Kentucky Advisory Opinions January 08, 1996: OAG 96-001 (January 8, 1996)

OAG 96-001.

The Office of the Attorney General is asked by the requestor whether House Bill 1, a proposed House reapportionment plan filed in the 1996 regular session of the General Assembly, is constitutional under § 33 of the Constitution of Kentucky. The Attorney General provides this opinion on a public question of law submitted by a member of the legislature. KRS 15.025(2).

When the Attorney General considers the constitutionality of legislation, then that legislation is considered unconstitutional only if the case against it is compelling. The Attorney General indulges every presumption in favor of a statute's validity. OAG 94-47. That policy exists in order to alleviate the confusion that necessarily follows when the Attorney General questions the constitutionality of a statute that retains the full force of law until a court holds otherwise. We have relaxed that rule in this opinion because of the unusual circumstances presented by this request. The issue before us is of great and immediate public importance. As this opinion is written House Bill 1 has not been signed into law, so that the General Assembly will be guided by our opinion. Our duty under KRS 15.025 can best be carried out by using the same standard of review a court would use rather than by relying on the strong presumption of constitutionality that the Attorney General normally invokes.

The requirements of § 33 of the Constitution of Kentucky

Section 33 of the Constitution of Kentucky provides:

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 Representative Districts for ten years. Not more than two counties shall be joined together to form a Representative District: Provided, in doing so the principle requiring every district to be as nearly equal in population as may be shall not be violated. At the expiration of that time, the General Assembly shall then, and every ten years thereafter, redistrict the State according to this rule, and for the purposes expressed in this section. If, in making said districts, inequality of populations should be unavoidable, and advantage resulting therefrom shall be given to districts having the largest territory. No part of a county shall be added to another county to make a district, and the counties forming a district shall be contiguous.

On its face, the requirements of § 33 are:

1. Every ten years, the General Assembly shall redistrict one hundred representative districts and 38 senatorial districts.

2. Counties forming a district shall be contiguous.

3. The districts shall be as nearly equal in population as may be without dividing any county.

4. No more than two counties may be joined to form a representative district.

5. Any advantage resulting from inequality of populations shall be given to districts having the largest territory.

6. No part of a county shall be added to another county to make a district.

In addition to these requirements, the equal protection clause of the Constitution of the United States presumes that a state redistricting plan is constitutional if the population among districts does not vary by more than 5% (±) from the size of an ideal district. Gaffney v Cummings, 412 US 735, 37 L Ed 2d 298, 97 S Ct 1828 (1973). An ideal district is one in which the population exactly equals the total population of the state divided by the number of districts.

The first two rules of § 33 are the only provisions of that section which must be rigidly followed. See, Fischer v State Board of Elections, infra, at 476, n. 4. Regardless of the number of counties and distribution of the state's population, the legislature must, every ten years, redistrict one hundred representative districts and 38 senatorial districts so that the counties forming the districts are contiguous. The remaining four rules, however, compete with the federal constitutional presumption that population variation among districts not exceed 5%. If district lines may not cross county boundaries, as rule 6 commands, then the federal constitution can be obeyed only if the population of every county falls within 5% of the size of an ideal district, or some multiple thereof. This is not possible under the census data to be used by the General Assembly in its present redistricting effort.

The tension between federal and state constitutions can be resolved only through judicial interpretation. The Kentucky Supreme Court has recently supplied that interpretation in Fischer v State Board of Elections, Ky., 879 SW 2d 475 (1994).

The Fischer v State Board of Elections case

Because population equality and county integrity are competing concepts, it would appear, prima facie, that the conflict between them can be resolved only by giving one priority over the other. That is the assumption the General Assembly made in 1991 in its effort to redistrict the legislature. See, Ragland v Anderson, 125 Ky 141, 100 SW 865 (1907); and, Stiglitz v Schardien, 239 Ky 799, 40 SW 2d 315 (1931). The Supreme Court in these holdings on earlier redistricting plans placed summary emphasis on population equality amongst legislative districts. Fischer, 879 SW 2d at 477.

The Supreme Court reviewed the 1991 plan in Fischer v State Board of Elections and declared it unconstitutional. The court reasoned that there are no fundamental impediments to a full accommodation of these dual mandates, and that population equality and county integrity are of equal importance. The General Assembly, the court finally said, "can formulate a plan which reduces to the minimum the number of counties which must be divided between legislative districts. . . . The mandate of Section 33 is to make full use of the maximum constitutional population variation as set forth herein and divide the fewest possible number of counties." Id at 479.

We believe § 33, as so interpreted by the Supreme Court, requires that legislative districts be redrawn by dividing the smallest possible number of counties while keeping population variation within ± 5% of an ideal district. As a practical matter, the literal language of § 33 must be disregarded in favor of this judicial interpretation of its meaning. Given the requirements of redistricting in light of Fischer, there can be no other position than that the fourth and fifth rules expressed in section 33-that no more than two counties be joined to form a representative district and that any advantage resulting from inequality of populations be given to districts having the largest territory-are subsumed within the broader rule on county division and population variation. Therefore, whatever section 33 might say, the current redistricting proposal is constitutional under Fischer if it divides the fewest number of counties while maintaining population variation within 5% of an ideal district.

On its surface, this rule seems to hinge the validity of any particular plan on mere mathematical ingenuity. If various plans are proposed, all of which satisfy the population requirement, the one dividing the fewest number of counties is the only proper one. For instance, if a plan divided twenty-five counties, and later a more astute mind devises a plan that divides only twenty-four counties, then twenty-four suddenly becomes the constitutional standard. Such a rule would create substantial uncertainty about the validity of any particular plan. It would be constitutional only if no one subsequently manages to lower the number of divided counties. The potential for chaos and irresolution is plain in such a context.

Fortunately, as we will demonstrate in the next section, the smallest number of divided counties can be derived with mathematical precision. Once that figure is determined, it cannot change. Therefore, the Supreme Court in Fischer did indeed articulate a definite, workable standard that does not fluctuate.

Before we conclude our discussion of the Fischer case, we must comment on Footnote 5, where the court stated:

We recognize that the division of some counties is probable and have interpreted section 33 to permit such division to achieve population requirements. However, we can scarcely conceive of a circumstance in which a county or part thereof which lacks sufficient population to constitute a district would be subjected to multiple divisions.

If Footnote 5 were construed as the court's holding, the stability of the constitutional standard vanishes. This is contrary to sound principles of constitutional law. A society such as ours must be able to rely upon stable and just principles in order to operate. Fischer provides such stability by setting a standard that no more nor less than twenty-two counties be divided. In October 1995, the Attorney General's Office noted that Footnote 5 conflicted with the Supreme Court's mandate to split the fewest possible counties in the context of its opinion that an earlier redistricting proposal was unconstitutional because it failed to meet the ± 5% rule. In light of that letter and the Supreme Court's mandate of splitting the fewest number of counties to insure overall county integrity, we resolve the conflict by determining that Footnote 5 is not an additional constitutional requirement.

The methodology of redistricting

With the requirements of Fischer plain, we move from constitutional law to mathematics. There is no mystery to the process of redistricting. The first step is to determine the size of an ideal district. Because Kentucky's 1990 census population was 3,685,296, and because there are 100 representative districts, the size of an ideal district is 3,685,296 ÷ 100 or 36,853.

The second step is to compute the percentage of the state's population contained in each county. This ranges from a low of .06% for Robertson County to a high of 18.04% for Jefferson County.

The third step is to determine the smallest possible number of divided counties. (By "divided county" we mean a county containing a district boundary that does not follow the county boundary.) Any county with more than 1.05% of the state's population must be a divided county, so that it must contain at least two districts within its boundaries. There are twenty counties that contain more than 1.05% of the state's population.

These twenty counties, which must be divided, are distributed geographically throughout the state. This means that portions of the divided counties are available to add to other counties that are not by themselves large enough to form a district. For example, Meade County, with a population factor of .66%, is not large enough to form a district. But, since it borders Hardin County, which has a population factor of 2.42% and which must be divided, a portion of Hardin County comprising .34% of the state's population can be combined with Meade County to form a district. Thus, it is not necessary to split Meade County.

If this exercise is repeated with the remaining counties, it is evident that there are two counties, Bell and Calloway, that do not border a divided county and do not border a county that could be added whole to form a district. Calloway County, for example, has a population factor of .83%. It is possible to form a district without dividing Calloway County only if (a) an adjoining county has a population factor between .12% and .22%, or (b) an adjoining county has a population factor exceeding 1.05% and must be divided anyway. Neither situation applies. The population factors of counties adjoining Calloway County are .91%, .74%, and .28%. It is a topographical certainty that Calloway County, or a county adjoining it, must be divided. The same is true of Bell County. Thus, as a matter of pure mathematics, the smallest possible number of divided counties is twenty-two: twenty counties that must be divided because of their size, and two counties that must be divided because they cannot be joined with another whole county. This is the standard in light of the Fischer mandate. 879 SW 2d at 479.

From this point, redistricting is a matter for the legislature to employ its constitutional duty in drawing the districts. This it has done in House Bill 1. The Supreme Court requires that the fewest possible number of counties be divided, and that number is twenty-two. Therefore, if House Bill 1 or any other plan divides twenty-two counties while maintaining each district within ± 5% of the size of an ideal district, the plan is constitutional.

Conclusion

The Legislative Research Commission has provided the Office of the Attorney General with a map of the redistricting plan proposed in House Bill 1 along with the text of the bill. The plan complies with the dual requirements of § 33 as construed in Fischer v State Board of Elections: it divides the minimum number of counties, and the population of each district is within 5% of the ideal. Therefore, the plan is constitutional.

It is indeed the duty of the Supreme Court of this Commonwealth to review the acts of the legislature. Ragland v Anderson, supra. This the court did in Fischer. In light of Fischer, the General Assembly has undertaken its decennial constitutional duty to apportion the House districts with the 1990 census data. It is the opinion of the Office of the Attorney General that the House's effort as embodied in House Bill 1 is constitutional under § 33 of the Constitution of the Commonwealth of Kentucky.

Albert B. Chandler III

Attorney General