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Brown v. Kentucky Legislative Research Comm'n

United States District Court, E.D. Kentucky

August 16, 2013

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

Page 710

[Copyrighted Material Omitted]

Page 711

For Kenny Brown, In his official capacity as the Boone County Clerk (2:13-cv-00068-WOB-GFVT-DJB), Official Plaintiff: Christopher David Wiest, LEAD ATTORNEY, Crestview Hills, KY; Edward Jason Atkins, Richard A. Brueggemann, LEAD ATTORNEYS, Hemmer DeFrank PLLC, Ft. Mitchell, KY.

For Kenny Brown, Individually, Garry Moore, Individually, Brandon Voelker, Timothy J. Jones, Garth Kuhnhein, Kenneth Moellman, Lawrence Robinson, Terry Donoghue, Brett Gaspard, Cathy Flaig, Phyllis Sparks, Steve Arlinghaus, Individually (2:13-cv-00068-WOB-GFVT-DJB), Plaintiffs: Christopher David Wiest, LEAD ATTORNEY, Crestview Hills, KY; Edward Jason Atkins, Richard A. Brueggemann, LEAD ATTORNEYS, Hemmer DeFrank PLLC, Ft. Mitchell, KY.

For Martin Herbert, Plaintiff in 3:13-cv-25, Linda Allewalt, Plaintiff in 3:13-cv-25, Donald L. Allewalt, Jr., Plaintiff in 3:13-cv-25, Teena Halbig, Plaintiff in 3:13-cv-25, Geri Herbert, Plaintiff in 3:13-cv-25 (2:13-cv-00068-WOB-GFVT-DJB), Plaintiffs: Benjamin W. Carter, LEAD ATTORNEY, Ben Carter Law PLLC, Louisville, KY; Dale E. Ho, LEAD ATTORNEY, PRO HAC VICE, ACLU Voting Rights project - NY, New York, NY; M. Laughlin McDonald, LEAD ATTORNEY, ACLU Voting Rights Project, Atlanta, GA; William Ellis Sharp, LEAD ATTORNEY, ACLU of Kentucky, Louisville, KY.

For Kentucky Legislative Research Commission (2:13-cv-00068-WOB-GFVT-DJB), Defendant: Laura Hromyak Hendrix, LEAD ATTORNEY, Legislative Research Commission, Frankfort, KY; Gregory Allen Woosley, Kentucky Legislative Research Commission - 170, Frankfort, KY.

For Kentucky State Board of Elections, Defendant in 3:13-cv-25, Roy Sizemore, Defendant in 3:13-cv-25 - in his official capacity as Board Member, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013, Maryellen Allen, Defendant in 3:13-cv-25 - in her official capacity as Executive Director, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013, George Russell, Defendant in 3:13-cv-25 - in his official capacity as Board Member, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013, Denise May, Defendant in 3:13-cv-25 - in her official capacity as Board Member, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013, Stephen Huffman, Defendant in 3:13-cv-25 - in his official capacity as Board Member, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013, John W. Hampton, Defendant in 3:13-cv-25 - in his official capacity as Board Member, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013, David Cross, Defendant in 3:13-cv-25 - in his official capacity as Board Member, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013, Allison L. Grimes, Defendant in 3:13-cv-25 - in her official capacities as Secretary of State & Chair, Kentucky State Board of Elections; substituted as defendant in 2:13-cv-68 on 8/5/2013 (2:13-cv-00068-WOB-GFVT-DJB), Defendants: Lynn Sowards Zellen, Noel Embry Caldwell, LEAD ATTORNEYS, Kentucky Secretary of State, Frankfort, KY; David B. Tachau, Jonathan T. Salomon, Katherine E. McKune, Tachau Meek PLC, Louisville, KY.

For Steve Beshear, In his official capacity as Governor of the Commonwealth of Kentucky (2:13-cv-00068-WOB-GFVT-DJB), Official Defendant: Clay A. Barkley, LEAD ATTORNEY, Office of Attorney General - KY, Frankfort, KY.

For Allison Lundergan Grimes, In her official capacity as Secretary of State of the Commonwealth of Kentucky; substituted as defendant in 2:13-cv-68 on 8/5/2013 (2:13-cv-00068-WOB-GFVT-DJB), Official Defendant: Lynn Sowards Zellen, Noel Embry Caldwell, LEAD ATTORNEYS, Kentucky Secretary of State, Frankfort, KY; David B. Tachau, Jonathan T. Salomon, Katherine E. McKune, Tachau Meek PLC, Louisville, KY.

For Greg Stumbo, In his official capacity as Speaker of the House of Representatives (2:13-cv-00068-WOB-GFVT-DJB), Official Defendant: Pierce B. Whites, LEAD ATTORNEY, Whites & Whites, Frankfort, KY; Anna S. Whites, Frankfort, KY.

For Robert Stivers, In his official capacity as President of the Kentucky Senate (2:13-cv-00068-WOB-GFVT-DJB), Official Defendant: Jessica Ann Burke, LEAD ATTORNEY, J. Burke Law Offices, PLLC, Frankfort, KY; Stanton L. Cave, LEAD ATTORNEY, Law Office of Stanton L. Cave & Associates, P.S.C., Lexington, KY.

For Robert Stivers, In his official capacity as President of the Kentucky Senate (2:13-cv-00068-WOB-GFVT-DJB), Cross Claimant: Jessica Ann Burke, LEAD ATTORNEY, J. Burke Law Offices, PLLC, Frankfort, KY; Stanton L. Cave, LEAD ATTORNEY, Law Office of Stanton L. Cave & Associates, P.S.C., Lexington, KY.

For Allison Lundergan Grimes, In her official capacity as Secretary of State of the Commonwealth of Kentucky; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, Roy Sizemore, in his official capacity as Board Member, Kentucky State Board of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, George Russell, in his official capacity as Board Member, Kentucky State Board of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, Denise May, in her official capacity as Board Member, Kentucky State Board of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, Stephen Huffman, in his official capacity as Board Member, Kentucky State Board of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, John W. Hampton, in his official capacity as Board Member, Kentucky State Board of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, Allison Lundergan Grimes, as Chariwoman of the Kentucky State Board Of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, David Cross, in his official capacity as Board Member, Kentucky State Board of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013, Maryellen Allen, in her official capacity as Executive Director, Kentucky State Board of Elections; substituted as cross defendant in 2:13-cv-68 on 8/5/2013 (2:13-cv-00068-WOB-GFVT-DJB), Cross Defendants: Lynn Sowards Zellen, Noel Embry Caldwell, LEAD ATTORNEYS, Kentucky Secretary of State, Frankfort, KY; David B. Tachau, Jonathan T. Salomon, Katherine E. McKune, Tachau Meek PLC, Louisville, KY.

For Kentucky Legislative Research Commission (2:13-cv-00068-WOB-GFVT-DJB), Cross Defendant: Laura Hromyak Hendrix, LEAD ATTORNEY, Legislative Research Commission, Frankfort, KY; Gregory Allen Woosley, Kentucky Legislative Research Commission - 170, Frankfort, KY.

For Steve Beshear, In his official capacity as Governor of the Commonwealth of Kentucky (2:13-cv-00068-WOB-GFVT-DJB), Cross Defendant: Clay A. Barkley, LEAD ATTORNEY, Office of Attorney General - KY, Frankfort, KY.

For Greg Stumbo, In his official capacity as Speaker of the House of Representatives (2:13-cv-00068-WOB-GFVT-DJB), Cross Defendant: Pierce B. Whites, LEAD ATTORNEY, Whites & Whites, Frankfort, KY; Anna S. Whites, Frankfort, KY.

For Robert Stivers, In his official capacity as President of the Kentucky Senate (2:13-cv-00068-WOB-GFVT-DJB), Counter Claimant: Jessica Ann Burke, LEAD ATTORNEY, J. Burke Law Offices, PLLC, Frankfort, KY; Stanton L. Cave, LEAD ATTORNEY, Law Office of Stanton L. Cave & Associates, P.S.C., Lexington, KY.

For Steve Arlinghaus, Individually, Brandon Voelker, Phyllis Sparks, Lawrence Robinson, Garry Moore, Individually, Kenneth Moellman, Garth Kuhnhein, Timothy J. Jones, Brett Gaspard, Cathy Flaig, Terry Donoghue, Kenny Brown, Individually (2:13-cv-00068-WOB-GFVT-DJB), Counter Defendants: Christopher David Wiest, LEAD ATTORNEY, Crestview Hills, KY; Edward Jason Atkins, Richard A. Brueggemann, LEAD ATTORNEYS, Hemmer DeFrank PLLC, Ft. Mitchell, KY.

For Martin Herbert, Linda Allewalt, Donald L. Allewalt, Jr., Teena Halbig, Geri Herbert (3:13-cv-00025-GFVT-WOB-DJB), Plaintiffs: Benjamin W. Carter, LEAD ATTORNEY, Ben Carter Law PLLC, Louisville, KY; M. Laughlin McDonald, LEAD ATTORNEY, PRO HAC VICE, ACLU Voting Rights Project - GA, Atlanta, GA; William Ellis Sharp, LEAD ATTORNEY, ACLU of Kentucky, Louisville, KY.

For Kentucky State Board of Elections, Maryellen Allen, in her official capacity as Executive Director, Kentucky State Board of Elections, Roy Sizemore, in his official capacity as Board Member, Kentucky State Board of Elections, George Russell, in his official capacity as Board Member, Kentucky State Board of Elections, Denise May, in her official capacity as Board Member, Kentucky State Board of Elections, Stephen Huffman, in his official capacity as Board Member, Kentucky State Board of Elections, John W. Hampton, in his official capacity as Board Member, Kentucky State Board of Elections, David Cross, in his official capacity as Board Member, Kentucky State Board of Elections, Allison L. Grimes, in her official capacities as Secretary of State and Chair, Kentucky State Board of Elections (3:13-cv-00025-GFVT-WOB-DJB), Defendants: Lynn Sowards Zellen, Noel Embry Caldwell, LEAD ATTORNEYS, Kentucky Secretary of State, Frankfort, KY.

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

OPINION

Page 712

MEMORANDUM OPINION & ORDER

Per Curiam.

Plaintiff voters from various counties of the Commonwealth of Kentucky claim that malapportionment 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 construed

Page 713

by 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 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 ...

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