HOVET ET AL, Plaintiffs, v. MYERS, Defendant.
In the Supreme Court of the State of Oregon
Argued September 8, plan returned to Secretary of State with instructions September 30, 1971
260 Or. 152 | 489 P.2d 684
IN THE MATTER OF THE REVIEW OF 1971 REAPPORTIONMENT OF OREGON RELATING TO SENATORS AND REPRESENTATIVES.
Lee Johnson, Attorney General, Salem, argued the cause in support of 1971 reapportionment of Oregon relating to Senators and Representatives. With him on the briefs was John W. Osburn, Solicitor General, Salem.
John R. Faust, Jr., Portland, filed a brief amicus curiae on behalf of Robert P. Aragon.
James E. Griffin, Portland, submitted a brief amicus curiae pro se.
Before O‘CONNELL, Chief Justice, and MCALLISTER, DENECKE, TONGUE, HOWELL and BRYSON, Justices.
Petitioners have requested this court to review a plan for the reapportionment of the state legislature submitted by the Secretary of State.
In 1952 the people of Oregon adopted by initiative an amendment to
While we are required by the Apportionment Enforcement Amendment to judge the Secretary‘s plan, our scope of decision is limited. “* * * [W]e are not privileged to substitute our judgment as to the wisdom of the plan of reapportionment submitted to us.” In re Legislative Apportionment, 228 Or 575, 579, 365 P2d 1042 (1961). Our only function when exercising the original jurisdiction granted us by the Apportionment Enforcement Amendment is to determine if the plan complies with the Oregon Constitution, and, in this case, to determine if compliance is impossible because of the requirements of the Federal Constitution.
The petitioners do not contend the Secretary has violated the Federal Constitution. They urge that the Secretary has acted in violation of the apportionment
We conclude that the Secretary cannot comply with the Oregon Constitution and still abide by the Constitution of the United States as the United States Supreme Court has recently interpreted the Constitution. When the Federal Constitution and the State Constitution conflict, the Federal Constitution must prevail. Reynolds v. Sims, 377 US 533, 584, 84 S Ct 1362, 12 L Ed2d 506 (1964).
The Oregon constitutional requirements for legislative apportionment are as follows:
In construing this section we have used the phrases, “whole number” and “major fraction.” In re Legislative Apportionment, 228 Or 562, 570, 364 P2d 1004 (1961). If dividing the legislative district‘s population by the ideal number results in a quotient of “one,” that district has a “whole number.” If the division results in a quotient of less than one but more than one-half, the district has a “major fraction.”
When the total population of the state is divided by 30, the number of senators, the ideal number is 69,713; when divided by 60, the number is 34,856.
We interpret these provisions to require: (1) that county lines be adhered to; (2) that all counties entitled to a whole number or whole numbers of senators or representatives cannot be combined to form a district, but each of such counties is entitled to the number of legislators equivalent to whole numbers in the county; (3) that counties having a major fraction are entitled to one senator or representative, except that
The requirement that counties having one or more whole numbers cannot be combined with each other to form a district is not stated expressly. We agree with the Secretary, however, that the language of
It was suggested that while counties with whole numbers could not be combined with other such counties, the Oregon Constitution may permit counties with whole numbers to be combined with counties with less than whole numbers and such a scheme could result in a low enough percentage of disparity to satisfy the Federal Constitution. Even if such a combination of counties is permitted by the Oregon Constitution, and we do not pass upon this issue, it would not satisfy the Federal Constitution. For example, Jackson County has a population of 94,533; by dividing 94,533 by the ideal number for representatives (34,356), we get a quotient of two representatives with 25,821 remaining. All counties adjoining Jackson County are entitled to at least one whole number; consequently, none of them can be combined with Jackson County. If Jackson County were allotted three representatives it would be overrepresented by 25 per cent; if it were only allotted two representatives, it
The equal protection clause of the Federal Constitution cannot be satisfied if an apportionment plan satisfies all of these Oregon requirements.
Following the Oregon Constitution, particularly the requirement of adherence to county lines, the closest that a plan can be devised to come to these ideal numbers of 69,713 in the senate and 34,365 in the house results in too great a disparity. In the case of the house, one district must necessarily have no more than 26,888 persons, which is 23 per cent less than the ideal number. One district must necessarily have 43,685 people, which is 25 percent more people than the ideal number. This is a total variation of 48 per cent. In the case of the senate the variation is from 14 per cent too few people in one district to 14 per cent too many people in another, a total variation of 28 per cent.
Petitioners’ counsel stated at oral argument that he understood Senate Bill 470 complied with the Oregon Constitution and reapportioned the senators with only a total 9 per cent variation from the ideal. Assuming a 9 per cent variation is constitutionally permissible, we have examined Senate Bill 470 and found it deficient. The bill does not comply with the Oregon Constitution and because it is incomplete, it is difficult to determine the variation from ideal. At the least, it appears to have a variation of over 20 per cent.
The United States Supreme Court has not stated what variation from the ideal is permissible. It has held that a plan need not have all districts contain the same number of people. Reynolds v. Sims, supra (377 US at 577). On the other hand, it has also held
In Kirkpatrick v. Preisler, 394 US 526, 89 S Ct 1225, 22 L Ed2d 519, 526 (1969), and Wells v. Rockefeller, 394 US 542, 89 S Ct 1234, 22 L Ed2d 535, 539 (1969), preservation of county lines was held not to be a sufficiently substantial state consideration to justify a total variation of 6 per cent in Priesler and 12 per cent in Rockefeller. Those cases involved apportionment of congressional districts, which the Court has said requires more equality than state or local government districts. A retreat from these standards may be suggested by Abate v. Mundt, supra (403 US 182), which approved a total 12 per cent variation. Town lines were observed in that case and were held to be one of the several legitimate state considerations present in that case.
Assuming Abate does indicate a trend, we do not believe that a state constitutional requirement to observe county lines in districting is a sufficiently strong state consideration to justify a 28 per cent variation in one house and a 48 per cent variation in the other.
Petitioners argue that if the Secretary cannot comply with the State Constitution, particularly
We conclude that petitioners’ argument is too literal and in conflict with the manifest intent of the people when they amended the Oregon Constitution in 1952, by initiative, entitled “Constitutional Legislative Senator and Representative Apportionment Enforcement Amendment.” (Emphasis added.) The basic scheme is that if the legislature reapportions, any elector can require this court to review the reapportionment to determine if it complies with the Oregon Constitution; if it does not comply, the attempted reapportionment of the legislature is “null and void” and this court shall direct the Secretary of State to reapportion; his plan again can be reviewed by this court. If the legislature does not act, the Secretary of State is required to reapportion and his plan is subject to review by this court.
We construe the basic plan to be that if the legislature fails to act, or acts contrary to the Oregon Constitution, its power to reapportion passes to the Secretary of State. The Secretary of State is authorized to proceed in violation of the Oregon Constitution when that is necessary to satisfy the United States Constitution.
In addition to the basic scheme of apportionment enforcement leading to this conclusion, the wording of the entire initiative leads to the same conclusion. The section provides that when this court reviews an apportionment act passed by the legislature we shall determine whether the act “complies with subsection (1).” This is the same standard we are directed to use when reviewing the Secretary‘s plan. If the argument of petitioners were followed, this court would be required to hold a legislative apportionment invalid if
The literal construction sought by petitioners would lead to other incongruous results. Other parts of Art IV, in addition to
Petitioners assert, however, that if the Secretary cannot apportion in compliance with the Oregon Constitution, the task of reapportionment should revert to the legislature because it has the inherent power to apportion, apart from any grant of power made in the apportionment enforcement initiative. Whatever may have been the legislature‘s inherent power before the apportionment enforcement initiative, that initiative measure turned apportionment over to the Secretary of State if the legislature failed to act. The initiative was framed so as to insure action and sending the job back to the legislature will not necessarily insure action. Petitioners state that action will be insured because we can require the legislature to act within a short period or the court itself can reapportion. In some states the courts have been required to reapportion; however, in Oregon the people have directed that if the legislature does not act, the Secretary of State shall, subject to the court‘s review.
Petitioners further attack the Secretary‘s submitting a plan contrary to the Oregon Constitution be-
The Secretary in this case is not performing a “ministerial” act under any definition of that word.
After concluding that the Secretary does have the power to apportion even though he cannot comply with subsection (1) because it conflicts with the Federal Constitution, the question arises as to the extent of his power to apportion. Specifically, petitioners contend that the Secretary has no power to divide counties into single-member districts, but rather must submit a plan providing for county multi-member districts.
The Secretary‘s plan does divide populous
As we have stated, the existing districts formed along county lines must be changed without regard to county lines in order to comply with the Federal Constitution. Apportionment is accomplished by changing legislative district lines and an integral part of apportionment is making a choice between fixing legislative district lines along a single-member district plan or a multi-member district plan. This is a decision that the legislature would have had to make if it had done the reapportioning. It must be made by the Secretary of State or whatever body makes the apportionment.
The United States Supreme Court decisions aptly reflect that the choice between single- and multi-member districts is an integral part of apportionment. Connor v. Johnson, 402 US 690, 91 S Ct 1760, 29 L Ed2d 268 (1971); Whitcomb v. Chavis, 403 US 124, 91 S Ct 1858, 29 L Ed2d 363 (1971).
The problem of apportionment is one of providing all people equal representation. The choice must be made whether equal representation will be obtained more by having a larger number of people represented by a large number of representatives or having a smaller number of people represented by a single representative.
The Oregon Secretary of State determined that equal representation was best obtained by having a smaller number of people being represented by a single legislator, that is, single-member districts. As stated, he labeled them subdistricts, but they are single-member districts because a single legislator is elected from
The United States Supreme Court thus far has held that while multi-member districts are not desirable, they are not in violation of the Federal Constitution. Whitcomb v. Chavis, supra (29 L Ed2d 363). However, because of that Court‘s expressed aversion to multi-member districts, the Court might very conceivably, in the near future, change and declare multi-member districts invalid. The Secretary could legitimately consider this possibility and devise a plan with single-member districts and thus avoid the constitutional vulnerability of a multi-member district plan.
Petitioners contend that giving the Secretary of State the choice between single- and multi-member districts is putting too much power in one man; more than the people intended. The people did put this power in the Secretary; however, that power is not permanently granted. The people or the legislature can change any part of the Secretary‘s plan.
The Secretary‘s plan contains no express residency requirements for legislators; however, the plan impliedly affects the residency requirement. The plan divides populous areas into single-member districts from which the single legislators must be elected. It lumps the single-member districts, sometimes called “subdistricts,” into larger areas called “districts.” For example, in Multnomah County the plan provides for eight single-member senatorial “subdistricts” and each two of these are joined in a larger area called a senatorial “district.” No one is elected or represents these larger areas called “districts.”
A residency requirement for a legislator is not an integral part of an apportionment plan. Apportionment is a problem of numbers: how many people should a legislator represent? Residency does not involve that problem. We conclude, therefore, that the Secretary of State has exceeded the authority granted him by
All areas from which a legislator is elected should be designated “districts” rather than a “sub-district.” The areas designated “districts” and created
Pursuant to
O‘CONNELL, C. J., specially concurring.
I specially concur for the purpose of explaining why I find Mr. Justice MCALLISTER‘S position unacceptable and to register my disagreement with the majority opinion on the disposition of the residency problem.
Justice MCALLISTER has agreed with the majority that
His position is that the county lines must be followed to the extent possible, even though in doing so the apportionment plan so devised would be subject to the criticism that it was not the most desirable plan because it included multi-member districts rather than single-member districts, it being clear that a single-member district plan is preferable.
If, as is conceded, the people intended to permit the Secretary to disregard county lines to meet United States constitutional requirements, it is difficult for me to see why they would not have intended, once
The dissenting opinion attaches to the integrity of county lines a significance which I am sure the people of this state did not intend them to have once it was necessary to disregard such lines for constitutional reasons. The unnecessarily rigid interpretation adopted by the dissent is unacceptable to me. Therefore, I concur in the majority opinion.
The majority opinion leaves undecided the question of the residence requirement under the Secretary‘s proposed plan. I think that we should decide the question because if the matter is not resolved those who wish to run for office to represent a so-called sub-district (which is in fact a district) will not know whether or not they must be residents of the “sub-district.”
The controlling section of our constitution is
I concur in that portion of the majority opinion that holds that the Secretary of State may disregard the provisions of the Oregon Constitution insofar as necessary in order to make a reapportionment that will comply with the Constitution of the United States. I agree that in order to meet federal constitutional standards the Secretary of State was required in some instances to cut across county lines in forming legislative districts.
I dissent from that portion of the opinion which holds that the Secretary of State can, as a matter of political choice, create single member districts in every county entitled to more than one senator or representative, even though such single member districts are not essential to meet federal constitutional standards. In its latest reapportionment decision the Supreme Court of the United States has reiterated that multi-member districts are not constitutionally impermissible. Whitcomb v. Chavis, 403 US 124, 29 L Ed 2d 363, 91 S Ct 1858, June 7, 1971.
BRYSON, J., specially concurring.
I specially concur in the majority opinion of Mr. Justice DENECKE. The majority opinion states: “* * * however, the plan impliedly affects the residency requirement” and leaves a hiatus as to where legislators must live at the time of election to office.
“No person shall be a Senator, or Representa-
tive who at the time of his election is not a citizen of the United States; nor anyone who has not been for one year, next preceeding (sic) his election an inhabitant of the county, or district whence he may be chosen. Senators and Representatives shall be at least twenty one years of age.”
Thus, a Senator or Representative can be “an inhabitant of the county, or district whence he may be chosen.”
It may well be that it is desirable for the legislator to “be an inhabitant of the district,” but that is not what