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Our state constitution uses mandatory language to spell out how redistricting is to be conducted. In Article 1, section 4, and Article 6, sections 4-10, the word “shall” is used 26 times.

The West Virginia Supreme Court has held repeatedly that “shall means shall.”

Those constitutional provisions give our state Legislature three duties following every national census – drawing new House of Delegates districts; new state Senate districts and new U.S. House of Representatives districts.

Significantly, every section dealing with redistricting makes explicit reference to counties. The most specific language relates to state Senate districts, which must be “bounded by county lines.” Congressional districts must “be formed of contiguous counties,” and must be compact. And our constitution provides for two different types of House of Delegates districts – a district composed of one entire county, or a district composed of two or more “contiguous counties.”

In the 1960s the U.S. Supreme Court interpreted our federal constitution to require that the number of persons in each legislative district be substantially equal. Similar language about substantial equality is contained in our state constitution. Substantial equality for state legislative districts has been interpreted to mean plus or minus 5% difference, or a total deviation from perfect equality of less than 10%.

The U.S. Constitution is the supreme law of the land. But the Legislature is required to act in compliance with the state constitution to the extent it can without conflicting with the federal constitution, a task made easier with the sophisticated software now available.

With respect to state House and state Senate redistricting, the West Virginia Legislature has strayed from following the mandatory language about counties in our state constitution, using the excuse that such departures are required by federal law. This has led to some very skewed results that have the look of gerrymandering.

Two examples demonstrate this (although there are more). For some time, Monongalia County’s population has been close to justifying a senatorial district by itself. But instead of following the rule that state senatorial districts be “bounded by county lines,” Monongalia County now and for decades has had three senatorial districts that currently span 19 counties.

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Because of population increases, there can be no debate that Monongalia County should be entitled to its own senatorial district with two senators. Will that happen? Will state constitutional mandates be bypassed again?

Putnam County has also been chopped up into several delegate districts. After the 2010 census, Putnam County had a population that would have justified three delegates by itself, all within the boundaries of the county. Instead, Putnam County was divided into four delegate districts, spanning seven counties. Just like the shapes of the senatorial districts that divide up Monongalia County, the shapes of the Putnam County districts are pretty ridiculous.

The state constitutional requirements that districts should respect counties conforms to what West Virginians think. More than most states, West Virginians identify themselves as being residents of a particular county, rather than as residents of cities or towns, perhaps because most of our municipalities are smaller.

Further, following county lines for redistricting makes it harder to gerrymander. County boundaries provide hard barriers that can limit mischief. For example, if county lines are ignored, an opponent could be moved outside of the county that the incumbent lives in, making it harder for the opponent to win.

Congressional redistricting in West Virginia has never divided counties. Ironically, the state Legislature has always been able to follow the state constitutional language about keeping counties whole when doing Congressional redistricting without violating federal constitutional requirements.

Some states have independent redistricting committees with neutral requirements for creating legislative districts, and I favor that. But our state constitution requires the Legislature to draw up and vote on legislative boundaries. Unless we amend our constitution, a change which is not possible before redistricting must be finished, we cannot have a completely independent redistricting process.

The word “shall” appears 15 times in the Bill of Rights. No one would ever suggest that we could pick and choose whether to follow the mandatory language in the first or second amendment to our federal Constitution. Similarly, it is wrong to ignore the mandatory word “shall” that was included over two dozen times in state constitutional provisions dealing with redistricting.

Thus, in completing its redistricting duties, the West Virginia Legislature must adhere to mandatory language in our state constitution relating to counties, or explain fully in writing any circumstances that would require a deviation from those rules.

Delegate Barbara Evans Fleischauer, D-Monongalia, is a lawyer, was chairwoman of the House Committee on Constitutional Revision for 18 years, and was a member of the Joint Redistricting Committee in 2000 and 2010.

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