Chapman v. Meier

Counties, one be one Counties, and shall entitled be entitled shall and representatives; representatives; senator and two and two senator thirty-seventh legislative The 37. dis- legislative thirty-first district The 31. City trict shall consist of of Dickin- and Sheridan of Kidder consist shall County, son and enti- Stark shall be Burleigh County ex- all of and Counties representa- tled one and senator two portion the thir- cept contained ; tives legislative district, and ty-second shall repre- two thirty-eighth legislative one and entitled to senator 38. The be dis- ; trict shall sentatives consist of and Adams Hettin- ger County Counties and all of Stark ex- legislative thirty-second dis- 32. cept portions those contained the thir- City of Bis- shall consist of trict ty-seventh thirty-ninth legislative and territory unorganized and the marck districts and shall be entitled to one sen- designated Creek, and Hay Lincoln representatives; ator and two and 137-80, (Townships precincts Rice Fort thirty-ninth legislative 39. The district Burleigh 139-81) 138-80, 139-80 and Slope, Billings, Bowman, shall consist County, entitled to three and shall be Valley and Golden Counties and South representatives; and six senators Heart, Slope Townships and Ash Coulee legislative thirty-third district 33. Townships 137-96, and 137-98, 137-97, of Mercer and Oliver Coun- shall consist 137-99, 138-96, 138-97, 138-98, 138-99, County except and all Morton ties 96, 139-99, 140-96, 139- 140-98, and thirty- portions contained in the those 140-99 County, in Stark and shall en- legislative thirty-fifth and dis- fourth representa- titled to one senator and two tricts, and shall be entitled to one sena- tives. representatives; and two tor thirty-fourth legislative 34. City

trict shall consist of of Mandan unorganized territory designat- and the Butte, Bindewald, ed as Crown Custer Highland precincts (Townships 138-81, 138-80, 139-81, 138-82, 139-82, Stockman, Jacque 140-81, Daniel CHAPMAN 140-82, 140-83) in Morton Plaintiffs, County, and shall be entitled one sen- representatives; ator two Secretary MEIER, of State Ben thirty-fifth legislative 35. The Dakota, State North shall consist Grant and Coun Sioux Defendant. ties, and Township Harmon un No. 4664. Civ. organized designated territory as Wen ger, Rural, Sweetbriar, Court, Dettman, Al United States Dakota,

brecht, Columbia, D. North Sims, Doll, Olin, Division. Southeastern Faust, Hermes, Buchli, Huff, Little Heart, Stone, Jan. Fallon, Odense, Rice, Fort Hope precincts (Townships New April 29, 1974. Noted Probable Jurisdiction 82, 134-79, 134-80, 134-81, 134-82, 133- See 94 through 134- 135-79 136-79 through 84, through 87, 137-79 138-83 through 90, 139-83, 139-84) in Mor County, ton and shall be one entitled to representatives;

senator and two thirty-sixth

36. The

shall consist Dunn and McKenzie Vogel, Vogel Kelly, Wattam,

John D. plaintiffs. Peterson, N.D., Fargo, & Gen., pending possible adoption Sand, Atty. new of a First Paul M. Asst. apportionment Legisla- Atty. Gen., Bismarck, Olson, N. the 43rd Allen I. Assembly tive D., of the State of North Da- for defendant. kota, in its 1973 session. Judge, BEN- BRIGHT, Before Circuit Governor, Over the veto Judge, SON, and VAN Chief District Legislature adopted Judge. SICKLE, District continued the multi-member MEMORANDUM OPINION substantially provided districts as in the AND ORDER plan, and Court’s as had existed princi- state since The 1965. Governor’s Judge. BENSON, Chief pal objection Legislature’s plan May 18, judge 1972, three dis- On centered on the multi-member senate panel oral heard evidence and trict court districts.1 constitutionality argument of the on the operation plan adopted by The legislative apportionment North Dakota Legislature suspended by the refer- May 22, 1972, plan then in effect. On petition. By endum petition, initiative requiring reappor- entered an order an amendment to the Constitution legislative districts state tionment the proposed North Dakota was would man, vote” “one one to conform to the reapportion create a commission to Equal requirement Protection state and which would the crea- mandate Amendment of Fourteenth Clause single tion of member senatorial dis- the United States Constitution. special tricts. A statewide election on 1972, Thereafter, 30, on June plan Legislature referred and Opinion filed its Memorandum Court the initiated constitutional amendment Judge dissenting in Order, Benson and 4, was held on December Both apportionment part, adopting interim Therefore, the measures were defeated. plan impending for the effective obligation to make a final determination plan pro- general The election. legis- reapportionment plan on a for the thirty-nine vided senatorial lative districts of the State Da- of North in- multi-member. It five which were kota with this remains Court. by creased the size of the state senate urge plaintiffs pro- the Court to house of two representatives by increased state ceed in accordance with Memoran- It decreased four. Opinion 29, dum and Order of June legislative districts from the number of thirty-nine suggested majority wherein thirty-eight. plan plan new, permanent, if that more recognized interests of those Court, it fashioned would residing persons the air bases probably single dis- establish member more Minot Grand Forks and were light Johnson, tricts in of Connor closely aligned than ru- with urban 91 S.Ct. 29 L.Ed.2d interests, popula- ral included those (1971): nearby urban districts. tions within the courts are forced “When district are districts retained multi-member single- apportionment plans, fashion Fargo, located in Grand the cities preferable to districts are Minot, member Forks, Bismarck Jamestown. gen- large jurisdiction over The Court retained at 1762. eral rule.” at cause, its commission directed hand, study the Defendant On the other special three masters argues compelled that this Court is upon port permanent Sub- more single decision to create sequently, Connor Defendant on motion light urges us, 8, 1972, member Court, on November decisions action be deferred ordered that further 30, 1973. Report message, Court, March veto Defendant’s Governor’s United plan States have June “interim” as an com- been rendered since June to mented : (The adopt plan the June 1972 Court geographi- “The observes natural Plan) permanent Dobson barriers, cal such as the Missouri Riv- for the State of North Dakota. every er . . and . -. . Evidence good before this Court indicates trict is connected with arterial sparsely settled, necessary North Dakota is a roads. should not be It agricultural declining popula- state with travel outside of one’s district tions in going most localities part outside urban one to another.” fifty areas. The has coun- three districts, parts “In the formation of ties. minor Most civil divisions in rural of 10 counties are attached to an ad- very populations areas have small joining county However, or counties. becoming smaller. The Federal (Burleigh, three instances Ward Census for North Dakota showed an Williams), no real violence done 617,761 population per- overall state county lines because an urban dis- sons, population density and a of 8.9 por- trict is sealed off and the rural persons per square mile. The overall county tion neighboring is attached to population in loss to North Dakota be- county. rural Three oth- tween 1960 and on a statewide ba- (Barnes, er counties which are divided sis was In the urban-rural 2.3%. Walsh) Richland and have traditional- population divided was urban and 35.2% ly split Thus, been into two districts. rural. In ur- it was 64.8% 55.7% Cass, (McHenry, four counties ban and A rural. total of 183 44.3% damage any Morton Stark) suffer county composed census divisions are districting. mainly open country. Ten of these had connection, In this should noted 2,500 more than in inhabitants greatest complaints that the about the thirty-nine (21.3%) than had fewer existing apportionment were voiced 1,000. The two smallest divisions had breaking county lines, par- over the less than 500 inhabitants. The two ticularly in smaller rural counties. largest county census divisions in this very populations Counties with small group populations 12,608 split they not be should are because 12,927, and contained the Grand thereby powerless. politically rendered Forks and Minot Air Force Bases.3 It is forma of de facto disenfranchise- hearings In before the Joint Commit ment.” Reapportionment January tee on held on In its Order of June 3, 1973, Representative State Earl C. Court found that was Billings County Rundle indicated in required general popula- because of the there of land with sections no tion shift from to urban in rural centers residing people pop on total them. The North Dakota which “created constitu- county 1,198. ulation of that is tionally impermissible pop- variations in largest four cities in among existing legislative ulation descending North Dakota order are: districts North Dakota”. Fargo, 53,365; Forks, 39,008; Grand Bismarck, 34,703; 32,290. Minot, following is a chart of the Special Dobson, presenting adopted by Master this Court is inserted plan, his which with some minor Opinion amend- illustrate it cures ments, adopted by “constitutionally Court on impermissible vari- Dobson, Special County Dakota, 2. Richard R. one of 1950- Divisions of North appointed by 1970, March, Masters the Court. 1971. Stanley Population, Dept. W. Voelker and Thomas K. Osten- 4. 1970 Censns S. U. son, Changes Population Commerce, Census, within Census Bureau of the ations”, were the basis I. which MULTI-MEMBER DISTRICTS reapportionment. court ordered showing There has been no before this Population per senator North Dakota Number (absolute Senators Provided for Plan equality) Population — Census 617,761 12,112 since tion Plaintiff’s Court have existed in that multi-member any counsel, have kind resulted against in his brief North any discrimina- groups. Dakota May 5, the Court on said': do not “Plaintiffs burden of assume establishing that multi-member senate and house violative districts are Relying United States Constitution”. Connor, ap- the thrust of the contention pears be that multi-member districts cannot be allowed continue because they initially were fashioned Court. Mississippi, situation faced obviously Connor, quite

different that which exists According North Dakota. the 1970 census, Mississippi the State of has a population 2,216,912, population and a density square persons per of 49.6 mile. population 1,393,293; The white is 815,770.5 black In North is except Dakota, the Indian Reserva tions, none of which are included in the districts, multi-member senate there no identifiable minorities. days

Four after its decision in Con nor, Supreme Court handed down Chavis, 124, v. 91 Whitcomb U.S. S. 1858, (1971), Ct. 29 L.Ed.2d where in it three reviewed the decision judge court convened to consider wheth er two Indiana statutes had effect diluting Negroes poor the vote people living County (City Marion panel Indianapolis). The district existing multi-mem majority concluded that of this Court has con- separated ber must because be cluded the interim should that be minority strong adopted permanent plan. Judge differences housing, groups, and educational income Bright, dissenting, is concerned County, respect Marion 21, levels. With the fact Districts adopt judge panel districts, drafted three 32 are multi-member and with “legally protect overrepresen- ed said to fact the 11.43% against cognizable group minority 11, coupled racial tation with the in District voting strength”, F. underrepresentation dilution of 8.71% (S.D.Ind.1969). On impermis- Supp. 1362, at 1365 he be an creates what feels to Court, passing Supreme appeal, sible variation of 20.14%. Almanac, Enterprise Newspaper Association. 5. 1973 World redistrieting County on the of Marion In the Howell, 1973 case of Mahan v. single reversed, districts, member 35 L.Ed.2d S.Ct. Sims, saying Reynolds (1973), that while the court noted that consid- malapportion- 12 L.Ed.2d 506 erations substantial S.Ct. right every (1964), recognizes respect military personnel cit- ment with participation unique izen to full and effective combinations other fac- leg- processes preferring political of his state’s tors must be considered bodies, single-member did ren- islative that decision over multi-member impermissi- der districts tricts or vice versa. multi-member ble. Regester, In the case of White experience view, however, “In and U.S. our 37 L.Ed.2d 314

insight yet have demonstrated Court was called upon reapportion- are inher- to consider a Texas that multi-member districts Again ently of the ment invidious and violative Court stated that Surely the Amendment. are not unconsti- Fourteenth (citing findings per Whitcomb, se, do not tutional Ma- of the District Court Sims) Moreover, han it. if but where the claim demonstrate is being problems that such used invidi- of multi-member districts are ously unconstitu- to cancel out minimize the vot- are unbearable or even or ing strength groups, they it not at all clear of racial must tional is questioned. remedy is a system carefully drawn with its lines The Texas multi-member representation ra- to sizable to ensure operate found, did to exclude the religious ethnic, economic, cial, or proc- community black electoral groups capacity for with its own up points one the ba- ess. This case parties overrepresenting and interests sic all eases foundations common to minority permitting and even finding unconsti- multi-member districts the voters control tutional; is, invidious discrimina- government short a State. against minority tion some visible unprepared hold of it that we are Texas, group. also Hernandez by decided elections that district-based 475, 667, 98 L.Ed. 866 S.Ct. in plurality unconstitutional vote are involving (1954), Mexican-Americans. single- dis- or multi-member either group The must be identifia supporters simply the tricts because effectively ble and must removed be legisla- losing have no of candidates by process from reason of the electoral assigned pres- them. As tive seats districting in the the Court As scheme. ently the District hold that advised we every political notes, White racial or not Equal Protec- the Court misconceived right group to be has a constitutional applying in it to invalidate tion Clause represented legislature, 412 in the state County multi-member the Marion 2341, 37 L.Ed.2d U.S. at 93 S.Ct. at 159-160, 91 S.Ct. trict.” 403 U.S. Whitcomb, the court at 326. Earlier at 1877-1888. every group enti commented were problems Citing particular which representation, the result would tled to plan might inef- multi-member render a every there inane for be within fective, the Whitcomb announced that communities, workers, university re are con- each must be of ease circumstances ligious groups occupying iden and ethnic sidered. tifiable areas. Dorsey, 379 U.S. In Fortson v. considering court, various A the L.Ed.2d 401 it, options before specifically held that Supreme Court go necessary only per as far as is should se not districts were multi-member require the constitutional order to meet illegal Equal Protection the under man, Minneso- one-vote”. “one ments of Clause. presently defined, Beens, it must then

ta State Senate (1972). make recommenda- 32 L.Ed.2d consider and tions relative to whether or not Supreme Court The tenor the the or incumbent senator sena- reapportion respect with decisions expire tors, not whose term does compel clearly institution ment, does not year, end of must single-member Da in North stand for election nevertheless existing in The circumstances kota. 1972.” existing in with those this state contrast existing unique ofOne features plans apportionment were where states River, North Dakota is Missouri constitutionally The deficient. found separates parts the state into two of individual complexion state —two-thirds to the east and one-third to present does state cities within traversing the west. The river unrepresented any showing minorities by only highway bridges, is crossed six representatives. unresponsive or four of them located in the area Wil- dis issue of geographical liston and Bismarck. This is or reality, coupled difficulty by clearly resolved political to be issue observing achieving goals geo- legislature. electorate graphical existing politi- boundaries go no devising plan, this Court will subdivisions, difficulty cal adds required to formulate is than further minimizing the That variance. it was apportionment constitutionally sufficient substantially accomplished, illustrated Dakota, and North State part opinion, the chart made a of this political realm. intrude on will not validity attests to the soundness population variance be- VARIANCE II. tween the districts most cases is general people. hundred few As we are satisfied While average rule, popu- deviations adopted June many county are lation decreases if lines constitutionally reason deficient split. violated, and if few increases considera the multi-member preserve iden- effort urban-rural per given to the realm tion must county produce the intact tities lines Court, This missible variance. large percentage variations which look appointed May order wise, applied sparsely to a but when special a com masters to serve as three signifi- populated not result state do mission formulate cant variances. guidelines following plan. The by the offered Court: were commission Mahan, In the court considered try to con- “a. The shall Commission Virginia validity apportionment of a legislative form new allowing plan The for a deviation. 16% existing districts. leg- courts nor Court stated that neither accuracy islatures, not can extract shall sub- b. Commission change Amendment, stantially from the Fourteenth the size Legislature. that establishes mathematical formula range percentage is deviation what geographic barriers shall c. Natural permissible is not. While what be observed. Virginia plan may deviation 16% Existing political d. subdivision limits, approached it did not have observed, in lines be so should them, exceed said the Court. possible. far as key, seems, as to whether it e. the event the Commission In unnecessary is will be allowable a deviation find it is certain should a substantially causes any not the deviation one or whether or alter equality. per- A sacrifice substantial more of the Gaffney Cummings, Similarly, v. centage have validi- can of variance against the actual U.S. L.Ed.2d ty measured when (1973), decided at the same time as of in- electors, communities number of terest, redistricting White, held a transportation, size state’s plan judged the more representation is not to be is from base which stringent applicable to Con- standards drawn. gressional reapportionment. In Gaff- heavily populated state, Virginia ais ney, while fair and the Court said that in results there deviation and a 16% representation goal, equal its at- is discrepancies thousands. population depend elimination tainment does applied percentage to a That same insignificant population variations. Da-- sparsely populated like North state representation “Fair and effective deviations in actual kota, would result may destroyed by gross population be persons. only a few hundred among variations presented to the court The issue apparent representation that such does equal not the Mahan or whether .was solely depend on mathematical permits only protection limited clause among equality populations. population are unavoid- variances There are other relevant factors to be good able, despite effort faith impor- taken and other into account equality. achieve absolute may legit- tant interests states the one that some variation said man, imately mindful of. An unrealistic unavoidable, be- rule is one vote overemphasis fig- on raw application “absolute blind cause ures, a mere nose count the dis- might redistricting equality” in state may tricts, submerge these other con- functioning impair normal well ready siderations and furnish a itself governments. and local ignoring tool for day-to-day operation factors that in a important Adams, In v. Swann acceptable representation ap- L.Ed.2d S.Ct. arrangement.” portionment Supreme disapproved a Florida “That the Court was not deterred plan having reapportionment political the hazards of the thicket noting that Court, deviation. The 26% no evidence adjudicate when it undertook support of the devia- reapportionment cases does not mean offered, the allowable tion had been said bogged that it should become down bearing little has variation for one state vast, intractable validity variation on the a similar slough, particularly lit- when there is another state. accomplished by tle, anything, if to be judge district court a three doing so. Barnes, Graves represents very case what “This unconstitu- (W.D.Tex.1972), declared happen in the federal should not tional Texas functionar- The official state courts. having a total variation between proposed with a maximum ies largest smallest 9.9%. among the districts of 7.- variation appeal, the Court White On in the House and 1.8% 89% Senate, Regester, average respective and with a L.Ed.2d 314 said 37 9.9% Appel- variations of 1.9% .45%. prima fa- a not establish deviation does proposed then four alternative lees Citing protection equal cie violation. House, plans three which for relatively Mahan, said Court larger slightly variations involved among state minor deviations among fewer town districts but cut substantially do lines, more but The fourth cut lines. weight votes dilute the of individual between its had a maximum variation only largest larger smallest district districts.

379 thought proper respects may require Court other a 2.6%. acceptably large plan involved further As we view the examination. districts, although cases, 8%, 16%, between variations deviations of and 10% House, recently heavily of about with districts have been allowed average 20,000 people, significant populated having variation states mi- only people, nority populations. and the involved 399 only largest 1,573 involved variations greater per Even deviations are people. But neither did the District sparsely missible a settled state bar any adopt plans of the submit electorally ren of victimized minorities. appoint appellees. Instead, ted it adopt reappor- We the Court Plan of up ed come its own master to with previously adopted tionment an inter- as plan, scheme. still another That plan 29, 1972, im June forth set told, de involves a total maximum (published Appendix Order, A of that the House of viation in 1.16%. 363) permanent F.Supp. at 372 compelled, as a feder Was the master plan reapportionment State matter, up come al constitutional of North Dakota. plan a with smaller variations judgment entered It is ordered that be appellees’ than contained were accordingly. happen plans what is to ? And plan mind if a resourceful master’s Judge BRIGHT, (dissenting). Circuit upon mas plan than hits better percentage aof ter’s point? a fraction respectfully I dissent. must like this Involvements Today, majority a reconstituted point con point, end at some permanently adopts stop- this court litigate stantly if those who recedes apportionment gap scheme for North plan only produce mar that is need Legislative Assembly Dakota’s State against ginally when measured ‘better’ Plan, as the Dobson in the face known unyielding population rigid and of our earlier order1 which stated: equality at 748- 412 U.S. standard.” approve Plan of the Dobson We 2329-2330, L.Ed.2d 37 93 S.Ct. time for the omitted). (citations at 309-311. only. election This court retains 1972 pur- jurisdiction of this cause for plan formulated has Once been pose adopting a different which, the attend of all consideration which will circumstances, fairly the con meets ant hampered by of im- considerations requirements, a court should stitutional [Chapman pending v. elections. abstract and shuffle not continue sift (D.N.D., Meier, 367 372 figures solely a mathemati arrive at 1972)]. filed June cally perfect plan. colleagues My wordlessly thus have minori- identifiable there are Where past of the "law of being and, the doctrine brushed political groups out forced ties or changed completely voting case,”2 process their election and, decisions, previous of our invidiously weakened, course strength ' “clearly erroneous Chapman former decision F. v. No. Civil injustice.” Kempe 1972). manifest Supp. (D.N.D., it works a June (8th States, F.2d v. Cir.), United denied, “merely expresses Although cert. doctrine Emery * (1947) ; * * L.Ed. practice limit not a of courts Company, F. Anderson, Northern Pacific Railroad power,” Messenger to their (8th 1969). 2d 436, 444, 739, 740, Cir. 56 L.Ed. applies in Eighth A the doctrine J.), similar version of (1912) (Holmes, Cir- Claims, salutary stated: recognized the Court of rule has to be “a cuit questions substantially have practice” Where similar tiiat a former deci- and stated litigation, prior includ- been determined not be reversed sion of the same case would case, ing prior proceeding in the same the that unless the were convinced court 380 hearing any kind, supra; Gaffney Cummings, of further

without v. 412 U.S. 735, placed legally effect a flawed 2321, 93 S.Ct. L.Ed.2d 37 298 overriding (1973), virtue the time Regester, whose and White v. 412 U.S. “temporary” adoption 755, 2332, 1972 was S.Ct. 37 314 L.Ed.2d disruption (1973). minimum that it would cause then-pending yet in the elections My argue colleagues that we must not existing inequali- substantially the duce political “intrude realm” elim- legislative ty districts under the between inating districts, nor “one-man, standard. one-vote” fig- should we “sift and shuffle abstract 1972, 30, order filed June our ures” to achieve smaller deviations be- arguments, tween stated: districts. These I fear, ig- point. miss the The former recognize certain weaknesses We political consequences nores Plan, (1) namely, some Dobson simply preserving quo, status while among leg- population variance the latter convenience for substitutes which, in districts, in- islative few the Constitution. substantial; (2) stances, an in- seems legislature, of the crease size agree colleagues I my that we notwithstanding that the state has “politi- must decide case this outside the past decade; lost over the realm,” assumption cal but the of the multi-mem- (3) continuation of majority doing nothing that with the ex- [Chapman v. ber districts. isting plan doing something rep- is not Meier, supra F.Supp. at 363.] viewpoint. resents a “head-in-the-sand” doing something nothing doing Either or Simply adopting stated, may political we, consequences, have today, majority has followed the course, eyes must close our to those supervisory admonition of consequences. Our decision must be Court, Johnson, v. contained in Connor legal upon application proper based 1760, 690, 402 U.S. 29 L.Ed.2d principles. and constitutional Mahan 268 Howell, reaffirmed path 93 S.Ct. proper to a resolution (1973), disapproving 2d L.Ed. substantive issues in case lies in un- districts in court- derstanding use multi-member the nature the decision majority plans. fashioned Nor has the upon that we are called to make. Unlike equal protection adhered to the standard many courts, so we are not confronted permissible population variances be challenge with a to an Mahan, tween duly enunciated legisla- scheme enacted a state arguments requires parties will not consider such precluded, compelling exceptions, unless re-opening there are circumstances with rare holdings. require prior re-arguing already review of matters decided. [Unit economy judicial Considerations or- Company, ed States v. Swift & 189 F. derly disposition Supp. render (N.D.Ill.1960) (citations the issues parties proceed omitted), aff’d, desirable that both direct- ly forgo yet to the (1961).] issues undecided 6 L.Ed.2d Accord purposeless time-consuming rehashing Baylor, (7th Barrett F.2d 1972). of cold matters. Cir. ^ States, question Trans inappropriateness Ocean Van Service v. United permanent 470 F.2d 620 n. 200 Ct.Cl. the Dobson Plan as a solution to (1973). North Dakota’s woes has rule, subject already courts too are been settled our order June and it publicly has been said : 1972. To reverse our stated Under as the law of doctrine known view of this some new cir- matter —without case, compelling change of a unreversed decision cumstance vio- —thus question during judicial principles underlying of law or fact made lates the sound litigation question course of settles the doctrine of the “law of case” and se- subsequent stages riously stability for all the suit. Or- undercuts deci- of our derly progress sion-making process. and consistent of the case

381 usually taken, question it was de- action was ture, the threshold where quo preserve the status signed violation exists a constitutional whether legislators. safeguard incumbent intervention. court justify federal Problems, [Dobson, Reapportionment past this liti- point in well areWe (1972).] existing 281 gation. invalidity N.D.L.Rev. adjudicated was apportionment' scheme Importantly, valid, no there has been May What re- 22, 1972. order of in our placed apportionment new scheme adop- temporary following mained, our legislature effect since 1931. on June Plan of the Dobson tion districts, exist- Variances between equity of our a final exercise was then, ed even with swelled permanent rem- power more to fashion a intervening years. shifts over For edy of a new in the form 7,263 example, County in- Renville had City while the of Far- habitants general question now before us is go 28,619; years later, had 43rd obligations and re- are the what this: County) (Renville had shrunk federal of a discretion on the strictions 4,698 (Fargo) while the 9th District eq- of this exercise district court 46,857. expanded See Dobson, particular, search uity power? In supra at 285. specific ques- two an answer to these reapportionment In com- state tions : mission —created a 1960 amendment replace 1) multi-mem- the court Must to the North Dakota Constitution— ber sought pro- but to re-draw were the former districts where clearly favoring duced rural as a matter of never established representation.3 initial areas An originally policy, were but state court-challenge rejected by the state pre- adopted expedient supreme procedural court on minor plan ? court-fashioned vious point. Sathre, Aamoth ex rel. State equality 2) absolute How close to (N.D.1961). plain- N.W.2d re-drawing the court come must federal tiffs then turned district lines absence pending abstained, court which further controlling apportion- clearly state supreme by the action state court. Lein policy? ment Sathre, F.Supp. (D.N.D.1962) suggesting my Accepting ju- (Davies, J., dissenting). answers Before risdiction, supreme points, I think that a detailed the state inval- these two history reapportionment idated the commission based on review principles. law State useful. state consitutional in North Dakota is Sathre, ex rel. Lein v. 113 N.W.2d 679 (N.D.1962). I. History North Dakota shows Following the United States

Legislature reapportioned infre- itself decision Baker v. Court’s historic quently too well. Mr. Richard and not Carr, 7 L. Dobson, political the Minor editor plaintiffs Ed.2d re Daily and drafter of the Dobson News court, turned to federal were question, has described Plan here again The court denied in rebuffed. situation in these words: junctive ground relief there legisla eight statehood, showing no the was the state decades of problem ture would not heed the consti has never satisfactorily. Much mandate to Lein v. been dealt with tution’s redistrict. (D.N.D.1962) simply Sathre, time the (Davies, dissenting). ignore problem. J., When tried to Dobson, Reapportionment Problems, (1972). 3. 48 N.D.L.Rev. legislature, pute. in the plan Rural interests This court-fashioned through reapportion pushed however, in by mained effect until voided our or- May 22, in the which der ment scheme 1963 Session 1972, in the instant ac- comported of the no known version tion. principle. See “one-man, Dob one-vote” Early following in some incon- supra upon son, at 286. Based grappling politically clusive with the hot Reynolds then-newly-decided case by issue of multi-member Sims, 533, 84 12 L. legislature,4 brought a suit was in state Ed.2d 506 the federal district challenging court the districts on state court well as invalidated that scheme as grounds. constitutional The North Da- portions those of the state constitutional Supreme por- kota ruled that that provisions relating tion of section which since statehood (sections 26, 29, 35) in and amended required had senate dis- court, however, 1960. The refused to tricts, necessarily had been invalidated legislature take further action until along pro- with the other constitutional given adequate opportunity was an relating reapportionment visions in reapportion Reynolds itself within the I, Paulson and dismissed the suit. State guidelines. Meier,

v. Sims Paulson v. ex Anderson, rel. Stockman v. 184 N.W. F.Supp. (D.N.D.1964) (Davies, (N.D.1971). 2d 53 J., dissenting part) in Paulson [hereinafter I This ]. action was commenced in Novem- alleged popula- ber 1971. Plaintiff that legislative compromise plan, A enacted changes tion in reflected Cen- day Session, on the final of the 1965 be sus had altered the urban-rural balance signature came law without of the plan the court-fashioned governor, improvement but made little longer provided representation no over the invalidated 1963 version. This legislature complying with the by promptly nullified the fed Equal Protection Clause the four- eral district court which then ordered They teenth amendment. further al- into effect own Paulson v. leged that, legislature since the Meier, F.Supp. (D.N.D.1965) reapportion failed to itself in Paulson [hereinafter radical II]. required court was to do so. departure precedent, from state predomi included in its five three-judge A court was nantly urban, multi-member senate dis requested plaintiffs until tricts, thereby creating problem they complaint May filed an amended present which is at the heart of the dis- therefore, 1972.5 panel, This faced a Republication legislators Application from the five ur- Stay tioner’s for to the United ban July elected from two-to- (dated States Court at 3-4 each, four senators 11, 1972), Chapman wanted to retain the Civ. No. at-large feature of elections these (D.N.D.). ; the Democrats sub- adopted wanted to The Constitutional Convention Repub- divide those following districts. rural proposal reapportionment Some as opposed lication lawmakers also multi-sen- legislature method for bicameral : districting, contending gave ator Section REAPPORTIONMENT. advantage. urban residents undue reapportionment [Id. A commis- sion, 287.] consisting appointed of electors judges man- in a number and Although the record in this court does not ner as shall be established the district any delay processing indicate reasons for judges, shall fix the number of senators action, judicial representatives take notice state and divide the undertaking drafting North many Dakota was into as senatorial of com- of a new pact contiguous territory constitution and that Constitu- as there consisting delegates tional Convention guaran- senators. The commission shall representing people tee, every Dakota nearly practicable, of North as considering proposals provide were equal every voter other voter by a casting legisla- commission. Peti- of ballots hearing political parties in North erations pressure the case time organize Dakota, required appropriate, which are awarding relief, before if legislative operate primary on the basis then-impending acutely et districts. N.D.Cent.Code 16-17-01 general were § elections. We changes seq. (Supp.1971).6 making substantial aware that might district boundaries court, nevertheless, This determined disruption great lead to confusion obligations judges required that our op- the and the elections the conduct of us undertake to immediate consideration and at least One senator tive candidates. prescribe The commission shall its own apportioned representatives shall be two procedures. majori- Upon agreement by a elected and be each senatorial ty members, shall of its the commission large thereof. at from subdistricts or reapportionment plan file its sec- with the may senatorial combine two commission retary state, and it shall become effec- provide election for the sixty days filing; tive after date of the representatives large senators at provided, supreme court, the in the exer- large or from subdistricts thereof. original jurisdiction, may cise of any review prescribe its own shall commission plan adopted by If the commission. majori- procedures. by Upon agreement plan the fails to meet state or federal ty members, shall of its the commission requirements, constitutional the court shall reapportionment plan sec- the file its plan direct the commission to revise the retary state, effec- shall become and it within a stated time. filing; sixty days tive date of after appointed Commission members shall be provided, supreme court, in the exer- following adoption of this constitution may original jurisdiction, review cise of any plan adopted by immediately general following the 1980 If the commission. every years election and ten thereafter. plan federal fails to meet state or assembly legislative No member of requirements, shall constitutional the court eligible, during office, shall be his term of plan direct the commission revise the appointment for to the commission. Com- within a time. stated mission members shall serve until each re- appointed be Commission members shall apportionment plan finally becomes effec- following adoption of this constitution tive, compensated provided and shall be as immediately following general the 1980' by law. Vacancies shall be filled every years election and thereafter. ten original appointment. same manner for as assembly legislative No member of (Alternate IV, Proposition [Article 5§ office, eligible, during shall be his term of IB), id. at 543.] appointment for Com- April 28, commission. The voters of North Dakota on mission apportionment 1972, rejected members shall serve until each North constitution and the finally effec- reapportionment becomes again Dakota fell into the tive, compensated provided and shall laps be as judges. of federal by in the law. Vacancies shall be filled original appointment. same manner as Repub- for 6. The Chairman of the North Dakota (Alternate IV, Proposition [Article Committee, example, § lican State stated 1A), Final Draft of the Constitutional party already pro- that his commenced presented February Convention as leading delegates cesses to the selection Plenary Session, Daily to the Jour- party to state and national conventions and Convention, nal of the Constitutional party process local districts were in the 540.] endorsing legislative candidates. He con- adopted people As an alternative if the cluded that: legislature, proposed unicameral form of apportionment If the court indicates new reapportionment section stated: will be undertaken 1972 elec- before the Section 5. political REAPPORTIONMENT. tions the suspended be entire structure will legislative A commis- dis- confusion until the new sion, consisting by appointed of electors trict lines are determined. the de- When judges the district in a number and man- process termination is made the will entire ner as shall begun again established have to be and there will judges, legislators necessary shall fix the accomplish number of not be time to legislative procedures divide the state required parties in an compact territory. contiguous year. election leg- No Support district shall elect more than four Affidavit of Jack I-Iuss in De- islators, guaran- Complaint the commission shall fendant’s Answer to Amended tee, nearly every practicable, (filed May 18, 1972), Chapman Meier, equal every voter (D.N.D.). other voter Civil No. 4664 casting legisla- of ballots for tive candidates. positive hearing After action. In our opinion memorandum and or- May 18, 1972, on case we acted on the der filed June we settled days later, declaring: merits four slightly amended version of a draft- Dobson, ed Master plaintiffs now called the legally have made a Plan, Dobson appropriate as an showing existing means sufficient affording interim relief to the citi- scheme in zens of North Dakota from mal- State North Dakota fails to apportionment.9 This relief was tai- meet Federal Constitutional standards. exigencies lored pre-elec- [Chapman Civ. No. 4664 geared tion minimizing situation and May 22, (D.N.D., 1972) at 1.] disruption political and electoral We further said that we would at- processes.10 tempt promptly reapportion the state conformity with federal constitutional complaint, plaintiffs In their amended standards and in time for the 1972 elec- provide single- had asked that we ap- tions. To aid task, us any reapportion member districts in pointed Special three Masters.7 Exhib- plan adopted by ment the In our court. iting avoiding our real concern for dis- recognized validity opinion the we of ruption political processes to the on the plaintiffs’ grant request, but did re elections, eve of the spe- we set out guidelines lief at in “ex time order to avoid cific for the Masters.8 On 20-21, 1972, disruption June we met with the Mas- treme in the elective eight plans ters to consider alternate processes.” However, the we directed reapportionment. give study to additional to Masters Minot; 7. Mr. Richard Dobson of Mr. Thom- following steps mini- to we took the Fargo; as K. Ostenson of and Mr. R. R. disruption. made substantial mize changes we Since regret Smith of Forks. Grand AVe note to only legislative hav- in four districts passed away, that Mr. Smith lias since after required ing senators, such “holdover” we serving our well on this and other oc- districts, other- new in elections permitted those casions. “holdover” senators wise all other permitted cer- to serve out their terms. We opinion Judge Benson, supra 8. See at 367. metropolitan elec- tain to conduct Judge Benson, concurring sign- 9. in but not to fill vacancies attributable tions any to ing order, separate opinion the stated in a given new in the additional seats them that he would limit the the to election. districts, : noted As to even-numbered we problems elec- Among the 1972 things, No serious for 10. other said: proposed likely plan substantially disjiro- arise from tions seem changes to reduces the portionate several representation in boundaries the would re- which ap- the Dobson existing even-numbered districts under sult from under elections the last portionment Plan of senators since the terms of North Dakota. At the time, from all even-numbered elected same a min- the Dobson Plan causes year. expire processes In even-num- disruption will this each imum in the election changed by district, Dobson general bered the primary for the elec- * * * Plan, a change will select major the in 1972 electors tions. To avoid mem- as house present senator or senators as well legislative in the district bounda- represent during next the ries, bers them provides to in- the Dobson Plan for [Id., legislative legislature. at 366.] session. In crease in the size of the way, attrib- the number of inhabitants regard in this : represen- We said equal utable to each senator for briefly the continuation comment on compatible We figure tation is reduced to a dis- senatorial the five multi-member present populations rural with the the cities in are located districts, thereby avoiding which substantial Bismarck, Minot, Fargo, Forks, remapping Grand which would of these districts populous 21st most necessary Jamestown. have been number of sen- if the area, Fargo encompassing district, kept [Chapman v. ators had been upon may fifteen elect voters be called to Meier, Civil No. assembly to 1972).] members of (D.N.D., June represent district, serve five to In the which odd-numbered districts four-year in the House and ten to serve Senate term elected a senators for Representatives. the other In each reapportionment12 ad reapportion submit an functions” to to itself. recognized See report. pub Support ditional We Brief of Defendant’s Mo- proceedings (filed Stay court’s tion for 30-1972) lic’s interest October making arrangements Chapman for “interested Civil No. parties (D.N.D.). persons” named other than the Attached to this motion was copy express Representative to their views. of a letter Bryce Streibel, Chairman of the North order filed should Our June Legislative creating Council,13 Dakota prelude final been the to a deter- have bipartisan Special Reap- Committee on reapportionment mination contro- consisting legislators portionment, of six versy But of the 1970’s. decade study citizens, develop and five and to panel, panel earlier much like the reapportionment for submission I, paid great Paulson heed to the legislature and “for use [state quest Da- of North State any judicial pro- courts in give stay federal] hand to kota our ceedings relating opportunity another responsibilities, duties, “carry legislature.” out the North Dakota At- may tively electorate, multi-member the electors the benefit of upon following change a substantial to elect also called district boundaries. single representatives inappropriate, therefore, elec- at a number of We think par- major political change selecting If tion. each mem- the method of candidates, legislative assembly endorses a full slate of ties in these bers of the largest multi-member electorate districts at this late date judge upon light change trict could be called of the confusion such thirty qualifications likely precipitate. candidates at least of the would We feel that legislative by In cir- state such for office. mini- will be better electorate served confronting cumstances, mizing surrounding a voter task im- the the the confusion making among by pending elections, indi- choice considered would be it appear most to be at vidual candidates would multi-member districts the abolition , [Id., formidable. at 366.] this eleventh hour. legislative The dis five multi-member following: requested specifically 12. We the by Federal District tricts were created the give Special additional The Masters should Meier, 246 36 Court v. Paulson creating legislative dis- consideration to (D.N.D.I965), by enactment of and not suggested along Os- tricts the lines light Legislative Assembly. sub the sequent Plan, boundaries of which tenson the Supreme pronouncements, Court compact possible remain as should improper believe it for we would be taking of travel while into account ease permit Court to continuation their district, sub- as the within each well John court-fashioned In Connor v. ' identity in- and social stantial of economic son, 29 L.Ed. S.Ct. guid- among The terests its inhabitants. : 2d 268 * stated the Court course, ing study, principle will of this * * (W)hen are courts representa- requirements equal the apportionment plans, sin- asked to fashion by Amend- tion mandated the Fourteenth preferable gle-member to ment States Constitution. to the United general large as a multi-member districts Additionally, to Masters are directed Id. at matter. at modify elimi- Plan as to the Ostenson so subsequently re-em existing nate multi-member senate Williams, phasized ruling v. Connor by creating or sub- senate 549, 551, L.Ed. represent- shall be districts each of which (1972). to feel constrained 2d 704 permit We by single house ed senator and two to continue multi-member districts Legislative in the North Dakota members Assembly. however, elections, during the 1972 368.] at [Id. disruptions in the elective extreme avoid body special political Legislative processes. recognize is a 13. The Council We study legislature organizational party created to been structure has subsequent public formed, recommend matters interest and to for elections by legislature. along legisla appropriate decision, action legisla- entirely composed generally 16- Ch. Council itself is tive lines. See may tors, include recognize takes committees it but Council 17 NDCC. We private 54r-35-01 § politi N.D.Cent.Code citizens. of a members considerable time for seq. (Supp.1973). operate et party organize effec- cal —(cid:127) Support 2%) dividing low of De- the Brief + tachment #22-12,150 (District per Stay (filed October Senator Motion fendant’s Meier, percentage Chapman 1972), Civil No. the mean — —1.6%). (D.N.D.). House Bill No. 1042 calls Representa- for 50 and 100 Senators stay granted Subsequently, we legislative tives districts. observing prej- “no proceedings, rigidly likely court’s House Bill from this No. adheres to follow udice is one-man, requirement reapportion- one-vote deferring on action further main- has established It Court. until ment reappor- tains interest” opportunity to consider the “Communities of degree. Chapman great philosophy question.” to a tionment (D.N.D., November filed No. Civil Reapportionment is a 1972) directed the further at 3. We job sponsibility for the report to this Attorney file a General representatives of Courts. As elected leg- by the regarding action taken court islature, legislators express people, can jurisdiction, and, retaining reap- regarding the voters wishes of prej- “without that our order stated portionment appointed better than by the made contentions udice judges. proceedings.” Id. plaintiffs these adopted House Bill No. 1042 was 3-4. unanimously by Reap- the Council’s Attorney report, Gen- portionment Committee. The 30, 1973, that, discloses on March eral accepta- meets the Courts’ all tests efficiency, diligence, great bility. county It breaks fewer lines formulated a promptness, the Committee many plans keeps than It submitted. its face legislative representation pretty much complied with constitutional least drastically as it is. It does reduce appeared free of to be standards legislators number which would Legislative Chair- partisanship. Council reducing have had the effect rural plan, intro- described man Streibel representation. The rural voice 1042, in these Bill as House duced enough fading North fast Dakota is words: hastening it is without us it. coun- leaves 32 Bill No. 1042 The House leaves current multi- the Subdistricting de- ty the smallest intact. It has can lines senator districts. leg- plans submitted ratio all the if viation of be done at later date the just the the Committee. Court or islature so desires. There enough isn’t to either n 1.04-1, which ratio The deviation data Grand census taking high by Forks, Minot, reappor- the to is determined or Bismarck percentage any the mean tion at time on other basis #18-12,599 per (District Senator than districts.14 multi-senator by Rep. Bryce Meier, 1974), Chapman supra. to Joint Streibel After ad- Statement v. Reapportionment issue, however, Commit- the and House Senate tee, January on this ditional debate 1973, 3, 3, to Return Exhibit and to itself decided Committee reversed 30, (filed Compliance abeyance March with Order and until an overall the matter hold 1973), Chapman Meier, including reapportionment plan, No. 4664 v. Civil multi-mem- (D.N.D.). adopted. and ber formulated Rep. Special state- The last Streibel’s on sentence Committee Minutes of the See fully ment, however, quite 9, 8-9, 1972, Reapportionment, reflect does not at November Return, supra. Supplementary on the issue the Committee actions the occa- specific several multi-member On districts. matter of No votes further on during deliberations, by sions Committee its taken districts were ap- following districts Committee, such considered the elimination sentence and, actually point, report: do so. peared voted to at one in the final Committee’s Special Committee See Minutes of it had The also concluded Committee 1972, 7, 11-12, necessary data, Reapportionment, time, October nor neither 14, January Supplementary (filed sin- Return to divide multi-member through legislature, journey stayed by In its ness of the measure was filing however, signed Bill 1042 underwent petition House of a referendum by requisite alteration. lines pur- substantial electors, number legislature refused suant were redrawn. to Section 25 of the North Dakota provide for subdis- the bill to to amend Constitution. larger cities. See Senate addition, an initiated amendment to January Sup- Journal, 23, 1973, at pro- North Dakota Constitution was (filed January plementary Return posed bipar- which would have created a Meier, Chapman 1974), No. v. Civil non-legis- composed tisan commission (D.N.D.). reapportionment The altered accomplish reapportionment lators to bipartisan support. proposal lost its specifically provided for sin- original version Committee Where gle-member single- senate partisan avoided consideration member house thereof. The subdistricts produced politics,15 the revised requisite signed number of electors volley charges lines the district petition pursuant initiative to Section protect gerrymandered incum- to were 202 of the North Dakota Constitution. February Journal, bents. See Senate Upon the plaintiffs, motion of the 5, Return 582-583, Exhibit hearing after matter, on the we or (filed Compliance March with Order stay proceedings dered a in this ac Meier, 30, 1973), Chapman No. Civil pending tion the outcome of the initia N.D.). (D. tive Chap and referendum elections. vetoed altered form was bill (D.N.D., Meier, man v. Civil No. 4664 by Link on Febru- Arthur A. Governor May 25, 1973). “unfair,” ary 2, principally be- of the failure of the cause elections were held on December rejected create senatorial 1973. House Bill 1042 was by Message, 50,729 Exhibit tricts. See voters Veto a vote of Order, Compliance 44,363, with Return to and while the constitutional amend- supra. 53,831 ment was defeated a vote of 43,178. Secretary See Certificate parti- atmosphere politically In an State, Attached to Defendant’s Mo- charges leg- countercharges, san Readopt tion to Court-Fashioned Plan islature overrode the Governor’s veto (filed 1973), Chapman December a vote in the House and of 72 (D.N.D.). No. Civil With to 14 in Re- the Senate. Exhibit legislature’s action thus nullified Compliance Order, turn su- and the rejected, commission device pra. Yet this never be- again matter is once before our court first, came law: because under Section any clearly controlling without Constitution, 67 of the North Dakota apportionment policies guidance. for our July did take until not effect 1st after session; second, the of the close be- Defendants have moved for an order cause, prior July 1st, the effective- readopting permanently reapportion- our gle-member in an subdistricts accurate Reapportionment the Joint Committee on [Report legislature manner. the North Dakota the to comment on the 14 incum Legislative 137, Supplementary at Council against required bents who would run be Return, supra.] Legislative each other under the Council a made For discussion of data which was according stated, Plan. Chairman Hernett Legislative available to the Council report meeting, Commit- to the could of the that “he might tee on which it have subdivided mul- because not consider [comment] he did districts, ti-senator if the wished politics Committee drawing up.” when Minutes of so, opinion, n. at do see text of this Reapportionment, infra the Joint Committee on 4, 1973, 2, 3, Jan. at Exhibit Return to Compliance (fil with Order March Hernett, 15. Gail a state senator at the time ed Chapman 1973), Special No. 4664 and chairman Civil of the Committee Reapportionment, (D.N.D.). was asked a member of 1972; plain- rado, ment. June U.S. 12 L. 84 S.Ct. adoption example, (1964), tiffs move the resist and Ed.2d 632 the a new our consistent with order Court stated: Having clearly defined date. more One of the most undesirable features perspective the the historical instant existing apportionment of the scheme action, I turn now an examination of requirement that, the was counties legal the issues. given more than one seat in either or the both houses of General As- II. legislators sembly, all must elected be majority today that future directs large county at from the as a whole. legislature elections for the state existing Thus, plan, under each major again of North Dakota shall cities required voter Denver to vote for be conducted on a multi-member district eight representatives. senators and 17 continuing basis.16 these long cumbersome, Ballots were permissible the court has exceeded intelligent among choice candidates Connor v. bounds its discretion. See legislature for seats was made Johnson, 690, 692, 91 quite difficult. No identifiable con- (1971). L.Ed.2d populous within the coun- stituencies resulted, ties and the residents leg- with We not here concerned a single those areas had no member of reapportion- adoption islative a such specifical- or Senate House elected plan. plan ever ment enacted ly represent Rather, them. each containing multi- legislator a elected from multimember Bill member feature was House represented county county a by the voters in a which was defeated whole. U.S. [377 House Bill 1042 referendum election. If (footnote omitted).] attack, had withstood the voters’ is- years later, key Seven case of quite different before would sue us Chavis, Whitcomb v. 91 S. more evident. one and resolution its Ct. L.Ed.2d while correctly points For, majority as the legislatively. upholding multi created clearly adop- out, hold that the cases against a head-on con member scheme leg- of a scheme tion attack, stitutional the Court stated: per se vio- islature not constitute does Opinion lation of the Constitution. objec- We are insensitive Judge Benson, supra But at 375. long voiced to multi-member tions compel when a different conclusion cases Although prevalent plans. not as trict upon to is called a federal district early they history, they were our fashioning exercise discretion times colonial have us since been new evidence be- much in both and were adoption repeatedly fore after has Criticism Amendment. of mul- Fourteenth objectionable features noted as- districting.17 winner-take-all rooted their In Lucas ti-member submerge pects, tendency mi- Assembly their Forty-Fourth of Colo- General representatives; including three senators and six cities of 16. The 21st district County District, finally, Fargo 29th Fargo 53,365), Stutsman (population West 23,550), (population including 5,265), (population and Jamestown Industrial Park Rep- representatives. County, em- two and outlying senators four of Cass areas some multiple-senate 60,242, districts population shall and resentatives braces total legislature. percent representatives; 35 to amount have five and ten senators supra. Judge Benson, Opinion District, and airbase See area 5th Minot eight (population 49,908), four senators Ap- Legislative District, generally Carpeneti, representatives; 17. Grand the 8th and’, portionment 51,243), (population Districts four Multimember : airbase Forks Representation, 666 U.Pa.L.Rev. eight representatives: the 32nd Fair senators and (1972). 35,596), District, (population Bismarck area overrepresent norities to v. Johnson as a racial discrimination winning compared party with the misreading as case. This is a of the fact position, party’s situation, straight electoral statewide for it is a legislatures general preference variance case. flecting community closely interests as May 14, 1971, three-judge On dis- possible and disenchantment trict court in the Southern political parties and elections as de- Mississippi then-existing invalidated policy to settle differences be- vices Mississippi legislative reapportionment contending tween interests. statute, because of a total variance of 26 winning significantly in- chance of or percent largest between the and smallest fights fluencing intraparty and issue- districts, and, on eve of the forth- has to some oriented elections seemed coming elections, at- minorities, inadequate protection to tempted to fashion an interim economic; rather, racial, political, or as this court —-much said, voice, is should also be their it upon was called in the to do instant case legislative forum where in the heard in June Johnson, 1972. Connor v. finally policy public fashioned. (S.D.Miss.1971). view, however, experience in- our judgment The district court’s was that sight yet demonstrated that have not single-member districting would be “ide- inherently are multi-member districts County, al” for Mississippi, Hinds but of the Four- invidious and violative that insufficient time remained before teenth U.S. at [403 Amendment. filing deadline, days candidate (foot- 157-160, at 1876-1877 91 S.Ct. away, perform dividing the task of omitted).]18 district senate (1972).] lems, 48 N.D.L.Rev. plan, adopts has said: Dobson in its County. legislature’s Supreme apportionment Court state of Vir- Hinds stating: ginia by granted application, which been invalidated Although three-judge district court. instructed, court is absent The district Supreme Court reversed the district difficulties, to devise insurmountable adopting in a new standard on court single put member effect into permissible population in variances County plan Hinds district plans, * * did affirm trial court’s use at at 91 S.Ct. *. U.S. [402 reappor- of multi-member districts in tioning 1762.] containing military areas certain following stand- The court laid down “unusual, personnel. of if not Because exercising discre- ard for courts involving unique, severe circumstances” fashioning plans: apportionment tion in pressures, permitted the time Court agree that when district courts We stand, multi-member apportionment fashion are forced to 331-332, interim basis. 410 at an U.S. single-member plans, districts are decision, reaching In this 93 S.Ct. 979. large preferable multi-member dis- noted that: the Court general matter. U.S. [402 tricts as conscientiously The [district] at 1762.] at 91 S.Ct. legislative policy considered both I am this standard re- satisfied that admonition in Connor and this court’s governs our deci- mains the law which fashioning Johnson, supra, v. Williams, v. sion. 404 U.S. Connor remedies, use of L.Ed.2d S.Ct. single-member preferred, (1972), Chav- after decided Whitcomb malapportion- evidence substantial is, supra, the Court reviewed person- respect military ment with challenge * * * court’s another Mississippi fear that too and the nel seriously delay dis- much rupted would have holding reemphasized in the earlier its Facing elections. the fall 1971 stating: case, Connor singular combination did this as it unique say factors, that the cannot jurisdic The District retained Court discretion Court abused tion these three counties and or over fashioning remedy of com- the interim Special ap Master dered that a be bining into one the three pointed January “take 1972 to tes at U.S. [410 multimember district. timony findings and make at S.Ct. 989.] Hinds, Harri whether Counties may son, feasibly di bar, and Jackson it should Turning at the case substantially long past vided into districts “in- we are be obvious equal for the numbers stage remedy Mahan. terim” 1979.” F. elections 1975 and justified creation conditions proceedings Supp., at 519. Such in 1965 senate districts multi-member go promptly should forward and be II, and which Paulson the court concluded, for, has em temporary justified continuation phasized, “when district courts our court these districts apportionment plans, forced to fashion history. no I can find have faded preferable any districts are legislative policy nor valid state large as a to general multi-member districts present grounds time practical at Johnson, matter.” Connor sen- justifying use 690, 692, Thus, U.S. S.Ct. Dakota. in North ate districts (1971). L.Ed.2d 268 [404 language Mahan under 551, 92 cases, 659.] Connor holdings two multi-member senate recently, Howell, in Mahan v. continuance Most discretion abuse 979, 35 tricts constitutes L.Ed.2d court. examined the the Court complete in read the record multi-senate districts because of I have care, tendency and find no reasons case with senators elected anywhere political party in record for one from advanced a city continuing senate to vote as a bloc. furthering the as art tricts either guarantee (9) It would tend to an improving polities con- or science point individual if all view However, government. duct of state are senators as a elected arguments does disclose several record team. single- in the more traditional favor of (10) equalize power It would member senate districts: single people in senate districts (1) gives a com- It pare only a chance to voter people with the in the broken candidates, head two down multi-senate districts making in a choice. head only the election of one influence political party (2) prevents senator. It one plurality heavy or one with a days, From North Dakota’s earliest potential from two dominating policy senate dis- poential dis- other integral politi- part tricts an go might narrowly cal tradition. 29 of the Consti- Section opposite for the candidate of required tution of such districts party. controlled in the state all elections city political until (3) prevents wide it was invalidated as almost ac- It a ostracizing by-product organization or cidental federal dis- legislator, disciplining who trict Paulson II. See a court’s decision Anderson, stray machine’s ex from the State rel. Stockman dares (N.D.1971). 57-58 line. N.W.2d When panel adopted of this some identify (4) permits It a citizen to hesitancy truly unprecedented multi- legislator his senator and II, member senate in Paulson makes direct communication court said: easier.19 exhaustively have considered the We (5) responsi- It makes senator each set forth in Bill Senate and makes ble for his actions hereby adopt]. it We find [which fade for a senator difficult perfect. Five “multi-member” of “the team” ranks created; county are lines are spe- being identified with avoid ** * violated in twelve instances. taken. cific actions the multi-member districts Insofar as campaign (6) It reduces costs proves concerned, experience are if “personalizes” campaign. inequities practical or difficulties therefrom, appropriate result remedial (7) greater It interest creates legislation reasonably expect- may seeking possibility of a citizen F.Supp. at ed. 44.] [246 polit- without seat blessing. machine ical years the court In the nine since introduced multi-mem- Paulson II animosity first (8) It diminish would Dakota, against to North senate districts ber in the created that, generally speaking, of these facts and example, encom- 21st District For Legis- Fargo, the 21st passing Fargo the most affluent citizens and West the cities Fargo’s lative concentrated extreme in the five senators live four of the January Forum, Fargo south side. Fargo; one resides side south edition). (morning Fargo. c. senator section of No northern judicial Fargo. note I take resides West unceasing they subject No. Civil have been legal (D.N.D., 30, 1972). political, philosophical, dis- June “practical putes.20 dif- with Confronted information, this Given the court inequities” referred ficulties or to proceed comply should to with the Su- legislature II, has been un- Paulson preme in Connor admonition v. Court’s bitterly to divisive is- able resolve single- supra, Johnson, establish acceptable in a to the elec- sue manner member senate within subdistricts produced court torate. A which has North Dakota’s urban areas. produce this kind of to continues - disruptive ought to results be III. adopted. This, unfortunately, exactly stand The Dobson Plan cannot majority what has done. permanent permit The evidence is at hand major North Dakota for a rea second fashioning plan which of a remedial sub- large unconstitutionally son : it contains divides the senate dis- population disparities between districts. major North Dakota’s cities. largest 13,176) (population During hearings Special of the Com- the size of ideal exceeds Reapportionment, mittee on the late Mr. percent; (population 8.8 the smallest Special Smith, R. R. one of the court’s 10,728) short the ideal falls 11.4 Masters, he advised Committee that percent total of more than deviation —a single-mem- successfully formulated percent 1.- 20 and a deviation ratio Bismarck, ber districts for the cities of Chapman Meier, No. 23-1. See Civil Forks, Minutes and Minot. See Grand 4664, (D. at 365 4 n. Special Reappor- on of the Committee N.D., 30, 1972). filed June tionment, 1972, 5, 11-12, at October original In of this our consideration 1972, 5, Supplementa- 8-9, November at case, relief the court interim fashioned Ostenson, ry supra. Return, also Mr. fact the case came to based on the Masters, Special one of our assured on us the eve of the 1972 elections. We Committee that: sought disruption of im- avoid t divide multi- is not difficult [I] pending and, elections with that consid- single-member districts into member mind, the Dobson eration in selected Fargo Fargo, and West change in less Plan effected because may necessary other cities it be then-existing legislative com- lines ground surveys and estimate make pared plans.21 It is to other now population within enumeration plan’s variances time to reevaluate this calmly said that if Mr. Ostenson districts. light the Constitution reapportion- Committee selects circumstances, unusual without these terribly plan, ment it would not be standards to question but the is: what single-member adopt difficult apply? Special Com- tricts. [Minutes 549, Williams, U.S. Connor Reapportionment, 8-9, Nov. mittee on (1972), a 30 L.Ed.2d 92 S.Ct. Return, Supplementary su- Mississippi’s plan for court-fashioned pra;] containing a total var — percent attacked as iance 18.9 also Mr. Ostenson assured —was Kirkpatrick v. plus present unconstitutional based data some that with census existing Preisler, 89 S.Ct. ground surveys, added v. Rocke may (1969), Wells L.Ed.2d 519 multi-member senate 22 L. feller, senate U.S. subdivided Court, (1969). The Ed.2d Ostenson See Comments to districts. issue, however, reach this Chapman not to Appendix chose Plan, B, attached as 10, supra. opinion note 4-6, opinion of this 14- See text at notes text of this 15, supra. ginia Assembly, up- court’s General vacated the district instead percent completion proceedings held pending a 16.4 variation between order largest earlier man- and smallest districts on the consistent the Court’s grounds Johnson, the deviation arose date from a in Connor v. (1971). maintaining policy valid state 29 L.Ed.2d the in- tegrity time, political the Court has more subdivision lines. Since that Noting protection Equal proper equal clearly Protection that the defined “govern- applicable devia- test is not framed terms standards redistricting plans simply legislative necessity,” mental tions in but terms legislature by legislatures. may of a Mahan v. claim a state enacted that “rationally 979, consider,” 326, 315, Howell, 93 35 410 U.S. at 410 U.S. 93 S.Ct. 979, (1973); Gaffney v. Cum- S.Ct. the Court concluded: L.Ed.2d 320 2321, mings, 93 S.Ct. legislatures Neither nor courts are Regester, (1973); White L.Ed.2d 298 any specialized calipers furnished that L.Ed.2d U.S. 93 S.Ct. gen- enable from the them to extract However, (1973). it an remains language Equal eral of Protection stringent open question a more whether Clause of the Fourteenth Amendment equality,” ap- standard, one of “absolute mathematical formula estab- plies reapportionment fash- schemes to range percentage lishes what devia- by in the courts ioned federal district permissible, tions is and what is not. power. equity But of their exercise percent The 16-odd maximum devia- arguendo, assuming, that Mahan’s even tion that the District Court found to controls court-fash- flexible standard legislative plan exist in the for plans by plans enacted ioned well as as apportionment House is sub- legislatures, var- to me that the it seems stantially percentage than the de- less like- Plan are all iances in the Dobson viations that have found been invalid great pass constitutional lihood too previous in the decisions this justifica- muster, particularly since no percentage may Court. this While record for tion ing on the continu- is shown approach limits, well tolerable we do this use of Virginia not it exceeds them. believe equality the Mahan case is has not substantial touchstone of sacrificed justifiable from a statement at [410 deviations. U.S. its reaffirmation Reynolds Sims, U.S. S.Ct. at 987.] that: 12 L.Ed.2d say Here, however, cannot on I divergences long So present Plan “has the Dobson record population are based standard strict equality to not substantial sacrificed legitimate incident on considerations justifiable Not deviations.” does a rational state to the effectuation greater the Plan a deviation include equal- policy, from the deviations some Mahan, upheld in percent than the 16.4 population principle are constitution- justified importantly more it is but ally respect ap- permissible to the with by any policy now in ef rational state portionment both of seats either or example that fect. It clear for is of a bicameral state the two houses adopted, has of North Dakota State legislature. [377 legislative otherwise, by or either action at 1391.] adhering strictly po policy firm lines,22 Applying as the flexible standard to the litical such this subdivision important by legislative Virginia policy the Vir- found so stay II, panel this deter- ment on a bar, case In motion Paulson legislature defended had retreat- for defendant-Meier mined that the 1965 counsel policy form as amended Bill in its ed earlier of the State House passed by from the stating: legislature, accorded North Dakota which lines, through county representation county-wide True, basis. cuts Plan Moreover, argu- There no criteria. is not a at 42-43. oral in Mahan. Supreme gath- Court Absent lature. The information which it policy justify large performed some such ered and the work that Plan, the Dobson available to us. See text of this opinion deviation of supra. Equal requires noted, Protection Clause at note plan, That adopt keeps population this court deviation a mini- might less variance between mum. It seems to me that we fol- precedent districts.23 low the panel of an earlier adopted this court which a committee plan recommended to the 1965 North IV. Legislature II,25 Dakota in Paulson dissenting, I believe it be- give careful consideration my suggestions me to hooves offer presented to the 1973 North Dakota resolving us, particularly the case before Legislature bipartisan this citizens- may again since the once legislators committee. upon be called to review decision court.24 Since successfully state has been unable to re- expressed 30, 1972, tenta- On June apportion itself, duty now rests that approval the Ostenson Plan. tive in our In the exercise of this court. time, Special Committee that the Since duty, function is to the our devise best Reapportionment the North Dako- on of plan possible conformity the with Legislative the Council has considered ta guide- supervisory Plan, Constitution and the Plan, the Ostenson Dobson many others, provided by Supreme staff assistance lines the with Court. Single-member proved at a different ad- arrived districts have legis- assuring vantageous plan of a recommended the citizens provision legislation. proposed Dakota constitutional Commit- North such That quali- Smith, one engaged that. The itself which addresses R. R. a tee Mr. longer applicable. is, course, experienced no Ac- we had of Public fied Certified May Proceedings, state, [Transcript held and resident countant prepare Meier, Chapman plan No. Civil v. and submit (D.N.D.), prac- precisely at 4-5.] as as based by upon population the reviewed and revealed ticable 23. The Dobson Plan was Reap- bearing Special census, by in mind jected on 1960 federal but the Committee Legislative appropriate guiding principles portionment dur- Council certain emphasis upon maintaining of the Special integrity hearings. ing the Minutes See possible. county boundaries, Reapportionment, October where Such on Committee Supplementary prepared 11-12, 1972, sub- Return to a submitted was Chapman LRC; (filed 1974), the said subcommittee Jan. committee of hearings Ultimately, (D.N.D.). unanimously approved that it. Public No. 4664 Civil containing cities were held different recommended a thereafter Committee composed percent. Re- The LRC deviation of 3.6 state. was total Reappor- experienced members; port Special nine on were ninetéen Committee Plan, Supple- legislature, Legislative members tionment influential & Council prominent mentary Return, supra. state ten who, by citizens of the were places resi- their reason of stay sought a of our June 24. The defendant fairly represented dence, sec- various Court, urging Supreme order from 30th major po- Each of the tions of the state. be held under the 1973 elections plan, represented. parties litical was prior de- Blackmun 1965 court Justice subcommittee, by approved stay July 17, nied the unanimously approved thereafter Paulson, Legislative said, regarding As- 25. The II LRC and submitted to the plan: designation action, sembly under committee and 1965 committee adopt- prior the commence- Bill 39 was For several months Senate Bill 39. Senate Assembly rejected by ment of the next session of ed the Senate Legislative Representatives. (the Thirty-ninth), Re- [246 House of considering been search Committee had 44.] meaningful representation, have been multi-member districts whole The UNITED STATES America on the by- subject criticism of constant Roger relation of Thomas McDOUG legislators, scholars, courts. ALD, Petitioner, recognized this in Con- supra, Johnson, and thus we nor v. HASSFURDER, D. Superintendent R. Di appropriate plan obligated to fashion an Corrections, Raiford, vision of containing senate Florida, Respondent. metropolitan in North Dakota’s No. 70-452-Civ-J-T. areas.26 Court, United States District Apart necessity subdivid- Florida, from the M. D. ing Jacksonville Division. multi-member senate these misunderstood, to make I I wish lest March saying I am not it clear that rejected out Plan must be Dobson Defendant-Meier

hand this court. justi- given opportunity to

should be upon fy existence the Plan’s continued

showing indeed serve some it does offsetting popu- policy

rational

lation variances. hearing

Accordingly, I would set

upon us. Pend- now before the motions hearing, direct

ing I would Masters: study report

1) to the court Legis- concerning the merits of Reapportionment

lative Council

Plan;

2) proposals us for sub- to submit existing

dividing multi-mem- the Dobson senate districts ber Minot, Bismarck, Fargo, Plan Jamestown, Forks,

Grand sen- comparable multi-member Legis- proposed in the

ate Plan; and Council’s

lative

3) concern- make recommendations handling

ing mil- proper

itary population Forks at Grand reappor- Minot airbases purposes.

tionment proposed appointment the ma- I would recommend I the result contrast Hernett, jority the three- Mr. Gail that of in this case with former senator Erdahl, Special judge and the in Beens v. former Chairman district court reap- (D.Minn.1972), Reapportionment, replace Committee on portioning Special trans- the late Mr. R. R. as a Mas- Minnesota’s Smith ter. House formed multi-member kept de- total seats percent. under 4 viation notes county single-member districts. districting although Thus, multi-member three-judge court therefore issued a Equal Protection does not amount to reapportionment plan calling for the at- violation, undesira- there are sufficient large election of five and 12 senators adhering it to tes- ble characteristics representatives County. in Hinds restricting tify in court-fashioned its use initially Much like the action which we plans, special circumstances. absent took 29-30, 1972, ease June which must precisely the rule This is promised appoint that special court bar, in the case at our control decision investigate master possibility Supreme was enunciated the subse- power supervisory over under its Court quent there in elections Johnson, courts in federal Connor 29 L.Ed.2d 268 U.S. promptly applied Plaintiffs to the (1971). Supreme stay, United States Court for a filing requesting unsuccessfully date for elec- majority has postponed tions be and that the district away sought distinguish this control- provide single-member characterizing ling precedent Connor simply It fair in an is not to allow a voter discussed also Whitcomb 18. The Court participate thesis, expounded Banz John urban election Professor Banzhaf, Electoral neighbor Multi-Member haf in a of four his senators while Man, They the “One Violate Districts —Do participates rural in the election Principle, Yale L.J. Vote” One It shown has been one senator. dis in multi-member residents mathematically elector- overrepresented a result “systems inequalities inherent contain al showing in bloc-voting, no such found date, representation.” In decisions to 144-148, 91 S.Ct. case. has United States path Yet issue. Plan, on this charted a clear Dobson, Dobson author Dick Single-member Daily one fact is certain: political News Minot editor representa- equal Constitu- delegate Dakota North essence tricts are the the multi- Convention, favor Reapportionment does Prob- [Dobson, tional tion. majority proposal

Case Details

Case Name: Chapman v. Meier

Court Name: District Court, D. North Dakota

Date Published: Apr 29, 1974

Citation: 372 F. Supp. 371

Docket Number: Civ. 4664

Court Abbreviation: D.N.D.