Jewell, Malcolm E.

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Kentucky Law JournalVolume 51 | Issue 1 Article 21962The 1962 Congressional Redistricting in KentuckyMalcolm E. JewellUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Election Law Commons, and the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journalby an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationJewell, Malcolm E. (1962) "The 1962 Congressional Redistricting in Kentucky," Kentucky Law Journal: Vol. 51 : Iss. 1 , Article 2.Available at: https://uknowledge.uky.edu/klj/vol51/iss1/2The 1962 CongressionalRedistricting in KentuckyBy MALCOLM E. JEWELLThe 1960 census, like that of 1930 and 1950, resulted in areduction in Kentucky s congressional representation. From 1950to 1960 the state's population rose by 3.2 per cent, while thenational gain was 18.5 per cent. Consequently, Kentucky lost oneof its eight congressmen, after efforts by some congressmen,including Kentucky's Frank Chelf, failed to persuade Congress toincrease the size of the House of Representatives.Between the 1950 and 1960 census Kentucky passed two dis-tricting laws. The Wetherby administration in 1952 secured legis-lative approval for new districts necessitated by the loss of acongressman, and the Chandler admimstration in 1956 broughtabout revisions in the 1952 districts.' In terms of 1960 population,the eight districts existing in 1960 vaned from 303,431 to 610,947Five of them ranged from 303,431 to 329,116; the Sixth andSeventh Districts were 411,459 and 420,816, respectively; and thelargest district was the Third (Jefferson County)In redistricting, the 1962 Legislature faced several problems:How much greater equality in district populations could beattained without seriously disturbing existing districts or forcingmore than the mimmum number of incumbents to oppose eachother? Which two congressmen should be forced into a contest?How should the Legislature deal with Jefferson County, whichwas much too large for a single district and much too small fortwo districts?PASSAGE OF REDIsTRICTING ACTOn February 20, 1962, Governor Bert T. Combs presented toa ]oint session of the Legislature his plan for redistricting, whichwas subsequently enacted into law without change.2 It combinedAssociate Professor of Political Science, University of Kentucky.See Appendix for maps illustrating congressional districts before and afterthe 1962 change.CONG,ESsiONAL REDiSTmiCrn G= IKENTUCKYinto one district a large part of the Fourth and Fifth Districts,including the home counties of both incumbents, Frank Chelfand Brent Spence. A few counties in these two districts wereshifted to other districts: the Second (four counties), and theSixth and Seventh (three counties each) In addition the Eighth(renumbered the Fifth) gained one county from the Fourth andtwo from the Sixth, while three counties were moved from theSecond to the First. The plan could accurately be described as a"mnum change" plan, designed to disturb incumbents andtheir districts as little as possible. While some districts wereprotected from basic change by geography (the First and perhapsthe Seventh), others were protected by the political strength ofincumbents or (in the case of the Eighth) the opposition thatwould be aroused by any effort to split the traditionally Republi-can District. The Fourth and Fifth were most vulnerable. Con-gressman Brent Spence in the Fifth District was 87, and therewas some expectation that he would retire, as in fact he didbefore the prnary election.The only opposition to the Governor's plan in the legislaturecame from Northern Kentucky Democrats, who introduced a planto divide the Fourth District into three parts, while leaving theFifth District virtually unchanged except for the addition of someJefferson County suburbs. After some debate, the Legislatureadopted the Goveror s plan by substantial margins. It had theapproval of the five Democratic congressmen whose districtswere not being merged, and who had been carefully consultedduring the drafting of the plan. The Governor's plan satisfiedRepublicans because it did not materially change the solidlyRepublican Eighth (now Fifth) District, and because it leftunchanged the marginal Third District (Jefferson County)Largely because the plan took such careful account of nearly allpolitical interests involved, it passed without the bitter andprolonged controversy that was typical in so many of the statesthat were forced to redistrict by the 1960 census.Tr ESuLTSThe new districts range from 850,839 to 610,947 Three dis-tricts vary from the average district population between 5 and 102 Ky. Acts 1962, ch. 98.KENTUCKY LAW JOURNALper cent, and three others between 16 and 19 per cent, whileJefferson County is 41 per cent over the average. The First,Second, and Eighth (now Fifth) are still underpopulated byabout the same percentage margins as before, while the otherdistricts are somewhat closer to average size than previously IfJefferson County is not considered, the variations of the otherdistricts from an average of six districts is somewhat less. Itwould have been mathematically and geographically easy toprovide much greater population equality among these six dis-tricts, but it would have been most difficult to do so withoutdisturbing the political status quo. Except for the oversizeddistrict containing Jefferson County, the population variationsamong districts is considerably less than can be found in manystates that carmed out at least a partial redistricting following the1960 census.From a population standpoint, the underrepresentation of Jef-ferson County is serious, particularly because it is an area ofrapid growth. If present population trends continue in thatcounty and in the whole state, the Third District will be nearlytwice as large in population as the average state district by 1970.In the past, states have seldom redistricted following a censusunless they gained or lost a congressman; but in Kentucky, if thepresent seven seats are retained, a redistricting to give JeffersonCounty a second congressman would seem essential in 1972,assuming that its growth continues at the present pace. Perhapsby that time the impact of Baker v. Carts will have been sufficientto assure decennial redistricting of congressional districts in allstates.It would have been possible to divide Jefferson County, givingLouisville one congressman and giving another to the rest of thecounty and to surrounding counties, some of which are in asense suburbs of Louisville. There was apparently little sentimentin Jefferson County for such a plan. The Governor told thelegislature that residents of that county in both parties "withvirtual unanimity" would prefer to remain in a single district.The Republicans had a particularly strong reason for opposingpartition, because it would make the Louisville district safelyDemocratic, while the Republican suburbs in Jefferson County3 369 U.S. MSO (1962).[Vol. 51,CoNGREssIoNAL REDISTICrNG IN K=ENTu=cKYmight be swallowed up by the surrounding Democratic counties.The present Jefferson County district is politically a marginal onethat has elected more Republican than Democratic congressmenin recent years. In effect, under the new districting law, JeffersonCounty remains voluntarily underrepresented.Tm JunIcIL VmwonrThe congressional districting plan was conceived and enactedbefore the Baker v. Can decision, and there was no evidencethat its authors were worried about judicial scrutiny There wasprecedent in Kentucky, however, for ]udicial nullification of acongressional districting act. In 1932 the state legislature passeda law reducing the congressional districts from eleven to nine.The law was challenged in both the federal and state courts as aviolation of a 1911 law passed by Congress, requiring that dis-tricts be compact, contiguous and as nearly equal in populationas practical.5In July of 1932 the Franklin Circuit Court invalidated thedistricting act and in September the federal district court forEastern Kentucky also invalidated it.8 On October 13, 1932, how-ever, the Supreme Court ruled in a Mississippi districting casethat the provisions of the 1911 law requiring contiguity, com-pactness, and equality were no longer in force because a 1929congressional act on districting did not contain such provisions.7In November the nine Kentucky congressmen were elected atlarge. The following month the Supreme Court applied theMississippi ruling to Kentucky, restoring the state's districtingact," and the Kentucky Court of Appeals promptly overruled theFranklin Circuit Court. Not until 1934, however, were the con-gressmen elected by districts.The 1952 Kentucky congressional districting act was tested inthe state courts to determine whether the population inequalities4 Ibd.5 An account of the involved judicial history of the act is found in Burchell v.State Bd. of Election Comm rs, 68 S.W.2d 427 (Ky. 1934).0 Hume v. Mahan, 1 F Supp. 142 (1932). The federal district court ruledthat the districting law violatedboth the standards of population equality andcompactness established by Congress in 1911. It noted there were three districtsunder 245,000 and three over 388,000, and it said that several districts wereformed into unusual shapes, one resembling a French-style telephone.7 Wood v. Broom, 287 U.S. 1 (1932).8 Mahan v. Hume, 287 U.S. 575 (1932).1962]KENTUCKY LAW JOURNALamong districts violated the state constitutional provision that"all elections shall be free and equal."9 The Court of Appeals,noting that exact population equality was impossible, held theact invalid.1The 1962 districting act was also tested in the state courts, inWatts v. Carter 1 Once again the only question was whether itviolated the state constitutional standard of "free and equal"elections. 2 There was no reference to the fourteenth amendment"equal protection" clause. Franklin Circuit Court Judge HenryMeigs held that the act was valid. On March 28, 1962, three daysbefore the Baker v. Carr's decision, the Kentucky Court of Ap-peals ruled that the act did not violate the state constitution.Speaking for the court, Judge John S. Palmore noted thatBaker v. Carr was still pending in the Supreme Court, but statedthat malapportionment can be so flagrant that the "duty of thecourts to uphold the constitutional rights of equality under thelaw will override their traditional reluctance to enter the politicalthicket."14 He noted that Congress no longer required compactdistricts, and therefore legislative discretion could not be "limitedby considerations purely esthetic." 5 The sole question was popu-lation equality The court did not find that the inequalitiesresulting from the 1962 law were so flagrant as to violate thestandard of "free and equal"16 elections. Judge Palmore thoughtthat the single district for Jefferson County was justifiable: "Con-sidering, however, the special problems and disadvantages mher-ent in splitting up a single densely-populated county and graftinga slice of it onto another and dissimilar district, we are unable tosay that the solution chosen by the legislature was clearly arbi-trary and unreasonable."iSince the Baker v. Carr decision, which applied directly onlyto legislative apportionment, a federal court in Wisconsin hasordered congressional redistricting and a federal court in Georgiahas refused to issue such an order, in a divided opinion in which9 Ky. Const. §6.'Watts v. O'Connell, 247 S.W.2d 531 (Ky. 1952).11355 S.W.2d 657 (Ky. 1962).12 Mahan v. Hume, 287 U.S. 575 (1932).Is869 U.S. 186 (1962).14 Watts v. Carter, 355 S.W.2d 657, 658 (Ky. 1962).15 Id. at 659.16 Mahan v. Hume, 287 U.S. 575 (1982).17Watts v. Carter, 355 S.W.2d 657, 658 (Ky. 1962).[Vol. 51,CONGlESIONAL REDISTICrING IN KENTUCKYthe majority expressed doubt that the court should grant reliefwhen congressional districts were involved. The decision inWatts v. Carter does not shed any light on the unresolved ques-tions involving judicial review of congressional districting underthe equal protection clause of the fourteenth amendment be-cause Kentucky's constitution requires a standard of equality forall elections held in the state.The Watts v. Carter decision is important, however, becauseit provides a clue to the standards that courts may be expected touse in determining how equal congressional districts must be andwhat factors justify inequality The equal protection clause ofthe fourteenth amendment is no more specific than and rathersimilar to the "free and equal elections" provision of the Kentuckyconstitution. Inequalites in congressional districting, even attheir greatest, are much less than those common in many statelegislatures. It seems probable that moderate inequalities in con-gressional districts will prove less vulnerable to judicial attackthan legislative malapportionment is. However, when unequalcongressional districts result from legislative failure to redistrictevery decade, the courts are more likely to decide that theinequalities are arbitrary and unreasonable.18I8 On August 19 a group of voters in the Third and Fourth Districts flied asuit in the federal district court in Lexington challenging the constitutionality ofthe 1962 redistricting as a violation of the fourteenth amendment, because ofthe unequal population in the new districts. The plaintiffs asked for at-largeelections in 1962. A three-judge court was set up to hear the case.19621]ob.IU"49e . -41 dSB, I:2 ',- t.,,-VIP

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