The boundaries of West Virginia's congressional districts should not be set by a few judges acting alone, even if they are sitting on a federal court panel. That seems obvious, but it places state legislators between a very large rock and a very hard place, so to speak.
With just days to go before the Legislature opens its annual regular session, two judges in the majority on a three-judge federal court panel ruled congressional districts set by lawmakers last year are unconstitutional. Though the ruling is debatable -one of the three judges, John Bailey, dissented - it is the law of the land, at least for now.
State officials have agreed to appeal the ruling to the U.S. Supreme Court, and to seek a stay of the panel's order until the higher court can act.
In their ruling, the two judges who oppose the current redistricting plan set themselves up to be overturned by the Supreme Court. First, they set a deadline of Jan. 17, giving state legislators just two weeks to present a new redistricting plan acceptable to them. Second, they ordered that if lawmakers do not meet their requirements, they will establish new districts on their own. And third, the two redistricting schemes favored by the judges are radical departures from the current plan. They would split counties and reorient the districts dramatically, to the point that hundreds of thousands of Mountain State residents would find themselves in new congressional districts later this year.
Perhaps the most telling point in favor of the plan adopted by the Legislature - and against proposals by the judges - involves the appearance of gerrymandering, or altering districts for partisan political gain.
Legislators, both Democrat and Republican, worked hard - and effectively - to avoid any accusations of gerrymandering. They left the 1st Congressional District, represented by Rep. David McKinley, virtually intact. To equalize populations in the 2nd and 3rd districts, they merely shifted Mason County out of the 2nd and into the 3rd.
Legislators' plan has many virtues, including a minimum of upheaval for voters later this year.
But the judges' plans are entirely different matters. Both would make radical changes in congressional districts. Perhaps the best way to visualize the situation is to understand the districts run roughly west to east in bands across West Virginia now, with the 1st District at the top of the state and the 3rd at the bottom. The judges' plans would change that. One proposal is to reorient the districts vertically.
If anything, that would open concerns about gerrymandering. One of the judges' alternatives, for example, would put McKinley in the same area as current 2nd District Rep. Shelley Capito.
We are confident the U.S. Supreme Court will recognize the state's existing plan is far preferable - and far more constitutional - than the judges' proposals. Still, prudence dictates the Legislature take another look at its plan to address the judges' concern about equalizing populations in the three districts.
Even though each of the districts has more than 600,000 residents, the Legislature's plan comes within a few thousand people of making them equal. The judges want more.
Working from the existing plan, legislators should look at how that can be accomplished, if necessary. The only way to do that would be to split some counties between congressional districts, shifting a few precincts out of one and into another to bring the three areas' populations closer to equal.
That is precisely the backup plan lawmakers should devise. While splitting counties is far from ideal, making wholesale changes in the current plan would be much worse.
Legislators, not judges, should set congressional boundaries in West Virginia. We believe Supreme Court justices will agree, even if they stipulate additional equalization of district populations is necessary.