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Brown v. Kentucky Legislative Research Commission

United States District Court, Sixth Circuit

January 27, 2014

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.

MEMORANDUM OPINION ANDORDER

BOGGS, Circuit Judge.

This matter is before the Court on the motion of two sets of plaintiffs' attorneys for attorney fees (Docs. 129, 131) arising out of two actions (later consolidated) to declare the existing state legislative redistricting plan for the Commonwealth of Kentucky unconstitutional and require the creation and implementation of a new constitutional plan.

I. BACKGROUND AND PROCEDURE

The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States provides:

No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws.

As applied to the design of state legislative districts, this clause has been interpreted to mean that, as far as possible, the rule of "one person, one vote" shall be implemented. See Reynolds v. Sims, 377 U.S. 533, 558 (1964) (citation and quotation omitted). That is, each person's vote should have about the same weight as every other person's vote. This requires legislative districts to be drawn such that they are as equal as possible in population. Id. at 568. Of course, total equity is not possible, and some deviation is permitted. Id. at 577.

Populations of legislative districts may change drastically over time. This fact requires periodic redistricting if the "one person, one vote" Constitutional mandate is to be observed. Section 33 of the Kentucky Constitutional, therefore, requires that Kentucky's legislative districts be reapportioned every 10 years-"shortly after the results of the United States decennial census are available.

In 2002, the Kentucky General Assembly adopted a redistricting plan. In 2012, it adopted another, reflecting the intervening shifts in population. However, the Kentucky Supreme Court struck down the 2012 plan, declaring that plan unconstitutional under the Kentucky State Constitution because the plan "fail[ed] to achieve sufficient population equality and... fail[ed] to preserve county integrity." Legislative Research Comm'n v. Fischer, 366 S.W.3d 905, 908 (Ky. 2012). In order to "ensur[e] the orderly process of the 2012 elections, " the Kentucky Supreme Court ordered that the 2002 redistricting plan remain in effect. Id. at 919.

As of early 2013, the Kentucky General Assembly had not adopted a new plan, leaving the 2002 plan prospectively in effect for the 2014 legislative elections. This was the situation, even though the Kentucky General Assembly had met in regular session in early 2013, and it was obvious that the population disparities of the 2002 plan districts far exceeded the parameters allowed by the "one person, one vote" doctrine.

The plaintiffs here, among other concerned citizens and civic groups, emphatically protested that the 2002 plan, among other deficiencies, unduly favored rural districts over urban ones and did not reflect the drastic shifts in population that had occurred from the former to the latter in the previous decade.

These citizens urged the Governor to call a special session of the General Assembly to correct the situation, but as of June, 2013, no action had been taken.

On June 27, 2013, a group of citizens, known in this litigation as the Brown plaintiffs, filed suit against the Commonwealth of Kentucky[1] and numerous agencies and officials thereof, namely, the Governor, the Secretary of State, the Speaker of the House of Representatives ("Speaker Stumbo"), the President of the Senate ("Senator Stivers"), the Board of Elections[2], the Legislative Research Commission ("LRC"), and the Attorney General[3]. The individual officials named were sued in their official capacities only.

This action was filed in the Covington Division of this Court. It demanded the appointment of a three-judge district court as provided in 28 U.S.C. § 2284 for redistricting suits; a declaration that existing 2002 districts violated the Equal Protection Clause; and an injunction requiring the defendants to draw new, constitutional legislative districts.

On May 10, 2013, another group of citizens, known in this litigation as the Herbert plaintiffs, filed a similar action in the Frankfort division of this Court. The officials named as defendants varied somewhat from the Brown plaintiffs' suit, but the gist of this second action was the same.

On May 30, 2013, the Honorable Alice M. Batchelder, Chief Judge of the United States Court of Appeals for the Sixth Circuit, appointed the three-judge district court as provided by 28 U.S.C. § 2284, consisting of the Honorable Danny J. Boggs, United States Circuit Judge, Sixth Circuit Court of Appeals; the Honorable Gregory F. Van Tatenhove, United States District Judge, Eastern District of Kentucky; and the Honorable William O. Bertelsman, Senior United States District Judge, Eastern District of Kentucky. (R. 25). Subsequently, the two cases were consolidated. (R. 47).

On June 6, 2013, the Court issued an order setting a pretrial and scheduling conference for June 21, 2013, in Lexington, Kentucky. (R. 27). Thereafter, on June 21, 2013, the Governor called a special legislative session to perform a redistricting of the Commonwealth's legislative districts. This session was directed to commence on Monday, August 19, 2013. After hearing all parties at the June 21, 2013, pretrial and scheduling conference, the three-judge district court entered a scheduling order providing for limited discovery, expedited summary judgment motions, ...


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