Kentucky Supreme Court rules against Democrats’ objection to GOP-drawn legislative maps

Kentucky House and U.S. Congressional District maps will remain in place after the Kentucky Supreme Court ruled against a Democrat-led gerrymandering challenge to both maps drawn by Republicans.

The challenge to the maps was initiated by the Kentucky Democratic Party and Franklin County plaintiffs shortly after the new maps were passed in 2022. They argued the maps were drawn by Republicans to strengthen the GOP majority’s grip over the legislature, where it currently holds 80-20 and 31-7 majorities in the House and Senate. This, they argued, violated the state constitution’s guarantee of “free and equal elections.”

The court found otherwise, ultimately siding with Attorney General Daniel Cameron and Secretary of State Michael Adams’ offices.

The majority opinion was penned by Kentucky Supreme Court Justice Angela McCormick Bisig of Louisville.

“The alleged partisanship in the crafting of the Apportionment Plans does not rise to the level of a clear, flagrant, or unwarranted deviation from constitutional limitations or a threat to our democratic form of government,” Bisig wrote. “Nor do we perceive in the Apportionment Plans any violation of the constitutional guarantees of free and fair elections, equal protection, freedom of speech and assembly, or freedom from arbitrary government action.”

Bisig wrote explicitly that partisan gerrymandering is “not always and necessarily so existential a threat to our democracy as to violate the guarantee of free and equal elections.”

The court brought up the resulting 80-member GOP advantage under the current House map enacted by House Bill 2 versus the 77-member advantage that Republicans would have if the Democrats’ proposed House map in House Bill 191 were enacted.

“We simply cannot find that a disparity between HB 2 and HB 191 of 3 out of 100 seats involves partisanship either rising to the level of a clear, flagrant, and unwarranted violation of constitutional rights or so severe as threaten our democratic form of government,” Bisig wrote.

The majority also found that the House map did not violate a section of the state constitution prohibiting excessive county splits, a charge brought forth by attorneys for the Kentucky Democratic Party. The majority also dismissed the plaintiffs’ argument that the First Congressional District, currently occupied by Rep. James Comer, R-KY, was unconstitutionally arbitrary.

The seven-member court’s opinion on the merits of the case was virtually unanimous. Justice Robert Conley wrote that he agreed with much of the court’s constitutional analysis, but dissented because he disagreed that the plaintiffs “had standing to bring such claims in the first place.” Justice Debra Hembree Lambert agreed with each of Conley’s dissents but did not write separately.

Justice Michelle Keller dissented only with the majority’s finding on Section 33 of the Kentucky Constitution. She largely agreed with the plaintiffs’ claim that the legislature, in its House map, split counties excessively.

“To permit the legislature to continue to ignore the text of Section 33 is to erase meaningful language from our Constitution—something I am not willing to do,” Keller wrote.

Justice Shea Nickell dissented in part because he said the questions of whether the maps were unconstitutionally gerrymandered in a way that violated equal protection, freedom of speech and freedom of assembly were “non-justiciable.” He said that any “remedy” for alleged gerrymandering must be sought at the polls.

“Should the people discern egregious, arrogant political abuse upon review of the legislative redistricting plans enacted by their elected representatives in the General Assembly, their ultimate remedy lies in a constitutional amendment or expulsion of the perpetrators at the polls,” Nickell wrote.

He also called the maps “gerrymandered.”

“To be clear, my determination that the gerrymandered redistricting maps present non-justiciable causes of actions is neither to condone them or discount the reality of their impacts on the integrity of our political process,” Nickell wrote. “However, while I share the majority’s fealty to our judicial duty, I do not agree that Kentucky law contains any neutral and principled standards enabling courts to adjudicate political gerrymandering claims beyond those established by specific provisions of our Constitution and related statutes.”

The group reaffirmed a lower court ruling from Franklin Circuit Judge Thomas Wingate.

Democratic Gov. Andy Beshear, who supported the lawsuit against the maps, said that he’d not yet read the Supreme Court’s ruling, but understood it affirmed the redistricting plan. He also signaled support for an anti-gerrymandering constitutional amendment.

”I’ll be looking to see if the Supreme Court ruled how I think they ruled, and that’s that it’s OK to gerrymander on purely partisan intentions,” Beshear said. “And if that’s the ruling it’s concerning. It’s not the way that government should operate. If it takes a constitutional amendment, I think we should pursue one.”

Beshear said getting a fair districts amendment through the legislature would “probably be really challenging” given the legislature passed the disputed maps in the first place. Unlike some other states, constitutional amendments in Kentucky must get approved by a three-fifths majority of both state legislative chambers before making the ballot.

Beshear added that he’d support having a nonpartisan commission handle redistricting, like in other states.

”Now, most of those states have adopted it through ballot initiatives that the voters themselves can put on the ballot. We can’t do that. We have to have a constitutional amendment that is put on there by a vote from the legislature.”

Republican, Democrat reactions

Michael Abate, the attorney leading the suit for state Democrats, expressed disappointment at the Kentucky Supreme Court’s ruling.

“We proved through expert testimony, and the trial court found, that these maps were in fact partisan gerrymanders. We’re disappointed that the Supreme Court seemed to reach the opposite conclusion from the trial court,” Abate said.

He found one silver lining, though: the ruling made clear that the plaintiffs had standing to challenge the map and that the claims were justiciable. He said they “left open for another day” a future challenge against allegedly unconstitutional gerrymandering.

“The court said expressly that some amount of partisan gerrymandering might, indeed, be too much and violate the Constitution. However, they stopped short of saying what that would be,” Abate said.

House Democratic leadership said they firmly disagreed with the ruling.

““The current congressional and state House maps are textbook examples of extreme partisan gerrymandering, from how they were drawn in secret to how they effectively decided the outcome of most races by the end of the primary. This entire process should have been rejected today; instead, we fear it will now become standard procedure,” they wrote in a statement.

Republican Party of Kentucky spokesperson Sean Southard called the Kentucky Democratic Party’s suit “pathetic.”

“The highest court in Kentucky has rejected a pathetic attempt by the Democrats to throw out Kentucky’s congressional and state house district maps,” Southard wrote in a statement. “The Court rightfully rejected the Democrat effort to manipulate the political process and sue their way into the Congress and the state house.”

Adams said he was pleased by the ruling.

“Our nonpartisan Supreme Court overwhelmingly rejected the Kentucky Democratic Party’s reckless, frivolous and hypocritical lawsuit that sought to impose a different set of election rules through the courts, following Democrats’ loss of legislative control that they had previously won for decades under those very rules,” Adams wrote.

Josh Douglas, a constitutional law professor at the University of Kentucky College of Law, wrote on X that the ruling marked “not a great day” for voting rights.

“The court abdicates its responsibility to protect voters and democracy and unduly defers to legislature. The powerful become more powerful,” Douglas wrote. “The court says that a gerrymander violates the state const(itution) if it is ‘a clear, flagrant, and unwarranted deviation from constitutional limitations, or if its effects are so severe as to threaten our democratic form of government,’ yet this extremely egregious map doesn’t do so?”

Frankfort Bureau Chief Tessa Duvall contributed to this report.