Probable Jurisdiction Noted March 4, 1968. See 88 S.Ct. 1053.
JOHN W. OLIVER, District Judge, joined by WILLIAM R. COLLINSON, District Judge.
This case presents for judicial review the third effort made by a Missouri General Assembly since the 1960 decennial census to divide this State into ten congressional districts of as nearly equal population as is practicable, in conformity with the dual mandates of Article 3, Section 45 of the 1945 Missouri Constitution, V.A.M.S. and of Art. I, § 2 of the Constitution of the United States. Application of principles established by Art. I, § 2 of the Constitution, as construed by the Supreme Court of the United States, requires that we hold that this third effort does not pass constitutional muster.
The initial decision of this Court, rendered January 4, 1965, determined that the 1961 Missouri Congressional Redistricting Act was unconstitutional but deferred granting any judicial relief "until the Legislature of the State of Missouri has once more had an opportunity to deal with the problem;" this Court refused to presume that "the Legislature of the State of Missouri will refuse to take all necessary action to comply with its duty under the Federal, as well as its own State, Constitution." Preisler v. Secretary of State of Missouri, 238 F.Supp. 187, 191 (W.D.Mo.1965) (Preisler I).
Following Preisler I the Seventy-third General Assembly of Missouri enacted the 1965 Congressional Redistricting Act, Mo.Stat.Ann. Title 9, §§ 128.202-128.305 (1965). That Act was subjected to judicial scrutiny and held to be constitutionally void on the ground that it also failed to comply with the command of Art. I, § 2 of the Constitution. Preisler v. Secretary of State of Missouri, 257 F.Supp. 953 (W.D.Mo.1966) (Preisler II). Our decree in the second case, however, for reasons fully stated in light of Swann v. Adams II, 383 U.S. 210, 86 S.Ct. 767, 15 L.Ed.2d 707 (1966), permitted the 1966 Congressional elections to be conducted under the constitutionally void 1965 Act. We retained jurisdiction for the purpose of reviewing any new Congressional redistricting plan enacted by a future General Assembly and signed by the Governor. 257 F.Supp. at 982. On January 9, 1967 the judgment of this Court was affirmed by the Supreme Court of the United States. Kirkpatrick v. Preisler, 385 U.S. 450, 87 S.Ct. 613, 17 L.Ed.2d 511 (1967).
In 1967 the Seventy-fourth General Assembly of Missouri again tackled the problem. Its effort culminated in legislation which became effective on October 13, 1967, hereinafter referred to as the 1967 Act, Mo.Stat.Ann. Title 9, §§ 128.202-128.305 (1967). This case pends on the Attorney General of Missouri's motion for approval of the 1967 Act and for dismissal of this case.
Plaintiffs contend that the 1967 Act is unconstitutional because the populations of the districts were not "as equal
Defendants attached to their pending motion a map of the State of Missouri which illustrated the boundaries of the districts and purported to show the actual population of each district. Defendants' motion alleged that "all of the population figures referred to [on that exhibit] are based on the United States Census for 1960." Plaintiffs' responsive pleading suggested that the population data presented by defendants in their motion did not accurately reflect the 1960 census population data. Procedures were therefore adopted at a prehearing conference under which accurate figures were promptly obtained from the Bureau of Census.
The following table illustrates the differences between the population data presented by Appendix B attached to defendants' motion and that established by the accurate 1960 census figures:
Comparison of Population Figures Represented As Accurate in Defendants' Appendix B With
Actual 1960 Census Figures in EvidencePopulation Variance Actual Actual Represented Represented Census Census District Def. App. B Def. App. B Population Variation1 436,417 + 4,436 439,746 + 7,765 2 442,302 +10,321 436,448 + 4,467 3 431,507 - 474 436,099 + 4,118 4 423,815 - 8,166 419,721 - 12,260 5 430,412 - 1,569 431,178 - 803 6 425,238 - 6,743 422,238 - 9,743 7 436,769 + 4,788 436,769 + 4,788 8 439,984 + 8,003 445,523 + 13,542 9 428,223 - 3,758 428,223 - 3,758 10 423,866 - 8,115 423,868 - 8,113
It is apparent that defendants' Appendix B accurately reflected the actual population of only two of the ten districts (Districts 7 and 9). The variations in regard to two other districts (Districts 5 and 10) are obviously minor.
Before the facts concerning the actual population variances were established, defendants' sole legal contention that the
Defendants' motion was set for hearing before the full panel of this Court as requested by defendants. The evidence adduced at that hearing established that the 1967 General Assembly of Missouri at no time ever considered accurate 1960 federal census population figures in its consideration of the 1967 Act. That evidence further established that the accurate 1960 census figures for all appropriate 1967 political subdivisions were in
The difficulties of attempting to reapportion the State of Missouri with inaccurate population figures is made vividly apparent by a comparison of the variances created by the unidentified population figures actually used by the chairman of the Senate Reapportionment Committee when he prepared the original of the bill eventually enacted, Senate Bill No. 182, (see pages 27-28 of the Chairman of the Senate Reapportionment Committee's deposition), with the variances in fact produced by that original
Senate Bill No. 182 As Originally Introduced by the Chairman of the
Senate Reapportionment CommitteeFigures Used Actual Actual by S.B. 182 Apparent Census Census District Author Variance Population Variance1 423,712 - 8,269 408,950 -23,031 2 444,462 +12,481 460,469 a+28,488 3 448,824 +16,843 462,716 +30,735 4 428,113 - 3,868 428,224 - 3,757 5 430,412 - 1,569 434,459 + 2,478 6 427,710 - 4,271 427,710 - 4,271 7 428,173 - 3,808 423,103 - 8,878 8 426,260 - 5,721 429,928 - 2,053 9 427,313 - 4,668 412,249 a-19,732 10 432,281 + 300 431,966 - 15 _________ _________ 4,317,260 4,318,774 + 39 b________________ 4,318,813
The author of Senate Bill No. 182 twice testified that he was still under the impression the Missouri Legislature could comply with the "as nearly as is practicable" standard of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L. Ed.2d 481 by getting within 2% of the equality demanded by Art. I, § 2 (Deposition, pp. 13-14, 18).
Defendants' evidence, consisting of the testimony of the party leaders in both houses of the 1967 Legislature, and the Chairman of the Senate Reapportionment Committee, was simply that many bills were introduced; that the one finally adopted had a stormy passage and was amended many times; and that finally it barely passed the House. Defendants contend that these facts demonstrate that this was the best bill, in respect to practicably equal population, that could be passed, and, therefore, attempt to argue that the division of population provided is, in fact, as "nearly equal as is practicable."
We find that defendants' evidence leads to the inevitable conclusion that a majority of the members of the Legislature were motivated by other considerations than the constitutional objective of "practicable equality." Our specific factual findings in regard to the 1967 Act and in regard to the rejection of better plans by the 1967 Missouri Legislature are fully stated in Appendix A made a part of this opinion by this reference. The legislative history and changes made by the 1967 Act in prior acts held to be constitutionally void are also there stated in detail, together with the facts concerning how the shifts of particular political subdivisions from one 1967 Act district to an adjoining district would have made both districts more nearly equal in population.
It is not necessary to restate the constitutional principles applied in Preisler II. That case was affirmed by the Supreme Court on January 9, 1967 and is the law of this case. The same day Preisler II was affirmed, the Supreme Court in Duddleston v. Grills, 385 U.S. 455, 87 S.Ct. 611, 77 L.Ed.2d 508 (1967), vacated the judgment rendered in Grills v. Branigin, S.D.Ind.1966, 255 F.Supp. 155, and remanded that case to the three-judge Indiana court for further consideration in light of Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), also decided January 9, 1967, although a state reapportionment case, nevertheless established burden of proof principles applicable to all reapportionment cases. Mr. Justice Harlan stated in his dissent, joined by Mr. Justice Stewart, that the burden of proof rule there established "stand[s] on its head the usual rule governing * * * the validity of legislative enactments, state as well as federal, which is, of course, that they come to us with a strong presumption of regularity and constitutionality" (supra, at 447, 87 S.Ct. at 574). Mr. Justice Harlan's strongly held conviction that "the burden of showing unconstitutionality should be left here, as in other cases, on the attacking party" was, of course, explicitly rejected by the majority of the Supreme Court.
In Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 decided February 20, 1967, Mr. Justice Harlan and Mr.
The basic contentions made by defendants in this case were accepted by the Texas three-judge court only to be rejected by the Supreme Court.
The impact of Swann v. Adams III and Kilgarlin v. Hill was immediate and consistent. All three-judge federal courts and state courts deciding congressional apportionment cases, with the benefit of either or both of those cases, have been able, with one exception, unanimously to determine every such case that has been decided this year. See Dinis v. Volpe, D.Mass.1967, 264 F.Supp. 425;
The principle is firmly settled that the proponents of a redistricting plan must sustain the burden of justifying any deviation from practicable equality of population. Swann v. Adams, supra, 385 U.S. at 445, 87 S.Ct. 569, 17 L.Ed.2d 501; Reynolds v. Sims, supra, 377 U.S. at 577-580, 87 S.Ct. 1362;
Both Swann v. Adams III and Kilgarlin v. Hill teach that courts can not refuse to adjudicate bona fide controversies concerning alleged abridgments of the constitutional right to an equal vote. The infrequent judicial use of the phrase "de minimis" in apportionment decisions cannot properly be converted into a generalized rationalization of variances that are shown, on the precise facts presented in a particular case, to have been both avoidable and greater than those variances that would have been produced by a more faithful application of Art. I, § 2's standard of "as nearly equal as is practicable."
Defendants' basic de minimis argument is not tenable. The phrase "de minimis" was first used in an apportionment case in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Mr. Justice Harlan there suggested that the variances in the 1901 Tennessee state apportionment were only "de minimis" from an apportionment formula established by the Tennessee Constitution. 369 U.S. at 335-336, 82 S.Ct. 773-774. Mr. Justice Clark countered by stating that Mr. Justice Harlan's efforts to justify those variances on "such generalities as `classic legislative judgment,' `no significant discrepancy,' and `de minimis' `departures' [are shown by] even a casual glance at the present apportionment * * * to be entirely fanciful" (369 U.S. at 258, 82 S.Ct. at 732).
Only three lower federal courts have made reference to "de minimis." Calkins v. Hare, E.D.Mich.1964, 228 F.Supp. 824, used the phrase in explaining and emphasizing why the "mathematical precision" caveat in Wesberry v. Sanders could not be used as "an escape hatch for the reluctant." (Id. at 829). This Court, in Preisler II, made similar explanatory use of the "de minimis doctrine." We stated that "use of such words as `feasible' and `practicable' in a careful statement of the fundamental constitutional principle constitutes but a recognition that the familiar doctrine of de minimis is applicable and is designed to make clear that a State legislature would not be expected to create entirely new political subdivision lines in order to have absolute and precise mathematical equality in its congressional districts" (257 F.Supp. at 973).
The third lower federal court case to mention "de minimis", however, attempted to give that phrase a definitive and fixed conceptual meaning. That case was Kilgarlin v. Hill, S.D.Tex., 252 F.Supp. 404. The majority opinion in that case attempted to create a burden of proof formula under which (1) "de minimis" variations were to be placed at one pole and considered to be constitutionally permissible, (2) "per se" variations were to be placed at the opposite pole and held to be constitutionally void, and (3) all cases in the middle area of the mathematical scale would be held to be constitutionally permissible unless the plaintiff was able to "negate the existence of any state of facts which would sustain the constitutionality of the legislation" (252 F.Supp. at 414).
That case was reversed by the Supreme Court. In reversing the Supreme Court simply held that the burden of proof rule established by Swann v. Adams III, which had not been decided when the Texas three-judge court attempted to establish a different burden of proof rule, was controlling. The Supreme Court did not deem it necessary even to discuss the elaborate lower court formula that included "de minimis" as a conceptual part of its involved legal theory of percentage and ratio justification. In fact, the only other mention
We believe that the Supreme Court's reversal in Kilgarlin v. Hill is at least an implicit rejection of any notion that the judicial use accorded the phrase "de minimis" can be converted into either an exception to the burden of proof rule so recently established by the Supreme Court in apportionment cases or as an independent defense that may, without proof, be said to justify variances greater than those that would have been created by better plans in fact presented to but rejected by a legislature or those created by similar plans that may be presented to a court in the trial of an apportionment case. We know of no court, state or federal, with the sole exception of the reversed Texas three-judge court, that has ever expressed a contrary idea concerning the very place that the "de minimis" phrase occupies in the constitutional law applicable to apportionments. "De minimis," we suggest, belongs where Mr. Justice Clark put it in his concurring opinion in Baker v. Carr; among discarded generalities such as "classic legislative judgment" and "no significant discrepancy."
So long as counsel representing State legislatures attempt to get courts to convert the infrequent judicial use of the phrase "de minimis" into some sort of numerical formulae under which ratios or percentage deviations fixed in one case become the rule in another for purposes of an attempted measurement of "how much variance can we expect to get away with," the whole thrust of the Supreme Court's apportionment cases is misconceived. Indeed, the whole thrust of many earlier Supreme Court cases, decided before the apportionment cases were decided, is ignored.
Gray v. Sanders, 372 U.S. 368 at 379-380, 83 S.Ct. 801, at 808, 9 L.Ed.2d 821, held long before either Reynolds v. Sims and Wesberry v. Sanders were on the books, that "the concept of `we the People' under the Constitution visualizes * * * equality" and that "the idea that every voter is equal to every other voter in his State * * * underlies many of our decisions."
All the Supreme Court's apportionment cases from Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) to the present time teach that a particular apportionment case must be held to present a bona fide justiciable controversy and that a congressional apportionment plan cannot be approved by a lower court as constitutional unless the variances above those which result mathematically from the application of the "as nearly as is practicable" standard did in fact result from and are justified by the application of a legally acceptable principle of rational State policy.
When it becomes apparent, therefore, from the facts presented in a particular case, that the apportioning body could have districted the particular state in a substantially more nearly equal manner, without doing violence to any articulated legally acceptable state policy, consideration of de minimis is at an end in that particular case.
Kilgarlin v. Hill based its reversal on the dual ground that the lower court had not applied the proper burden of proof rule and upon its failure to "articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations" (386 U.S. supra, at 124, 87 S. Ct. at 823).
The undisputed and unexplained facts of this case show (a) that the 74th Missouri General Assembly did not in its 1967 Act in fact provide districts which "as nearly as is practicable one man's vote for a congressional election is * * worth as much as another's;" (b) that the 1967 Missouri Legislature in fact rejected plans that came much closer to so doing; and (c) that any number of shifts of political subdivisions including counties, to say nothing of townships, wards and precincts, would have produced a congressional districting plan that would have been in closer compliance with the constitutional command of Art. I, § 2.
In Preisler II we took detailed notice of more practicable plans that had been proposed to and rejected by the 1965 Missouri General Assembly. The 1967 74th General Assembly enacted a bill that malapportioned this State in a manner more extreme than the plan proposed to the 1965 Legislature as Senate Committee Substitute for Senate Bill No. 320, to which this Court devoted detailed attention in Preisler II. Table IV on page 964 of 257 F.Supp. reflects a comparison of the changes proposed by that rejected 1965 plan with those finally enacted by the 1965 Legislature. The 1967 Legislature's action in enacting its 1967 Act was taken in the face of the express caveat stated in Preisler II that our discussion of the better plan rejected by the 1965 Legislature was not to be construed by a future Missouri General Assembly as an approval of the rejected plan but only to show that the 1965 Act did not in fact comply with the constitutional standard.
The fact that the 1965 Legislature could have adopted a more practicable plan with districts more nearly equal in population had it not rejected Senate Committee Substitute for Senate Bill No. 320 was demonstrated by our discussion in Preisler II. The fact that the 1967 Legislature could have done the same thing demonstrates that its 1967 Act was not a plan that represented the most faithful application of the "as nearly equal as is practicable" standard. The rejected 1965 plan obviously would have produced variances that departed less from the ideal than those created by the 1967 Act. Our discussion of the rejected 1965 plan is not to be taken by a future Missouri Legislature as any intimation that such rejected plan, if adopted, would pass constitutional muster. Determination of that question would turn upon the sufficiency of the evidence adduced by defendants to justify and explain the quite obvious and substantial variances contained in that plan.
The 1967 Missouri Legislature rejected a better plan than that presented to the 1965 session of the Legislature. House Bill No. 870, proposed to and rejected by the 1967 Missouri General Assembly, provided districts that varied substantially less from the ideal than
Our detailed findings concerning House Bill No. 870 and the other better plans rejected by the 1967 Legislature that demonstrate how Missouri could have been divided into ten districts of more practicably equal population than those provided in the 1967 Act are made in Appendix B which is incorporated in this opinion by this reference. We find that the variances produced by those better plans are in fact substantially less than those created by the 1967 Act. Our discussion of those better plans is solely for the purpose of demonstrating that the 1967 Act was not in fact the most practicable plan that could have been enacted. We intimate no judgment on the question of whether House Bill No. 870 or any of the other plans discussed would or would not pass constitutional muster for the reasons that have been sufficiently stated.
The prime difficulty with all three of the past reapportionment efforts of the respective Missouri Legislatures in the years 1961, 1965, and 1967 has been that the task has not been approached with an understanding that, since Wesberry v. Sanders, no State legislature in the United States can unnecessarily abridge one's right to an equal vote in a congressional election any more than it may constitutionally deny one his right to trial by jury, his right of free speech, his right to freedom of religion, his right of peaceful assemblage, or any one of his many other rights guaranteed by the Constitution of the United States. Indeed, the discharge of this delicate and quite fundamental constitutional duty has been treated by three successive Missouri legislatures as a legislative step-child; apparently qualification for appointment to the committees which have unsuccessfully attempted to do the actual work seems to have been limited to those who insist upon believing that something less than full performance of the dual mandates of the Missouri and federal Constitutions is all that is required.
It was explicitly held in Wesberry v. Sanders that "Our Constitution leaves no room for classification of people in a way that unnecessarily abridges" their right to an equal vote in a congressional election (376 U.S. at 17, 84 S.Ct. at 535.
Legislation implementing the command of Art. I, § 2 must divide the population into districts in which "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's" (376 U.S. at 7-8, 84 S.Ct. at 530). Those who have been responsible for the drafting of Missouri's three congressional redistricting plans have adamantly refused to recognize that these constitutional principles are as binding on all State legislatures of the United States as upon all State and federal courts.
The facts established in the three cases decided by this Court demonstrate that in all three legislative efforts the leadership of both political parties in the Senate and the House were given nothing better to work with than a makeshift bill produced by what has been candidly recognized to be no more than that deemed to be an expedient political compromise. And even that was not furnished until the closing hours of the session when nothing could have been done to either discover or correct even obvious errors.
This Court repeats for the third time that the Constitution does not leave room for intentional 85%, 95% or even 98% compliance with its mandate; that Art. I, § 2 commands equality of population in congressional districts "as nearly as is practicable;" and that any enacted plan that fails to comply with that constitutional standard, unless otherwise justified by substantial evidence in accordance
This Court obviously has no alternative other than to deny defendants' pending motion for the reasons that (1) we must find that the 1967 Act does not in fact divide the population of Missouri into districts as nearly equal as is practicable; and (2) because the obviously avoidable population variances in the 1967 Act can not be satisfactorily justified on any legally acceptable ground supported by any evidence in this record. It is therefore totally impossible for this Court, on the basis of any substantial evidence, to relate any "declared justification to any specific inequalities among the districts" or to "articulate any satisfactory grounds for rejecting * * * other plans presented [both] to the court [and to the 74th General Assembly of Missouri] which produced substantially smaller deviations" than those created by the 1967 Act. Kilgarlin v. Hill, supra, 386 U.S. at page 124, 87 S.Ct. 820, 823. Defendants have simply failed to carry the burden of proof imposed on them by Swann v. Adams III, a case decided before Senate Bill No. 182 was introduced in the 1967 Missouri Legislature. We so find and determine.
Defendants' pending motion should be and will therefore be denied. Because of the public interest involved in this, as in all State and congressional apportionment cases, we have attached as Appendix C our discussion of all the contentions presented by either the defendants or by the intervenors that have not been explicitly answered in the body of this opinion.
There remains the question of remedy. Significant developments have occurred since Preisler II was decided that could in the near future require that our order of August 5, 1966 be appropriately modified. That order, consistent with the applicable congressional statute then in effect required that Missouri's congressional delegation be elected at large.
In Preisler II we directed specific attention to the fact that a "failure of the Missouri General Assembly to properly redistrict after the 1930 census forced the election of Missouri's entire congressional delegation to be held at large in 1932" (257 F.Supp. at 955).
Our order of August 5, 1966 was made, as stated in Preisler II, pursuant to the Congressional "command of Section 2a(c) of Title 2, United States Code, enacted pursuant to Art. I, § 4 of the Constitution of the United States" (257 F.Supp. at 981). That section of the United States Code was enacted as a part of the Act of June 18, 1929 (46 Stat. 26). As we also noted in Preisler II, Wood v. Bloom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131 (1932), held that Congress had failed to reenact any legislation requiring the election of Representatives from districts when it refused to include the provisions of the Act of August 8, 1911 (37 Stat. 14) in its Act of June 18, 1929.
Indeed, the latter Act, inconsistent with legislation that had required Representatives to be elected from districts since the Act of 1842 (5 Stat. 491), expressly provided that in the event a State failed to properly redistrict after a decrease in the number of Representatives apportioned to that State, the Representatives of such State "shall be elected from the State at large" (Section 2a(c) (5), of Title 2, United States Code).
Section 2a(c) did not require an election at large in the event a State failed to reapportion in cases in which the State either gained or stayed the same in the number of Representatives apportioned to it after a decennial census. It was for these reason that federal three-judge courts in Maryland and Tennessee, for examples, were not prevented by congressional mandate from redistricting those particular states by court order.
The Supreme Court's reversal of the Indiana three-judge court in Grills, and the affirmance of Preisler II last January, of course, focused Congressional attention on the fact that the Act of June 18, 1929 was indeed a Congressional command to the federal three-judge court in Indiana and to this Court to order elections-at-large in the event the Legislatures of Indiana and Missouri should fail to pass a constitutional redistricting act in time for the 1968 elections. The order of this Court, of course, expressly so provides.
Recent Congressional developments reveal that long standing efforts to reenact the 1842 requirement for district elections in the present Congress seemed doomed to the same failure suffered by similar efforts in every Congress over at least the past fifteen years.
When that legislation became law, this Court was relieved of the prior existing Congressional command to order that the 1968 and succeeding congressional elections in Missouri be held at large. This Court, therefore, will be free, in the event no constitutional plan is enacted at the coming Special Session of the Missouri Legislature, to direct appropriate proceedings that will enable it to make an appropriate redistricting order. In the event it should become necessary for this Court to exercise that power we shall follow procedures similar to those that were followed by other three-judge federal courts that have drawn congressional districts for particular states.
Judge Matthes, in his concurring opinion in Priesler II, stated that:
That statement continues to reflect the view of this Court. We would be hopeful that all appropriate steps will be taken by all responsible persons to the end that a constitutionally valid redistricting plan be presented to this Court in order that it not be required to take further action in this case. Should it become apparent that further action is necessary, we shall, as we must, and on our own motion, direct further appropriate proceedings in this case.
For the reasons stated, we find and determine that the 1967 Missouri Congressional Reapportionment Act presented by defendants' pending motion does not pass constitutional muster. It is therefore
Ordered that defendants' pending motion should be and is hereby denied. It is further
Ordered that the judgment and decree of this Court entered August 5, 1966 should be and are hereby ordered to remain in full force and effect, subject,
Ordered that any filings for the House of Representatives of the United States Congress that may have already been made under and pursuant to the 1967 Missouri Congressional Reapportionment Act should be and are hereby declared to be null and void, that no further filings be accepted under that Act, and that any and all future action that may be taken in connection with any filings that may have been made should be and will be considered a violation of the order of this Court. It is further
Ordered that pursuant to Rule 56(c) of the Rules of Civil Procedure, this opinion and the appendices attached thereto shall serve as our findings of fact and conclusions of law. It is further
Ordered that jurisdiction of this cause be retained for the purposes that have been stated.
FACTUAL FINDINGS IN REGARD TO 1967 ACT AND REJECTION OF MORE PRACTICABLE DISTRICTS, INCLUDING PRACTICABILITY OF SHIFTS OF POLITICAL SUBDIVISIONS
We follow the pattern of Preisler II in making our specific findings of fact in regard to the 1967 Act. Appendix A attached to Preisler II at page 983 of 257 F.Supp. illustrated the changes made by the 1965 Legislature in the 1961 Act held void in Preisler I. The undisputed facts in Preisler III establish that the changes made by the 1967 Legislature in the 1965 Act held void in Preisler II follow precisely the same pattern followed by the 1965 Legislature in its modification of the 1961 Act.
Change "A" on Preisler II's Appendix A showed that Mercer County (pop. 5,750) was shifted by the 1965 Act from District 9 to District 6. The 1967 Act added to that same shift the counties of Grundy (pop. 12,220); Putnam (pop. 6,999) and Sullivan (pop. 8,783) with a total population of 28,002.
The 1967 shift of additional rural population from District 9 to District 6 in the 1967 Act commanded still further invasion of the urban population in the St. Louis metropolitan area in exactly the same pattern of invasion established by the 1965 Act.
While the overvaluation of District 6 was reduced to -9,743 by the 1967 Act, it is perfectly obvious that had Schuyler County (pop. 5,052) been added to the 1967 shift from the District 9, the variance of District 6 would have been reduced to a variance of -4,691. The inclusion of Schuyler County in the 1967 shift was in fact proposed to the 74th General Assembly in Senate Bill No. 182 as that bill was originally introduced; remained there in the Senate Substitute for Senate Bill No. 182, and was removed from the perfected Senate Committee Substitute for Senate Bill No. 182 only when the shift of Adair and Macon Counties was proposed. Had the plan proposed in the Senate Committee Substitute for Senate Bill No. 182 been adopted District 6 would have had a variance of only +268.
But, once again, it is perfectly obvious that had Howard County (pop. 10,859) been included in the shifts made by the 1967 Act the variation of District 4 would have been further reduced to -1,401. The inclusion of Howard County in District 4 was specifically proposed to the 1967 General Assembly along with Saline and other counties in Senate Bill No. 182 as that bill was originally introduced. Had that plan not been rejected and had proper, unquestionably practicable, allocation been made concerning the wards of Kansas City, both Districts 4 and 5 would have had variances of only -639 and -640, respectively.
Change "C" on Preisler II's Appendix A illustrated the 1965 Act's shuffle of "several St. Louis wards and St. Louis County townships * * * among the First, Second, Third, and Ninth Districts." The same sort of shuffle was made in the 1967 Act; only more so. Under the 1967 Act St. Louis County was fragmented into five, rather than four separate congressional districts. The reason why further invasion and fragmentation of the population of the St. Louis metropolitan area was necessary is obvious.
In order to improve the 1965 Act's treatment of District 4, the 1967 Act shifted population formerly in District 8. Similar depletion of District 8's 1965 allocation of population was rendered necessary in order to bring the rural District 10's 1967 allocation of population closer to the ideal. The architect of the 1967 Act frankly stated that the attempt of the 1967 Legislature to use the population allocated to District 8 under the 1965 Act to bolster the deficient population of adjoining districts under the 1967 Act was "just like squeezing a sponge" so far as District 8 was concerned (Dep. p. 13).
Although he did not know it at the time, the author of Senate Bill No. 182 actually had more water in District 8 than he thought he had. Because he used population figures from a still unidentified source, the Chairman of the Senate Committee was under the erroneous impression that District 8 was being allocated only 8,003 excess population under the 1967 Act. The 1960 census figures establish that an excess of 13,542 population was actually placed in District 8 by the 1967 Act. It is therefore apparent that it was neither practicable nor even necessary for the 1967 Act to have extended the boundaries of District 8 to the city limits of St. Louis. But even if the invasion of the St. Louis metropolitan
In further specific regard to the 1967 Act's shuffle of St. Louis wards and St. Louis County townships we find that the 1967 Missouri General Assembly, like the 1961 and 1965 Missouri General Assemblies, attempted to disregard and ignore basic population data that will not go away. The 1960 census figures make it obvious that the City of St. Louis with its 1960 population of 750,026 needed to have added only 113,936 additional population to entitle that total population to two ideal congressional districts. It cannot be validly argued that it was not practicable for the 1967 Legislature to have created two districts with extremely small variations without violating the integrity of political subdivisions as large as townships, to say nothing of violating ward lines as practiced in the 1967 Act. For example, and only for example, the addition of the populations of the townships of St. Ferdinand (pop. 66,420), Hadley, (pop. 24,720), and Lincoln (pop. 22,380) in St. Louis County to the population of the City of St. Louis would have provided sufficient population for two congressional districts, each of which would have varied only -208 from the ideal. The drawing of the line to divide that 864,378 population into two congressional districts as nearly equal as practicable was in fact an extremely easy task because the 74th General Assembly established no policy that prevented its use of existing precinct lines, at least in the metropolitan geographical areas of Missouri for use in dividing the two districts.
Urban precincts, generally regulated as they are by the number and capacity of voting machines assigned them, necessarily have relatively small populations. The ability to shift precincts from one side of a district dividing line to the other makes it entirely practicable to get exceedingly close to equal populations for adjoining districts as was demonstrated in the Jackson and Clay County apportionments to which attention was directed in Preisler II (257 F.Supp. at 978, footnote 16). The Kansas City Star for December 5, 1967 reports that the new boundary lines for the Kansas City School Board divided the population within that school district "into six subdistricts each with about 71,500 population." Local government public officials in this judicial district have consistently demonstrated that the one man-one vote constitutional principle can be applied without difficulty given the desire so to do.
The particular St. Louis townships mentioned have been used solely for illustrative purposes. That use, however, supports our factual finding that it was in fact entirely practicable for the 1967 Legislature to have created two compact and contiguous congressional districts in the St. Louis metropolitan area in accordance with the command of the Missouri Constitution that would have in fact avoided all except exceedingly small variations for two of the congressional districts to which that population was by law entitled.
We make the same finding in regard to how a third congressional district could have been formed from the 1960 population situated in the remaining portion of St. Louis County. Such a third congressional district could not have included all of the remaining townships in the only charter county in the State that would have been left unassigned in the example just stated in regard to how two practicable St. Louis metropolitan congressional districts could have been created; the most northerly townships of St. Louis County would necessarily have to have been assigned to still a fourth congressional district, some of which would have included a part of "outstate" Missouri.
The practicable third district that could have been made to adjoin the area described for the first two practicable districts, with full observance given an
TABLE SHOWING HOW A THIRD PRACTICABLE DISTRICT COULD HAVE BEEN CREATED USING ST. LOUIS COUNTY 1960 POPULATION -------------------------------------------------------- St. Louis County
Township of: 1960 PopulationLemay 40,095 Concord 36,273 Gravois 52,205 Jefferson 35,649 Clayton 51,092 Creve Coeur 48,681 Midland 50,417 Washington 19,304 Normandy 37,673 Bon Homme 53,779 Meramac 9,528 _______ Total Population 434,696 Ideal District 431,981 _______ Variance +2,715
Whether the plus variance of 2,715 indicated in the above table would, on the facts, be "as nearly equal as is practicable" would, of course, be entirely dependent upon the proof adduced in any case in which such variance might be challenged. As Chief Justice Weintraub noted in Jones v. Falcey, 48 N.J. 25, 222 A.2d 101 at 108, one of the valid teachings of Meeks v. Avery, D.C., 251 F.Supp. at 251, is that where "a pattern is disclosed in which the integrity of political subdivisions is ignored, then the districts could be formed with population substantially equal in each of them; and when * * * lines [are] completely disregarded in * * * many instances the court [is] justified in holding that a pattern had developed in which the integrity of political subdivisions was ignored."
That sound principle merely says that a State legislature must practice what it preaches. A State legislature should therefore anticipate that a purported State policy of observing particular political subdivisions lines can not be relied upon to justify variances above those which would have been created by proper application of the "as nearly as is practicable" principle unless the legislature's enacted plan does in fact observe and apply such an articulated State policy.
The evidence in this case establishes that the township lines of St. Louis County were in fact broken by the 1967 Act; precinct lines were in fact used to define the boundaries of particular congressional districts created by the 1967 Act. It is therefore not necessary to apply the principle of Jones v. Falcey, supra, to the factual situation presented in Preisler III because the avoidable variances created by the 1967 Act's Districts 1, 2, and 3 of +7,765, +4,467, and +4,118, respectively, are far above the variances that would have been created had the 1967 Legislature in fact established and followed the less stringent policy of recognizing townships and ward lines.
Change "D" in Appendix A to Preisler II illustrated how the 1965 Legislature changed the allocation of population made in its 1961 Act to District 7. We there noted that the 1965 Missouri Legislature
The problem created by the shift of St. Clair and Benton Counties required that the 1967 Legislature shift additional population into District 7. Once again the population allocated to District 8 under the 1965 Act had to be "squeezed like a sponge." Camden (pop. 9,116) and Laclede (pop. 18,991) Counties (both of which were pencil shaded on the House majority leader's map) were shifted from old District 8 with a resultant total net gain of 10,949 population for District 7. That shift produced a +4,788 variance under the 1967 Act.
But this Court must face the undisputable fact that the addition of Hickory County (pop. 4,516) to the 1967 shift from old District 7 to new District 4, would have reduced new District 7's variance to a +278 and would have, at the same time, reduced the variance of new District 4 from a -12,260 to a -7,754.
Hickory County was in fact proposed for inclusion in District 7 in several versions of Senate Bill No. 182 as that bill progressed through the 1967 Missouri Legislature. Indeed, the Senate Substitute for Senate Bill No. 182 made provision for a District 7 that included Hickory County in which the variation from the ideal district was -1,292, a substantially smaller variation than that eventually created by the 1967 Act.
Change "E" noted in Preisler II's Appendix A reflected the 1965 Act's shift of Wayne County from the 1961 Act's District 8 to that Act's District 10. Following the same pattern established in 1965, the 1967 Legislature shifted the additional and quite sparsely populated counties of Shannon (pop. 7,087), Carter (pop. 3,973), Reynolds (pop. 5,161), Iron (pop. 8,041), and Madison (pop. 9,366) to form the 1967 Act's District 10. The 1967 Act's additional shift reduced the greatest minus variation of the 1965 Act only to a minus variation of 8,113. The undisputable facts establish that had Dent County (pop. 10,445) been added to the 1967 shift, the variance of new District 10 would have been reduced to +2,332. That shift would have also had the effect of reducing the variance in adjoining new District 8 to +3,105. We further find that House Committee Substitute for Senate Committee Substitute for Senate Bill No. 182 was proposed to and rejected by the 1967 Missouri General Assembly. That plan proposed the inclusion of Dent County in the 1967 shift (together with every other one of the other five counties that were in fact shifted by the 1967 Act). Acceptance of that proposed and rejected plan would have produced a variance of +1,064 for new District 10.
The 1967 Missouri Legislature was required to put the squeeze on old District 8 to provide new District 10 the population assigned it by the 1967 Act. The 1967 Act's shift of additional rural counties from old District 8 to new District 10 was compensated for by siphoning still more population from the St. Louis metropolitan area. The 1967 Legislature invaded St. Louis County population by extending the boundaries of still a fifth congressional district to include part of that County. The 1967 Act added Concord and Meramac townships and particular precincts in Bon Homme in St. Louis County to new District 8.
The addition of that portion of St. Louis County by the 1967 Act caused new District 8 to stretch from the city limits of St. Louis to within less than 75 miles of the city limits of Kansas City. Thus, in total disregard of the duty to draw compact and contiguous districts placed on it by the Missouri Constitution, the 74th General Assembly added the population of urban St. Louis
In Preisler II we found as a fact that "the discrimination against the St. Louis metropolitan area, evidenced by the 1961 Act, was continued under the 1965 Act" (257 F.Supp. at 958, fn. 4). We find that the 1967 Act continues the same discrimination. We found in Preisler II that under both the 1961 Act and the 1965 Act "the City of Kansas City was split between three separate Congressional districts," and that under both acts the "population of the City of Kansas City * * * continued to be utilized to increase the deficient population of two essentially rural districts" (257 F.Supp. at 960). We make the same finding in regard to the use of Kansas City's Platte and Clay County population in regard to District 6 created by the 1967 Act. In Preisler II we found that the 1961 Act and the 1965 Act "both have the same pattern of overvaluation and overweight of the votes in the rural geographical areas, as contrasted with the votes in the two metropolitan areas of the State" (257 F. Supp. at 960). We make the same finding in regard to the 1967 Act, particularly as it applies to the St. Louis metropolitan area and the area of Kansas City north of the Missouri River.
In Preisler II we found and held that "all that the Seventy-third General Assembly did [in its 1965 Act] in regard to the 1961 Act held constitutionally impermissible in Preisler I was to move three small counties from one district to another and to shift a few wards from one district to another in both metropolitan areas" (257 F.Supp. at 980). We find and hold in Preisler III that all the 74th General Assembly did in regard to the 1965 Act held constitutionally void in Preisler II was to add a few more counties to the shifts of rural counties and to invade more grossly than ever before the population concentrated in the two metropolitan areas of this State.
In Preisler II we found that the overvaluation of votes in the particular districts created by the 1965 Act had been established by "the undisputed and unexplained facts" presented in that case. We noted in Preisler II that "counsel did not attempt to suggest any reason why it was not practicable to avoid variances
We emphasized again and again that the "substantial population deviations and variances" were "unexplained" (257 F.Supp. at 974). We directed attention to what we called the most significant language in Drum I in regard to what we believed to be the burden of proof in apportionment cases. We italicized the language of Judge Sobeloff in Tawes I from page 976 of 257 F.Supp. that anticipated the Supreme Court's later holding in Kilgarlin v. Hill. On page 977 of 257 F.Supp. of Preisler II, we italicized the precise language from Tawes III that the Supreme Court quoted as the proper burden of proof rule in Swann v. Adams III. And, finally, we expressly rejected in Preisler II defendants' arguments that attempted to establish considerations of "political stability" and their arguments concerning "political," "economic," "historical," and "traditional" factors as legitimate grounds upon which disparities from population based districts could be justified (257 F.Supp. at 980).
The legal principles that underlie those findings are, of course, the law of this case as affirmed by the Supreme Court.
(In Two Parts)
Discussion of House Bill No. 870
Our specific findings in regard to House Bill No. 870 proposed to and rejected by the 1967 Missouri Legislature can best be understood by preliminary examination of the following table:
House Bill No. 870 as Originally Introduced and Rejected by the 1967 Missouri General Assembly H. B. 870 1967 Act District District 1960 Census 1960 Population
No. No. Population Variance1 (1) 431,896 1- 85 12 (2) 431,896 1- 85 13 (3) 431,896 1- 85 14 (5) 430,361 - 1,620 25 (6) 435,066 + 3,085 26 (9) 431,418 - 563 7 (7) 427,972 - 4,009 28 (8) 428,678 - 3,303 29 (9) 431,897 1- 84 110 (10) 438,733 + 6,752 2__________ 4,319,813
Defendants' failure to obtain and to introduce in evidence the 1960 census data for 1967 precincts in St. Louis and St. Louis County does not relieve this Court of its duty of making the finding of fact that the total population assigned Districts 1, 2 and 3 and 9 is only 341 in excess of that required for four ideal congressional districts and that such population could have been practicably divided almost equally among those districts for the reason, as in the case of Kansas City, use of precinct lines for the boundaries of each of those districts, and application of the constitutionally required principle of practicability, would have permitted the shift of precincts from one side of a congressional boundary line to the other until, in the language of the command of Wesberry v. Sanders, "as nearly as is practicable one man's vote in a congressional election [would in fact] be worth as much as another's."
Defendants' and intervenors' expressed hostility to computers and electronic brains is totally misplaced. The task of drawing congressional boundary lines as nearly as is practicable to divide the total population allocated to the four districts proposed by rejected House Bill No. 870, or for all ten districts in Missouri, does not require the use of a computer or an electronic brain. It did and does require one to have and to use accurate population figures, the ability to add and subtract, and, most important, a willingness and desire to comply with the explicit commands of the Constitutions of his State and Nation. Any finding that a better plan could not have been adopted would necessarily be held clearly erroneous because such a finding would be contrary to the undisputed evidence concerning rejected House Bill No. 870.
The witnesses called by defendants testified that "there probably were changes that could be made * * * by the shift of a county here [or there that] would greatly improve this as to the extent of perhaps lowering the difference between the maximum and minimum by as much as 15,000" (Tr. 36); that "there isn't a man in this room that couldn't divide the state on the 1960 population and come up with compact, contiguous districts that come within close equal population" (Tr. 58); and that the 1967 Legislature had in fact rejected "a better bill, a stronger bill" (Tr. 64). Even the three-time Chairman of the Senate Reapportionment Committee testified that "it's mighty easy to * * * divide this state, and either one of us could do it very much better than this [the 1967 Act] is done" (Dep. 14).
And when Preisler II was argued, the Assistant Attorney General of Missouri stated to this Court in regard to the 1965 Act that "if you were looking at population as being the sole factor, the only factor that could be considered, * * * I would have to immediately confess * * * that you would probably have to get within one percent variation in order to say that you have met the population factor, if that is your
It is quite apparent from all the evidence that all real work on the 1967 Act, in exactly the pattern followed in regard to the 1965 Act, was left to the always hectic closing days of the session. The elected leadership of both parties in the Senate and the House were not consulted until long after it was, as a practical matter, too late for them to correct the mistakes of the committees into whose hands control of the delicate problem of reapportionment had been placed. Compare the description of the similar action of the North Dakota legislature in Paulson v. Meier, N.D. 1965, 246 F.Supp. 36 at 42. Attention to that case was directed by the Supreme Court in Swann v. Adams, 385 U.S. 440 at 446, 87 S.Ct. 569, 17 L.Ed.2d 501.
The factual pattern of the 1965 Legislature was repeated in the 1967 session of the Missouri Legislature when Senator Young filed constitutional objections to the 1967 Act in the Senate, on June 28, 1967. His constitutional objection stated that "the congressional districts created * * * do not meet the requirements of the Missouri Constitution that such districts be `as nearly equal in population as may be,' Art. III, Section 45." This Court's decision in Preisler II was cited and portions of that opinion quoted.
On July 13, 1967 Representatives Meyer (27th), Mulvaney, Schlef and Walsh, filed a constitutional objection in the House. Their objection followed substantially the same form as Senator Young's except that the House objection again reflected the fact that all members of the 74th General Assembly labored under the erroneous impression that the variance between "the high congressional district and the low" was "more than 16,000," instead of 25,802, as was discovered only after defendants' pending motion was filed.
The undisputed facts show that the actual variance between the high district, District 8, and every other district, excepting only District 5, actually exceeds the erroneously assumed maximum variance figure of only 16,000 against which the constitutional protests were filed in both the Senate and House. One cannot help but speculate what would have happened had the members of the 74th General Assembly, at the time, been accurately advised in regard to the extent of the variances actually created by their 1967 Act.
II. Additional Data Showing That the 1967 Act Did Not In Fact Divide Missouri's Population Into Most Practicably Equal Districts Map 1 illustrates the point in the text that a Missouri Legislature could have created districts that are more nearly equal in population as is practicable than the 1967 Act and still permit every present incumbent to run from his present residence. Map 2 illustrates how acceptance of particular districts proposed in various bills presented to the 1967 74th General Assembly, had they been combined, would have produced variances of less than 2,000 population for each district in the State, a more practicable plan than that adopted in the 1967 Act. Map 3 illustrates more practicably equal districts that would have squeezed all the water out of old District 8 to the end that the urban and rural populations of this State would have been more realistically distributed.
We again emphasize that the publication of these maps is not a recommendation for the Missouri Legislature to adopt any plan illustrated. The data is stated
Map 1—Practicable Districts That Would Not Disturb
Incumbent Congressional Representatives District Population Variance1 431,735 - 246 2 431,735 - 246 3 431,735 - 246 4 431,386 - 595 5 431,385 - 596 6 431,851 - 130 7 434,250 + 2,269 *8 429,688 - 2,293 *9 431,735 - 246 10 434,313 + 2,332 **_________ 4,319,813
Map 2—Composite Map from Various Redistricting Plans
Rejected by Missouri General Assembly District Population Variance Source1 431,091 - 890 Simple addition 2 431,091 - 890 " " 3 431,091 - 890 " " 4 432,373 + 392 | 1967 H.B. 399 minus < Cedar & Hickory 5 432,373 + 392 | plus Carroll 6 432,249 + 268 1967 Perf. S. C. S. for S.B. 182 7 430,689 -1,292 1967 S.B. 182 (Sen. Sub.) 8 433,821 +1,840 Simple addition 9 431,090 - 891 " " 10 433,945 +1,964 1965 S.C.S. for S.B. 320 1965 G.A. minus Howell plus Texas
Map 3—Practicable Districts That Would More Realistically
Distribute Urban and Rural Populations District Population Variance1 431,819 - 162 2 431,819 - 162 3 431,818 - 163 4 432,954 + 973 5 432,955 + 974 6 433,977 +1,996 7 433,004 +1,023 8 429,380 -2,601 9 431,818 - 163 10 430,269 -1,712
(In Four Parts)
DISCUSSION AND REJECTION OF ADDITIONAL CONTENTIONS MADE BY DEFENDANTS AND INTERVENORS
In addition to the contentions made in support of the 1967 Act that have been answered by what was said in the body of the opinion, we now answer various additional contentions made by the defendants and intervenors.
I. Defendants' "Growth of Population" Argument
Defendants attempt to make the belated contention that "the Fourth and Sixth Districts * * * both * * * contain areas of rapid population growth since 1960 and such population growth was taken into consideration." Apart from the fact that no substantial evidence was introduced upon which such a finding could be based, such a contention is exploded by the following table which illustrates how Missouri's December 31, 1966 population, as estimated by the Missouri Division of Health, is distributed under the 1967 Congressional Districting Act:
Table Showing Distribution of Missouri Population As Estimated by Missouri Division of Health
For December 31, 1966 Under 1967 ActVariation from District Population a Dec. 31, 1966 Ideal1 481,377 b+30,531 2 481,377 b+30,531 3 481,377 b+30,531 4 433,071 c-16,775 5 433,071 c-16,775 6 442,445 - 7,401 7 412,140 -30,305 8 481,377 b+30,531 9 481,377 b+30,531 10 370,844 -79,002 _________ 4,498,456
The University of Missouri's College of Agriculture, in furtherance of its cooperative extension work authorized by the Acts of May 8 and June 30, 1914, and in cooperation with the United States Department of Agriculture, has published population projections for the years 1967, 1975, and 1990. The population projections of the Missouri Division of Health and those of the University of Missouri reflect some differences in detail. But those differences are not greater than is to be expected. Population projections are necessarily based on
A comparison of the two population projections, however, establishes a remarkable general agreement in regard to growth and decline trends of particular geographical areas of Missouri and in regard to where that population is situated in 1967, as compared to where it was situated when the 1960 census was taken.
The following table illustrates where, according to the University of Missouri's projected 1967 and 1975 figures, populations would be distributed under the 1967 Missouri Congressional Reapportionment Acts:
Table Showing Distribution of Missouri Population As Projected by University of Missouri
For 1967 and 1975 Under 1967 Act 1967 1975Projected Projected District Population a Variance Population a Variance1 486,207 b+27,330 596,530 b+ 62,081 2 486,207 b+27,330 596,530 b+ 62,081 3 486,207 b+27,330 596,530 b+ 62,081 4 446,814 c-12,063 488,096 c- 46,353 5 446,814 c-12,063 488,097 c- 46,352 6 444,444 -14,433 583,480 + 49,031 7 429,060 -29,817 433,840 -100,609 8 486,208 b+27,331 596,531 b+ 62,082 9 486,208 b+27,331 596,531 b+ 62,082 10 390,599 -68,278 368,329 -166,120 _________ _________ 4,588,768 5,344,494
The shortest answer in regard to defendants' contention about alleged population growth in Districts 4 and 6 is that it is ex post facto argument designed as an attempt to justify successive Missouri Legislatures' adamant and continued effort to malapportion in favor of rural geographical areas. There is no evidence whatsoever on which this Court could base a factual finding that the 1967 74th General Assembly adopted any policy of population projection in devising Districts 4 and 6, or any other district, in enacting the 1967 Act. And to adopt such a projection policy for only selected districts, rather than on a state-wide basis, is so irrational that it could not be legally acceptable.
Calkins v. Hare, supra, 228 F.Supp. at 828, we believe correctly observed that "Any districting, however disparate with respect to population, may conceivably be justified by saying the Legislature expected the area to either shrink or to grow." That case correctly stated that "If such a suggestion, without more, suffices to justify gross population disparities, then an easy answer to a constitutional
Further reflection since our decision in Preisler II on the question of continued use of the 1960 population figures that obviously must favor rural populations over urban in the year 1967 has convinced us that it was the obvious intent of Art. I, § 2 of the Constitution of the United States to tie congressional reapportionment and congressional districting to decennial census required by that same Section (See Appendix D for a full statement of the reasons for our considered view of this question). Article 3, Section 45 of the 1945 Missouri Constitution requires, consistent with the policy established by Art. I, § 2 of the Constitution of the United States, that Missouri draw new congressional districts "of contiguous territory as compact and as nearly equal in population as may be" after each national census. We therefore hold that any Missouri Legislature that attempts to reapportion this State before the 1970 census figures are available may disregard estimates and projections of the 1960 census if it determines so to do.
What we have said in connection with defendants' population growth argument in regard to Districts 4 and 6 is equally applicable to their argument that "the eighth district * * * includes Fort Leonard Wood which has a great proportion of transitory population, the University of Missouri with a great number of non-voting students * * * and Jefferson City which has many state employees who retain a voting residence in other areas of the state [all of which was allegedly] considered by the legislature."
The final and complete answer to all of defendants' attempted ex post facto rationalizations is that they have been expressly rejected by the Supreme Court of the United States. Davis v. Mann, 377 U.S. 678 at 691, 84 S.Ct. 1441, 1448, 12 L.Ed.2d 609 held:
The Attorney General of Missouri, in Opinion No. 251, has ruled that "Military personnel at Fort Leonard Wood who are qualified may register and vote in the county where reservation is located, if they have established residence in the state of Missouri, and non-payment of taxes may not disqualify them" (V.A. M.S., Supp. § 111.060, note 10). See also Op.Atty.Gen. No. 93, (V.A.M.S., § 111.060, note 10). Davis v. Mann affirmed the Virginia three-judge court that "put the burden of explanation on defendants, and found that they had failed to meet it" (377 U.S. at 683, 84 S.Ct. at 1444). Actual introduction in evidence of "various exhibits showing the numbers of military and military-related personnel in the City of Norfolk and in Arlington and Fairfax Counties" (377 U.S. at 682, 84 S.Ct. at 1443) was
All that defendants introduced in this case was the hearsay testimony of party leaders whose duty it was to do the best they could with an apportionment act that had, in fact, to borrow Judge William E. Doyle's language, been "designed and dictated * * * by political expediency" (from Lisco v. Love, D.C.Colo. 1963, 219 F.Supp. 922 at 942). Any finding that the 1967 Missouri Legislature in fact took the actual military, student, or state employee population into account in drawing District 8 or any other district in its 1967 Act would obviously be set aside as clearly erroneous. How could the 1967 Missouri Legislature have considered that particular segment of Missouri population when it did not even actually know the total population of Missouri? Further discussion is redundant.
II. Defendants' Contention That The Art. I, § 2 Standard of "As Nearly Equal As Is Practicable" Is Not A Precise Constitutional Standard
Historically speaking, the legislative branches of both the State and federal governments participated in a long period of bold and blatant disregard of Art. I, § 2 of the Constitution unrestrained by traditional judicial review of alleged constitutional infringement. That fact has tended to obscure the further fact that the constitutional standard of Art. I, § 2 expressed by the words "as nearly as is practicable," is a standard well established in law and was not one but recently introduced into the political language of our country by the Supreme Court of the United States in Wesberry v. Sanders.
Many persons, including infrequently a judge, erroneously attempt to convince themselves that when Wesberry v. Sanders used the truly ancient language of "as nearly as is practicable," the Supreme Court was somehow talking about something attainable as a matter of practical politics. The uninformed ignore not only the difference between the meaning of the words "practicable" and "practical", but much of the history and hard experience of this Nation. A recent, but promptly reversed, rare judicial example of such thinking was the majority opinion's statement in Lucas v. Rhodes, N. D. Ohio, decided May 12, 1967 but not yet reported, that "an element of `practicality' is implicit in the concept of `practicability' as that term is to be applied in a districting case." The Supreme Court reversed December 5, 1967 in a single sentence per curiam opinion. See 389 U.S. 212, 88 S.Ct. 416, 19 L.Ed.2d 423.
In Preisler II we did not deem it necessary to do more than to call attention to the language of Mr. Justice Black's dissent in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, where he used the words "so far as feasible" synonymously with "as nearly as is practicable" language of Wesberry v. Sanders. On page 973 of 257 F.Supp. of Preisler II, we stated:
Defendants' insistence that "as near as practicable" has something to do with what a group of political leaders choose to call a "reasonable and practical political compromise," together with certain language in some of the apportionment cases, suggests that we add to what was said in Preisler II.
Should a court accept the sophistic argument that the words "as nearly as is practicable" are not words of precise and historic meaning, it is but a short step to saying that those words have little meaning at all. Should that step be taken it is apparent that a rationale could be developed under which the decision of a particular apportionment case would turn, not on the question of whether a
The rationale of the two judge majority in the recent Ohio three-judge case is an example of what we believe to be an invitation to follow a primrose path through the thicket that courts, both State and federal, are now required to enter. That opinion, before the Supreme Court's most recent reversal, attempted to say that the Supreme Court's use of the "as nearly as is practicable" standard in Wesberry v. Sanders "established no precise definition of `practicability'" (xiii). Having made that erroneous assumption, unsupported by any Supreme Court decision, the two Ohio federal judges felt free to add that "all the law and the courts expect [is] the best obtainable result; the most practical result, will * * have to suffice" (xvii). Without any support in any decision of the Supreme Court, those two judges attempted to avoid application of the constitutional standard of "as nearly as is practicable" to the facts established in the Ohio case by erroneously assuming that "an element of `practicality' is implicit in the concept of `practicability' as that term is to be applied in a districting case" (xxiii). We believe that the Supreme Court's reversal of the Ohio case must be read as an implicit rejection of the rationale upon which the lower court based its approval of the Ohio congressional districting plan for reasons we shall state.
The introduction and long time use of the words "as nearly as practicable" as a term of art and as a part of the language of congressional apportionment is much older than the Apportionment Act of February 2, 1872 (17 Stat. 28 (1872)); the first act of Congress to use those words. Congress, of course, continued to use those exact words in each of its successive apportionment acts up to and including the Act of August 8, 1911, 37 Stat. 14, which appeared as Section 3 of Title 2, United States Code, still printed in U.S.C.A. (For the long history of congressional use of "as nearly as practicable," see Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131 (1923)).
And when President Truman tried to get the Eighty-second Congress to do something about congressional failure to deal with congressional malapportionment he used the same well-understood language when he recommended that Congress pass a bill that would have provided that districts "be composed of contiguous and compact territory and contain as nearly as practicable, the same number of individuals." See Message from the President of the United States H.R. Dec. 36 82d Cong. 1st Sess. (Jan. 9, 1951).
A review of much earlier Congressional apportionment history reveals the circumstances under which the words "as nearly as practicable" acquired their precise and established meaning. Interestingly enough, reference to that early history is to be found in decisions written by the Supreme Court of Missouri.
Missouri has traditionally been one of many states that made valiant attempts not to leave apportionment problems, to use Congressman Celler's words, "to the whims and uncontrolled discretion of the legislature" (see footnote 10 above). Section 6 of Article 4 of the 1875 Missouri Constitution required, for example, that the state senatorial districts be elected from "districts of compact and contiguous territory, and of population as nearly equal as may be." State ex rel. Barrett v. Hitchcock, supra, illustrates the reason why a Missouri court fifty years ago had no difficulty with the "as nearly equal as may be" language in the 1875 Missouri Constitution. That court was familiar with where and under what circumstances those words had been incorporated into the language of apportionment. The Missouri Supreme Court in 1912
It then noted that the question had been referred to a committee on which Daniel Webster served as chairman. The Indiana court, writing in 1892, quite correctly stated what Congress finally did in 1872 when it wrote the "as nearly as practicable" standard into the federal code. It stated:
We make a more detailed examination of the 1832 report made by Daniel Webster because the words "as nearly as practicable" acquired their well established meaning from what Daniel Webster said in his specific discussion of Art. I, § 2 of the Constitution which he spent a lifetime defending.
In the year 1832 Daniel Webster said the following in regard to the language of Art. I, § 2:
The obvious problem, recognized both by Webster and by every court that has since looked at Art. I, § 2 was not difficult to solve if one wished to apply principle, as distinguished from whim. Webster recognized, as did Wesberry v. Sanders, that:
Webster made clear that the Congress was bound by Art. I, § 2 of the Constitution because "Congress is not absolved from all rule, merely because the rule of perfect justice cannot be applied." In typical language Webster added:
As to where the burden lay in regard to sustaining an apportionment, Webster anticipated Swann v. Adams III by one hundred and thirty-five years. Webster said in 1832 that:
Courts that have been forced to answer present day arguments which have been based upon the erroneous idea that the "as nearly as is practicable" language of Wesberry v. Sanders is somehow vague or imprecise have had no more difficulty with that argument than the Indiana court had over fifty years ago. In Jones v. Falcey, 48 N.J. 25, 222 A.2d 101 (1966), for example, the Attorney General of New Jersey argued that "as nearly as is practicable" could be taken to mean that which is represented to be the best political compromise within the ambit of what is called practical legislative politics. Chief Justice Weintraub, of the Supreme Court of New Jersey, correctly stated that "The Constitution, as construed in Wesberry and Reynolds, does not contemplate that there is a range of deviation within which a State may maneuver, with or without reason." In regard to the "as nearly as practicable" language of Wesberry v. Sanders, it was stated:
In Swann v. Adams III the defendants contended, as do defendants in this case,
It is apparent that even in state apportionment cases, where admittedly there is more permissible play at the joints than in congressional districting, the rule is one of "practicability" rather than political "practicality." The principle applicable to all apportionment cases, regardless of whether they involve State or congressional districting, is whether it was practicable or, to use the synonymous word "feasible" for the apportioning body to "have come much closer to providing equal districts of equal population than it did" and whether "specific amendments * * * which, if * * * accepted, would have measurably reduced the population differences between many of the districts" (385 U.S. at 445, 87 S.Ct. at 573).
Such facts, if established in a particular case, the Supreme Court has held "demonstrate that a closer approximation to equally populated districts was a feasible undertaking" (385 U.S. at 445-446, 87 S.Ct. at 573). This means, of course, that the apportionment plan must be held unconstitutional unless a particular State carries the burden of showing that the obvious variances were either unavoidable or justified on some legally acceptable ground.
Until prohibited in 1932 by Wood v. Broom, supra, from exercising jurisdiction to enforce the then sixty year old Congressional requirement that congressional districts be compact, contiguous and contain "as nearly as practicable" an equal number of inhabitants, the federal courts had no difficulty whatsoever in either understanding that language or in applying the standard it established to the facts presented by particular cases.
In Broom v. Wood, S.D.Miss.1932, 1 F.Supp. 134, for example, a lower three-judge court held that the Mississippi legislature had not complied with the congressional command that had been on the books since 1872. That court held that the congressional "act is mandatory and must be followed by the states in fixing congressional districts" (1 F.Supp. at 135).
It held that Mississippi variances there involved were "clearly violative of the * * * act of Congress and illegal and void." (Ibid).
In Hume v. Mahan, E.D.Ken.1932, 1 F.Supp. 142, a federal court in Kentucky ruled the 1932 Kentucky congressional apportionment to be in violation of the "as nearly as practicable" standard established by the Congress. That court concluded that the Kentucky Congressional districting act "was framed in deliberate disregard of the federal statute" (1 F.Supp. at 149). After setting out the factual situation concerning the population of the counties of Kentucky, that court held that: "In view of this situation, the Legislature was confronted with no difficulty whatever in dividing these one hundred and nineteen counties into eight congressional districts of substantially equal population, and this without the necessity of dividing any county; and the topography of the state presents no obstacle to carving these districts out of contiguous and compact territory" (id. at p. 150)
That court made clear that "no real difficulty confronted the Legislature in substantially complying with the federal law." That court added that "Instead of doing so, however, the Legislature, without any reason whatever so far as I can discover other than the exigencies of practical politics, in redistricting the state worked out a gross inequality in population between the respective districts." After further analysis of the actual distribution of population of Kentucky, the court held, again anticipating current apportionment rules of decision by thirty-five years, that:
This case was, of course, reversed on the authority of Wood v. Brown, supra. See Mahan, Secretary v. Hume, 287 U.S. 575, 53 S.Ct. 223, 77 L.Ed. 505. But such reversal was based solely on the ground that the Congress, after having failed to enact any reapportionment act following the 1920 census, had also intentionally failed to include the 1872 standard of "as nearly as practicable" in its bill to be applicable to the reapportionment under the 1930 census. The two federal cases just cited were, of course, decided on the theory that the "as nearly as practicable" standard was still in effect as a congressional command under the Act of August 8, 1911. What those courts said in regard to how that standard should be applied is as good law today as it was when written over thirty years ago. The fact that Wesberry v. Sanders made the "as nearly as practicable" a constitutional standard does not afect the validity of the rationale applied by those cases.
The standard of "as nearly as practicable" means today what it meant to Daniel Webster and has meant throughout our history. Within the context of congressional districting, if plans before the legislature or in evidence before a court establish that more equal districting was obtainable than that which was adopted, then obviously the plan enacted, on the facts, does not meet the now constitutional command that the districting be equal "as nearly as is practicable."
It should be apparent that efforts to substitute considerations of "practical politics" and ideas of "best legislative compromise" for the historic meaning of the now constitutional command of "as nearly as practicable" were foreclosed by the Great Compromise, as embodied in Article I, § 2, and as interpreted by Wesberry v. Sanders. It should also be apparent to all who want to understand that the legislative bodies of this Nation no longer have a license to violate the plain and explicit commands of the Constitution of the United States, that those who make the laws are required to follow the Constitution in the same manner as all other persons, and that all failures to do so are subject to the same traditional judicial remedies that our continuing experiment has evolved from the time of John Marshall.
III. Defendants' "Comparative Table" Argument
Defendants set forth on pages 19 and 20 of their brief a table on which the various States have been ranked according to what defendants have labeled "Total % of Deviation" column.
In Davis v. Mann, supra, the defendants introduced in evidence (as distinguished from simply putting unsupported and inaccurate data in their brief) the "results of a comparative study of state legislative apportionments which show Virginia ranking eighth among the States in population-based legislative representativeness" (377 U.S. at 682, 84 S.Ct. at 1443). The Supreme Court rejected defendants' attempted justification based on that sort of comparative data. Swann v. Adams III is even more explicit in its holding that "the fact that a * * * variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State" (385 U.S. at 445, 87 S.Ct. at 572). See also Reynolds v. Sims, 377 U.S. 533 at 578, 84 S.Ct. 1362 at 1390, holding: "What is marginally permissible in one State may be unsatisfactory in another, depending upon the particular circumstances of the case."
Those three Supreme Court cases dispose of defendants' comparative table argument. Tabulations of the sort defendants have presented to this Court in all three of the Preisler cases reflect an exceedingly short chapter of the long history of malapportionment in the United States. A more complete history of congressional reapportionment establishes that whatever present rank may be assigned a particular State, such ranking has not been attained without recent judicial encouragement, and, in some instances, actual court order.
A more meaningful history is obtained when the data set forth in Appendix I attached to the opinion of Mr. Justice Frankfurter in Colegrove v. Green, 328
The following table performs that function:
Congressional Malapportionment Showing Pre-Wesberry v. Sanders (1964) Maximum Variances Between Largest and Smallest Districts of States Ranked on Defendants' 1967 Chart Additional Data Compiled from Appendix I attached to Mr. Justice Frankfurter's dissenting opinion in Colegrove v. Green, 328 U.S. 549, at 557-559, 66 S.Ct. 1198. 90 L.Ed. 1432, and Appendix to Mr. Justice Harlan's dissenting opinion in Wesberry v. Sanders, 376 U.S. 1, at 49-50, 84 S.Ct. 526, 11 L.Ed.2d 481.
State 1897 1928 1946 1960 1967Florida 202,792 315,292 439,895 660,345 415,704 188,630 187,474 186,831 237,235 407,677 _______ _______ _______ _______ _______ 14,162 127,818 253,064 423,110 8,027 Arkansas 220,261 330,292 423,152 575,385 453,567 147,806 180,348 177,476 332,844 443,892 _______ _______ _______ _______ _______ 72,455 149,944 245,676 242,541 9,675 Maryland 208,165 311,413 534,568 711,045 393,210 153,912 194,568 195,427 243,570 383,237 _______ _______ _______ _______ _______ 54,253 116,845 339,141 467,475 9,973 Utah 1 Rep. 229,907 293,922 572,654 451,864 (At 219,489 256,388 317,973 438,763 Large) _______ _______ _______ _______ 10,418 37,534 254,681 13,101 Michigan 191,841 533,748 419,007 802,994 417,026 148,626 198,679 200,265 177,431 403,263 _______ _______ _______ _______ _______ 43,215 335,069 218,742 625,563 13,763 Oklahoma Not yet 325,680 416,863 552,863 396,161 Admitted 189,472 189,547 227,692 380,734 _______ _______ _______ _______ 136,208 227,316 325,171 15,427 Tennessee 199,972 296,396 388,938 627,019 404,968 153,773 145,403 225,918 223,387 388,240 _______ _______ _______ _______ _______ 46,199 150,993 163,020 403,632 16,728 North 204,686 408,139 358,573 491,461 423,750 Carolina 160,288 202,760 239,040 277,861 406,474 _______ _______ _______ _______ _______ 44,398 205,379 119,533 213,600 17,276 Montana 1 Rep. 333,476 323,597 400,573 347,701 (At 215,413 235,859 274,194 327,019 Large) _______ _______ _______ _______ 118,063 87,738 126,379 20,682
The cumulated data reflects the historic pattern of congressional malapportionment before 1964 (when Wesberry v. Sanders was decided) and the dramatic impact of that decision. William J. D. Boyd, editor of the National Civic Review, writing in the April, 1966 issue of that publication, accurately summarized the post-Wesberry v. Sanders congressional apportionment history when he stated that: "Comparatively little fanfare has accompanied the wholesale
The most recent statement of post-Wesberry v. Sanders progress was that made by Senator Howard Baker of Tennessee to the United States Senate on November 8, 1967. (Cong. Rec. 90th Cong., 1st Sess., S 16111). He there stated that "since the Wesberry decision, district lines have been reshaped in 33 States." He added that "many States redistricted voluntarily; some only with the encouragement of a court's order; and, in a few States where the legislatures could not agree, the courts themselves redrew the lines."
The bare bones statement of why and how the States on the above table came to redistrict after Wesberry v. Sanders was decided, is as follows:
Action Taken Subsequent to State Wesberry v. Sanders Florida Court ordered plan in Gong v. Kirk, supra, after repeated legislative failures Arkansas Legislature adopted present plan following Park v. Faubus, E.D.Ark., 1965, 238 F.Supp. 62. Maryland Court ordered plan in Maryland Citizens Comm. for Fair Cong. Red. v. Tawes, supra, after repeated legislative failures Utah Voluntary legislative action subsequent to Wesberry v. Sanders; no additional court action was necessary. Michigan Legislature adopted present plan following Calkins v. Hare, E.D.Mich., 1964, 228 F.Supp. 824. Oklahoma Voluntary legislative action subsequent to Wesberry v. Sanders; no additional court action was necessary. Tennessee Court ordered plan in Baker v. Ellington, supra, after repeated legislative failures. North Carolina Legislature adopted present plan after two earlier failures; held to be not unconstitutional in Drum v. Seawell, supra. Montana Legislature adopted present plan following Roberts v. Babcock, D.Mont., 1965, 246 F.Supp. 396
Consistent with Davis v. Mann's determination that the fact that a study showed "Virginia as ranking eighth among the States" was immaterial, we reject defendants' Preisler III argument that Missouri "ranks eighth among the States" as being totally irrelevant to the question of whether the 1967 Missouri Act has in fact and in law divided the State of Missouri into congressional districts as nearly equal in population as is practicable in accordance with the command
Defendants also argue that their table shows that, "by comparison, the recent efforts of the Missouri Legislature in congressional redistricting are truly commendable." Apart from the fact that comparison is not a proper criterion under the Supreme Court cases, the hard facts concerning Missouri's reapportionment efforts cannot fairly be said to be "truly commendable." The history of congressional reapportionment in Missouri, like that of all her Sister states, shows that progress has been made. But it is one thing to say that progress has been made; it is quite another thing to say that progress can be described as commendable, unless, of course, that progress has been sufficient to comply with the Constitution.
The facts in regard to Missouri's progress establish that in 1928, shortly before Missouri's most recent congressional election at large, the variation between its highest district (pop. 521,587) and its lowest (pop. 138,807) was 382,708. The converse of the fear expressed by Missouri Congressman Bowlin in 1844 that "One vote in St. Louis [would be made] equal to four or five in the country" had in fact come to pass; the ratio, however, was nearly the same.
From 1928 to 1932, when representatives were being elected from those malapportioned districts, a majority of Missouri's population for the first time in her history, began to live in urban areas. But throughout all that time only three of Missouri's representatives were elected from St. Louis and one from Kansas City; with the remaining 12 of the then 16 member delegation from outstate Missouri.
Forced to reapportion by a loss in representation under the 1960 census, Missouri cut the variation between its highest and lowest district to 128,355 by its 1961 Act. That Act was held constitutionally void in Preisler I. Following that decision, Missouri, by its 1965 Act, cut the variance between the highest and the lowest districts to 84,655. The 1965 Act was held constitutionally void in Preisler II. The 1967 Act, which we today hold to be unconstitutional, only cut the variance between the highest and lowest district to 25,792. We fail to understand how comparison with the infinitely better job an increasingly large number of other States have done to protect the constitutional rights of their citizens can be said to support an argument that Missouri's progress should be called "truly commendable." The progress of no State, including Missouri, can fairly be said to be commendable until and unless such a State fully and fairly complies with the command of both State and federal constitutional law.
Missouri's progress cannot fairly be described as commendable when viewed in light of the fact that the legislatures of both Utah and adjoining Oklahoma voluntarily complied with Wesberry v. Sanders without the necessity of any further court action. Those States enacted what are apparently substantially better plans than those which Missouri has been able to enact after three abortive attempts. The legislatures of Michigan, Montana, and adjoining Arkansas needed to be told only once by a federal three-judge court for the legislatures of those three States to do an apparently better job than Missouri has been able to do in three separate attempts.
Indeed, the unvarnished truth is that Missouri is one of only four of the fifty States in the Union that has had to be told more than twice that the Constitution of the United States must and will be enforced as the Supreme Law of the Land in order that the people of the United States who reside in Missouri have government by law rather than by men.
It is quite apparent that a broader review of Missouri's progress in congressional apportionment presents quite a different picture of the quality of the efforts by recent Missouri legislatures. We cannot find that those efforts are commendable because we cannot find that Missouri has yet complied with the command of Art. I, § 2 of the Constitution.
IV. Defendants' Attempted Reliance On Recent Mississippi Case Not Tenable
As a facet of their untenable comparative table argument, defendants direct particular attention to the decision of the Mississippi three-judge court in Connor v. Johnson, S.D.Miss. No.3830, 265 F.Supp. 492, decided September 30, 1966, affirmed by the Supreme Court per curiam, 386 U.S. 483, 87 S.Ct. 1174, 18 L.Ed. 2d 224 (1967).
Defendants insist that the Supreme Court's affirmance of that case in fact approved the variances contained in the 1966 Mississippi congressional plan, and therefore contend that "the constitutionality of the 1967 Missouri Redistricting Act is amply demonstrated by this Mississippi decision."
Considerations implicit in Rule 15, subd. 1(c) of the Supreme Court of the United States and the principle of appellate review repeatedly announced and specifically applied by the Supreme Court in apportionment cases, prohibits this Court from holding that the Supreme Court in any way intended, by affirmance of Connor v. Johnson, to approve the variances contained in the 1966 Mississippi plan or to overrule what it had so recently stated in Swann v. Adams III and Kilgarlin v. Hill.
Rule 15, subd. 1(c) of the Rules of the Supreme Court of the United States requires that the "questions presented" by an appellant be separately set forth in appellant's Jurisdictional Statement and that while "the statement of a question presented will be deemed to include every subsidiary question fairly comprised therein," appellants are put on notice that "only the questions set forth in the jurisdictional statement or fairly comprised therein will be considered" and that "the jurisdictional statement may not raise additional questions or change the substance of the questions already presented."
Wesberry v. Sanders, supra, in order to foreclose any possible future claim of confusion, expressly stated that the decision in that case was limited to the question presented under Art. I, § 2. The Supreme Court stated: "We do not reach the arguments that the Georgia statute violates the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment" (376 U.S. at 8, footnote 10, 84 S.Ct. at 530).
The fact that a Fourteenth Amendment apportionment challenge can not be said to be included ipso facto in a case which presents only an Art. I, § 2 inequality of population question was underlined the very day Wesberry v. Sanders was decided. In Wright v. Rockefeller, 376 U.S. 52 at 58, 84 S.Ct. 603, 11 L.Ed.2d 512 at 606 the Supreme Court
Wright v. Rockefeller made it clear that the Supreme Court's affirmance of a lower three-judge court's rejection of a Fourteenth Amendment challenge may not, under any circumstances, be considered by a future lower court as an approval of population variances that may appear in the challenged congressional apportionment. The Supreme Court stated that its holding on a Fourteenth Amendment question "has no bearing on [the] wholly separate question" that would be presented by an Art. I, § 2 challenge because "no such challenge has been urged here, the issues have not been formulated to bring it into focus, and the evidence has not been offered or appraised to decide it."
In order that there could be no doubt about what questions were in fact presented to both the Mississippi three-judge court and to the Supreme Court of the United States we requested copies of and we have carefully reviewed the Jurisdictional Statement filed by Appellants and Appellees' Motion to Dismiss or Affirm filed in the Supreme Court.
The questions presented to the District Court for the Southern District of Mississippi were detailed in its opinion. The six contentions of the plaintiffs as set forth on page 32, contain no mention whatever of Art. I, § 2 nor do they make any reference to any alleged abridgment of the denial of the one-man, one-vote principle. Every contention there stated involved a Fourteenth Amendment challenge of racial gerrymander or discrimination.
The "Question Presented" to the United States Supreme Court as set forth on page 2 of Appellant's Jurisdictional Statement was whether the 1966 Mississippi congressional districting plan violated "the Fourteenth and Fifteenth Amendments to the U.S. Constitution."
Appellees appropriately responded to appellants' statement of the question presented on page 3 of their supporting brief by stating that: "Art. I, Sec. 2 of the U.S. Constitution * * * was not invoked in the lower court and has not been sought to be invoked here."
Our examination of the pleadings and briefs filed in the Supreme Court in the appeal of Connor v. Johnson establishes that, as in Wright v. Rockefeller, no Art. I, § 2 inequality of population question was presented to the Supreme Court in connection with the recent Mississippi case; that the issues concerning that wholly separate question were not formulated to bring such a challenge in focus; and that no evidence was offered or appraised by the lower court to decide
The only collateral relevancy the Mississippi litigation has to this case is the fact demonstrated by that litigation that a State legislature can act with much greater promptitude in apportionment matters than it has ever acted in the past once it makes up its mind that prompt action is necessary.
Our review of that litigation shows that it was on October 19, 1965 that the Mississippi Freedom Democratic Party filed in federal court its first challenge to the obviously malapportioned Mississippi congressional districting. That initial challenge was an Art. I, § 2 challenge. The 1966 Mississippi Legislature, faced with the almost certain prospect of an election at large, in spite of apportionment difficulties in its 1932 session described as a "long and acrimonious battle"), in 1952 session (described as reflecting "reluctance and inability to agree"), and in its 1962 session (described as having "kept the Legislature in an uproar for a major portion of its term"), was in fact able to pass a new congressional act in truly record speed. Indeed the Mississippi legislature passed a new redistricting act before a three-judge federal court could be assembled to hear the Art. I, § 2 challenge.
It was in the face of that unusually prompt legislative action that plaintiffs amended their complaint in order to challenge the constitutionality of the newly enacted 1966 Mississippi Act as a violation of rights guaranteed by the Fourteenth and Fifteenth Amendments. It was under those circumstances that the Art. I, § 2 population inequality challenge was, in effect, eliminated from consideration in the Mississippi three-judge court case.
It is significant that the same three-judge Mississippi court that decided the Mississippi congressional case has subsequently made clear that it fully understands that the Supreme Court announced additional controlling principles applicable to all future apportionment litigation when it decided Swann v. Adams III and Kilgarlin v. Hill. See Connor v. Johnson, S.D.Miss.1967, 265 F.Supp. 492.
The impact of those Supreme Court cases on future apportionment litigation in Mississippi is made clear by the Mississippi three-judge court when it held last March 3, 1967 that:
The consequence of a State legislature's refusal to make and keep accurate records of its legislative deliberations was made apparent by the Mississippi court in its most recent apportionment case. The court stated that it had entered a formal order giving the State an opportunity to offer [the] explanations now required by Swann v. Adams. Consistent with what every court has considered the impact of Swann v. Adams III to be, the Mississippi three-judge court held that it had no alternative except to "find Senate Bill No. 1504 to be unconstitutional on its face, null and void" because "the Mississippi Legislature keeps no stenographic report of its debates and requires no formal committee reports other than recommendations as to passage or rejection, it was impossible for the Attorney General to file [any] explanation" (265 F.Supp. 492 at 494).
Future Missouri Legislatures and the Attorney General of Missouri would be well advised to heed the teaching of this latest declaration of the Mississippi three-judge court should some new act of a future Missouri General Assembly be made the basis of some new motion to
Discussion of Constitutional Significance of Inclusion of Constitutionally Required Decennial Census in Art. I, § 2 As It Relates to Use of Data Other Than Federal Census in Drawing Congressional Districts
The purpose of this Appendix is to place in historical perspective the constitutional significance of the inclusion of the decennial census in Art. I, § 2 of the Constitution as an integral part of the Great Compromise. A review of the proceedings of the Constitutional Convention of 1787 and of the Federalist papers reveals that one of the principle factors that enabled the Founding Fathers to reach agreement was the proposal and the acceptance of the idea that there would be included in the Constitution itself, as to be sharply distinguished from leaving the matter to the discretion of the Congress, a device under which the fundamental principle of representation based on population would be guaranteed by a constitutional requirement that the numbers of representatives would be periodically adjusted to meet the clearly anticipated changes in population that were bound to occur in the future.
Acceptance of the idea of a constitutionally required census clearly carried with it the rejection of qualifications of wealth or any other factor except population as established by Art. I, § 2 in its original form.
Study of the debates and the other historical data suggests that except for the establishment of the constitutional protection of the census which contemplated that the constitutional principle of equal representation according to numbers would be maintained by periodic reapportionments, it is quite unlikely that the Great Compromise would have been adopted. The future of equal representation was not left to take care of itself; it was clearly intended by the Founders that the Constitution itself would require that the principle of equal representation would be applied to all future changes in population as they would be periodically ascertained by the constitutionally required decennial census.
In Wesberry v. Sanders, supra, 376 U.S. at 8, 84 S.Ct. 526, at 530, 11 L.Ed. 2d 481, Mr. Justice Black took as his point of beginning the proposition that "The history of the Constitution, particularly that part of it relating to the adoption
And on page 13 it was most significantly added that:
This appendix will detail the constitutional history compressed in that short summary as it relates to the decennial census. Most of the debate in the 1787 Convention on Art. I, § 2 was concentrated in the month of July, 1787. Our page citations are to Volume III of Elliot's Debates (Jonathan Elliot ed. 1937).
The basic question of whether the Constitution or the Congress was going to control the apportionment of representatives was brought for the first time to the Convention on July 9, 1787 when Gouverneur Morris presented a committee report which fixed the House at 56 members and stated that "as the present situation of the states may probably alter, as well in point of wealth as in the number of their inhabitants, that the legislature be authorized from time to time to augment the number of representatives" (288, emphasis ours). Mr. Gorham, with candor typical of the Convention, stated that unless the Congress had power to regulate its own apportionment "the Western States, who may have a different interest, might * * * by degrees outvote the Atlantic" (288). He advocated that power to apportion be left with the Congress so that "the Atlantic States, having the government in their own hands, may take care of their own interest, by dealing out the right of representation in safe proportions to the Western States" (288).
Mr. Randolph expressed his dislike of the report. "He was apprehensive that, as the number was not to be changed till the national legislature should please, a pretext would never be wanting to postpone alterations, and keep the power in the hands of those possessed of it" (289).
Randolph introduced the idea of a census on July 10, 1787. The debates report that:
Randolph's idea of a constitutionally required census did not meet with immediate acceptance. Arguments and disagreement centered on the total size of the contemplated House; some wanted 65 members; a motion to double the number failed; and still another member wanted to cut 65 to 55. After a considerable amount of unproductive discussion, the debates, on page 293, show that:
Gouverneur Morris, having the last say for that day, complained that the Randolph proposal would be "fettering the legislature too much." (293). He pointed to what to him was "the danger of throwing such a preponderance into the western scale * * * that, in time, the western people would out number the Atlantic States." Gouverneur Morris freely conceded that it was entirely possible that "if the legislature are left at liberty, they will never adjust the representation" (294).
On Wednesday, July 11, 1787, debate was resumed on Mr. Randolph's motion
Mason answered the Gouverneur Morris' "danger to the Atlantic interests from new Western States" argument with a question: "Ought we to sacrifice what we know to be right in itself, lest it should prove favorable to states which are not yet in existence?" (295).
The debates show that Williamson joined Mason by stating that he was "for making it a duty of the legislature to do what was right and not leaving it at liberty to do or not to do it" (295). Randolph's response to Williamson's statement sounds almost like a quotation from a current Supreme Court apportionment case:
Randolph pointed out the reason why the census must be a national and not a state census. He said:
Gouverneur Morris, apparently sensing a change of mood in the convention again protested that placing the idea of a census and reapportionment in the Constitution "fettered the legislature too much" (296). Sherman, who had theretofore supported Gouverneur Morris, changed his view of the matter. The Debates show that Sherman explained that while "he was at first for leaving the matter
The convention's shift from Gouverneur Morris' view after Sherman left him was rapid. The supporters of "unshackled" and "unfettered" legislators never survived the following question:
Gorham added that he "was convinced, by the arguments of others and his own reflections, that the Convention ought to fix some standard or other" (297).
Gouverneur Morris fought to the end against any constitutional standard. He continued to reflect his fear of the men who would come from what he described as "the remote wilderness." "If the western people get the power into their hands," he cried, "they will ruin the Atlantic interests." He professed to be outraged at the apparent distrust being evidenced against the "fidelity" of legislators. He argued that if the legislators' "duty, their honor, and their oaths, will not bind them, let us not put into their hands our liberty, and all our other great interests; let us have no government at all." (298).
The debates show that James Madison immediately took the floor. The debates report that:
Madison added that:
Pinckney said, when the debate continued the next day, that he "foresaw that, if the revision of the census was left to the discretion of the legislature, it would never be carried into execution" and that he believed "the rule must be fixed, and the execution of it enforced by the Constitution" (302).
The debates show that on July 13, 1787:
Randolph's motion passed with no opposing votes; Delaware, however, was recorded as divided. That action clearly reflects the view of the Convention that, to use Madison's words, "all men having power ought to be distrusted to a certain degree," and its determination that the duty to reapportion periodically in accordance with a constitutionally required census was a situation to which that principle was applicable.
The Federalist Papers show that when it came time to convince the people that the Constitution should be adopted, the idea that the census would insure that representation based on equal population would be periodically adjusted was emphasized as a fundamental reason why the Constitution should be adopted.
The original number of 65 for the original Congress was defended in Federalist
Federalist No. 58 answered a charge that "the numbers of members [of the House of Representatives] will not be augmented from time to time, as the progress of population may demand." Madison conceded that if "well supported * * * this objection * * * would have great weight" (362). But, Madison stated:
Federalist No. 60 made perfectly clear than "an uncontrollable power over elections to the federal government could not, without hazard, be committed to the State legislatures" (373). With great insight and accurate foresight, No. 60 predicted that a particular states' representation in the national Congress would "generally be a faithful copy of the majorities [that prevail in the State legislatures]" (377). History has taught the people of the United States the hard lesson that a malapportioned State legislature will almost inevitably produce a malapportioned Congressional delegation.
The constitutional history of Art. I, § 2 would seem to make it apparent that the Founders included the decennial census in that section as a central instrument specifically designed to control and adjust the constitutionally required future apportionments of the House of Representatives. It would seem historically incongruous not to require the use of the constitutional decennial census in the establishment of congressional districts within the States. A rejection of the federal decennial census as the exclusive guideline for congressional districting would have grave and particular significance in future congressional reapportionment cases. We therefore deem it appropriate to articulate some of the considerations that we believe must necessarily be taken into account in cases in which the problem will be in more precise focus than it is under the questions presented in this case.
It is our view that the constitutional requirement that a decennial census must be taken embodies a concept that is an integral part of the Great Compromise itself; it was designed to rectify and to protect against the foreseen probability of the injustice of future unremedied malapportionments. The Constitution therefore required that the census be a federal census and that it be a regular decennial census. The Founders explicitly recognized that the States were not to be relied upon in a matter in which their respective interests were so obviously
The idea of apportionment of representatives among the States based on the federal census and the notion that the districting within the States for election of federal representatives may be based on some sort of state census would seem to be basically inconsistent with the primary reason for the Founder's insistence that the constitutionally required decennial census be a federal census. The self-interest of at least sectors of particular States to manipulate their own local census figures would obviously have a drastic impact on the composition of the House of Representatives.
We are, of course, familiar with the fact that Meeks v. Avery, supra, without the benefit of Supreme Court guidance, found that the Kansas legislature committed "no constitutional fault" when it used state census figures rather than federal. The recently reversed case of Lucas v. Rhodes, supra, indicated its agreement with that notion. Both cases cited Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), the Hawaii state opportionment case. We believe that the Supreme Court's very careful statement in that case that use of voter registration figures satisfies "the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis," was significantly limited to state apportionments and should not be indiscriminately read as the establishment of a principle applicable to congressional apportionment cases. We do not reach the precise question in Preisler III of whether any figures other than the federal decennial census may be used in support of a congressional districting plan, but we deem it appropriate to indicate our disagreement with the rationale of Meeks v. Avery and Lucas v. Rhodes.
Some have urged that legislatures and courts in the 1960's should wait until after the 1970 census before attempting compliance with the command of Art. I, § 2 as construed in Wesberry v. Sanders. The argument runs that the 1960 census figures are so hopelessly out of date today that discrimination would result if those figures are used in a current redistricting plan. It seems to us that this is an argument that must be said to be foreclosed by the Constitution itself.
The idea that a mid-census apportionment plan may be discriminatory because of growth since the last decennial enumeration disregards the fact that the Constitution anticipated that only one redistricting would follow each decennial census. The ten year period of political stability anticipated by the Founders would be destroyed if population data other than the decennial census should be looked to as the standard for ascertainment of population. For if the decennial census can be disregarded for the purpose of justifying variances that depart from the "as nearly equal as is practicable" standard of Art. I, § 2, the population data other than the decennial census would logically be available for an attack on a plan initially valid but which, because of population shifts, developed substantial variances before the next decennial census was taken.
Those who wish to wait until after the 1970 census are, in effect, questioning the constitutional relevancy of the 1960 decennial census. But suppose that in 1971 the General Assembly of Missouri passes a congressional redistricting bill that is then in fact and law "as nearly equal as practicable"; and further suppose that current population trends of growth in urban areas continue through the 1970's. Is the constitutional relevancy of the 1970 census to be subjected to challenge before every congressional election during that decade? Must the legislature redistrict in 1973, 1975, 1977 and 1979 in order to account
We feel that the constitutional significance of the census should and must be maintained in congressional redistricting cases. The Supreme Court as yet has not directly considered the problem; and we need not, and therefore do not, reach the precise question discussed.
COLLINSON, District Judge:
I deem it appropriate to add a word to my joinder in the majority opinion in light of the construction that my Brother Matthes suggests might be placed on the opinion of the Court.
No one can believe or contend that the Supreme Court has said that the "one-man one-vote" doctrine requires that Congressional districts be exactly equal in population; certainly the majority opinion does not so state. But neither has the Supreme Court said that there is a mathematical formula for inequality (within a certain percentage) which will satisfy the "nearly equal as practicable" rule.
It seems obvious that existing voting units, within which the votes are cast, counted, and tallied, are the building blocks from which congressional districts are constructed. It seems equally obvious that since these units vary considerably in population, exact mathematical equality cannot be attained without changing the size of the building blocks. None of the cases requires this. All that the cases require is that the State legislature adopt "a rational policy" as to the units to be used, and then the variations which will result from the use of existing political boundaries are justifiable.
The apparent, although undeclared, policy as to the existing political boundaries in the 1967 Act now before the Court was to use precincts (in the city and metropolitan counties) as the proper units for those metropolitan areas, and to use the county as the unit in the remainder of the State.
If the population variations which exist in the 1967 Act resulted from the preservation of existing political boundaries under that plan, I would have no quarrel with it.
But the variations in this Act do not result from any attempted preservation of boundaries. The largest variations result from failure to remove entire counties from their old district and place them in an adjoining district. For example, if Dent County were taken from the 8th District (+13,542) and placed in the 10th (-8,113), the 8th would then be only +3,097 and the 10th would be +2,332. A similar shift could be made of Hickory County from the 7th District to the 4th District. The three St. Louis districts are over 16,000 long, but the adjacent 9th is 3,750 short and the 6th next to it is 9,750 short.
I do not condemn the 1967 Act because there were more equal plans defeated in the Legislature; nor do I condemn it because it divides St. Louis County between a number of districts. I believe the plan is unconstitutional because on its face and under the undisputed evidence it is not an attempt to divide the State of Missouri in Congressional districts that are as nearly equal in population as is practicable. And this for the reason that it is obvious that entire counties can be moved to adjoining districts with a resulting substantial decrease in the variances of population in the present Act and because there is no evidence in this record that can be said to explain or justify why this was not done.
In short, the proponents of the 1967 Act have failed to carry the burden of proof imposed on them by law.
MATTHES, Circuit Judge (dissenting).
I respectfully dissent.
In my view the majority effectively but unwarrantedly sounds the death knell
The "as nearly as is practicable" standard of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), or "the substantial equality of population" rule enunciated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), do not require the mathematical exactness contemplated by the majority. The Supreme Court has fully realized the impossibility of drawing Congressional districts with "mathematical precision." Wesberry v. Sanders, supra, 376 U.S. at 18, 84 S.Ct. 526. Attainment of the "as nearly as is practicable" standard has been relegated to the legislature, not to the judgment of an idealist divorced from the problems and pressures which beset the legislator. More recently in Reynolds v. Sims, supra, a state reapportionment case involving a far greater population disparity between districts than is present here, the Supreme Court reiterated its view that "mathematical nicety is not a constitutional requisite":
Cf. Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964).
In reaching the conclusion that the 1967 Act does not pass constitutional muster the majority proceeds to discard the "de minimis" principle on the rationale that if the legislature can at any point reapportion the state on a more equal basis, without doing violence to any articulated legally acceptable state policy, that doctrine has no applicability.
Although neither Wesberry nor Reynolds expressly incorporates the "de minimis" doctrine by name, its applicability in appropriate situations is implicit in both decisions. Reynolds plainly holds that "minor variations" based on legitimate considerations are permissible. 377 U.S. at 579, 84 S.Ct. 1362.
In Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), on the other hand, Mr. Justice White stated for the majority:
To me the quoted statement lends itself to the interpretation that if the variations are of a "de minimis" nature the plan should be judicially approved.
Although the majority seems to disavow any reliance on the "de minimis" doctrine on the basis that only two Supreme Court [Baker v. Carr, 369 U.S. 186, 258, 82 S.Ct. 691, 7 L.Ed.2d 663 (1960) and Swann v. Adams, supra] and three lower court decisions have made specific reference to the pharse "de minimis", I believe its implicit recognition by the Supreme Court as well as other Three-Judge courts lies in their approval of redistricting acts which have contained a measurably greater degree of disparity between districts than does the Missouri Act. See Connor v. Johnson, infra.
The majority opinion in my view has been induced in large part by an erroneous concept of the extent to which the proponents of redistricting legislation must carry forward the burden of proof enunciated in Swann v. Adams, supra and Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967). In Swann v. Adams the Supreme Court voided a state reapportionment plan consisting of variations of 30% and 40% among Senate and House districts "for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts with respect to both the senate and house of
My brethren have interpreted these foregoing pronouncements of the Supreme Court in a very narrow light. Their position appears to be that a redistricting scheme containing minor variations in population between districts cannot satisfy the one man, one vote concept, absent the presentation of acceptable proof for these variations. This theme is clearly manifested in their statement that "* * * the Constitution does not leave room for intentional 85%, 95%, or even 98% compliance with its mandate; Art. I, § 2, commands equality of population in Congressional districts `as nearly as practicable' and that any enacted plan that fails to comply with that constitutional standard, unless otherwise justified by substantial evidence in accordance with applicable law, is constitutionally void." I would agree that population variances between districts of the magnitude of those present in Wesberry v. Sanders, supra, and Swann v. Adams, supra cannot stand absent a justifiable explanation of the reasons for such variations. I cannot, however, subscribe to the view that every unexplained, unjustified minor deviation from the ideal district renders the entire redistricting scheme constitutionally void. It seems utterly unrealistic to advocate that even a small variation of only 2% between the largest and smallest districts, absent justification, cannot survive constitutional attack. That, however, is precisely what the majority claims to be the law.
To consistently apply the majority rationale to Congressional redistricting schemes would require a legislature to consider population alone as the sole, determinative standard for Congressional redistricting. Under such an approach a greater exactness in equality of population would necessarily and properly be required. The Supreme Court, however, has not renounced all considerations other than population equality in Congressional redistricting. I do not intimate that the "equal population principle" has been discarded or weakened. It is the essential element, but the Supreme Court has also averted to other factors as justifiable variations from a pure population standard, such as the "integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts and the recognition of natural or historical boundary lines." Swann v. Adams, supra, 385 U.S. at 444, 87 S.Ct. 569 at 572. Reynolds v. Sims, supra, 377 U.S. at 578-579, 84 S.Ct. 1362; Cf. Wells v. Rockefeller, 273 F.Supp. 984 (S.D. N.Y.1967), aff'd, 389 U.S. 421, 88 S.Ct. 578, 19 L.Ed.2d 651 (December 19, 1967); Drum v. Seawell, 250 F.Supp. 922, 924-925 (M.D.N.C.1966).
Although various leaders of the Missouri Senate and House of Representatives testified unequivocally that population was the primary factor utilized in securing adoption of the Act, they did attest to the fact that the legislature did take into account other permissive considerations, such as those policy considerations specified in Reynolds and Swann, in drafting the 1967 Act. This is not to suggest that the Missouri Legislature has justifiably articulated its reasons for the variances that do exist, but merely points out, I believe, some of the intangible considerations and pressures which confronted the Missouri General Assembly as well as other state legislatures, and discloses the futility of a legislative
An analytical comparison of the various legislative redistricting plans that have been subjected to judicial scrutiny will aptly disclose that the variations in population under the 1967 Act are truly of a "de minimis" nature. In no case has either the Supreme Court or any other Three-Judge court held constitutionally void variations as minimal as those present in the Missouri Act. See Appendix I, infra. The following Table, based upon the population of Missouri as disclosed by the 1960 census, accurately portrays the result achieved by the Missouri Legislature in the 1967 Act.
Per Centage of
District No. Population Variation From IdealOne 439,746 + 1.8 Two 436,448 + 1.03 Three 436,099 + .95 Four 419,721 - 2.84 Five 431,178 - .19 Six 422,238 - 2.26 Seven 436,769 + 1.11 Eight 445,523 + 3.13 Nine 428,223 - .87 Ten 423,868 - 1.88 _______ Ideal population per district: 431,981 Average variation from Ideal: 1.6% Ratio of largest to smallest district: 1.06 to 1 Number of districts above Ideal: 5 Number of districts below Ideal: 5 Number of districts within 1.88% of Ideal: 7 Population difference between largest and smallest districts: 25,802
By way of comparison, the 1961 Act voided in Preisler I created districts with an average variation of 8.47% from the ideal. In striking contrast to the 1967 Act the difference in population between the largest and smallest district was 128,355 or a disparity ratio of 1.339 to 1. The 1965 Act declared unconstitutional in Preisler II produced Congressional districts with an average variation of 6.54% from the ideal district. The disparity ratio of the largest to smallest district was 1.218 to 1 or a population spread of 85,015.
What is the practical effect of these maximum variations? Simply stated, a
The Mississippi Case. Despite the herculean efforts of my brothers to sweep Connor v. Johnson, 386 U.S. 483, 87 S.Ct. 1174 (1967), under the rug as wholly irrelevant to the case before us, (see Appendix C of the majority opinion) I strongly believe that Connor supports my conclusion that the Missouri Act is constitutional, and that the variations therein can only be considered "de minimis" in nature. I do not propose to engage in a lengthy battle of words over the underlying reason for the Supreme Court's summary affirmance of the district court's decision validating the 1966 Mississippi Redistricting Act. The fact is, as revealed by the district court's opinion, Connor v. Johnson, Civil No. 3830, S.D.Miss., September 28, 1966, 256 F.Supp. 962, the variance in population among the Congressional districts was an issue before that court. The jurisdictional statement, considered in context, discloses that this same issue was before the Supreme Court.
Inasmuch as the difference in population between the largest and smallest districts in Mississippi is 26,265, as compared to 25,802 under the Missouri Act, or a disparity ratio of 1.062 to 1, I am driven to the conclusion that Connor is impelling authority for approval of the Act before us.
In view of the strictness of their holding the majority has unwarrantedly given great emphasis to the failure of the General Assembly to use population figures that accurately reflected the 1960
This case should be decided on the basis of what was in fact achieved by the Missouri General Assembly in light of the correct population figures. To me, the crucial question is not whether a better plan might have been adopted if the correct figures were used, but rather whether the variations in population created by the 1967 Act, based on accurate population figures, offend the principle of substantially equal representation.
Under the rigid formula promulgated by the majority, I am satisfied that any reapportionment scheme which might have resulted on the basis of the correct population figures, would similarly have been destined to judicial condemnation.
The underlying rationale of the majority is very disturbing to me. Careful analysis of their opinion will permit only one conclusion—that if in the judgment of the court, not the legislature, a plan providing for greater equality in representation can be formulated, the legislative plan must fail. Appendices A and B attest to this conclusion. In those appendices the court has engaged in a game of "redistricting checkers" by shifting counties and townships from one district to another in order to demonstrate how smaller deviations could have been reached. This reasoning runs counter to my conception of the law.
Whether the 1967 Act is constitutionally permissible should not be tested by the results that could be achieved by the use of a "mindless computer" or by the efforts of a group that is completely detached from the duties, responsibilities and perplexing problems of duly elected legislators. Obviously the Seventy-Fourth General Assembly did not achieve mathematical perfection in the distribution of Missouri's overall population. The problem of population disparities, however, cannot be reconciled solely in terms of a mechanical test of shifting counties until the judicial ideal is met. If every apportionment Act must be cast aside because a reviewing court could devise a scheme for more equal representation, I believe it is high time that the Supreme Court, in no uncertain language, promulgates such a standard. See dissenting opinion of Mr. Justice Harlan in Rockefeller v. Wells, supra.
I would hold that the 1967 Act conforms to the mandate of the Constitution.
A — Plans Held Unconstitutional. *Affirmed by Supreme Court **Court Plan Subsequently Adopted Population Difference Ratio of Between Largest and Largest to STATE CASE Smallest Districts Smallest District -------------------------------------------------------------------------------- ** ARIZONA Klahr v. Goddard 465,274 ..... D.C., 250 F.Supp. 537 ARKANSAS Park v. Faubus 242,541 1.73 to 1 D.C., 238 F.Supp. 62 ** FLORIDA Gong v. Kirk 90,495 ..... D.C., 278 F.Supp. 133 ** MARYLAND* Maryland Citizens 113,505 1.34 to 1 Comm., etc. v. Tawes D.C., 253 F.Supp. 731 MASSACHUSETTS Dinis v. Volpe 102,626 1.27 to 1 D.C., 264 F.Supp. 425 MICHIGAN Calkins v. Hare 188,084 1.6 to 1 D.C., 228 F.Supp. 824 * NEW YORK Wells v. Rockefeller 120,366 ..... D.C., 273 F.Supp. 984 NEBRASKA Exon v. Tiemann 126,403 1.312 to 1 D.C., 279 F.Supp. 603 (1967) NEW JERSEY Jones v. Falcey 64,760 ..... 48 N.J. 25, 222 A.2d 101 ** TENNESSEE Baker v. Clement 111,830 1.32 to 1 D.C., 247 F.Supp. 886 VIRGINIA Wilkins v. Davis 214,208 1.68 to 1 205 Va. 803, 139 S.E.2d 849
B — Held Constitutional *Reversed by Supreme Court **Affirmed by Supreme Court Population Difference Ratio of Between Largest and Largest to STATE CASE Smallest Districts Smallest District -------------------------------------------------------------------------------- ALABAMA Moore v. Moore 54,505 1.14 to 1 D.C., 246 F.Supp. 578 ILLINOIS Kirby v. Illinois State 57,046 ..... Electoral Board D.C., 251 F.Supp. 908 * INDIANA Grills v. Branigin 84,545 1.2 to 1 D.C., 255 F.Supp. 155 KANSAS Meeks v. Avery 15,060 1.03521 to 1 D.C., 251 F.Supp. 245 ..... ** MISSISSIPPI Connor v. Johnson 26,265 1.062 to 1 D.C., 265 F.Supp. 492 NEW HAMPSHIRE Levitt v. Maynard 56,715 1.2 to 1 105 N.H. 447, 202 A.2d 478 NORTH CAROLINA Drum v. Seawell 17,276 1.04 to 1 D.C., 271 F.Supp. 193 * OHIO Lucas v. Rhodes 137,806 1.430 to 1 (Unreported) TEXAS Bush v. Martin 80,892 1.22 to 1 D.C., 251 F.Supp. 484 [Held provisionally constitutional]
The Assistant Attorney General was advised at the September 26, 1967 conference that leave would be granted and full opportunity would be afforded to permit him "to put an alternative string in your bow that * * * there are legally justified reasons to explain the disparities as we finally determine what they may be" (Ibid, p. 37).
As stated in the text, after defendants learned that the actual population variances were greater than those set forth in defendants' pending motion, they advised the Court that defendants would like to adduce evidence. The letters of October 11 and 17, 1967 were written pursuant to the time table established at the pretrial conference (Ibid, pp. 21-29). Those letters did not need to and did not in fact reiterate that the Attorney General had elected to introduce evidence on the "issue of justification," also described at the September 26, 1967 conference as "the issue of rational State policy to explain the variations" about which the Attorney General had changed his mind between September 26, 1967 and October 9, 1967, when the stipulation of fact established what variations were actually involved. We believe that judgment as to whether the Attorney General was fairly or unfairly treated by the sentence in the text must be made by consideration of all and not isolated parts of the record.
Interestingly enough, the Senate Chairman volunteered that he had used his map in connection with each of the 1961, 1965, and 1967 Acts and that he had but recently noticed that Dade County's 1960 census population of 7,577 had always incorrectly appeared on his map as 12,647. That error of long standing did not affect defendants' Appendix B because the population there reported for District 7, in which Dade County was located, was one of the two districts for which the 1960 census figures were accurately stated. The explanation for that phenomenon does not appear of record.
On page 1010 of his dissenting opinion Judge Matthes states, contrary to the finding of the majority opinion, that "inaccurate population data" were furnished the Legislature by "the various Election Boards in the City of St. Louis, St. Louis County, and Jackson County, which encompasses the Kansas City area." That finding is used as a base for the further finding that "the sponsors of the 1967 Act clearly labored under the misguided impression that the sources of the inaccurate figures were reliable."
As we have stated, we checked the accuracy of the data furnished by the election officials against the stipulated population data from the Bureau of the Census and found it to be accurate.
To state that the Legislature had but did not use accurate 1960 federal census figures is not to question the good faith of any member of the Missouri Legislature. That fact, it seems to us, forecloses that any public official other than the members of the Legislature can be charged with responsibility for the casual manner in which the important task of congressional apportionment was in fact approached by the 1967 General Assembly.
When Mr. Phillips, delegate from St. Louis, proposed that constitutional provision to the 1945 Missouri Constitutional Convention, he stated:
The 1945 Missouri Constitutional Convention included what it thought would protect the people of this State; but it is clear that the Supreme Court of Missouri did not agree. The Supreme Court of Missouri in its pre-Wesberry v. Sanders opinion in Preisler v. Hearnes, Mo.Sup.Ct. en banc 1962, 362 S.W.2d 552, approved the 1961 Reapportionment Act eventually held to be unconstitutional by this Court in Preisler I, on the now rejected theory that "courts may not interfere with the wide discretion which the Legislature has in making apportionments * * * when Legislative discretion has been exercised" (l. c. 555), and for the no longer valid reason that "any political compromise, for which there is any reasonable basis, is an exercise of legislative discretion that the courts must respect" (l. c. 557). Compare Footnote 12, infra. The refusal of the Supreme Court of Missouri to follow Brown v. Saunders, 159 Va. 28, 166 S.E. 105 (1932), the case to which Delegate Phillips made obvious reference, was the sort of rule that Mr. Justice Harlan has advocated in many of his dissents in apportionment cases. This Court, of course, is under duty to follow the majority and not the dissenting opinions of the Supreme Court.
The Oxford definition for PRACTICAL is "1. Of, pertaining, or relating to practice; exhibited in practice or action. Opp. to speculative, theoretical, or ideal. 1617. b. Applicable in practice; practically useful. 1642. 2. Engaged in practice; practising, working. 1604. 3. Inclined to action (as opp. to speculation, etc.); also, having ability for action. 1667. 4. That is such in practice; that is such in effect, though not nominally or professedly so; virtual. 1642. 5. Crafty, scheming, artful Foxe * * * P. politics is to do what you can, and not what you ought. 1897."
Webster's definition states for PRACTICAL: "1. Of, pert. to, or consisting or manifested in, practice or action;— opposed to theoretical, ideal or speculative; as a practical question * * * 2. Available, usable, or valuable in practice or action, capable of being turned to use or account; useful; as a practical acquaintance with a language; practical economy."
Violent controversy arose in the Congress, the upshot of which was that the Congressmen elected at large were permitted by the Democratic majority to serve out their terms. James Butler Bowlin, elected at large from Missouri on the Democratic ticket, took the position that the Congress had no right or power to tell Missouri that she could not elect her Congressional delegation at large. That Missouri Congressman, on page 189 of the Appendix to the Congressional Globe, 28 Cong. 1st Sess., said: "Concede for a moment that Congress can district the States for the election of its own members, and you surrender enough to enable it to perpetuate its power forever." Alexander Stephens of Georgia, later Vice President of the Confederate States of America, elected at large from Georgia, took a similar position.
Missouri Congressman Bowlin vehemently protested against Congressional abolition of elections at large (under which application of the one-man—one-vote principle is automatic) and against creation of election districts by Congress where that body could command that "St. Louis should elect one representative, and the whole south and southwest of the State should elect another, making one vote in St. Louis equal to four or five in the country; because that would be a gross and palpable invasion of the franchise itself." Missouri finally decided to comply with the Act of June, 1842 four years later and, except for the 1932 election, all of Missouri's Representatives to Congress have been elected by districts from 1846 to date. We have heard no protest against the possibility of malapportioning Missouri in favor of its urban population since 1844. But should that day come, judicial relief will be available to those whose constitutional right to an equal vote is abridged.
It is of more than historical interest to note that Congressman Celler, writing in 1952, long before Baker v. Carr or Wesberry v. Sanders had been decided, stated that "the problem of [congressional apportionment] is one which involves the fundamental principle of equality which permeates our entire Constitution so that its denial imperils the very heart of our democracy" (17 Law. & Cont.Prob. 268 at 274). He also stated that "a mere glance at the contours of various congressional districts and the wide variances in the population of these districts compels the conclusion that the drawing of congressional districts cannot be left to the whims and uncontrolled discretion of the states' legislatures" (op. cit. supra, at 274), adding that "the history of apportionment in the United States, particularly since 1842 when standards were established for congressional districts, indicates conclusively that the one single factor that has always been lacking has been that of enforcement" (op. cit. supra, at 274-275). He therefore advocated in 1952, more than a decade before Wesberry v. Sanders, that the Congress provide for "judicial review of the apportionment acts of states' legislatures in the United States district courts" (op. cit. supra at 275). Wesberry v. Sanders obviated the necessity for any congressional action in that regard.
The undisputed facts show that the reason why the population of the rural District 6 was for the third successive time overvalued by a Missouri Legislature could not have been that the Legislature actually believed that district contained "areas with rapid population growth since 1960 and such population growth was taken into consideration," as defendants attempt to argue. An examination of population trends in the northwestern Missouri counties between 1950 and 1960 and since shows that, except by invading the population of Kansas City, Missouri by putting the population contained within its city limits into three separate congressional districts, the Fourth, Fifth and Sixth, the entire geographical area included in District 6 under the 1967 Act, i. e., all of the geographical area outside the city limits of Kansas City, had a net loss in population between 1950 and 1960. Every county included in District 6 lost population except Platte, Clay and Ray Counties. Ray County's gain was 143. Very substantial parts of Clay and Platte Counties are inside the city limits of Kansas City. The net population loss for all counties included in District 6 was 40,467. The net gain in Platte, Clay and Ray Counties between 1950 and 1960 was 50,773. But of that gain, only approximately 12,043 was produced in areas outside the Kansas City limits. It is thus apparent that excluding the population of Kansas City within its city limits there was a net population loss of 28,424 for the area included in District 6; facts that hardly support the reason assigned by defendants in their brief for the drawing of that District's lines. We find that the 1967 Act robbed Kansas City of population within its city limits for the same obvious reasons that like robbery was attempted in the 1961 and 1965 Acts.
People who complain today about how federal courts describe the malapportioning action of State legislatures should become more familiar with what state courts had to say on that same subject fifty years ago. Present difficulties arose, of course, because state courts ceased to enforce the express provisions of state constitutions. See Footnote 5, supra.
No such data comparable to defendants' "Total % of Deviation" column appears in any of those sources. The Congressional Quarterly Weekly Report for September 16, 1966, on page 814, does contain a table purporting to set forth "% Maximum Variations" from the various states. None of the figures on that table agree with any of the figures on defendants' table. We have not been favored with copies of the letters received from the various Attorney Generals.
The particular percentage figures used on defendants' table, in any event, are necessarily inaccurate. An examination of other percentage figures on the Table shows that defendants merely added together the percentages by which the largest and the smallest districts of a particular State purportedly deviated from the ideal district for that State. The sum of those percentages does not reflect the accurate percentage of deviation between the largest and smallest districts; the simple addition of those figures will always produce a smaller percentage figure than that produced by accurate mathematical calculation.
The "Total % of Deviation" column on Defendants' Table is therefore smaller than what are the actual percentage deviations between the highest and lowest districts accurately calculated in accordance with proper mathematical principle. This fact of mathematical life is illustrated by an examination of the Table introduced in the House of Representatives last April 25, 1967 by Representative Conyers of Michigan as it appears in the Congressional Record, 90th Cong. 1st Sess. page H4620. That table sets forth three columns: (1) % deviation between highest and lowest; (2) % deviation between largest and ideal; and (3) % deviation between smallest and ideal. The maximum deviation between the largest and smallest is always a larger percentage figure than the total of the two other columns. Defendants' Table, as we have noted, attempts to play another form of the numbers game in order to make larger figures look smaller on their table.
Keeping always in mind the principle stated in Swann v. Adams III that a variation from the norm "approved in one State has little bearing on the validity of a similar variation in another State" (385 U.S. at 445, 87 S.Ct. at 572), it is appropriate only to add that defendants apparently did not even read the Kansas case before they cited it. That court held that Kansas State census figures could be used; that the accuracy of those figures was not questioned by anyone; that the apparent 1960 federal census variation of 41,666 was not real; that the 8,490 variance under the State census was the actual variance; and that such variance was justified under the rationale of Martin v. Bush II, a case that we expressly refused to follow in Preisler II. We hold that the Kansas case has no more bearing on our decision in Preisler III than it had on our decision in Preisler II, for all the reasons we have generally stated in regard to defendants' comparative table argument. See also Appendix D.
In Baker v. Ellington, Civil No. 3945, M.D.Tenn., July 13, 1967, 273 F.Supp. 174, the Court redistricted the State of Tennessee, which had a population of 3,567,089, into nine districts. Based on this figure the ideal population per district was 396,343. The Court-adopted plan provided for a difference in population of 16,728 between the largest and smallest Congressional district, or stated differently, a maximum variation of 2.176% above the ideal district and 2.044% below.
In Maryland Citizens Committee For Fair Cong. Redist. v. Tawes, 253 F.Supp. 731, 733 (D.Md.1966), aff'd sub nom., Alton v. Tawes, 384 U.S. 315, 86 S.Ct. 1590, 16 L.Ed.2d 586 (1966), a Three-Judge district court, after holding unconstitutional the 1965 Maryland Congressional Redistricting Act, prescribed its own redistricting plan with a maximum deviation ratio of 1.026 to 1, or a difference of 9,973 between the population of the largest and smallest district.
Under another court-created redistricting plan, the State of Florida was divided into twelve Congressional districts, each consisting ideally of 412,630 persons. The largest district contained a population of 415,704 or .74% greater than the ideal district, while the smallest district contained a population of 407,677, a difference of 8,027, or 1.20% below the ideal. Gong v. Kirk, Civil No. 64-143, S.D.Fla., August 2, 1967, 278 F.Supp. 133.
A Three-Judge district court in Montana eliminated a previous disparity of 126,332 between that state's two Congressional districts by creating two new districts having a population of 327,019 and 347,701, respectively, or a variation of 20,682. Roberts v. Babcock, 246 F.Supp. 396 (D.Mont.1965).
In Illinois a Three-Judge federal court in consultation with the state court divided the state into twenty-four Congressional districts. The plan was adopted despite the fact that the district having the least population (No. 16-394,481) deviated from the norm 420,048) by 6.1%, and the largest district (No. 8-451,527) by 7.5%. People ex rel Scott v. Kerner, 33 Ill.2d 460, 211 N.E.2d 736 (1965).
Lastly, in Klahr v. Goddard, 250 F.Supp. 537 (D.Ariz.1966), a Three-Judge court apportioned Arizona's three Congressional districts on the basis of the 1960 consus. The court's plan reshuffled various counties from one district to another to equalize the population disparity, but resulted nonetheless in a 61,244 variance in population between the First and Third districts.