*1 Jacque CHAPMAN Daniel Plaintiffs, Stockman,
v. MEIER, Secretary for the of State
Ben Dakota, Defendant. of North State No. 4664.
Civ. Court, District States
United Dakota, D. North Division. Southeastern 1, 1975.
Aug. 17, 1975. Dec. Opinion
Supplemental D., Kelly, Fargo,
John D. plain- N. for tiffs. Bismarck, Brady, D., P.
Robert N. for defendant. BRIGHT, Judge,
Before Circuit BEN- SON, Judge, Chief District and Van- SICKLE, Judge. District MEMORANDUM OPINION AND ORDER VanSICKLE, Judge. District represents This action another chapter in the continuing legislative reap- case of portionment in the State of North Dako- ta.
By order and opinion dated June 1972, a majority adopted of this Court Plan as an reappor- Dobson interim plan for tionment the North Dakota Legislature, effective for 1972 elec- only. F.Supp. tions By order 30, 1974, opinion January dated majority of this Court adopted Dob- permanent reapportion- son Plan as the plan Legisla- ment for North Dakota F.Supp. ture. 372 By 27, 1975, January decision dated Supreme the United Court struck States *2 650 II, Under Dobson the North Dakota the Dobson Plan the basis that
down Legislature merely modified the Dobson among legislative variances population by the subdividing Plan multi-senator Equal the Protection districts offended single-senator districts into subdistricts— of the Fourteenth Amendment to Clause 5, exception. with one District though Chap- United Constitution. the States having under 1, original four senators the Meier, 751, v. 420 95 42 man U.S. S.Ct. Plan, only Dobson was divided into three (1975). 766 L.Ed.2d 5A, 5B, and 5C—with 5A subdistricts — Thereafter, Legisla- the Forty-fourth having Thus, two senators. Dobson II of Assembly State North Da- tive the split State into 50 districts/subdis- adopted (with the Plan Dobson sub- kota being tricts with District 5A a two-sena- districts), districting for multi-senator subdistrict. tor II, to as Dobson as hereafter referred apportionment plan for the North the In formulating II, Dobson Legisla- the Legislature. Bill 2497. Dakota Senate ture took into population account new of Governor North Dakota allowed data which was concerning available cer- to law Bill 2497 become without Senate tain urban areas of the State. The pop- signature, and it took effect as of his the ulation of State was calculated at 1, July 1975. 619,037. Since the number of senators complaint supplemental a their In to 51, was still set at ideally, each dis- complaint May 8, 1972, amended of 12,138 trict/subdistrict should have had II of- Plaintiffs contend that Dobson per persons senator under Dobson II. In the Equal fends Protection Clause in fact, however, 11 District still a pop- had population among legisla- variances 10,728 ulation of and so was overrepre- are large. districts too tive Plaintiffs 11.62%, by sented while District 4 still in-, this to II ask Court declare Dobson 13,176 population had a and so was valid, permanently enjoin implemen- its underrepresented Thus, by 8.55%. the Defendant, by a tation and establish con- total variance under II Dobson was plan valid stitutionally apportionment Indeed, 20.17%.1 there existed relatively Legislature. the Dakota for North minor differences between the deviations Plan, original the Under Dobson the found in districts/subdistricts under districts, into was divided 38 with State Dobson II and deviations found the having five the districts one all but same units under Dobson. Consequently, representatives. and two The 5th, senator net Legislature’s the result of pas- were five multi-senator districts sage of Dobson II was enactment of 32nd, 18th, 21st, 29th, 4, 4, 5, having and apportionment an plan with substantially senators, 8, 8, 10, 4, 2, 3 and and 6 and the same deviations and total population Thus, un- representatives, respectively. Dobson, variance found in only but with Plan, original Dobson there was der one multi-senator subdistrict. 102 represent- a of 51 senators and total atives. present Plaintiffs no challenge to the establishment of District 5A as a population of the State accord- multi- 617,761. (or senator subdistrict ing to the 1970 census was the establish- 12,- Ideally, each should have ment of all districts/subdistricts had origi- persons per multi-representative senator under the 112 as districts/subdis- tricts). fact, however, Dis- Their sole Dobson Plan. In contention nal is that the population 10,728 11 and so variances found population trict had a in Dobson II are 11.43%, constitutionally impermissible while overrepresented was under 13,176 “one man-one vote” principle District had estab- lished Reynolds Sims, underrepresented was 8.78%. v. so 377 U.S. Thus, 84 S.Ct. origi- under the (1964), total variance L.Ed.2d 506 its progeny. nal Dobson Plan was 20.21%. appendix detailing to Dobson II can be to this statistics relative found as an A chart opinion. “no,” Dob- “yes” and latter swered course, Supreme the United States Of be struck down. II must son Plaintiffs’ already validated
Court has
analysis
the court-or-
in its
contention
Plan;
Dobson II suf-
Dobson
dered
substantially
varianc-
the same
fers from
THE
FOUND IN
DO
VARIANCES
However,
itself.
it is also
es as Dobson
*3
II
DOBSON
A “PRIMA
PRESENT
“must
plan
a court-ordered
be
true that
FACIE” CASE OF CONSTITU-
to^higher standards than a State’s
held
TIONAL VIOLATIONS?
Meier,
Chapman
supra,
v.
95
plan.”
own
hand,
765. On the other
after
S.Ct. at
recognized by
Supreme
As
the
examining purported justifications by
Gaffney v. Cummings,
in
412
Court
U.S.
the
for the court-ordered Dobson
Court
2321,
735,
(1973),
37
93
L.Ed.2d 298
S.Ct.
Plan,
Supreme Court made the fol-
the
reviewing a state apportionment plan,
in
lowing observation:
“minor deviations from mathematical
justifi-
among
of the asserted
state
equality
legislative
“Examination
districts
plan
the court-ordered
thus
to
prima
cations of
are insufficient make out a
fa
demonstrates that
it fails to
plainly
cie case of invidious discrimination under
standards established for
meet
the
Fourteenth
as to re
the
Amendment so
formu-
evaluating
plans
justification by
Id.,
variances in
quire
the State.”
legislatures
by
745,
state
or other
lated
412
at
93
at
U.S.
S.Ct.
2327. How
added.)
(Emphasis
ever,
commenting
state bodies.
in
on Mahan v. Ho
hence,
plan,
well,
315,
would fail even under the
979,
410 U.S.
93
35
S.Ct.
Mahan
(1973),
criteria
enunciated in
v. L.Ed.2d 320
which involved a
Howell,
979,
populated, in the division of the State
River,
caused
the Missouri
and in
goal
observing
geographical
THE
DO
JUSTIFICATIONS WHICH
existing political
boundaries and
subdi-
THE STATE OFFERS DIFFER
visions. We find none of these factors
FROM,
SIGNIFICANTLY
OR ARE
here,
persuasive
and none of them has
THEY MORE
PERSUASIVE
explicitly
been
shown to necessitate
THAN,
JUSTIFICATIONS AL-
the substantial
deviation
READY PRESENTED TO AND
embraced
.
plan.
REJECTED BY THE SUPREME
“
[Sjparse
.
.
.
population is not
COURT?
*4
a legitimate
departure
basis for a
from
We need not
far to
look
find the
goal
.
equality.
the
of
.
.
In-
justifications
by the
to
offered
State
sus
deed, in
popula-
a State with a small
population
tain the
variances found in
tion, each
may
individual vote
be more
1
Dobson II. Section of Senate Bill 2497
important to the result of an election
a
findings
contains
series of
and declara
a highly populated
than in
State.
by
Legislature.3
tions
the North Dakota
Legislature
puts
therein
forward
.
suggestion
[T]he
that the
major justifications
three
for the the
division of the State
caused
the
II;
population variances found in Dobson
Missouri River and the asserted state
namely, (1)
sparse population
the
of ru
policy of observing existing geographi-
State; (2)
ral
of
recognition
areas
the
of
cal and political subdivision boundaries
boundary
the natural
created
the Mis
warrant departure
from population
River;
(3)
policy
souri
and
the State
of
equality is also
persuasive.
not
It is
preserving county lines.
far from apparent that North Dakota
analysis
Supreme
An
of the
Court
policy currently requires or
favors
opinion striking down the court-ordered
strict adherence to political lines. As
Plan, however,
Dobson
reveals that all
the dissenting judge in this
noted,
case
justifications
three
of
these
were
appellee’s counsel acknowledged that
presented
rejected
to
the Su-
reapportionment proposed by the Leg-
preme Court.
islative Assembly broke county lines,
372
[371],
“The
F.Supp.
basis for the District Court’s
at 393
22,
n.
and the
District
allowance of
Court
20% variance is
indicated as long as a
justifications
relying
Elliott,
Dickerson,
3. We evaluate these
on the
Cases and
Materials
principle
speak
Legislation,
(4th
1969).
that
“actions
louder
than
580
at
ed.
legislatures
practice, unfortunately,
We are
words.”
concerned that
“In
of
statement
compelled
justify
purpose
policy
should not “ab initio” feel
unmitigat-
to
or
has not been an
any court, anywhere.
blessing.
heavy
their actions to
We feel
ed
Too
reliance on such a
language
Supreme
sloppy drafting
that
Court
that
clause leads to
elsewhere
feeling
the bill. The
that the court or admin-
“[v]ery likely, larger differences [than 9.9%]
istrator will somehow work out the tedious
not be
between
districts would
tolerable
details and uncertainties
tends
to laziness
justification
legitimate
without
‘based on
statement,
fuzzy thinking.
and
therefore,
Such a
incident
to the effectuation
considerations
of
”
only
should be relied on
insofar as
Regester,
policy,’
a rational state
White v.
objectives
its
cannot otherwise be achieved
supra,
764,
2338,
653 goals. such implementing ago legislature decade that had means of al from a strict divergences policy. abandoned the strict Paulson But are “the 42-43.” v. Meier, supra, Chapman v. Meier, F.Supp. supra, [36] at population . based on standard [found . in Dobson considera- II] effectuation of at 764-765. incident to the S.Ct. tions [the county preserving policy of lines] might We here and conclude stop that justification no presented the State has . ”? variances in districts/sub-
for the
Dobson II
There are
II. The
already
rejected by
which have not
been
for in Dobson
provided
districts
Supreme
popu-
in the context
deviation from
average percentile
Court
However,
among
Dobson itself.
the words of
the 50 dis-
equality
lation
Supreme
Court that
is far from
is ± 4.65%. Thirteen
tricts/subdistricts
“[i]t
actually
apparent
policy
that North Dakota
cur- of the 50 districts/subdistricts
lines;
namely, Districts
rently requires
county
or favors strict adherence break
27, 31, 33, 35,
urge
6, 7, 17, 20, 23,
lines”
us to examine
38 and
political
policy justification
among
these
preserv-
average
anew
deviation
lines,
ing county
especially
5.03%,
±
while the aver-
since the
13 districts
Legislature
among
has made a declaration
the 37 other dis-
age deviation
short,
policy.
it embraces such
is ± 4.51%. In
tricts/subdistricts
county
in fact break
the districts which
*5
3.
magnitude
more to the
lines contribute
average
among the
of
deviation
THE POLICY JUSTIFICATION OF
IS
than the dis-
districts/subdistricts
COUNTY
PRESERVING
LINES
county
respect
which
tricts/subdistricts
TO SUSTAIN THE
SUFFICIENT
lines.
POPULATION
VARIANCES
Furthermore, 3 of the 8 districts/sub-
II?
FOUND IN DOBSON
4 which
largest
districts
have the
popula-
may legitimately
“A
desire to
State
17, 23,
tion deviations—Districts
and 33
integrity
politi-
maintain the
of various
through
—themselves cut
county lines.
subdivisions,
possible,
cal
insofar as
and
District,
The 17th
which is overrepre-
compact
contigu-
for
districts of
provide
11.59%,
through
sented
cuts
Walsh
territory
designing
legislative
ous
a
District,
County; the 23rd
which is over-
scheme.
apportionment
9.32%,
represented by
cuts
through
“
long
.
.
divergences
.So
as the
District,
Barnes County; and the 33rd
from a strict
standard are
7.72%,
which is underrepresented by
cuts
legitimate
based
considerations inci-
through
County.
short,
Morton
In
there
dent
to the effectuation of a rational
exists a variance of
between
19.31%
policy,
state
some deviations from the
'Districts,
17th and the 33rd
both of
equal-protection principle are constitu-
county
which districts break
lines.
”
.
.
.
tionally permissible.
Reyn-
Sims, supra,
578-79,
olds v.
377 U.S. at
actually
Since districts which
break
4. The 8 districts/subdistricts are Districts and 36. city, and house seats for each Accordingly, we hold that the asserted shall 1970 census data be used. justification preserving county lines is the population insufficient to sustain Legislature shall consist of among variances dis- single-member senate districts or found in tricts/subdistricts Dobson II. and two-member house subdistricts (Senate 2497) We declare Dobson II Bill subdistricts. Multi districts or Equal to be in violation of the Protection or member senate districts subdis Clause of the Fourteenth Amendment only shall be used where tricts enjoin implementa- its permanently unique require circumstances tion the Defendant. them.6 ordered, It is therefore that: Legislative districts or subdistricts Ostenson, 1. Thomas K. special as shall be drawn so recognize as to court, master of this directed to arising communities interest out submit a revised Ostenson Plan for barriers, of natural political enti- Legislative redistricting of economic, ties and social, common Dakota. State North ethnic, religious and other inter- 2. Mr. Ostenson is directed to con- ests. following
sider the criteria in for- formulating 7. In his proposed plan, mulating plan: the Special Master is authorized to boundary imposed a. The natural Special confer with Master-Dobson, by the Missouri River should with Gail Hernett Ashley, who recognized any pro- be special chaired the committee con- posed district sidering legislative redistricting in should not cross the river. the 1973 North Dakota Legislative Magnitude b. of the deviation of Session, and with other interested population, above persons may who inform him of average, or below the state any special problems which may exist in connection with redistrict- *6 should be at a kept minimum. ing any particular area of the Legislative c. district/subdistrict state. boundaries should coincide political with subdivision Special 8. Master-Ostenson shall file (county, township boundaries his proposed plan and a detailed precinct) or to facilitate the report describing plan, the explain- work of election officials at ing its operation, and the reasons election times. redistricting for in the manner compactness d. District should be suggested with the court on or be- considered. fore day the 1st of September, 3. The shall be Senate maintained at 1975. plan, This detailed report, 48 to 52 members.5 and readable maps shall be filed in not less than copies 20 and the city entitled to more than 4. Each Clerk is directed to immediately into one senator shall be divided copy forward a of these documents subdistricts, each subdistrict within judge to each and to counsel for containing city approxi- the an the respective parties, and to make equal persons. number -of mately copies plan of the available for subdistricting, Master-Ostenson In public inspection. the latest shall take into account popu- for the census data available 9. The Defendant shall be given 25 cities; but in allo- lation of these days, September 1, after 1975, to cating the total number of senate serve any and file comments or ob- reapportionment possible example 5. in the 1975 The standard 6. A is Minot Air Force Base. statute.
655 o’clock, time, a. m. At jections requested or modifications the Court will hear oral proposed plan. testimony the to from Mr. Ostenson regarding said given days Plaintiffs shall be 15 10. plan. the parties Should desire to any thereafter to file comments or produce testimony in support of or objections requested or modifica- opposition plan, in to the such tes- plan and to proposed tions to the timony shall be taken deposi- filing pur- to defendant’s respond tion and transcribed and filed for paragraph to herein. suant submission to the Court at or prior file all documents parties 11. The shall to the hearing thereon. quadruplicate. Upon filing plan Court directs all expenses and any suggestions comments or to fees incurred by Special Mas- parties to this liti- plan ter shall be against taxed as costs directed to is- gation, Clerk is the defendant. hearing an order for on wheth-
sue attempt Special 14. The Master shall plan adopt- should be er or not state, the better regionalize to rejected ed or Court. Said eco- areas of mutual delineate be held hearing shall 22nd nomic, geographical October, 1975, political, day of at the Feder- interests. Fargo, al Courthouse in at 10:00
APPENDIX 619,037 population: Dakota
North 12,138 per senator for 51 senators: Ideal
Pop. Deviation Equality from Pop. per % Deviation from No. of District Equality per Absolute Senator Senators Senator Number - 112 .92 1 12.250 523 11,615 +4.31 2 343 -2.83 12,481 3 -8.55 1038 13,176 12,440 -2.49 5A 12,367 -1.89 5B *7 364 12,502 -3.00 5C 298 11,840 +2.46 6 818 12,956 -6.74 7 887 +7.31 8 11.251 11,549 +4.85 589 9 12,858 -5.93 720 10 10,728 +11.62 1410 11 211 12,349 -1.74 12 12,679 -4.46 541 14 777 12,915 -6.40 15 11,296 842 +6.94 16 10,731 +11.59 1407 17 ' 501 12,639 -4.13 18A 12,664 —4.33 526 18B 442 12,580 -3.64 18C 12,756 618 -5.09 18D 656 Deviation
Pop. from Equality Deviation from % Pop. per No. District Equality per Absolute Senator Senators Senator Number 1279 +10.54 10,859 1 19 604 + 4.98 11,534 1 20 17 + .14 12,121 1 21A - 77 .63 21B 1 12.215 - 72 .59 12,210 21C 1 - 72 .59 12,210 21D 1 12,274 -1.12 136 1 21E 11,448 + 690 5.68 1 22 1131 + 9.32 11,007 23 1 540 11,598 + 4.45 24 1 12,799 -5.45 661 1 25 12,913 -6.38 775 1 26 254 -2.09 12,392 27 1 776 11,362 + 6.39 28 1 + 1112 11,026 9.16 29A 1 12,524 -3.18 386 29B 1 607 12,745 -5.00 30 1 574 -4.73 12,712 31 1 114 12,024 + .94 32A 1 915 11,223 + 7.54 32B 1 458 12,596 -3.77 1 32C 937 13,075 -7.72 - 33 1 77 .63 34 1 12.215 - 20 12,158 .16 35 1 1117 + 9.20 36 1 11,021 267 12,405 -2.20 37 1 428 12,566 -3.53 38 1 605 12,743 -4.98 _Total deviations population Total signs) (disregarding 619,037 232.31 twice) 5A (adding = Average + 4.65% % deviation
per district BENSON, goal achieve the equality Judge. Chief with little more than de minimis varia- respectfully I dissent: tion.” 420 at U.S. S.Ct. at 766. adopted by reapportionment plan ruled, Supreme Court has Court, and this Three-Judge majority of this must, course, accept Court and follow 371, was reversed at 372 F.2d reported *8 its concept directives. is the Such and Chapman v. in Supreme Court by the strength system. However, of our 751, this 1, 42 95 S.Ct. Meier, 420 U.S. Three-Judge again Court is at odds with held that in (1975), which 766 L.Ed.2d itself. The Legisla- 1975 North Dakota justification, a persuasive the absence tive Assembly, response in to the admo- plan of a reapportionment court ordered nition the Supreme Court in Chap- use of multi- must avoid legislature state man,1 adopted a reapportionment plan ordinarily “must districts member duty responsibility again been said on say what has the the State once 1. “We primarily occasions; through legislature body, reapportionment is many its or other rather
657
Howell,
315,
979,
v.
410 U.S.
93 S.Ct.
35
“con-
be not
majority
the
finds to
which
(1972), the
L.Ed.2d 320
variance in this
the
acceptable” because
stitutionally
required justification
legit-
case
based on
substantially
variances are
population
imate considerations
to
incident
the ef-
plan which
as the court ordered
the same
fectuation of a rational
policy,
state
I
rejected.
Supreme Court
the
agree
cannot
that because the court or-
The
finding.
with that
agree
cannot
I
plan
dered
did not meet
the criteria
rejected because
was
plan
ordered
court
enunciated in Mahan and Swann that
explicitly show
not
district court did
the
arising
the defects
out of the court’s fail-
ac-
or other
policies
“significant state
explicitly
significant
ure to
show
state
the
required
that
ceptable considerations
policies
acceptable
or other
considera-
vari-
great
so
a
plan with
adoption of a
tions have not been
by
Legis-
cured
the
24,
764.
95
at
at
S.Ct.
ance”. 420 U.S.
lature.
was
Supreme Court
the
holding
The
however,
plan,
“court-ordered
Further,
that a
I do not
sug-
believe that the
than a
higher standards
held to
gestion
must be
in Reynolds v.
Sims
varia-
26,
at
420 U.S.
plan”.
own
State’s
tions from a pure population standard
designate
did not
Chapman
at 765.
might
justified
S.Ct.
by
policy
be
such
consid-
plan
at which the
breaking point
integrity
erations as the
of political sub-
adopted by
if
acceptable
be
divisions,
would
state,
compact-
maintenance of
rejected
by
if directed
but
equality
districts,
ness and
in legislative
it,
crux of the
I see
As
court.2
or
recognition
of natural or historical
plan
a court
is that
Chapman decision
lines,
boundary
was meant to be exclu-
popula-
approximate
from
that deviates
sive.
legislature
The
has found those
by enun-
supported
be
equality
tion
must
justifications
justifications,
and other
all
historically significant state
ciations of
of which
explicitly
it has
set out as fol-
features, and that this
unique
or
policy
lows:
failed to
justifications
court’s asserted
“SECTION 1. LEGISLATIVE FIND-
for
even the standards established
meet
DECLARATIONS.)
INGS AND
The
formulated
evaluating
plans
variances in
legislative assembly finds and declares
or other state bod-
by
legislatures
state
that:
declared: “The
Supreme
ies. The
Court
maintained
The senate should be
hence,
fail even under the
plan,
would
fifty-two
to
mem-
forty-eight
from
in Mahan v. Howell
criteria announced
repre-
effectively
to
bers in order
26,
at
v. Adams.”
U.S.
and Swann
of the state and
sent the citizens
at 765.
95 S.Ct.
study
adequately
to
review
legislation. By providing
majority
upon
proposed
of this Court seizes
senate,
a
a certain
by
statement
the Su-
for such
size
particular
this
due
variance is assured
preme
finding
population
Court in
so,
of factors re-
doing
they
In
seem
to a combination
plan invalid.
section; however,
adopted by
ferred to in this
say
legislative plan
that the
Assembly3
legislative apportion-
cannot
a
Legislative
although
the 1975
justification.
I do
be formu-
by any
plan
possibly
ment
could
be validated
fore-
lated with a smaller
agree
Supreme
not
that the
Court
by
plan provided
than the
Legislature
this manner.
variance
closed
Act,
would neces-
plan
under the rationale of
this
such a
clearly
While
533,
Sims,
assem-
v.
84 S.Ct.
sitate a smaller
Reynolds
U.S.
large legis-
1362,
(1964),
bly
geographically
and Mahan
with
conducted which includes
Legislature’s statements
on the
figures
tion
collected on a town-
justifica-
findings
of
and declarations of
ship and
block
which
city
basis
which it formulated its own
upon
tions
ability
reap-
would enhance the
to
plan. The Court would have Mr. Osten-
portion
equal repre-
on the basis of
plan
a
that would maintain
prepare
son
figures
sentation.
census
Present
boundary of the Missouri
the natural
available for the 1970 census show
River; .
compactness
maintain
that the
districts do not co-
census
boundaries;
existing political
and
main-
incide
township
with established
membership estab-
and,
tain the numerical
except
city
boundaries
for the
by
Legislature;
keep
lished
and
the
Fargo, provide
of
no accurate
population above
deviation of the district
figures
block census
for the five
average
the state
at a mini-
or below
largest
of the
cities
state.
just
Legislature
mum. The
has done
procedures
16. The methods and
em-
that.
ployed by the census bureau in
taking the census and the creation
experienced
Mr. Ostenson is
and com-
reapportionment.
in the area of
petent
of census districts do not coincide
carry
assignment
he is able to
out his
If
with the
political
boundaries of
criteria, he will
and fulfill the court’s
subdivisions of the state.
In an
accomplished something
have
that ap-
attempt to obtain accurate popula-
him when
pears
previ-
to have eluded
he
political
tion data for
subdivisions
court,
plan
ously submitted
to this
and for block areas within certain
rejected
was considered and
cities,
plan
which
population figures have been
by
Legislative
the 1975 North Dakota
interpolated and calculated under
Assembly. To limit
the variance to
designed
methods
to reflect
5.95%,
necessary
he found it
to break
population
Recog-
of those areas.
lines,
twenty-five county
and reduce the
nition is made of the fact that in
membership
Legislative
Assembly
fashioning
original legislative
forty-three
eighty-six
to
senators and
reapportionment
plan,
similar
plan
Even this
representatives.
failed to
procedures
methods and
were used
compactness
meet the criteria of
in Dis-
by the courts involved.” Senate
3, 14,
tricts
and 15. Mr. Ostenson said
Bill 2497.
compactness
more
in those districts are
majority
foot-
The statement
desirable but could be allowed “.
note,
justifications
evaluate these
“We
by
only
dissecting more counties and
that
‘actions
relying
principle
on the
making
irregular.”
the boundaries more
”,
disturbing
than words’
is
speak louder
suggest
me in that
it seems to
to
majority
court,
The
of this
by some
by
Legislature
found
justifications
reasoning
understand,
which I do not
dressing”.
mere “window
When the
are
“.
.
.
find
that the
vari-
exercises its constitutional
Legislature
ances in Dobson II are not ‘incident to
overwhelming
duty,
majority
and
an
the effectuation of’ the state’s asserted
adopts
supported
a plan
both houses
policy
preserving
the integrity of
justifications
based
explicit
an
list
county lines.” That
appears
conclusion
poli-
state
on what it finds to be rational
to.be based
finding
on a
that
thirteen
a court to attribute to
cy, it behooves
“namely,
district/subdistricts
Districts
presumption
regularity
action a
3, 6, 7, 17, 20, 23, 27, 31, 33, 35, 38 and
constitutionality.
county
39” break
lines.
average
The
de-
majority
Legislative
holds the
viations in those thirteen
district/subdis-
tricts is
constitutionally acceptable,
greater
is not
then found to be
plan
than
average
as
appoints Mr. Thomas Ostenson
deviation in the
remaining
thirty-seven
plan.
master to submit a revised
district/subdistricts.
special
It
totally illogical
that the criteria Mr. Ostenson
for the majority,
It is ironic
if those
follow,
figures are to have
majority
any
validity,
is to
as directed
ig-
and to main-
smaller districts
1, 5A, 5B, 5C,
toward
nore district/subdistricts
political subdi-
integrity of its
18C, 18D, 19, 21A, 21B,
tain the
16, 18A, 18B,
Howell, supra,
Mahan v.
24, 25, 32A, 32B, 32C,
vision lines.”
21C, 21D, 21E, 22,
326-327, 93
at 986.
at
S.Ct.
410 U.S.
also
which district/subdistricts
integrity
totally preserve
do not
spoke of the “se-
Supreme
Court
lines. Each of these district/sub-
county
for the citizens
problems occasioned
vere
districts,
the majority’s
omitted from
during the several
Dakota
of North
*12
portion
a
computations, contain
a
420
redistricting confusion.”
years
many
part
in
instances it is
county albeit
26,
majority
at 766. The
at
95 S.Ct.
U.S.
county
appears
which
in one
of the same
again aggravated
has
those
this court
Further,
the
districts.
reason-
or more
pursuit
in
of an illusion of
problems4
majority becomes more sus-
ing of the
are in the middle of the
We
equality.
note that the same situation
pect
you
if
Legislature was confronted
The
decade.
in four of the district/subdis-
prevails
reality of the situation that
with the
6, 7, 38,
it enumerated. Districts
tricts
just
figures
no accurate
availa-
there are
portion
a
of a coun-
39 each contain
population distribution in
ble to reflect
actually
only
county
break
two
ty but
time,
at this
or even in 1970.5
the State
McHenry
6 and 7 break
lines. Districts
The majority
recognizes
also
the diffi-
38 and 39 break
County, and Districts
it
culty, as
seems content
utilize
County.
popu-
Stark
to
figures compiled
lation
in 1975 to subdis-
imple-
to be
policy sought
The State
cities,
trict
however declares that
the
preser-
is the
Legislature
mented
the
1970 census be used to determine the
boundaries,
county
and an ex-
vation of
number of house and senate seats for
Legislative
the
Plan disclos-
amination of
city.
surprisingly,
Legisla-
each
Not
the
fifty-three
es that all but eleven
up
very
ture came
with the
same proce-
remain intact.
It
county lines
would
dure to make use of new statistics avail-
evident that for the
to
seem self
State
in 1975 for
able
certain cities in the
compliance
achieve basic
with the crite-
state.
Reynolds,
county
some
lines must
ria of
broken,
appendix
It should be noted that
be
and the State should not
the majority opinion
table to
is based on
failing
imple-
accused of
to
thereby be
figures which include these 1975
policy.
its asserted
statis-
ment
had not in fact
reason for
for
was
“The
supra,
Fairfax
ed
was
while Fairfax
policy,
divergences
its conclusion that
not
District
330
fragmented.
County.’
F.Supp.
‘as
rejecting
Court
witness
County
implemented
offered
[1138]
Howell v.
intimated that one
And
was
at 1140. But
justification
division of
had it not
legislature
divided,
its assert-
Mahan,
State
it
from the 1970 census are to be used in
tics.
number of senate and house members to
subdistricts, not
noted
and house seats for each district. As
which
be
allocating the total number of senate
such
used
It
previously,
they
a table
seems inconsistent to use them
only
are entitled.
in
when
dividing
the 1975
for
population figures
determining
figures
cities into
are to
divided,
majority
recog-
The fact that the
will
been
there would have been
changes
nize
in population
1975 for
one ten-member district
in Fairfax
significant.
only
any reason is
new
County, a
that this
might
result
Court
figures available were from a mid-dec-
thought
well have been
to disfavor as
ade census of several North Dakota
opinion
a result of its
in Connor v.
compiled
cities. No 1975
were
Johnson,
690, 692,
statistics
402 U.S.
S.Ct.
[91
which,
rural
1760-1762,
for the various
counties
in
(1971).
29 L.Ed.2d 268]
cases,
majority of
caused the vari-
scarcely
can
be condemned
State
disparity.
ance
If the Court takes notice
simultaneously attempting
for
to move
16, supra.
13,
Legislative findings
supra.
Legislative findings
4. See
12 and
5. See
15 and
pra,
73,
changes
1286,
in
384 U.S.
city population,
should
S.Ct.
[86
they
L.Ed.2d
not also take notice of the
An unrealistic
influx of
overem
376].
phasis
population
County
population
into Pembina
on raw
figures,
because
districts,
of the recent missile
mere nose
site construction?
count
in the
may
general,
submerge
Or even more
they
could
not
these other
considerations
attribute
city
increase of
and itself furnish a
ready tool for ig
directly
noring
to a decrease in rural
factors that
popula-
day-to-day oper
tion?
important
ation are
to an acceptable
representation
apportionment
ar
Gaffney
v. Cummings, 412 U.S.
rangement.”
748-749,
at
93 S.Ct. at
(1973),
S. Ct.
tion assisting and for the court in formu- lating plan. AND ORDER this court’s We MEMORANDUM thank Mr. Moore who presented also a plan of re- OPINION SUPPLEMENTAL apportionment and testified in support express thereof. We also apprecia- our VanSICKLE, Judge. District tion to counsel for parties all (including supple- and order is This memorandum curiae) the amicus for assisting in the opinion memorandum to the mental presentation of this material. We have by majority of this court issued order *14 upon drawn all of this material adopt- in alia, 1, 1975, wherein, inter August on ing reapportionment plan a for Ostenson, Special K. as Mas- Thomas Mr. Legislature. North Dakota plan, This as ter, to formulate and sub- was directed described in this order Appendix and in reapportionment for the plan mit a attached, A is effective on the date of Dakota, conforming to of North State filing governs this and proceed- election specified by the court. guidelines certain ings for the legislature state to be elect- addition, parties other interested were In ed in 1976 and thereafter until plan such in their ideas the form invited to submit may duly be lawfully and modified or hearing A was held in of affidavits. changed. Dakota, 22, on October Fargo, North 1975, evidence was ad- legislature at which time shall consist of 50 now representatives. The court has considered senators and 100 duced. evidence, together plans with sub- state is divided into legislative that 50 dis Ostenson, tricts, by Messrs. Donald 48 which shall mitted Moore, be entitled to Dobson, representation Richard and all oth- legislature and in the by one and advice sub- suggestions, plans representatives, senator and two er and two connection, (districts In this 50) mitted affidavit. districts 40 and are com to point, at this the court wishes bined. and This combined district which con gratitude and to the express part its thanks sists of a City of the of Minot and legislators citizens and who many private the Minot Air Force Base shall be enti representation their advice in this troublesome tled to legislature offered in the Obviously, much time ef- by matter. and two senators and four representatives re- expended by persons large. was who elected at fort require block statistics for all urban areas with the U.S. House Post Office and Committee on more, population Service, a of ten thousand or and to and to the Director of the Bu- Civil encourage cooperate the bureau to with all reau of Census.” legislative reappor- state officials who have or variation fact that a “[T]he 10% 15% responsibilities; tionment approved in one State has from the norm is RESOLVED, copies BE IT FURTHER bearing validity of a similar varia- little Secretary this resolution be forwarded Adams, Swann v. 385 in another State.” tion of State to each member of the North Dakota 440, 445, 569, 572, 17 L.Ed.2d U.S. 87 S.Ct. Congressional Delegation, to the Chairman of (1967). the Subcommittee on and Statistics of Census possible, As far as plan this plan relatively
This discloses a small retains the district numbers used among deviation in the 1972 population several 13, 1974 elections. District senate districts.1 number a designation not utilized in these two Based on the 1970 census figures, elections, assigned has been to a district average ideal population per legislative which includes Fargo, part West of the 12,355 district population and the per City Fargo, adjacent noncity in plan ranges district this from 3.16 per- townships. District number 17 has now cent above the ideal population assigned been to the urban Grand Forks (district 30, 12,745) to 3.10 area. Numbers from 40 to 50 are as- percent (district below the 26, state ideal signed legislative districts created in population 11,972). Thus, the deviation largest cities of this state. from the percent. ideal totals 6.26 It only one legis- be noted that other should Under plan of apportionment in (district 25, + 3.09 percent, lative district effect for the 1972 election, state sena- population 12,737) shows a deviation in tors from even-numbered districts were excess of percent three from the ideal. elected to a four-year term which ex-
The court pires deems this in deviation accept- Senators from odd-num- able in a apportionment court-ordered bered districts were elected to a four- plan, taking into year account term in communities and would normally interest in each serve until dis- 1978. Accordingly, in tricts. We have altered most of the ex- elections will be held in even- isting legislative districts to numbered comply with districts for the office of sena- the one man-one vote tor standard for a four-year but we term. have endeavored to retain the core of changes Because of drastic in the five existing districts in the reapportion- new centers, major and because of dis- urban Thus, ment plan. extreme disruption in resulting population changes trict in oth- processes election may be avoided. areas, those er addition to senators Appendix explains B the population from even-numbered districts who will deviations between the different legisla- election in we direct that stand for tive expressed districts in terms of the *15 elections shall be held in the senatorial 1970 census. While we have allocated 3, 5, following odd-numbered districts: senate city seats to districts based on the 11, 13, 17, 19, 21, 23, 29, 33, 41, 43, 45, 47, census, we have divided these for- and 49.2 merly multiple legislator urban areas Senators elected from these odd-num- single into legislative districts on the ba- bered districts in the 1976 election sis of the shall most recent census data availa- serve for a term of years. two ble in these cities. The districts within city each are compared on the basis of Except as specifically altered this the most recent (Appendix census C) reapportionment but plan, provisions the allocation legislators city each North Dakota law govern shall the 1976 compared on a statewide basis in and Ap- subsequent elections to the leg- state pendix B. islature.3 pop- comparison purposes 27, 37, we For divide in 1. 39. The follow- boundaries — ing changes of the combined senate districts No. 40 ulation odd-numbered districts reflect 7, 9, percent population: 15, 31, and 50. less than 10 Appendix and 35. See D attached. necessary in deemed are No new elections 2. following: 3. We attach as exhibits the boundaries in which districts odd-numbered substantially 1) Map outlining legislative the same ac- same or remain the of North Dakota adopts cording The court to the 1970 census. districts. change 2) Maps major standard a as a de minimis of each of the five cities: Far- —increase, Forks, Minot, go, Bismarck, or combination diminution Grand and percent. change outlining legislative The fol- to exceed 10 Jamestown district —not unchanged lowing city. districts are boundaries odd-numbered within each
g(}5 Street, center line of 3rd A thence APPENDIX south on 3rd until Street its intersection with the Description Legislative Districts center line of 11th Avenue Southeast, east on thence 11th legislative district shall be enti- Avenue Each Southeast until its intersection with representa- and two tled to one senator extended 7th (Other Street Southeast. have combined the fortieth areas tives. We of the City of Minot are legislative contained in and fiftieth districts and this the forti- forty-first eth and legislative be combined district shall entitled to two districts.) representatives senators and four elected 6. legislative The sixth district shall large. legislative at districts of the consist of Bottineau County Pratt, and state shall be formed as follows: River, Deep Meadow, River, Mouse Wil- Creek, low Grilley, Little legislative Deep, 1. The first district shall Layton, Normal, Bantry, Deering, Saline, City consist of the of Williston and Willi- Gil- more, Wager, Kottke Valley, Stony townships Egg Creek, ston and Creek in Wil- Riga, Denbigh, County. liams Norwich and Granville townships and unorganized territory legislative 2. The second district shall designated 155-77, as townships 155-78, County; all consist of Divide of Williams 157-75, 157-76 and 158-76 in McHenry except portion that contained in County County. district; legislative the first and For- thun, Creek, 7. The Fay Keller and town- seventh legislative Short shall consist ships County. in Burke of Pierce County and all of McHenry County except portion that 3. The legislative third district shall contained in the sixth legislative district. .County of Renville consist and all of County except eighth Ward those portions legislative con- district shall fifth, consist eighth, tained in the fortieth of McLean County and Hidden- wood, forty-first legislative Ryder, Cameron, districts. Spring Lake, Rushville, Iota Flat and Greely town- 4. The legislative fourth district shall ships in Ward County. County consist of Mountrail and all of Burke 9. The County except portion legislative that ninth con- district shall legislative tained in the second consist of County Rolette Picton, district. Sidney, Mount View and Armourdale 5. The fifth district shall townships in Towner County. part City consist of that of Minot The tenth district shall lying south west of line commenc- consist of Cavalier County and all of ing point at a where the center line of County Towner except portion con- 4th Avenue Northwest intersects the tained in the ninth legislative district. limits, city west thence east on 4th Ave- 11. The eleventh legislative district nue Northwest until its intersection with *16 shall consist of Pembina County and Northwest, the center line of 10th Street Lampton, Dundee, Glenwood, Farming- thence north on 10th Street Northwest ton, Martin and St. Andrews townships until its intersection with the center line in County. Walsh Northwest, of 4th Avenue thence east on 12. The twelfth legislative district 4th Avenue Northwest until its intersec- shall consist of Benson and Eddy Coun- tion with the center line of North Broad- ties. way, thence south Broadway on North until its intersection with line the center 13. The legislative thirteenth district Burlington of the Northern shall consist Railway of the Cities of West Fargo right-of-way, thence Riverside, north and east on and and Barnes and Reed Burlington the Railway right- townships Northern in Cass County, and part that of-way until its City intersection with the of the of Fargo by bound a line
3) Map County of showing Mercer 13, 3, 16, district district. Precincts and 1 lie within boundary precincts. legislative relation to Precincts district 33. 5, 14, and legislative 20 lie within the 36th River, the Red
ter line of on the south limits, by city the and on the by west commencing point at the where the cen- commencing line at the intersection of ter line the Burlington of Northern Rail- Cherry the center line of Street and the way right-of-way main line intersects limits, city south thence Cherry north on North, 12th Avenue thence south and until its intersection with Street the cen- along Burlington east Northern Rail- South, line of ter 17th Avenue thence way right-of-way main line until its in- east on 17th Avenue until South its in- tersection with the center line of 10th with center tersection line of Cotton- North, Street thence south on 10th Street, wood thence north on Cotton- Street North until its intersection with wood Street until its intersection with Avenue, the center line of Main thence South, the center line of 4th Avenue west on Main Avenue until its intersec- thence west on 4th Avenue until South tion with the center line of 16th Street its center extended line intersects with South, thence south on 16th Street South Street, the center line of Washington until its intersection with 5th Avenue thence north on North Washington South, thence west on 5th Avenue South until Street its extended center line in- until its extended center line intersects tersects with the center line of the Bur- limits, city west thence north and lington Railway Northern right-of-way, east, following Fargo limits, city thence north and west Burlington on the point origin. (Other areas of the Railway right-of-way Northern until its City Fargo are contained in the twen- intersection with the center line of U. S. ty-first, forty-fourth, forty-fifth and for- Highway (Gateway Drive). (Other ty-sixth legislative districts.) areas of the City of Grand Forks are legislative The fourteenth district contained in the forty-second and forty- shall consist of Wells and Foster Coun- legislative districts). third ties. legislative 19. The nineteenth district 15. The fifteenth legislative district shall consist of all of Grand Forks Coun- shall all Ramsey consist of County ty except portions those contained in the except portion that contained in the seventeenth, twentieth, eighteenth, for- twenty-third legislative district. ty-second forty-third legislative and dis- legislative The sixteenth district tricts; Sarnia, Dahlen, Michigan City, shall consist of all of Walsh County ex- Petersburg townships Nash and in Nel- cept portions those contained in the elev- Cleveland, Medford, County; son enth legislative and nineteenth districts. Eden, River, Ops, Forest Ardoch and 17. The seventeenth legislative dis- townships Walshville in Walsh County. trict shall consist of that area of land 20. twentieth lying within the boundaries of the Grand shall consist of County; Traill Fairfield, (such Forks Air Force Base being area Allendale, Walle, Union, Michigan, Am- City attached to the of Grand by Forks ericus and Bentru townships in Grand that lying land within the right-of-way County; Hunter, Bell, Forks Kin- Highway 2), of U. S. part that Noble, Gunkel, yon, Gardner and Wiser City of Grand Forks bound on the townships County. in Cass limits, city north on the east River, center line of the Red on the twenty-first 21. dis- south the center line High- of U. S. City part trict shall consist of *17 way 2 (Gateway Drive), and on the west commencing a line at Fargo by of bound by city the limits. point where the extended center line eighteenth The legislative Avenue North intersects the cen- 18. district of 9th shall consist of River, Grand Forks line of the Red thence west on township in ter Grand County Forks part and that until its intersection of the 9th Avenue North City of Grand Broadway, Forks bound on the center line of thence the north with by the center line of Broadway U. S. south on until its intersection Highway (Gateway Drive), Burlington on the line by east with the center of the cen- twenty-fifth legislative
25. The dis- Walcott, of trict shall consist Col- Eagle, thence Railway right-of-way, Northern fax, Nansen, Abercrombie, Antelope, Ib- along Northern Burlington west sen, Dwight, Barney, Mooreton, Center, intersec- right-of-way until its Railway Belford, Brandenburg, Summit, Waldo, the center tion with line of 10th Street Villo, Fairmont, De Greendale La and North, thence Street south on 10th townships Mars in Richland County. its intersection with cen- North until twenty-sixth 26. The legislative dis- Avenue, of Main thence west on ter line Sargent trict shall consist of County and with Avenue until its intersection Main Dickey County except all of portion that South, the center line of 16th Street the twenty-eighth contained in legisla- along 16th un- thence south Street South tive district. til with the center line of its intersection twenty-seventh 27. The legislative South, on 5th 5th Avenue thence west district consist County shall of Ransom center Avenue South until its extended and all of County Richland that except limits, city line intersects west portion in contained the twenty-fifth along until city thence south said limits legislative district. with the center line of its intersection South, thence on 13th 13th Avenue east twenty-eighth legislative The dis- 28. with Avenue South until its intersection Logan trict shall of consist and LaMoure South, Counties; Northwest, the center line of 8th Street Young, and Pots- dam, German, thence north on 8th until Whitestone, Street South Spring Val- its intersection with the line of ley, Valley, Albertha, center Grand Lorraine South, 5th Avenue on 5th thence east and townships Dickey County. Elm in and 6th un- Avenue South Avenue South twenty-ninth legislative 29. The dis- til line its intersection with the center City part trict shall consist of the South, 4th Street thence north on 4th bound on the of Jamestown north until Street its intersection with South Burlington of the center line Northern property the extended north line of St. east, and on Railway right-of-way, Hospital, along Johns thence east said limits; city west and south and line until with property its intersection Flint, Paul, Peterson, Chicago, St. Stir- River, line the center of the Red thence (including City all of the ton Cleve- point north on the Red River to the Lake, Woodbury, land), Lippert, Moon beginning. Winfield, Homer, Newbury, Bloomen- Sinclair, Cusator, Lenton, field, Sydney, twenty-second The legislative dis- 22. Streeter, Germania, Corwin, Ypsilanti, trict shall consist of County all of Cass Alexander, Sharlow, Severn, Griffin, except portions those in the contained thirteenth, townships and in twentieth, Montpelier Manns twenty-first, forty- fourth, County. forty-fifth forty-sixth legis- and Stutsman districts; Trail, lative Sibley and Bald- thirtieth legislative 30. The district win, Ellsbury, Ashtabula, Prairie, Grand shall of Emmons and consist McIntosh Lake, Getchell, Minnie Noltimier and Counties. townships County. Weimer in Barnes thirty-first legislative 31. The twenty-third The legislative dis- shall consist Sheridan and Kidder trict shall consist of Griggs and Steele Counties; Burleigh all of ex- County and Counties; all of Nelson County except cept those contained in the thir- portions that portion contained in the nineteenth ty-second, forty-seventh forty-ninth district; Nixon, Bartlett legislative districts. townships and Odessa Ramsey County. thirty-second dis- 32. City trict part dis- shall consist of that twenty-fourth legislative County trict consist of all of Bismarck bound on the north shall of Barnes Burlington in the center except portions those contained line of Northern legisla- Railway right-of-way commencing twenty-second forty-eighth *18 the the center line of the Mis- tive west at districts. miles, eighteen thence north east
thence mile, miles, thence north three one River, and east on the thence south souri mile, west one thence north two thence right-of- Railway Northern Burlington mile, miles, thence east one thence north the with extended its intersection way to mile, mile, west one one-half thence Street, thence north of First line center mile, north one-half thence east thence with until its intersection Street First on mile, thence north one-half one-quarter B, thence of east line Avenue the center mile, mile, east thence thence one north B its intersection until along Avenue miles, thence west two and one-half one Eighteenth center of the line with miles, mile, thence north two thence Street, along the extended thence south mile, north two west one thence and until Eighteenth of Street its line center miles, thence west one-half mile, one-half line of the with the center intersection thence to the north northern right-of- Railway Burlington Northern boundary County (precincts 5, of Mercer Burlington east the way, thence on 20). 14 and to Railway the right-of-way Northern limits, east, thirty-seventh legislative 37. The south and dis- and the city limits; City of the unor- trict shall consist of the Dickin- city the and west County. son in Stark territory as Lincoln designated ganized 138-80) Burleigh (township precinct thirty-eighth legislative 38. The dis- Bis- (Other City the of County. areas of Hettinger trict shall consist of and Ad- forty-seventh are contained in marck County ams Counties and all of Stark districts.) legislative forty-ninth and portions those contained in except thirty-seventh thirty-ninth legisla- and thirty-third dis- legislative The 33. tive districts. County; consist all shall of Oliver trict County except portion that of Mercer legislative The thirty-ninth dis- thirty-sixth legislative in the contained district; Valley, consist trict shall of Golden Bill- County all ex- and of Morton Counties, ings, Slope and Bowman and in the thir- cept portions those contained Slope, and Ash South Heart Coulee dis- thirty-fifth legislative and ty-fourth townships unorganized territory and the tricts. designated as townships through 137-96 99, 99, 139-96, 139-99, 138-96 through thirty-fourth legislative 34. The dis- 140-96, 140-98 140-99 in and Stark City trict shall consist of of the Mandan County. unorganized territory designated and 40 and 50. The fortieth and fiftieth precinct (townships Bindewald as 139-81 legislative districts are combined. This 139-82 and of portion township and that combined consist of district shall that lying 138-82 north the center line of of City lying River) part of of Minot north of County. Heart in Morton legislative the fifth and west district of thirty-fifth legislative The district line Broadway; the center of North Coun- shall consist of Grant and Sioux ties; area of land within the lying boundaries 133-82, and 134—79 townships (such Minot Air of the Force Base area 84, 84, through through 136-79 135-79 being City attached of Minot by 87, 138-80, through through 137-79. lying right-of-way that land within the 138-81, portion lying 138-82 of Highway 83); and Harrison of U. S. and of the of the Heart south center line Burlington townships in Ward County. River, 138-83 and 139-83 in through forty-first 41. The County. Morton City part consist of that of shall thirty-sixth legislative dis- 36. lying legisla- east fortieth Minot consist and trict shall of McKenzie Dunn and east of tive district north part County and that Mercer Counties district; fifth Nedrose commencing west of a at lying line Surrey townships County. in Ward boundary lying on the point southern County forty-second legislative Mercer between Section 42. dis- Range 89, Range 88 and Section 36 of consist part trict shall of that the City
of by Bismarck bound on the south the district; thirty-second legislative on the by Forks bound on the north of Grand by east a line commencing with the in- Highway center line of U. S. the tersection of the center line of the Bur- Drive), by the east the west (Gateway on lington Railway Northern right-of-way eighteenth legislative of the boundary and the extended center line of First district, by on the south the center line Street, thence north on First Street until Burlington Railway of the Northern its intersection with the center line of right-of-way, by city and on the west the Boulevard, thence east on The Bou- limits. levard until its intersection with the cen- forty-third legislative 43. The Street, ter line of Fourth thence north part City shall consist of that of the of on Fourth Street until its intersection part any Grand Forks not made a of with the Avenue, center line of Divide legislative other district. thence east on Divide Avenue until its legislative 44. The dis- forty-fourth intersection with the center line of U. S. Fargo township trict shall consist of in 83, Highway thence High- north on U. S. County, the part City Cass and that of way 83 until its intersection with the Fargo by bound on the east the center center line of Highway Interstate River; by line of the Red on the south thence east on Interstate Highway 94 to district; twenty-first limits; the city on the north and west by by Broadway, west the center line of limits; city and Hay Creek township extending north from its intersection Burleigh in County. with the center line 9th Avenue 48. The forty-eighth legislative dis- North to its intersection with the center trict part shall consist of that of the City North, line of 28th Avenue thence west of Jamestown bound on by the south limits; on 28th Avenue city North to the twenty-ninth district, on the by and on the north the city limits. east, limits; north and by city west forty-fifth 45. The legislative district all of County except Stutsman that por- shall consist part of that of the City of tion contained in the twenty-ninth legis- Fargo bound on the north and by west district; Pierce, Town, lative Lake limits; the city by on the east the twen- Edna, Dazey, Uxbridge, Brimer, Rogers, ty-first and forty-fourth legislative dis- Anderson and townships Stewart tricts; by and on the south the thir- County. Barnes teenth and twenty-first legislative dis- forty-ninth legislative district tricts. part shall consist of that City of the 46. The forty-sixth legislative district by Bismarck bound on the south shall part City consist of that district, thirty-second legislative on the Fargo lying south east of the twen- west forty-seventh legislative dis- ty-first legislative district. trict, on the north the center line of 47. The forty-seventh legislative dis- Highway Interstate and on the east trict shall part City consist of that city limits. *20 B
APPENDIX Population Summary Deviation Based on Statistical 1970 Census (ideal 12,355). average per district Population % District Deviation Number 12,170 12,548 1 2 -1.50 +1.56 + 12,535 12,323 3 1.46 4 -0.26 12,238 5 -0.95 12,075 6 -2.27 12,721 7 +2.96 12,178 8 -1.43 11,994 9 -2.92 12,413 10 +0.47 12,626 12,348 11 12 13 +2.19 -0.06 Fargo-West Fargo adjacent and rural area 13, 21, 44, 45, districts census this a 46 disclose 1970 60,443. Dividing for that area by census total five senators allocated area to this each reflects a census count for 1970 single di senate strict and a deviation as follows: 12,089 -2.15 12,679 14 +2.62 12,602 15 16 +2.00 12,713 +2.90 17, 18, 42, city 17 Grand Forks districts 43 dis- 50,005. close Dividing a 1970 census for area this census total four senators allocated to this area reflects a 1970 census for single each senate a district deviation as follows: 12,501 + 1.18 19 21 23 24 25 27 28 * 29 26 18 [20] 22 ty in districts Jamestown, a and a deviation count See district See district 1970 census two senators 25,080. Stutsman 13. 17. 12,454 12,303 11,972 12,629 12,268 12,737 12,650 12,580 for 12,552 12,540 as 29 and 48 disclose allocated each Dividing follows: County, single to this this senate +1.59 +2.22 +0.80 part +1.50 +3.09 -0.42 + 2.39 +1.82 -3.10 -0.70 census a 1970 census area district of Barnes Coun reflects total 12,745 30 31 +3.16 12,059 -2.40 32, 47, 32 Bismarck districts 49 disclose 36,249. Dividing 1970 census this census total area three senators allocated to this single reflects a 1970 census for each senator and a district deviation as follows:
12,083 -2.20 12,013 33 -2.77 12,023 34 -2.69
*21 671 [*] [35] [46] [38] [39] [37] [36] [44] 40 & 50 [45] [47] [49] [48] See See See See See See See See district district district district district district district (12,228 each)24,456 13. 13. 32. 13. 12,234 12,405 12,200 12,641 12,668 12,232 +0.40 -0.98 -1.25 +2.31 +2.53 -1.03 -1.00 [*] into basis census new districts enumeration census 29 and permits as [48] follows: computing allocating deviation [1970] enumeration
[48] [29] 12,697 12,383 +2.77 + 0.23 672 C
APPENDIX on the Census Deviation Based of Population Statistical Summary (ideal legislative average district per population Year Indicated indicated). MINOT average Districts, population [1970] per census, total district population 12,232: 48,926, ideal % Deviation Population Number District & 50 (12,228) 24,456 12,232 12,238 +0.05 -0.03 0.00 52,337, census, .1971 total Districts, population FORKS GRAND average 13,084: per ideal % Deviation Population Number District [17] [18] [42] [43] 13,173 13,164 12,931 13,069 *22 + 0.61 +0.68 -1.17 -0.11 FARGO average Districts, population [1975] per census, legislative total district population 12,855: 64,276, ideal % Deviation Population District Number 21 [13] [45] [44] [46] 12,907 12,977 12,495 12,955 12,942 +0.95 +0.40 +0.78 -2.80 +0.68 JAMESTOWN ideal average Districts, population [1971] per census, total population district 12,496: 24,991, % Deviation Population Number District [29] [48] 12,462 12,529 +0.26 -0.27 BISMARCK average Districts, per [1975] census, total population 13,509: 40,527, ideal % Deviation Population District Number [32] 13,445 13,379 13,703 +1.44 -0.47 -0.96 *24 EXHIBIT 2a
EXHIBIT 2e
EXHIBIT *29 BENSON, Judge (concurring Chief
specially). plan
Except Legislature, for the reapportionment plan now ordered disruptive the Court is least plans I have not considered. aban- my
doned dissent to the decision of holding Legislature’s plan
Court to defective, constitutionally
be but because
it public get interest this *30 resolved, signed have
matter I order. point wish arithmetic
I out that the plan shows maximum deviation fig- 6.26% based on the 1970 census Because data
ures. census later than
the 1970 census was used in forming Fargo,
districts in the cities of Grand
Forks, Jamestown, Bismarck and the ac- appears
tual deviation to be closer to is significant only
14%. This because it
again demonstrates difficulty
achieving equality mathematical and the Supreme
wisdom of Court’s com- Gaffney
ments in 735, v. Cummings, 412 U.S. (1973), S.Ct. L.Ed.2d 298 dissent,
quoted my that fair ef-
fective representation does depend not
solely equality on mathematical among
district populations.
Marvin H. and Kathleen G.
TEGET, Plaintiffs,
v. America,
UNITED STATES
Defendant.
No. Civ 73-4082. Court,
United States District Dakota, D. South D.S.
Feb.