Request By:
Mr. Ed Logsdon
Executive Director
Kentucky County Judge/Executive Assoc.
231 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of November 29 in which you raise several questions concerning the reapportionment of magisterial and commission districts. These questions are as follows:
"What recourse is there after the Fiscal Court has adopted the plan and a member of the court or a citizen feels the plan does not meet the population percentages of the overall county? And as a follow-up to that, is there a percentage of variance between population in such districts that courts should strive for?
Can a precinct be split in order to get the proper percentage in each district? If they can be, who has the authority to draw the precinct lines after the redistricting? "
In response to your initial question, any resident or taxpayer of a county may file a civil action in circuit court to void any reapportionment legislation adopted by the fiscal court under the equal protection clause of the 14th Amendment of the U.S. Constitution.
Next, concerning the percentage of variation that the fiscal court should strive for in reapportioning a county, the federal courts have consistently refused to establish a minimum or maximum deviation figure, however the burden of proof relating to the maximum feasibility of equality is placed on the defendant who is of course the county. There are, nevertheless, cases upholding state-drawn redistricting plans having less than a ten percent variation of the overall range which is the most commonly used measure of population equality. This means the deviation ranges from the most populous to the least populous district. Always to be taken into consideration of course in any percent variance is that there be no showing of invidious discrimination. See Gaffney 735, 93 S.C. 2321 (1973) and
Chapman v. Meier, 420 U.S. 1, 95 S.C. 751 (1976). Needless to say, the fiscal court should strive for as equal population distribution among the districts as possible so as to avoid litigation.
Our response to your second question would be in the affirmative as pointed out in OAG 82-617, copy attached. This opinion cites both the reapportionment act, KRS 67.045 and KRS 117.055 prohibiting a precinct line from bisection or crossing a magisterial district line. This simply means that following reapportionment which is mandatorily required by the terms of KRS 67.045 and under the "one man, one vote" principle laid down by the Supreme Court, the county board of elections which has the sole authority to alter precinct lines must alter any precinct that has been crossed by virtue of reapportionment so as to meet the requirements of the referred to statutes.