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TRAVIS v. KING
552 F.Supp. 554 (1982)
Craig TRAVIS, Faith Evans, Carmen Bostick, George Starbuck, Les Skillings, Laura Bolles and Dave Ellis, Plaintiffs,
and
Alice Scott, Anne F. Lee and Rhoda Miller, Plaintiffs in Intervention,
v.
Jean KING, Lieutenant Governor of the State of Hawaii; Ruben P. Mallari, John E.K. Akana, Franklin S. Kometani, Robert A. McFarlane, Franklin M. Mukai, Tom Okuda, D.W. Rose, James V. Hall and Carla Coray, Defendants.
HAWAII COUNTY COMMITTEE, Democratic Party of Hawaii, Catherine Filson, Frances Hasegawa, Dixie Kaetsu, Leslie Hill, William Kikuchi, Takeshi Kudo, Tracey Lauder, Luther Nathaniel, Sr., John Santangelo and James Simpson, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
Jean KING, in her capacity as Lieutenant Governor and Chief Elections Officer of the State of Hawaii, Defendant.
Civ. Nos. 81-0433, 81-0438.
United States District Court, D. Hawaii.
October 13, 1982.
John S. Carroll, David A. Ezra, Michael F. O'Connor/Steven Thomas, Honolulu, Hawaii, for Craig Travis et al.
Peter J. Herman, Charles H. Hurd, Welcome S. Fawcett, Honolulu, Hawaii for intervenors Lee, Scott and Miller.
Tany S. Hong, Atty. Gen. by Francis Paul K.A. Keeno, Deputy Atty. Gen., James T. Funaki, Honolulu, Hawaii, for defendants.
Steven K. Christensen, Hilo, Hawaii, William J. McCarthy, Jr., Kealakekua, Hawaii, Wayne C. Metcalf, III, Robert P. Marx, Hilo, Hawaii, for Hawaii County Committee et al.
Before CHAMBERS, Circuit Judge, and KING and WILLIAMS, District Judges.
SPENCER WILLIAMS, District Judge: In 1962, the United States Supreme Court found the issue of legislative malapportionment justiciable.1 Since that time, efforts by the State of Hawaii to redraw the lines of local, state and congressional districts have been subjected to numerous attacks in both state and federal courts.2 The present action involves a challenge to the state's most recent reapportionment effort, its 1981 legislative and congressional reapportionment plan as embodied in the Report and Reapportionment Plan of the 1981 Reapportionment Commission (1981 Plan), submitted to the state's Lt. Governor on September 28, 1981. Plaintiffs and intervenors claim the 1981 Plan violates both State and Federal Constitutional provisions. The imminence of the upcoming 1982 primary and general elections mandated that this litigation be handled expeditiously.3 The court, therefore, ordered the parties to submit all evidence in written form, in lieu of any live testimony. Oral argument on the matter was held before the full court on March 24, 1982. By its interlocutory order, dated March 25, 1982, the court announced its decision that (1) as it pertains to the state legislature's reapportionment, the 1981 Plan violates the equal protection clause of the fourteenth amendment of the United States Constitution and (2) as it pertains to the congressional reapportionment, the 1981 Plan violates article 1, § 2 of the United States Constitution as well as the equal protection clause of the fourteenth amendment.4 The order stated that a full opinion would be issued at a later date. The following memorandum constitutes that opinion. THE FACTS The State of Hawaii's previous efforts at reapportionment, on both state and local
levels, are well documented in prior decisions of this and other courts.5 The present effort began in March of 1981 with the formation of the 1981 Reapportionment Commission pursuant to article IV, § 2 of the Hawaii State Constitution. As to reapportionment of the state legislature, the state constitution directed the Commission to perform two primary tasks: First, it was required to apportion the total number of seats in the State senate and the State house of representatives among the basic island units of the State. Second, it was required to apportion the members allocated to each basic island unit among the districts therein and to redraw district lines where necessary in such a manner that for each house the average number of registered voters per member in each district is as nearly equal to the average for the basic island units as practicable.6
1. Baker v. Carr,369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). 2. Holt v. Richardson,238 F.Supp. 468 (D.Haw. 1965) and 240 F.Supp. 724 (1965), and same case sub nom. Burns v. Richardson,384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (challenging the 1959 state legislative reapportionment plan); Burns v. Gill,316 F.Supp. 1285 (D.Haw.1970) (challenging the 1968 state legislative reapportionment plan); Boshard v. 1973 Legislative Reapportionment Commission, 55 H. 89 (1973) (challenging the state's 1973 reapportionment plan); Leopold v. State of Hawaii, Civ. No. 72-3582 (D.Haw.1974) (challenging the apportionment of local school board seats); and Hirabara v. Doi, Civ. No. 76-2045 (D.Haw. 1976) (challenging the 1970 congressional redistricting). 3. The state primary election is scheduled for September 18, 1982. The general election is scheduled for November 2, 1982. According to the state, May 1, 1982 was the last date by which the chief election officer of the state had to have an approved reapportionment plan. If received after this date, the state felt that the scheduled elections would have to be postponed. The Masters appointed by the court to aid in the formulation of a remedy in this case (see order of appointment, April 7, 1982) agreed with the state that May 2, 1982 was the deadline. 4. Specifically, the interlocutory order stated:
1. As it applies to the State Senate and House of Representatives, the 1981 Reapportionment Plan's deviation in the number of registered voters per elected official between the districts violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. 2. As it applies to the State Senate and House of Representatives, the 1981 Reapportionment Plan fails to properly define and calculate a permissible population basis as required by the Equal Protection Clause of the Fourteenth Amendment and Burns v. Richardson,384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). 3. The defendants have not met their burden of showing that "the distribution of registered voters approximates distribution of state citizens or another permissible population base." Burns v. Richardson,384 U.S. 73, 95, 86 S.Ct. 1286, 1298, 16 L.Ed.2d 376 (1966). 4. As it applies to the State Congressional districts, the 1981 Reapportionment Plan violates both Article I, Section 2 of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. To the extent this opinion enlarges on or modifies the interlocutory order that order is hereby deemed amended. Since we found that the state's plan violated these Federal Constitutional standards, we found it unnecessary to address the other challenges raised, including the numerous challenges based on applicable state law. 5. See note 1 infra. 6. Report and Reapportionment Plan of the 1981 Reapportionment Commission 8 (hereinafter "Report"). 7. The court notes that the basic island unit of Maui actually includes four separate islands, Maui, Molokai, Lanai, and Kahoolawe, and the basic island unit of Kauai includes both Kauai and Niihau. Thus, the basic island units do not represent four distinct contiguous land masses. 8. Hawaii State Constitution, Article IV, § 4. 9. Section 25-2(b) of the Hawaii Revised Statutes. See Report at 33-35. In addition to requiring equal numbers of registered voters in each district, Section 25-2(b) also states the following as criteria to guide the Commission in establishing congressional lines:
(1) No district shall be drawn so as to unduly favor a person or political faction. (2) Except in the case of districts encompassing more than one island, districts shall be contiguous. (3) Insofar as practicable, districts shall be compact. (4) Where possible, districts lines shall follow permanent and easily recognized features such as streets, streams and clear geographical features, and when practicable, shall coincide with census tract boundaries. (5) Where practicable, state legislative districts shall be wholly included within congressional districts. (6) Where practicable, submergence of an area in a larger district wherein substantial different socio-economic interests predominate shall be avoided. Similar state law standards applied to the legislative reapportionment. See Report at 10. 10. Report at 16. 11. Report at 10-11. 12. Report at 11-15. 13. Davis v. Mann,377 U.S. 678, 690, 84 S.Ct. 1441, 1447, 12 L.Ed.2d 609 (1964). 14. The Commission calculated the state's civilian population by subtracting all military and military dependents from its total or census population. 15. For a thorough discussion of the state's policy and its underlying reasoning, see Burns v. Gill, 316 F.Supp. at 1290-93. 16. Report at 32. 17. Report at 27. 18. Connor v. Finch,431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1970); Gaffney v. Cummings,412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Chapman v. Meir,420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). 19. Since we have determined that the deviations present in the house plan are not substantially related to the state policy of providing each basic island unit with meaningful representation, we do not address whether, assuming such a relationship, the 16.02% deviation in the house exceeds permissible constitutional standards.
A related issue raised by intervenors should be at least briefly noted, however. Throughout this section we have assumed that population deviations can be calculated and compared on the basis of the number of registered voters per district. Intervenors contend that deviations must be calculated and compared only on the basis of total population or some other permissible population base. Based on our reading of Burns, however, we decline to impose such a requirement on the state. Nonetheless, it does not follow from this conclusion that a court should ignore the fact that deviations challenged as impermissible are based on registered voters rather than an appropriate base. Since Reynolds, the Court has made it clear that population is the standard by which maximum deviations are to be examined. District populations based on registered voters, however, can only approximate permissible populations. As approximations, there will always be an unavoidable margin of error. This margin of error, of course, will only be important if the deviations in question approach the outer limits beyond which a deviation is de facto unconstitutional. For example, as discussed, the Court has stated that deviations of less than 10% will be considered prima facie constitutional. It may be that, considering the margin of error present in a registered voter based apportionment, a maximum deviation approaching but not exceeding 10% in such a plan should nevertheless be supported by an expressed state rationale. Likewise, assuming 16.5% is the maximum deviation permitted by the Constitution regardless of any proffered state justification, a deviation of 16.02% in such a plan, may be considered excessive if the plan is based on registered voters. Therefore, while the court declines from requiring that comparisons of districts always be on a permissible population basis, we find that comparisons based on registered voters should be subjected to a higher degree of scrutiny, at least when the deviations present begin to approach constitutional limits. 20. For a review of post-Mahan cases, see Guido, Deviations and Justifications: Standards and Remedies in Challenges to Reapportionment Plans, 14 Urban Lawyer 57, 64 71 (1981). 21. Report at 28. 22. The state cites Burns v. Gill316 F.Supp. 1285 (D.Haw.1970), for support since the court in that case approved a plan including deviations of 29.6% and 31.3%. This opinion, however, predates the Supreme Court's decision in Mahan. It is therefore of little precedential value as to this issue. Moreover, the deviation present in the senate plan substantially exceeds the deviations approved in Burns v. Gill. 23. Marshall v. Edwards,582 F.2d 927 (5th Cir. 1978); Zimmer v. McKeithen,485 F.2d 1297, at 1302-03, fn. 11 (5th Cir.1973); Kapral v. Jensen,271 F.Supp. 74 (D.Conn.1967); Cohen v. Maloney,410 F.Supp. 1147, 1153, fn. 9 (D.Del. 1976); Priesler v. Mayor of City of St. Louis,303 F.Supp. 1071 (E.D.Mo.1969); Calderon v. City of Los Angeles,4 Cal.3d 251, 93 Cal.Rptr. 361, 481 P.2d 489 (1971); D'Adamo v. Cobb,27 Cal.App.3d 448, 103 Cal.Rptr. 813 (1972); Hartman v. Denver, 165 Colo. 565, 440 P.2d 778 (Colo.S.Ct.1967); Warren v. North Tonawanda,60 Misc.2d 593, 303 N.Y.S.2d 945 (Sup.Ct., Niagara County, N.Y.1969); In re Township of Penn Hills, County of Allegheny,216 Pa.Super. 327, 264 A.2d 429 (1970). 24. Burns v. Richardson, 384 U.S. at 97 n. 25, 86 S.Ct. at 1299 n. 25. 25. Since we have struck down the state's plan on alternative grounds, we do not pass on the validity of the state's intended population base—eligible voters. We note, however, that since Reynolds courts at all levels have held that use of voter blind populations, either total or state citizen populations, adequately serves the requirement of "one person, one vote." On the other hand, in Burns, the Court expressed clear misgivings about voter-based populations, at least ones based on registered or actual voters. Whether these same misgivings apply to eligible voters as well has never been ruled on by the Supreme Court. At least one commentator, however, has stated that an eligible voter based apportionment would violate the holding and reasoning of Reynolds v. Sims:If the Supreme Court ever affirms a standard of apportionment based on voters or those who may be eligible to vote, it will necessarily represent a determination that the use of total inhabitants as a base, as was demanded in Reynolds, is unconstitutional since, for example, if a district contains a university or mental institution which has people who are not eligible to vote, those eligible to vote in that district will necessarily be unconstitutionally overrepresented. Note, Reapportionment on the Sub-State Level ofGovernment: Equal Representation or Equal Vote? 50 B.U.L.R. 231, 245 n. 71. 26. Report at 16. 27. Report at 15. 28. Report at 16. 29. Report at 27. 30. Report at 30.
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