Jim Wilson advances legal challenge to state Senate district lines
Published: July 9th, 2011
This week, state Sen. Jim Wilson of Tahlequah filed a legal challenge to the Senate district reapportionment enacted in May. Attorney Mark Hammons of Oklahoma City joined Wilson at a state Capitol press conference to explain the lawsuit and lay out key arguments to be advanced in the litigation, should the state Supreme Court accept the case.
The pair pointed to a variety of arguments in support of the challenge, stressing changes in several districts where elections will be held in 2012.
The new Senate districts are a “partisan gerrymander,” according to Wilson. He noted that “most of the time” nothing can be done about gerrymandering – the crafting of districts to create advantage to incumbents, or for other political purposes. However, he told reporters, Oklahoma state constitutional provisions require use (“where feasible”) of standards sensitive to county lines, jurisdictional lines and other interests.
Wilson described the transformation of districts in eastern Oklahoma as excessive and not dictated by population shifts in the state. Hammons focused much of his attention on new Senate lines that divide the city of Yukon, a west suburb of Oklahoma City, between two districts.
Wilson asserted that district lines crafted for him by Mike McDonald, a professor at Virginia’s George Mason University, were more constitutionally palatable than those in the plan that passed the Legislature and was signed by the governor this year.
Wilson said the current Senate districts reflect “clearly political objectives” and not legal requirements. Should the districts be stricken by the state Supreme Court, as Wilson seeks, Senate reapportionment would then go to a commission mandated in state law (revised by voters in last November’s election).
The lawsuit names as defendants Governor Mary Fallin, House Speaker Kris Steele, Senate President Pro Temp Brian Bingman and state Election Board Secretary Paul Ziriax. Wilson is a Democrat, the four proposed defendants are Republicans.
In response to a question from CapitolBeatOK, Sen. Wilson said the speaker was included even though the House reapportionment plan
was not as controversial and was, in fact, applauded by many Democrats.
Wilson commented, “He had to vote on it. I wouldn’t have expected him to try to change the Senate plan. He needs to be included in this lawsuit for legal reasons.”
Wilson said the decision of several Senate Democrats to support the redistricting was “a pragmatic decision. Bless their hearts, they were probably afraid it could be made worse.” He added, “I can’t prove that.”
Oklahoma state Democratic Party chairman Wallace Collins attended Wilson’s press conference. He told CapitolBeatOK, “I believe Senator Wilson is on the right track. He has it right according to the law and he is correct in the arguments he is preparing.” Collins is a former state representative from Norman.
Linchpin of the arguments advanced by Hammons will be this text from Article V, section 9, paragraph A of the Oklahoma state Constitution: “In apportioning the state Senate, consideration shall be given to population, compactness, area, political units, historical precedents, economic and political interests, contiguous territory and other major factors, to the extent feasible.”
Wilson is “termed-out” and cannot seek reelection to the seat he now holds in District 3 (far northeast Oklahoma stretching along the Arkansas border and into Tahlequah).
However, in his request to the state High Court to assume original jurisdiction, Wilson argues, “The present District 3 is relatively compact and contiguous and importantly preserves the heart of the Cherokee Nation within a single district. … In contrast, the newly apportioned Senate District 3 … is neither compact nor contiguous and unnecessarily divides Cherokee, Delaware and Mayes Counties while removing the heart of the Cherokee nation from this district.”
The brief asking the court to take the case goes on to list several districts that Wilson believes only serve partisan outcomes and violate the state constitution.
Wilson’s legal counsel has formally asked the state High Court to take evidence and schedule a hearing where both sides of the controversy can appear to argue their positions. His lawyer argued, “Apportionment questions are highly fact-intensive and are generally dedided by taking evidence explaining the propriety of proposed district lines.”
Late this week, hints from legal sources emerged that a decision on whether or not to set a briefing schedule could be made soon.
In appendices to the legal papers, Senate districts deemed less offensive to the constitution were laid out. Wilson told CapitolBeatOK this is not because he necessarily expects the court to indicate those lines are preferable, but simply to demonstrate that such districts could have been drawn in the Senate process.
Arguments about compactness and other traditional reapportionment standards were raised by reporters, including CapitolBeatOK, at this week’s press conference. In legal briefs and in discussions with reporters, Hammons had clearly anticipated these issues.
In the brief asking the Court to set aside the Senate plan, Hammons wrote, “There are, of course, limitations on the extent to which considerations of compactness, political subdivisions and community interests can be accommodated. The United States Constitution requires that legislative districts be apportioned with “one-man, one-vote” being the primary consideration.”
However, judges have ruled in many cases, including a Supreme Corut ruling as recently as 1983, that small population deviations can be justified as a means of honoring other constitutional objectives.
When the plan passed two months ago, Senate Minority Leader Andrew Rice, an Oklahoma City Democrat, commented, “”In the end they were fair to Senate District 46 and many other Democratic districts, but I will be voting NAY on the overall bill to show solidarity with members of my caucus who are unhappy with the process, and who will vote against the bill.”
According to a Senate staff release issued when the current districts were unveiled, “The current district boundaries were designed so that each would have approximately 72,000 people. Oklahoma’s population increased by 8.7 percent from 2000 to 2010, which meant each Senate district had to be redrawn to expand those districts to approximately 78,000 people.”
Sen. Bryce Marlatt guided the Senate process for Sen. Clark Jolley of Edmond, reapportionment chairman. The Woodward Republican said, “We’ve had changes in both size and concentration of populations that had to be taken into account. We didn’t want to divide smaller communities, and we also wanted to avoid dividing counties into different districts whenever possible. It was difficult, but we succeeded.
“Ultimately, the districts we drew came within one percent of a completely even population division, even though the law allows up to a five percent variance. The final product is a testament to the hard work and professionalism of our staff and our members.”