That’s new ground for the state’s highest court to consider, as evidenced by an exchange between Thompson and Michael Abate, the attorney representing KDP at the oral argument hearing on the case Tuesday.
“Has our court ever reversed or ordered a redistricting based on gerrymandering alone? Have you any precedent,” Thompson asked.
“Not yet, Justice Thompson,” Abate said, with muted laughter coming from the crowd.
The case has been kicked up from Franklin Circuit Court, which ruled almost one year ago that the maps drawn by a Republican-dominated legislature were indeed gerrymandered, but that the Kentucky Constitution did not prohibit such gerrymandering from occurring. That ruling handed the Democrats a loss, but they hope the recognition of gerrymandering by Franklin Circuit Judge Thomas Wingate will benefit them in the Kentucky Supreme Court case.
Another argument forwarded by the case is that Republicans in the legislature, while splitting counties to comply with equal population requirements, split counties too many times thereby violating the constitution.
Republican Secretary of State Michael Adams, whose office joined in the litigation alongside Attorney General Daniel Cameron’s office, didn’t offer comment on whether he thought the new maps were gerrymandered, but did state that the constitution allowed them in an interview after the proceedings.
“I think the question is really ‘what does the Constitution provide?’ Our position is that the Constitution doesn’t speak to this issue at all. If it did, why did Democrats gerrymander their maps for 100 years. My view is that this is a matter in the Constitution left up to the legislature, and they can use their own standards as long as they comply with the Voting Rights Act, etc,” Adams said.
Republicans in the courtroom, represented by top Deputy Attorney General and political litigation veteran Victor Maddox, focused less on arguing that the maps weren’t gerrymandered and more on stating that the constitution did not prohibit maps from being allegedly gerrymandered.
Abate argued that the Kentucky Constitution’s guarantee that “all elections shall be free and equal” should bar the General Assembly from gerrymandering to the extent that the state’s House map and U.S. Congressional maps are now. He said the new map’s low number of competitive districts is harmful to Democracy and could foment extremism.
Only seven House districts, per their analysis, had a 25 percent chance of going for either party, Abate said. He argued that new technology and data allowed Republicans to more effectively gerrymander than political parties in years past.
“An election where the outcome is preordained is not free or equal… It was an intentional choice by the mapmakers to draw lines to favorite Republicans at every turn,” Abate said.
Republicans hold 80 seats in the 100-seat House and five of the six U.S. Congressional districts.
While Democrats held onto the House until 2016, their numbers were diminished to 25 by 2022.
The plaintiffs did not challenge State Senate maps. That chamber has long been controlled by Republicans, who currently tout a 31-7 majority there.
In The Courtroom
Kentucky Supreme Court Chief Justice Laurance VanMeter asked Abate to respond to questions about whether the voter plaintiffs – the KDP filed the case alongside several Franklin County voters, including House Minority Floor Leader Derrick Graham, D- Frankfort, – had standing and if the argument against the maps on county splitting grounds was legitimate based on precedent.
The meatiest question for Abate was the one summarized by Thompson: Why should the state’s highest court come to a novel, at least for Kentucky, interpretation that “free and equal” elections means not gerrymandered.
“It’s not a free and equal election, it’s been rigged. We have undisputed evidence that if the voters were split evenly down the middle, there would still be a 60-seat majority for the Republican party,” Abate said.
Some of the justice’s comments reflected their regional perspectives.
Justice Shea Nickell, a West Kentucky native of Paducah, raised questions about the propriety of the First Congressional District. That district, represented by U.S. Rep. James Comer, R- KY, has received some criticism for originating in West Kentucky, snaking through the bottom of South-Central Kentucky and hooking all the way to Franklin County. He compared the compact line of his own West Kentucky-centric district – there are seven Kentucky Supreme Court Districts, compared to six U.S. Congressional districts – to that of the First Congressional District, calling its Eastern tail the “Comer hook.”
“Form my vantage, it would seem entirely reasonable for people from my region to ask a representative to reside within its borders,” Nickel stated. “… Section 2 of the Kentucky Constitution prohibits arbitrary action by the government. That is, every government action must be reasonable. So please tell me what is the legitimate legislative purpose, what is a reasonable justification, for what has come to be known as the ‘Comer hook?’”
Maddox responded that the change from the last redistricting map wasn’t all that drastic, with the “hook” moving north only a few counties. He also stated that the reconfiguration of the district offered no discernible partisan advantage to Comer.
Democrats have derided the odd shape of the First Congressional District as a favor to Comer, who they claim actually lives in Franklin County, where his family resides. Comer owns residences in his native Monroe County as well as Franklin, and Comer has denied asking for the change, instead claiming that Sixth District Congressman Andy Barr “chose to shed Franklin County.” Barr has not responded to questions about that claim. Democrats allege that Barr’s district, once considered a swing district, became much safer by losing the Democratic-leaning Franklin County.
Closing Arguments
Maddox summarized the Democratic complaints as mainly sour grapes.
“This case comes down to the fact that a long-dominant political party, one with 95 uninterrupted years of control of the House, suddenly found itself a political superminority… ” Maddox said.
Abate framed it as a pivotal point in state history, one that could send a signal to the legislature and voters that “rigged” maps are okay.
“If we allow partisan gerrymandering like this to be carried out, that breaks that bond and the people are just tools to get the legislators reelected – then they’re no longer responsible to the citizens of Kentucky,” Abate said.
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