II and interpret Section 33 to require the division of a minimum number of counties only after each county large enough to contain a whole district is awarded the maximum number of whole districts which can be accommodated by its population. He also notes that we could place an even greater emphasis on the preservation of county integrity by permitting slightly greater population variations than plus-or-minus 5%; and, indeed, other state plans with greater deviations have been held not to violate federal constitutional requirements where the deviations were shown to be "based on legitimate considerations incident to the effectuation of a rational state policy." Reynolds v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 1391, 12 L.Ed.2d 506 (1964). See also Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).

The full text of Section 33 is as follows:

The first General Assembly after the adoption of this Constitution 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, except where a county may include more than one district, which districts shall constitute the Senatorial and...

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9 practice notes
  • Minority Coalition v. Independent Com'n, No. 1 CA-CV 04-0061.
    • United States
    • Supreme Court of Arizona
    • October 21, 2005
    ...and that "the court is not privileged to substitute its judgment about the wisdom of the plan"); Jensen v. Ky. State Bd. of Elections, 959 S.W.2d 771, 776 (Ky.1997) (opining that "[o]ur only role in this process is to ascertain whether a particular redistricting plan passes constitutional m......
  • State ex rel. Cooper v. Tennant, Nos. 11–1405
    • United States
    • Supreme Court of West Virginia
    • July 20, 2012
    ...no matter how unwisely we may think a political branch has acted.”). As explained in Jensen v. Kentucky State Board of Elections, 959 S.W.2d 771 (Ky.1997), “[t]here is a difference between what is perceived to be unfair and what is unconstitutional.” 959 S.W.2d at 776. “Our only role in thi......
  • State ex rel. Cooper v. Tennant, No. 11-1405
    • United States
    • Supreme Court of West Virginia
    • February 13, 2012
    ...no matter how unwisely we may think a political branch has acted."). As explained in Jensen v. Kentucky State Board of Elections, 959 S.W.2d 771 (Ky. 1997), "[t]here is a differencePage 69between what is perceived to be unfair and what is unconstitutional." 959 S.W.2d at 776. "Our only role......
  • City of Manchester v. State, No. 2012–338.
    • United States
    • Supreme Court of New Hampshire
    • June 19, 2012
    ...redistricting plan passes constitutional muster, not whether a better plan could be crafted.” Jensen v. Kentucky State Bd. of Elections, 959 S.W.2d 771, 776 (Ky.1997); Tennant, 229 W.Va. at 615, 730 S.E.2d 368. [163 N.H. 706]Because of the petitioners' failure of proof, their reliance upon ......
  • Request a trial to view additional results
9 cases
  • Minority Coalition v. Independent Com'n, No. 1 CA-CV 04-0061.
    • United States
    • Supreme Court of Arizona
    • October 21, 2005
    ...and that "the court is not privileged to substitute its judgment about the wisdom of the plan"); Jensen v. Ky. State Bd. of Elections, 959 S.W.2d 771, 776 (Ky.1997) (opining that "[o]ur only role in this process is to ascertain whether a particular redistricting plan passes constitutional m......
  • State ex rel. Cooper v. Tennant, Nos. 11–1405
    • United States
    • Supreme Court of West Virginia
    • July 20, 2012
    ...no matter how unwisely we may think a political branch has acted.”). As explained in Jensen v. Kentucky State Board of Elections, 959 S.W.2d 771 (Ky.1997), “[t]here is a difference between what is perceived to be unfair and what is unconstitutional.” 959 S.W.2d at 776. “Our only role in thi......
  • State ex rel. Cooper v. Tennant, No. 11-1405
    • United States
    • Supreme Court of West Virginia
    • February 13, 2012
    ...no matter how unwisely we may think a political branch has acted."). As explained in Jensen v. Kentucky State Board of Elections, 959 S.W.2d 771 (Ky. 1997), "[t]here is a differencePage 69between what is perceived to be unfair and what is unconstitutional." 959 S.W.2d at 776. "Our only role......
  • City of Manchester v. State, No. 2012–338.
    • United States
    • Supreme Court of New Hampshire
    • June 19, 2012
    ...redistricting plan passes constitutional muster, not whether a better plan could be crafted.” Jensen v. Kentucky State Bd. of Elections, 959 S.W.2d 771, 776 (Ky.1997); Tennant, 229 W.Va. at 615, 730 S.E.2d 368. [163 N.H. 706]Because of the petitioners' failure of proof, their reliance upon ......
  • Request a trial to view additional results

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