dissenting.
I must respectfully dissent from the majority opinion because the reapportionment acts of 1991 and 1992 represent a legitimate exercise of legislative discretion in developing an apportionment plan based on the principle of equality of population as a primary factor. I agree with the holding of the circuit court that equality of population is the most important element in apportionment.
It is clear from any fair reading of Section 33 of the Kentucky Constitution that the integrity of the county unit when considered in an apportionment context is secondary to equality in population. It is regrettable that counties such as Boone, Campbell and Kenton, which are among the most populous counties in Kentucky, should be the subject of county splitting in any way. Certainly each of the county units could be considered as eligible to host the residence of a state senator as well as an appropriate number of representatives. However, the decision regarding such matters must be properly deferred to the judgment of the General Assembly in determining the importance of equality of population, integrity of counties and other valid factors which must be considered in the reapportionment process. It is undisputed that some Kentucky counties must be split when creating redistricting plans for the House and Senate. The Federal Constitution provides that the overriding consideration in any appointment plan is equality of population in state legislative districts. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Population remains the controlling criterion. All parties to this litigation concede that the current redistricting plans would pass Federal constitutional muster.
Kentucky has adopted a similar approach in regard to the priority of population over all other considerations. Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865 (1907), states in part that two counties may be joined to form one representative district, “provided it be necessary to effectuate that equality of representation which the spirit of the whole section so imperatively demands.” Combs v. Matthews, Ky., 364 S.W.2d 647 (1963), found that equality of representation pervaded the entire Section 33 of the Kentucky Constitution. Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315 (1931) asserts, “Equality of representation in the legislative bodies of the state is a right preservative of all other rights.” The case does recognize that the failure to give a county or district equal representation is not merely a matter of partisan strategy. The decision as to which section of the constitutional provision is given priority must remain with the legislature when viewed in a state-wide context. Generally, the Federal courts have adopted a deferential policy toward apportionment when challenged in a state proceeding. Apportionment usually deals with a fundamental choice about the nature of representation which is primarily a political fairness question falling to the responsibility .of the legislature. Cf. Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). “It is much more plausible to assume that those who redistrict and reapportion work with both political and census data.” Gaffney, supra. The fundamental presumption which must guide any judicial review of a *482legislative reapportionment act is that the apportionment’s statutes are constitutional. Stiglitz, supra.
The evidence before the trial court indicated that the preservation of county boundaries was a factor considered by the General Assembly, but was not given as great importance as guaranteeing the one-person one-vote concept. Evidence was given about a competing plan, but it is not the role of a reviewing court to substitute one plan for another. That is the role of the General Assembly. Clearly there are two competing approaches to the same subject. The discretion to select one is plainly delegated to the legislature and not to the judiciary.
The most recent Federal case on the subject provides instruction on how to approach such a situation. Hensley v. Wood, 329 F.Supp. 787 (1971), held that regardless. of the legitimate desire to preserve the integrity of political subdivision units, the primary concern of the legislature with respect to apportionment must be the equal weight of the vote of each citizen. Some divergence from the population equality standard is permissible if it is necessary based on a legitimate consideration incident to the effectuation of a rational state policy. A reapportionment statute that was based on political sentiments and traditional subdivisions, violated the one-person one-vote principle, and did not conform as nearly as practicable to the standard. Hensley, supra.
Any plan should not simply benefit a local or state government unit or further the career of any individual candidate. The purpose of reapportionment is to provide as nearly as possible equal electoral rights, that is — voting and representation to individual citizens. It is the people who must be given priority, not just where they live, but their common interests and unity of community concerns.
Certainly Fischer has presented a cogent position in a scholarly and well-written brief and articulated his views in an excellent oral argument. However, judicial review of reapportionment proceedings has generally expressed the priority of equality of representation over all other competing demands in legislative apportionment. The specific decision remains in the hands of the General Assembly, but population equality is the most important element.
REYNOLDS, J., joins in this dissent.