DYCHE OPINION | Courts could soon decide key political issues - WDRB 41 Louisville News

DYCHE OPINION | Courts could soon decide key political issues

Updated:

There is a good chance that three political issues will soon become legal issues.  Look for courts to decide the constitutionality of state legislative redistricting, if Rand Paul can be on the 2016 ballot for both President and Senator, and whether the statutory contract between Kentucky and its pensioners really is "inviolable."

There must be new state legislative districts before the 2014 elections.  The current ones are way out of balance because of population changes since the last redistricting more than a decade ago.  As a result, some parts of Kentucky are getting more representation than they should and others far less.

This could have been taken care of last year, but the plan that state House Democrats, state Senate Republicans, and Governor Beshear enacted was grossly unconstitutional.  The courts struck it down at considerable cost to the taxpayers.  (Disclosure:  This writer represented successful plaintiffs in that litigation).

Undeterred, House Democrats appear ready to violate the Constitution again.  In the recent General Assembly session they passed a redistricting bill that was brutal toward their Republican colleagues.  To draw their dramatically pro-Democratic districts they excluded federal prisoners from the population numbers after having included them for congressional and judicial redistricting just last year.

House Democrats resort to such shenanigans in hopes of holding on to their majority as long as possible in a state where voter registration trends steadily Republican.  But the courts will likely frown upon such blatant inconsistency in how to count people for purposes of honoring the "one person, one vote" principle.

Because the state Senate did not act, however, the House plan died.  Some Northern Kentucky citizens and officeholders have already filed a lawsuit to force redistricting before the next regular General Assembly session. 

The ubiquitous Rand Paul may want to run for both reelection as U. S. Senator and for President in 2016.  But current Kentucky law provides that, "No candidate's name shall appear on any voting machine or absentee ballot more than once."

Courts have upheld similar laws in other states on the grounds that letting candidates wait until after elections to choose which office to hold would cause confusion and costly special elections.  Whether Kentucky courts would follow such rulings remains to be seen, especially when the requirements for the federal offices in question are established in the Constitution.

In striking down a term limit law in 1995, the U. S. Supreme Court held that states could not impose qualifications for members of Congress beyond those enumerated in the Constitution.  Kentucky's statute banning a candidate from being on the ballot more than once effectively imposes a new, extra-constitutional requirement on candidates for Senator or President.

The General Assembly could change this law before 2016, or Paul could decide to run for only one office, or for neither.  If he wants to simultaneously seek both, however, he or someone supporting him may have to go to court.

To considerable acclaim, the General Assembly recently passed a bill to address the $18 billion unfunded liability of the Kentucky Retirement System (KRS).  Before the applause died down, however, the mental health agency Seven Counties Services filed suit asking a court to let it out of the state retirement system because the new law's increased contributions would effectively bankrupt it. 

If Seven Counties successfully secedes so will other non-governmental participants.  KRS may then be in an even more financially untenable position than ever.  Other parts of Kentucky's public pension regime still face billions in unfunded liabilities regardless.

Kentucky law currently provides that the state pension schemes constitute "an inviolable contract of the Commonwealth" and that benefits are not "subject to reduction or impairment by alteration, amendment, or repeal."  The state Constitution also prohibits laws impairing contractual obligations.

But what if, as seems increasingly likely, Kentucky cannot meet its pension obligations or must cut other constitutionally required functions to do so?  There is no legal precedent for a state to file for bankruptcy, but some form of state default may loom. 

Kentucky's Supreme Court recently allowed a lawsuit against the state to determine the legality of some meager pension reforms made in 2008.  This case could ultimately determine whether Kentucky can make bigger changes to stave off insolvency in its pension systems. 

These political issues are probably coming soon to courts near you.

John David Dyche is a Louisville attorney and political commentator for WDRB.com.

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