Kentucky Supreme Court finds partisan gerrymandering claims justiciable under state constitution, but maps are subject to substantial deference

Early coverage in the Lexington Herald Leader is here. The opinion in Graham v. Adams is here. (You can sift through the justices’ opinions about who joined which parts, as some dissented on grounds like standing and justiciability.) From the opening:

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.

And from the conclusion:

In sum, we hold that Appellants have standing to bring their claims. We further hold that Appellants’ challenges to the Apportionment Plans are justiciable, including their claim that the Plans involve unconstitutionally partisan gerrymanders.

In considering constitutional challenges to the General Assembly’s apportionment plans, including claims of unconstitutional partisanship, we apply a substantially deferential standard given the political nature of the apportionment process. We will find such a plan unconstitutional if it involves a clear, flagrant, and unwarranted deviation from constitutional limitations, or if its effects are so severe as to threaten our democratic form of government.

The alleged partisanship in the crafting of the Apportionment Plans does not rise to the level of a clear, flagrant, or unwarranted deviation from constitutional limitations or a threat to our democratic form of government. Nor do we perceive in the Apportionment Plans any violation of the constitutional guarantees of free and fair elections, equal protection, freedom of speech and assembly, or freedom from arbitrary government action.

We further reaffirm that where full compliance with Section 33 is not possible in the crafting of state legislative districts, the General Assembly must satisfy the dual mandates of population equality and county integrity set forth in Fischer II in order to comply with Section 33. Under such circumstances, the General Assembly may deviate from literal criteria and limitations of Section 33, even when not strictly necessary, provided it does not do so in a manner that either clearly and flagrantly disregards the fundamental purpose of Section 33 in promoting population equality and county integrity in the apportionment process, or threatens the democratic form of government. The particulars of HB 2 reveal no such disregard or threat and we thus find that it complies with Section 33. Accordingly, the judgment of the trial court is affirmed.

Kentucky Law prof Josh Douglas tweets his thoughts on the opinion here.

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