FRANKFORT, Ky. (CN) — It's now up to the Kentucky Supreme Court whether gerrymandered election maps vetoed by Governor Andy Beshear, but ultimately passed by a Republican supermajority in 2022, can be remedied via the commonwealth's constitution.
Republicans argue the current maps — which yielded 80 house seats and 31 Republican senators in the most recent election — comply with population and "county integrity" requirements and cannot be redrawn to give Democrats more representatives at the state government level.
The commonwealth, which intervened in the lawsuit through Attorney General Daniel Cameron, argued in its brief to the high court it is "impossible" to create a map that yields less than a 5-1 advantage for Republicans.
Kentucky devoted a portion of its brief to what it called the "long and tortured history" of redistricting in the Bluegrass State, which culminated in a 1994 mandate by the Kentucky Supreme Court to keep districts within 5% of "an ideal legislative district" population size and divide as few counties as possible.
Cameron, the Republican candidate for governor this November, emphasized that the court has already rejected several challenges to the current system, and said that "to change these clear rules ... would inflict profound damage on the normal give-and-take between the legislative and judicial departments."
The Kentucky Democratic Party distilled and summarized expert testimony provided during the four-day bench trial in its brief, all of which left no doubt about the gerrymandered nature of the maps, it argued.
Franklin County Circuit Court Judge Thomas Wingate agreed with Democrats in his findings and opinion, but ultimately ruled the Kentucky Constitution offers no avenue for relief.
The Democratic Party argued otherwise and claimed Republicans joined multiple counties in single districts "purely for partisan gain," but did so under the guise of compliance with the population requirement.
Attorney Michael Abate, of the Louisville firm Kaplan, Johnson, Abate and Bird, said repeatedly during Tuesday's arguments that Republicans had failed to provide any evidence their maps comply with all of the commonwealth's constitutional requirements.
"There are six textual commands in Section 33 [of the constitution]," he told the court. "But the state and lower court say four of them have been eliminated. No court has the power to excise language from the constitution."
Justice Angela Bisig seemed hesitant for the court to wade into political matters. She reminded Abate it can do so only in "extreme cases."
"It's hard for me to find we're at the level where this court should intervene," she said.
Bisig pointed out a map submitted by one of the Democratic Party's witnesses showed a gain of only three house seats for the party.
"Even three seats matter," Abate responded.
He stressed that gerrymandered maps necessarily create partisan outcomes and a more divided government, which prevents progress and results in "weaker governance as a whole."
Justice Michelle Keller questioned the attorney about Section 6 of the Kentucky Constitution, which provides for "free and equal elections."
"The 'equal' piece is where the rubber meets the road," she said.
Abate agreed and said the language used in Section 6 applies not only to interference with individuals trying to cast a ballot on Election Day, but also to the construction of election maps.
"All of the evidence in this case pointed in the same direction," he said. "It's rigged. The voters' will cannot translate to seats [in the legislature]."
Deputy Attorney General Victor Maddox argued on behalf of the commonwealth and placed the blame for Democrats' loss of seats in the legislature squarely on the shoulders of their leadership. He pointed out the party's representation in the house had dropped from 55 to 25 seats over a four-year period after it redrew legislative districts in the early 2000s.
Justices questioned Maddox about the shapes of certain voting districts and why a number of larger cities, including Covington, Richmond and Bowling Green, were split between so many different districts.
"It seems like we've gotten to the point of splitting hairs with this extreme, data-driven approach," Justice Keller, whose offices are in Covington, said. "Why must we split one city into three, four, or five political subdivisions?"
The state's attorney again shifted blame to the Democrats and said the current setup includes fewer splits inside counties than the previous iteration drawn by his opposition.
Maddox said legislators focused on "compactness and retention of the core districts" when they drew the current map.
When Keller quizzed Maddox about the constitution's "free and equal" elections language in the same way as his opposing counsel, she received a vastly different answer.
"It means you cannot have physical constraints on the ability to cast vote," Maddox said. "It has nothing to do with dilution of a person's vote."
"The Kentucky Democratic Party is asking this court to institute a revolution in redistricting," the attorney concluded. "It wants to take away the authority [to draw districts] from the third floor of this building and move it to the computer lab at Harvard and the faculty lounge at MIT."
The court set no timetable for its decision.Follow @@kkoeninger44
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.