Judge Gabbard Discusses County Magistrate District Reappointment

Today we will be looking at County reapportionment during the Fiscal Court meeting. What is reapportionment? It may sound simple but it can be a difficult task. For us it is very difficult because of the requirements under Kentucky Law on how the boundary lines of Magisterial Districts have to be drawn. Kentucky law states that each Magistrate district has to be as close in number of each other as possible in population according to the most recent Census. Ideally not greater than a 10% difference. Most Counties won’t have to change but we have no choice but to change our districts. According to the 2020 Census, District 1 has 4880 people, District 2 has 5914 people and District 3 has 2161 people. The difference in population in District 2 and District 3 is 3753 people which is much greater than a 10% difference. We appointed a committee to handle reapportionment and they have gotten the numbers as close as possible. There doesn’t seem to be a way around a significant change in our Districts. I thought I would share an article that KACO Staff Attorney, Rich Ornstein, wrote about this County required process. The Article reads as follows,

“Reapportionment is the process by which fiscal court districts are reviewed, and potentially redrawn, post-U.S. Census to determine size compliance in accordance with KRS 67.045 and federal and state law requirements. KRS 67.045 simply requires district boundaries be compact and contiguous, with a requirement that: “…the population of each district shall be as nearly equal as is reasonably possible.”

Unless a county decides to completely revamp its fiscal court districts, the compact and contiguous requirements are unlikely to be a concern as boundary lines are unlikely to change significantly. In other words, if fiscal court district boundaries have been acceptable during the last decade, minor changes to the shape should not be a problem.

Population is the real issue for most counties.

What does: “As nearly equal as is reasonably possible” mean regarding population?

KRS 67.045 does not give us an answer to that question. Federal case law provides that guidance. The United States Supreme Court decided two cases in the 1970s that provide guidance when determining if the maximum deviation between a county’s smallest and largest fiscal court districts is permissible.

In Gaffney v. Cummings, 412 U.S. 735, 93 S. Ct. 2321 (1973), the Supreme Court determined that a 7.83 percent population difference between smallest and largest districts was constitutional. Two years later, in Chapman v. Meier, 420 U.S. 1, 95 S. Ct. 751 (1975), the United States Supreme Court struck down a reapportionment with a 20.14 percent difference between smallest and largest districts. Subsequent cases ultimately led to the conclusion that a maximum 10 percent deviation between smallest and largest districts is acceptable as noted in Kentucky Opinion of the Attorney General (OAG) 82-621.

How does this work in practice?

If county “X” has 20,000 people, with five magisterial districts, the ideal district size would be 4,000 people (20,000 divided by five). In this county, the largest proposed district has 4,200 people. The smallest proposed district has 3,750 people. The difference between largest and smallest district is 450 people. Dividing 450 by 4,000 gives a deviance of 11.25 percent (450/4,000 = 11.25 percent). As 11.25 percent is more than 10 percent, this reapportionment plan would fail.

How is population determined? You are required to use the U.S. Census. In theory, a county could deviate from those numbers, but if challenged, the reapportionment would likely fail if it resulted in a deviation of more than 10 percent using census numbers.

KRS 67.045 clearly sets out the process for conducting a reapportionment. Normally, reapportionment is done in the year following the U.S. Census. However, due in part to census delays, this decade’s reapportionment starts May 2023 (2022 Ky. Acts Ch. 11).

To start the process, the fiscal court will publish notice that the county will be reapportioning fiscal court districts. This publication needs to occur at least one time, no less than seven days nor more than 21 days prior to appointment of the reapportionment commissioners.

The reapportionment commission consists of the county clerk as a nonvoting member and three citizens residing in different districts who are at least 21 years old. Reapportionment commissioners are appointed by the fiscal court versus the traditional county judge/executive appointment with fiscal court approval.

Reapportionment is a simple process from a legal perspective. The reapportionment commissioners have 60 days from date of appointment to reapportion the fiscal court districts.

If the district boundaries have remained in statutory and constitutional compliance, the reapportionment commission doesn’t have to make any boundary changes unless the commission wants to make changes. Once they have determined fiscal court district boundaries, the reapportionment commissioners shall submit their written report to the county clerk and each of the fiscal court members, including the county judge/executive.

This report will show the district boundaries and the estimated population of each district. The fiscal court then has 60 days to pass a reapportionment ordinance. The fiscal court can adopt the reapportionment commission’s report, amend it, or toss it and create their own reapportionment plan.

While a fairly simple process from a legal perspective, from a practical perspective, completing this process accurately and in a timely fashion will be difficult if the county does not have the necessary technology. While some counties may be able to do this procedure in-house, other counties will contract with an area development district or a third-party provider to assist the county with reapportionment.

Finally, should a county registered voter believe the plan to be non-compliant, the registered voter can file suit in the circuit court to have the plan overturned. If found to be non-compliant, attorney fees can be awarded to the resident, and the fiscal court will have to restart the process to develop a statutory and constitutional reapportionment plan.”

I hope this helps our citizens understand how this process goes and how we, under state and federal law, are required to comply to the best of our ability.

Have a blessed week