*1 large particular participated to a degree equitable of an formulation the entire con- workable solution United
flict between railroads States, Firemen and the Brotherhood Enginemen. dispute do not We just capable resolve
this Court But an examination
this narrow issue. litigation prior pending be- the railroads and firemen leads
tween inevitable conclusion that the action D.C, F.Supp. 953. also See one facet in before this Court is but raging dispute bitter through which has agencies and the administrative regarding general require- the courts ment firemen more modern on the By consolidating the ac-
locomotives. into one central wherever
tions possible, thereby tribunal achieving greater de-
gree uniformity, the interests
public may properly who characterized parties disputes
as the real of interest in nature,
of this best served. will Plaintiffs, et PREISLER
Paul W. al. MIS OF OF STATE
The SECRETARY Attorney General SOURI Defendants, Missouri, al, Intervenor- Heinkel et
F. V. Defendants. 1064.
No.
United States Missouri, D.W. Division. Central
Dec. 1967. Jurisdiction Noted
Probable March 1968.
See 88 S.Ct. *3 Congressional Redis
the 1961 Missouri
tricting
but de
Act was unconstitutional
granting any judicial
“until
ferred
relief
Legislature of
State
opportunity
deal
has once more had an
problem;”
refused
presume
“the
all
refuse to take
State of Missouri will
duty
necessary
comply
action to
with its
Federal,
as its own
under
well
State,
Preisler v. Secre
Constitution.”
Missouri,
tary of
State
I).
(Preisler
(W.D.Mo.1965)
*4
Following
Seventy-third
Preisler I the
Assembly
enacted
Missouri
General
Act,
Congressional Redistricting
the 1965
9,
Title
Mo.Stat.Ann.
128.202-128.305
§§
ju-
(1965).
subjected
That Act
scrutiny
constitu-
dicial
and held to be
tionally
ground
it also
void on the
comply
command of
failed
with the
I,
Art.
the
Preisler
2 of
Constitution.
§
Preisler,
Louis, Mo.,
Paul
for
W.
St.
Secretary
Missouri, 257
of State of
plaintiffs.
(W.D.Mo.1966)
(Preisler
F.Supp. 953
Atty. Gen.,
Anderson,
Norman H.
case,
II).
how-
decree
second
Our
Mo.,
Downey,
State of
and Thomas H.
light
ever,
fully
for reasons
stated
Atty. Gen., for
Asst.
defendants.
II,
210,
Adams
86 S.
Swann v.
383 U.S.
MATTHES,
Judge, and
Before
Circuit
767,
permit-
(1966),
Ct.
as is on the United populations States are substan- based hibit] between district challenged respon- Plaintiffs’ Census 1960.” Act is not tial. suggested popula- comply pleading any ground failure to sive other than I, presented defendants federal Constitu- tion data with Art. 2 of the § accurately reflect parties intervened motion did tion. The who their urged population data. Pro- approval of the II the 1960 census Preisler adopted pre- appeared participated at a therefore 1965 Act have cedures were hearing regard accu- the 1967 under which in the same role conference promptly figures obtained Act. rate Census. Bureau of pending Defendants attached to their map motion following dif- State illustrates the table which illustrated the data boundaries ferences between purported presented by Appendix districts and to de- show actu- B attached al of each district. Defend- that established fendants’ motion and alleged figures: popu- ants’ motion that “all of the census the accurate 1960 Comparison Population Figures
Represented As Accurate in Appendix Defendants’ B With Figures Actual 1960 Census in Evidence *5 Population Variance Actual Actual Represented Represented Census Census App. App. Population B Def. B Variation Def. 436,417 4,436 439,746 7,765 + +10,321 + 442,302 436,448 4,467 + — 431,507 436,099 4,118 + — 423,815 8,166 419,721 —12,260 - — 430,412 1,569 431,178 - — 425,238 6,743 9,743 422,238 436,769 4,788 436,769 4,788 + + +13,542 439,984 8,003 445,523 + - - 428,223 3,758 428,223 3,758 — — 8,115 423,868 423,866 8,113 (Districts apparent Appen- 10) obviously is that defendants’ are mi- It 5 and accurately nor.1 dix B reflected the actual
population only of the ten dis- two concerning Before the facts the actual (Districts established, tricts The varia- population were variances regard legal tions in to two other defendants’ sole contention that apparent, however, 3,000 people is It there were more in the rural sub Appendix stantial B errors in Defendants’ than are Sixth District the census shows population there; actually Eighth District, made the allocation of the in metropolitan figures both of Missouri’s look areas 1960 census establish population 445,523, better than the facts as established an actual Defend- figures. Appendix supposed the actual census The mistakes ants’ B reflected a regard population sup population 439,984. in made to the When essentially posedly question justification allocated to what are is variances reached, obviously question rural districts even more obvious. an different Appendix presented involving alleged Defendants’ B indicated that in an a case though greater actually established, even approved on based Act Legis resulting those than notion that “the districts creating, never Redistricting Congressional lature believed it was the 1967 de ruled to be theless should still be comply de minimis with the doctrine of regard minimis. be variances defendants tween the districts.” After for hear- set Defendants’ motion was population vari learned the actual ing panel Court before full this Act were ances established the 1967 requested The evidence defendants. greater many substantially instances hearing established adduced at that pend set forth in defendants’ than those Assembly of Missouri the 1967 General ing motion, they advised time accurate at no ever considered evidence like adduce defendants would figures its federal census greater attempt justify varia Act. That evi- consideration of the 1967 tions had in fact' been established.1a’ ac- further dence established figures appro- Defendants and intervenors continue for all curate 1960 census any event, that, priate political contend the variances subdivisions ticipate production presented this time that variance case + involving undisputed rational an variance of evidence on the issue 13,542. variations; policy explain + State around, when but when comes October 9 give page dissenting opportunity 1a. Footnote 6 of we have an had opinion suggests may loe that we were unfair to further consideration matter Attorney position evidence. General. We reach a to adduce believe Attorney ours; Ibid, p. 36). (Emphasis General’s letters of October Attorney 11 and note cannot 1967 referred in that foot Assistant ad- General was properly September 26, read out of con vised confer- light pre granted text but must be read ence that leave would be and full hearing proceedings opportunity permit the tran revealed would be afforded to script September 26, put string your confer him “to alternative * * * jus- legally ence. Swann v. Adams III sub bow that there are *6 ject explain disparities of full discussion at that conference tified reasons to the 26, (September transcript, pp. finally they may 32- 1967 we determine what be” 34). 37). p. (Ibid, It was there made clear that dis of that cussion to be considered other was not and cases text, in stated the As learned that defendants after by Attorney the General population the actual var- “as an invitation either refrain from greater iances were than those set forth adducing evidence or to adduce evidence” pending they motion, ad- in defendants’ (Ibid, p. 35). stage case, At that vised the that defendants would Attorney and at a time when the Gen evidence. The letters of like adduce eral’s office did not con have information pur- 11 were written October and cerning accuracy figures pre the the time established at the suant to the pretrial table Appendix B, sented in sole the defendants’ pp. 21-29). (Ibid, conference legal contention that “the variations was did and did not Those letters not need to are within the of de minimis" doctrine Attorney that the Gen- in fact reiterate p. Sep (Ibid, At the close of the to introduce evidence on eral had elected the 26, conference, tember the Assistant 1967 justification,” described also “issue Attorney General stated: September 26, conference as at the Judge, policy to MR. I think it is issue of rational State DOWNEY: “the explain you al- about which the clear from what have said that the variations” entirely Attorney changed though mind had his our motion is founded General theory present congres- September 26, the and October on the between 9, stipulation 1967, minimis of fact es- districts fall within a de when the sional actually doctrine, justifi- in- that the issue the tablished what variations were judgment Try incident cation variations volved. We believe factors fairly Attorney policy was are inherent General a rational State whether unfairly by case, in the sentence in this in that the Court or treated the. event by all made consideration find the districts do not fall text must be should minimis; parts the record. not isolated within the doctrine of de Court, I not an- told the do as I have proposed is over- for district experienced chairman tion fact furnished Judge Biggs stated,” said: Reapportionment Chief the Missouri Senate served (the same Senator Committee inclusion exclusion or erroneous regard capacity to both same representa- districts of enumeration Acts) his con for figures 1961 and void population throws tive districts pop inaccurate sideration and use. The person is one vote —one askew. When figures presented by defendants’ ulation aim, impossible hit pending inac motion were fact sighted defectively eye with bull’s figures by population both curate used weapon. in con Senate and House reap- attempting to The difficulties legislative action nection with its in- with portion of Missouri the State Judge produced the Act.2 Chief figures viv- is made population accurate Biggs’ Duffy, D. statement Sincock v. comparison idly apparent by, Dela.1963, by the unidentified created variances considering ap apposite. proposed by actually figures used portionment plan it was for Delaware Reapportionment chairman Senate found aas fact that “census enumera original prepared the he when Committee they tion were included when enacted, Bill eventually Senate bill excluded, should have been or excluded 182, (see pages the Chair- 27-28 of No. they when have been should included.” Reapportionment the Senate man of noting they After that “to the vari- deposition), the extent Committee’s original erroneously produced included, in fact popula- were ances popu- Appendix Stipulation 16, 18, B because Exhibits defendants’ reported deposition testimony for lation there and the located, County one Reapportionment Chairman Dade of the Senate which which the for the two districts Committee establish that accurate 1960 accurately figures figures stated. census in fact were census made available phenomenon explanation Legislature by does 1967 Missouri elec- appear of record. tion City metropolitan officials the St. Louis Kansas dissenting opinion page of his areas the Bureau On contrary states, Judge Majority Matthes of the Census. The House opinion, majority “in- leader, however, map finding identified a of Mis- popu- were furnished data” souri used him which accurate certain Election figures long- various “the lation had been written in Louis, City Louis St. of St. ink. hand with red That witness testi- Boards County, en- County, figures Jackson ink fied that the blue hibit, on that ex- City That compasses area.” reflecting unexplained Kansas shift of 5,000 population finding the further as a base is used to Dis- from District 1 sponsors metropolitan area, finding the 1967 “the trict the St. Louis *7 misguided clearly im- writing. under the labored were in hand The his Chairman inac- pression the Reapportionment the sources that of the Senate Committee map. figures reliable.” testified that he had used a similar curate stated, ac- the longhand checked we ink He that red we testified the As elec- figures copied curacy the map furnished his had of the data on from stipulated popu- against longhand figures appeared on the officials tion Majority map. Census the Bureau House Leader’s The com- lation data longhand posite figures, be accurate. it found of these unexplained, even- source of which still Legislature did had but To state not use tually appeared Appendix on B attached census federal 1960 accurate pending motion. defendants’ good question faith figures any is not Legislature. Interestingly enough, Chair- member Senate us, fact, map forecloses it seems his man volunteered that he had used That the members 1961, 1965, any public other than official in connection with each of the charged Legislature can be that he but and 1967 Acts and had County’s responsibility manner recently the casual noticed that Dade 1960 important 7,577 always task had census incorrectly approached appeared map 12,647. apportionment in fact was his as Assembly. long standing affect General did not That error following figures. table makes 1960 federal census bill under comparison: Bill No. 182
Senate Originally Introduced
As the Chairman Reapportionment Committee Senate Figures Actual Actual Used Apparent Census Census S.B. Population Variance Author Variance - 8,269 —23,031 408,950 423,712 +12,481 460,469 +28,488 444,462 +16,843 462,716 +30,735 448,824 - - 3,868 3,757 428,224 428,113 - 2,478 1,569 434,459 430,412 + - - 4,271 4,271 427,710 427,710 - - 3,808 423,103 8,878 428,173 - - 2,053 5,721 429,928 426,260 - 4,668 412,249 -19,732 - 427,313 431,966 +
4,317,260 4,318,774 39b
+ 4,318,813 respective represent figures as the actual These .districts figures Townships Spanish adding Bill, the new outlined Ferguson (formerly 2nd Florissant) and of to the to the 9th District Lake District. City Stipulated b figures per for wards St. Louis Exhibit The actual census population. The than the total Bureau of the 18 are 39 less Census No. explained discrepancy from a number factors “results of technical (Stipulated processing No. Exhibit data.” ture, No. Bill author of Senate the Chairman of the Senate Reapportionment under Committee, simply he still twice testified that many introduced; impression the Missouri bills were nearly finally stormy comply adopted “as one with the could had a Wesberry passage times; practicable” many standard of was amended Sanders, L. finally barely passed 376 U.S. S.Ct. by getting of the House. within Ed.2d Defendants these contend that 2% (De- I, by Art. equality facts demanded demonstrate § that this was the best bill, 13-14, 18). respect pp. practicably position, equal popu- lation, passed, and, that could be there- evidence, fore, attempt argue consist *8 Defendants’ that the division party ing testimony lead provided of is, fact, of of in as Legisla- “nearly equal practicable.”3 of the 1967 as ers in houses is both In expressly produced possible spite politics that we the fact the best In of bill that 3. compromise political permit. rejected point would defendants’ Defendants to the (see “Majority arguments Minority II footnotes fact that Preisler in and accompanying 20, text on Leaders of both and Houses of the and Missouri 7 F.Supp.) pages de- of 257 have and 980 testified 968 that the 1967 again legislative compro- contend Act is a intervenors reasonable fendants and Assembly again General mise.” Missouri Intervenors that contend that 74th 960 S.D.Ind.1966, F.Supp. words, Branigin, would this defendants have v. 255
other
“prac-
155,
definition of
that
and remanded that case to the three-
Court hold
their
“accept-
legally
judge
equivalent to
consid-
Indiana court
further
ticable”
legislature.”
light
Adams,
majority
a
of
385
able to
eration in
Swann v.
reject
argument.
569,
440,
L.Ed.2d
that
U.S.
87 S.Ct.
17
501
We
(1967), Wesberry
Sanders,
v.
U.S.
376
find
defendants’ evidence
that
We
1,
526,
(1964),
84
made
constitutionally
rule
acts held
be
void
“stand
governing
on its head
usual
[s]
* * *
together
leg-
detail,
validity
there
also
stated
concerning
enactments,
facts
how
shifts
the
particular
islative
state as well as fed-
political
eral,
they
is,
course,
one
subdivisions from
come
regu-
adjoining
strong presumption
district
Act district to an
to us with a
larity
constitutionality” (supra,
more
would
made both
and
nearly
447,
population.
Har-
Mr.
87 S.Ct.
Justice
strongly
“the
lan’s
held conviction that
necessary
restate the con
It is
showing unconstitutionality
burden
principles applied in Preisler
stitutional
here,
cases, on
should
other
left
as in
be
That case
affirmed
the Su
II.
was
attacking party”
course,
was,
ex-
January 9,
preme
Court on
rejected by
plicitly
majority
day
is the law this case.
same
Supreme Court.5
affirmed,
Supreme
II
Preisler
Grills,
Kilgarlin Hill,
120,
U.S.
Duddleston v.
Court
455,
v.
386 U.S.
(1967),
L.Ed.2d 508
S.Ct.
S.Ct.
v.
yet
ity’
1967,
implicit
concept
‘practi-
re
10,
May
and not
is
(decided
Ellington,
cability’
applied
;5b
N.D.
v.
to
in a
ported)
Baker
term is
be
as
174;
districting
implicitly rejected
F.Supp.
1967, 273
Civ.No.
case” was
Tenn.
Kirk, S.D.Fla.1967,
Supreme
No.
3945; Gong
it reversed
Court when
v.
(de
133;
per
Civ.E.C.,
F.Supp.
that case in
one sentence
curiam
278
its
64-143
Reagan,
opinion
only Wesberry
1967);
August 2,
cited
v.
which
cided
Silver v.
1967;
26,
424,
Cal.,
Cal.Rptr.
Sanders.6
432 P.2d
62
Tiemann,
decided
D.Nebr.
and Exon v.
firmly
principle
The
is
settled
22, 1967,
The
279
603.
November
redistricting
proponents
of a
v.
split
in Lucas
decision was
justify
plan must sustain the burden of
10,
May
Rhodes,
(decided
1967
N.D.Ohio
ing any
equal
practicable
deviation from
by the
reversed
That case
1967,
4,
ity
Adams,
Supreme
population.
December
v.
on
Court
Swann
416,
445,
569,
supra,
212,
19 L.Ed.2d
17
88
385 U.S.
87 S.Ct.
389 U.S.
S.Ct.
major
501; Reynolds
Sims, supra,
expressed
The
in
L.Ed.2d
423.
notion
v.
1362;
577-580,
ity
to
opinion
case
in
reversed Ohio
reasons for
varia
constitutional
recognition
tions in
familiar doctrine
between districts
that the
designed
applicable
that have
“as de
been shown to exceed
minimis is
legislature
nearly
practicable”
a
as is
standard of Art.
to make clear that
State
entirely
expected
create
would not
I,
be
2.
§
political
lines in order
new
subdivision
Both
v.
Swann Adams III and
precise mathemati-
to have absolute
Kilgarlin
Hill teach that
v.
courts can
equality
cal
dis-
its
adjudicate
not refuse to
bona fide con
973).
(257 F.Supp. at
tricts”
abridg
concerning alleged
troversies
federal court case to
right
third lower
ments
equal
constitutional
minimis”, however, attempt-
“de
judicial
mention
infrequent
vote.
use
give
phrase a
phrase
ed to
definitive
apportion
“de minimis” in
meaning.
conceptual
fixed
That case
properly
ment decisions cannot
be con
Hill, S.D.Tex.,
Kilgarlin
generalized
F.
v.
verted
was
into a
rationalization
opinion
shown,
Supp.
majority
in that
pre
404. The
variances
attempted
presented
particular case,
to create
burden
cise facts
case
(1)
proof
“de
greater
under which
to have been
formula
both avoidable and
placed
minimis”
to be
those
variations were
variances that would have
produced by
pole
constitu-
been
plication
one
and considered to be
ap
at
more faithful
“per
tionally
(2)
varia-
I,
permissible,
se”
of Art.
2’s
of “as
standard
§
opposite
nearly
placed
practicable.”
to be
at
as is
tions were
void,
constitutionally
pole and held
argu-
Defendants’ basic de minimis
(3)
middle area
all
cases
ment
phrase
is not tenable. The
“de
held to
would be
the mathematical scale
minimis” was
apportion-
first used in an
permissible unless
constitutionally
ment case in
186,
Carr,
Baker v.
369 U.S.
“negate
plaintiff
able to
was
(1962).
S.Ct.
preme
than'
discarded
other
that noted
and “no
concurring
legislative judgment”
dissenting opinions
“classic
discrepancy.”
Carr,
significant
in Baker
Swann Adams
III, supra,
385 U.S. at
S.Ct.
representing
long
State
counsel
So
Mr. Justice
use of “de minimis”
White’s
*12
get
attempt
to con-
legislatures
to
courts
precisely
pattern
in
the same
as the
was.
explanatory
judicial
of the
infrequent
use
vert the
by
phrase
of
use made
that
of
phrase
into some sort
minimis”
“de
Hare,
II.
v.
and Preisler
He
Calkins
ratios
under which
formulae
numerical
simply
that
stated
“mathematical exact-
in one
fixed
percentage deviations
or
required”
precision
ness or
is
because
not
pur-
rule in another
case become
“de minimis
are
deviations
unavoidable”
of
poses
attempted measurement
of an
(385
444,
U.S. at
87 S.Ct.
The
get
expect we
can
“how much variance
by
v.
lower federal court reversed
Swann
away with,”
of
Su-
thrust
the whole
Adams III had not even mentioned the preme
is
apportionment cases
Court’s
opinion.
“de
in
It
minimis”
its
words
Indeed,
thrust
the whole
misconceived.
question
that no
is therefore obvious
cases,
many
de-
Supreme
earlier
Court
concerning
phrase
presented
was
apportionment cases
cided before
Supreme
placed
Court
in focus for
de-
or
ignored.
decided,
were
is
by
appeal from that low-
termination
Gray
Sanders,
at
v.
379-
372 U.S.
er court decision.
821,
801,
808, 9 L.Ed.2d
83 S.Ct.
at
Supreme
that the
Court’s
We believe
long
Reynolds
held
either
v. Sims
before
Kilgarlin Hill is at least an
reversal in
v.
Wesberry
on the
Sanders
rejection
any
implicit
notion that the
books,
concept
that “the
Peo-
‘we
judicial
phrase “de
use accorded
ple’ under the
visualizes
Constitution
either
into
minimis” can be converted
*
**
equality”
“the idea
and that
proof
exception
rule
to the burden of
every
every
that
other
voter is
by
Supreme
recently
so
established
* * *
in
voter
his State
underlies
apportionment
in-
cases
as an
Court
or
many of our decisions.”
may,
dependent defense that
without
great-
justify
proof,
Supreme
ap
variances
be
All
said
Court’s
portionment
Carr,
er than
that would have
those
cases from Baker v.
presented
by
plans
in fact
created
better
369 U.S.
S.Ct.
L.Ed.2d 663
legislature
rejected by
(1962)
present
or those
a
to the
to but
time teach
a
that
may
pre- particular
plans
apportionment
created
similar
case must be
ap-
present
justiciable
in the trial of an
a
sented to a court
held to
bona fide
court,
portionment
controversy
ap
case.
of no
a
We know
federal,
exception portionment plan
approved by
or
the sole
cannot be
state
with
court,
three-judge
court
reversed Texas
a lower
as constitutional unless the
contrary
expressed a
idea
has ever
above those
variances
which result
mathematically
concerning
very place
application
“de
from the
occupies
nearly
practicable”
“as
as
phrase
minimis”
in the consti-
stand
apportion-
applicable
jus
from
tutional
law
ard did in fact result
and are
minimis,”
suggest,
application
legally
be-
tified
“De
we
a
ac
ments.
longs
put
principle
ceptable
pol-
rational
where Mr. Justice Clark
State
judgment”
prohibits
legislative
generality
note
Mr. Justice
7.
It
of interest
plan
any difficulty
approval
var
had
avoidable
Harlan would
subjective
iances, by
judicial
vague
affirming
all
Adams III.
Swann v.
unsupported
by any
classifications,
in that
evi
variances
involved
avoidable
rejected
dence,
firmly
theory
plan
apportionment
on the
looked to Mr.
Florida
eye
nevertheless
as
such variances
“rela
Justice Harlan’s
tolerant
significant
being
tively
“no
dis
treated
variations
minor
“
depar
crepancy”
among
‘de minimis’
or
U.S. at
some of the districts” 385
very purpose
tures.”
Such
87 S.Ct.
proof
rejection
rule.
v. Adams’ burden
“classic
Swann
consistent
Court’s
proof
devoted detailed
to so establish
to which
icy.
The burden
attention in Preisler
II. Table
upon
IV
the defendant.
rests
page
reflects
com-
of 257
apparent,
it becomes
When
changes
parison
proposed
therefore,
presented
the facts
rejected
plan
finally en-
with those
case,
apportioning
particular
Legislature.
by the 1965
The 1967
acted
particular
body
districted the
could have
Legislature’s
enacting
action
its 1967
substantially
nearly equal
in a
more
state
express
taken
the face of
doing
manner, without
violence to
II
caveat stated
Preisler
that our dis-
legally acceptable
pol
articulated
state
rejected by
plan
cussion of
better
icy,
of de minimis is at an
consideration
the 1965
was not
be con-
particular
end
case.8
in that
strued
a future Missouri
As-
General
Kilgarlin
Hill
its
based
reversal on
rejected
sembly
approval
as an
*13
ground
the dual
that
lower court had
plan
but
to
that the 1965 Act
show
proper
applied
proof
not
burden of
comply
did not in fact
with the constitu-
upon
rule
failure to “articulate
its
tional standard.
grounds
any satisfactory
rejecting
for
at
Legislature
The fact
that
the 1965
plans presented
least
two other
adopted
practicable
could have
a more
court,
respected county
which
lines but
plan
nearly equal in
with districts more
substantially
produced
which
de-
smaller
rejected
it
had
not
Senate
(386
supra,
124,
at
viations”
U.S.
S.
87
Committee Substitute for Senate Bill No.
Ct. at
by
320 was demonstrated
our discussion
unexplained
undisputed
The
facts
in Preisler
II. The
1967
fact
that
(a)
Legislature
the 74th Mis-
this case show
that
could have done the same
Assembly
thing
souri
did not
in its
General
demonstrates
its
Act was
that
provide districts
plan
represented
1967 Act in fact
which
not a
that
the most
nearly
practicable
“as
nearly
as is
one man’s
application
faithful
of the “as
* *
congressional
equal
practicable”
vote for a
election is
as
standard.
another’s;”
(b)
rejected
obviously
worth as much as
that
plan
would
Legislature
fact
produced
departed
1967 Missouri
variances
that
less
rejected plans
that came much closer
by
from the ideal than
created
those
doing;
(c)
any
so
rejected
that
number
1967 Act.
discussion of the
Our
including
political
shifts of
plan
by
subdivisions
future
is not to be taken
a
counties,
say nothing
townships,
Legislature
any
Missouri
intimation
precincts,
pro-
rejected plan,
adopted,
wards and
would have
that such
if
congressional districting plan
duced a
pass constitutional muster. Determina-
compli-
that would have been in closer
upon
question
tion of that
would turn
by
ance
sufficiency
constitutional command
adduced
evidence
I,Art.
2.
explain
justify
§
defendants
quite obvious and substantial variances
II
Preisler
we took detailed notice
plan.
contained
practicable plans
of more
that had been
reject-
proposed
rejected by
Legislature
The 1967
Missouri
Assembly.
presented
plan
a
Missouri
ed
better
than
General
Legislature.
Assembly
74th
enacted
1965' session of
General
bill
malapportioned
proposed
re-
in man-
Bill
to and
this State
House
No.
jected
proposed
by
plan
ner more extreme than the
Missouri
As-
General
Legislature
sembly, provided
to the
districts
varied
as Senate Com-
substantially
mittee
ideal
than
Substitute for Senate Bill No.
less
congres-
recognition
8.
the fact that
What has been said
text
not to
is in
suggesting
be
“possible
that we
cannot be so drawn and
read
believe
sional districts
congressional
plan
drawn is not neces-
to draw
districts
that a
sarily
not so
pass
precision” Wesberry
constitu-
with mathematical
that would
one
judged
Sanders, supra
at
Each case must be
402, 807, compelled Mis- courts in 76 L.Ed. congressional examples, prevented by at con- elections were not souri’s 1932 redistricting authority gressional large, on the mandate decided application particular Smiley court order. and made those states Holm at effect statute Court’s reversal time in effect time and still three-judge Grills, Indiana court Preisler decided. II was II the affirmance of Preisler last Janu- Congressional ary, course, made, at- August focused 5, Our order of 1966was tention the Act of June on the fact that II, pursuant in Preisler stated to the Congressional Congressional com- 2a(c) was indeed a “command Section three-judge court mand Code, to the federal of Title United enacted States order pursuant Indiana and I, Art. 4 of the Constitu § Legis- elections-at-large the event the (257 tion of the United States” 981). latures Indiana Missouri should That section of the United redistricting pass fail constitutional part States enacted Code elections. (46 act time for Act of As June Stat. course, Court, expressly order of this II, we Bloom, also noted in Preisler Wood provides. so L.Ed. 287 U.S. 53 S.Ct. Congress (1932), failed held had Congressional developments Recent re- any legislation requiring the to reenact long standing veal that to re- efforts Representatives from election requirement enact the 1842 district provisions when it refused to include Congress present elections in seemed August 8, (37 of the Act of Stat. doomed to same failure suffered *16 14) 18, 1929. Act of June its Congress every at similar efforts over years.10 But, past Act, fifteen most Indeed, least the latter inconsistent recently, Repre- requirement required suc- legislation the 1842 with that had cessfully private rider to a attached as a from districts sentatives to be elected immigration 491), Dr. relief of one (5 bill ex- for Act of Stat. since Vallejo Samala, pressly provided Ricardo Stat. in the event a State that Sess.) 2275, Cong., (H.R. 1st a de- 90th properly failed redistrict after to Message January 9, country; gross because would be a 10. In that his of proposed that palpable President Truman franchise and invasion requirement be re finally from districts to com- election decided itself.” Missouri 36, by Congress. years June, H.R. Doc. ply enacted Act of 1842 four with election, Cong., Tru and, except 1st President Sess. the 1932 82nd later for consistently proposal incor Representatives man’s Con- all of Missouri’s porated by introduced gress in a of bills from series been elected districts have by Judiciary pro- Emanuel Chairman House have heard no date. We 1840 to malap- Celler, against possibility enacted. none of which have test Congress Nation portioning and 1945-1964. See in favor its urban Missouri Congressional Quarterly published by at that But should 1844. since page judicial day come, will be available relief right interest to an It is of more historical constitutional whose those Congressman Celler, writing in equal abridged. note that is vote redistricting plan on permissible rests language rider, precise Act in the Although 1842, Missouri. June, provides “there shall fraught may difficul- with the ties, certainly be number of dis task law a be established impossible Representa not an it is to the number tricts entitled, conscien- that a convinced one. We are which such is so tives to State effort, a desire Representatives motivated be elected tious shall federal satisfy requirements established, no district districts so constitutions, result Representative will one more than and State to elect * * * congressional dis- bill, private with its the formulation ”. That comport de- rider, passed No the House on will tricts which attached the Unit- 1967, on 28, passed the Senate mands of the Constitution vember of Mis- 30, 1967, on law the Constitution ed November became States signed F.Supp. 14, (supra, it was 1967 when souri December Congressional by the President. See That statement continues to reflect the H15901 November Record: hope- view of this We would be Court. S17458. and November appropriate steps will ful that be all responsible persons taken all legislation became When that constitutionally redis- end that a valid law, prior this relieved of the Court was tricting plan presented to this Court existing Congressional command order required take not order that it succeeding congres the 1968 and case. Should further action sional elections be held Missouri apparent further action is become free, large. Court, therefore, This will be must, necessary, shall, as we we plan en in the constitutional event no appro- motion, direct further our own coming Special acted at the Session priate proceedings in this case. Legislature, ap direct stated, proceedings propriate enable it we find that will For the reasons redistrieting appropriate or Missouri Con- to make an determine present- gressional Reapportionment become der. the event it should necessary does pending motion for to exercise this Court defendants’ ed procedures It power similar pass muster. we shall follow constitutional by other followed to those therefore three-judge have courts that federal pending Ordered mo- that defendants’ par drawn hereby tion It should be and is denied. ticular states. is further Judge Matthes, concurring in his judgment decree Ordered that the opinion II, in Priesler stated that: August 5, of this entered hereby emphasized respon- We should ordered to be and are subject,
sibility enacting effect, constitutionally remain in full force and long history apportionment before Baker or that “the Carr Wesberry decided, States, particularly since v. Sanders bad been United problem [congres- for con- stated when standards wore established “the *17 gressional apportionment] districts, conclusive- sional indicates is which in- one ly single principle that has the factor the that one volves fundamental of equality always lacking permeates has been that of en- been our entire Con- 274-275). (op. supra, imperils cit. at stitution so that its denial the forcement” very democracy” (17 more in He therefore heart of our advocated Law. Wesberry 274). v. Sand- a decade before & Cont.Prob. 268 at He also “ju- provide ers, Congress glance for that the stated that “a mere at the con- apportionment congressional acts tours of various dicial review legislatures population in United States the and the wide in of states’ variances the supra (op. compels cit. of district courts” these districts the conclusion Wesberry congressional neces- drawing the obviated that dis- Sanders the sity any congressional in that action tricts cannot for be left whims and the leg- regard. uncontrolled discretion of the states’ (op. supra, 274), adding islatures” cit. however, appropriate 1965 Act to future modifica- held void in Preisler II follow by precisely pattern further the same followed tion. It is Legislature the 1965 in its modification filings any the House that for Ordered of the 1961 Act. Representatives the United States Change Congress may already Appendix been “A” Preisler II's that have County (pop. pursuant the 1967 made A showed that Mercer under 5,750) Congressional Reapportionment by was shifted the 1965 Act Missouri hereby declared The Act should be and District 9 to District 6. filings void, no further counties to be added to that same shift the null and any Act, Grundy (pop. 12,220); (pop. accepted Putnam 8,783) under may 6,999) (pop. in be taken with a and all future action that and Sullivan filings may 28,002. population connection total con- will be made should be and been pop- The rural 1967 shift additional of this sidered a order violation 6 in from District 9 to District ulation It further Court. is commanded still further the 1967 Act 56(c) pursuant to Rule Ordered that population in the of the urban invasion Procedure, opinion exactly Rules Civil metropolitan area St. Louis appendices thereto shall and the attached pattern of established the same by invasion findings conclu- our of fact and serve as Act. the 1965 law. It further sions of of District overvaluation While jurisdiction this cause Ordered that Act, by -9,743 was reduced purposes that have be retained for the Schuyler perfectly that had obvious stated. been 5,052) County (pop. to the added the vari shift from A APPENDIX re have been ance of District 6 would IN REGARD FACTUAL FINDINGS -4,691. The in to a duced variance AND REJECTION TO 1967 ACT County Schuyler the 1967 clusion MORE PRACTICABLE DIS- OF TRICTS, proposed the 74th shift was fact PRACTICA- INCLUDING Assembly Bill No. General Senate POLITI- BILITY OF OF SHIFTS introduced; originally bill was CAL SUBDIVISIONS there in Senate Substitute remained pattern of Preisler II was removed No. We follow Bill Senate findings making specific perfected of fact Committee our from the Senate only Appendix regard A Bill No. to the 1967 Act. for Senate Substitute page Macon 983 of 257 Coun II at of Adair attached to Preisler when the shift changes pro plan proposed. made Had illustrated ties was Legislature held posed 1961 Act Substitute in the the 1965 Senate Committee adopted undisputed Dis facts 182 been void in Preisler I. Bill No. Senate changes III that the have had a variance in Preisler establish trict 6 would Legislature made the 1967 +268. legal population northwestern conse elsewhere trends 1 discuss We quence 1950 and failure to adduce of defendants’ counties between Missouri invading that, except Legislature in fact since shows evidence City, population population consideration. trends into of Kansas took Appendix by putting with- contained C. I of See Part separate city undisputed rea- into three limits facts show in its Fourth, districts, Fifth why Dis- rural son geographical Sixth, area time successive entire for the third trict 6 was Act, Legislature 6 under the 1967 a Missouri in District included overvalued geographical e., area outside i. all of the could not have been City, city net actually had contained that district limits of Kansas *18 believed growth rapid population population and 1960. since 1950 between “areas with loss in growth county lost population Every 6 in District was included and such 1960 Ray Clay except Platte, consideration,” population defendants taken into County’s gain Ray 143. attempt argue. was of An examination Counties.
971 * * * Change County “B” townships illustrated in Preisler among the Appendix First, Second, II Third, 's A stated that the 1965 and Ninth Dis- City Act several shifted wards The Kansas tricts.” same sort of shuffle was Act; only from District 4 to The District 5. 1967 made in the more 1967 so. City wards, quite County Act’s shuffle of Kansas Under the 1967 Act Louis St. was by accident, brought fragmented of Dis five, variance into' rather than four congressional separate trict 5 to within -803 of an ideal district The districts. 431,981. variance, why frag- of if it could Such a reason further invasion and considered, separately apparent population mentation of of the St. range. ly metropolitan necessary be within But constitutional Louis area was plans apportionment can obvious. piecemeal; they must be viewed improve In order to the 1965 Act’s shifting viewed a whole. The 1967 of 4, the treatment of District 25,398 City population of Kansas ward formerly population shifted District pop required District additional depletion of District 8’s 1965 Similar ulation be added to District which was population rendered allocation necessary was 29,168 already deficient before shift. bring the rural order to Dis- Accordingly, populous more Saline Coun population allocation of trict 10’s 1967 ty 25,148) (pop. Dis was shifted from closer to the ideal. architect 8,421) (pop. trict 8 and St. Clair attempt frankly 1967 Act stated that 8,737) (pop. Benton Counties were shift popula- to use total ed from the deficient District 7; under the —a tion to District 8 allocated only 42,306. The 1967 shift addition popula- the deficient 1965 Act bolster in a reduction of the minus vari resulted adjoining the 1967 tion districts under District 4 to ance in the 1967 Act’s “just sponge” squeezing like Act was -12,260. (Dep. concerned so far as District 8 was But, again, perfectly once it is obvious p. 10,859) County (pop. that had Howard Although it at he did not know been included the shifts made time, No. 182 Bill the author Senate 1967 Act the variation actually in District had more water would have been further reduced thought he he had. Because he -1,401. County The inclusion of Howard figures un- population from a still used specifically proposed to in District 4 was source, the Chairman identified along Assembly the 1967 General errone- under the was Senate Committee Bill Saline and other counties Senate being was impression that District ous originally intro- No. 182 as that bill was 8,003 only population un- excess allocated rejected plan not been duced. Had fig- census Act. The 1960 der the 1967 practica- proper, unquestionably and had 13,542 excess of that an ures establish concerning ble, allocation been made actually placed District population was City, of Kansas Districts wards both appar- is therefore Act. It the 1967 variances of and 5 would have had practicable nor neither was ent that -640, respectively. -639 and necessary Act to the 1967 for even Change Appendix 8 to on Preisler II's of District “C” boundaries extended the shuffle, if A Act’s But even city illustrated the 1965 Louis. limits St. metropolitan Louis “several Louis wards and St. St. Louis St. invasion Very parts Clay population and Platte loss substantial a net there was its 28,424 city limits of in District inside the Counties are area included City. support hardly reason loss 6; The net Kansas facts District 6 brief for assigned for all counties included in in their defendants 40,467. Clay Platte, gain drawing We lines. was net District’s of that Ray Kansas between 1950 and Counties Act robbed the 1967 find only ap- city 50,773. gain, limits City But of that was within its proximately produced like in areas reasons obvious the same City attempted robbery limits. It outside the Kansas in the 1961 popula- apparent excluding thus Acts. City city lim- within its tion of Kansas
population justified, entirely practicable get could be which is other makes it to impossible presented, exceedingly equal populations on the facts it is close to for County adjoining obvious a shift Howard districts as was demonstrated (pop. 10,859) overpopulated Clay County appor- in from the Jackson and adjoining to8 either of the and under- tionments which to attention was directed populated (257 4 or would in Preisler II Districts have foot- substantially City most reduced the variations note The De- Kansas for Star reports transferor and transferee dis- cember those the new boundary City tricts. for the lines Kansas School population Board divided within that specific regard further to the 1967 school district “into six subdistricts each Act’s shuffle of St. Louis wards and St. 71,500 population.” with about Local County Louis townships we find that the government public judi- officials in this Assembly, Missouri General like consistently cial district have demonstrat- 1961 and 1965 Missouri Assem- General ed the one man-one vote constitu- blies, attempted disregard ignore principle applied tional can without population basic go data that will not difficulty given the desire so to do. away. figures The 1960 census make it particular townships The St. Louis City obvious that the of St. Louis with solely mentioned for il- have been used population its 750,026 needed to however, purposes. use, lustrative supports That only 113,936 have added popu- additional finding it our factual that was lation to population entitle that total entirely practicable in fact for the 1967 congressional two ideal districts. It can- Legislature compact to have created two validly argued not be was not contiguous congressional practicable for the 1967 metropolitan in ac- Louis area St. have extremely created two districts with Mis- cordance the command of with small tegrity violating variations without the in- souri that would have Constitution political large subdivisions as exceedingly except small fact avoided all townships, say as nothing violating congressional variations two practiced ward lines as in the 1967 Act. population districts which that example, only For example, entitled. law populations addition of the ships of the town- finding regard We make the (pop. 66,420), same St. Ferdinand (pop. Hadley, 24,720), how a (pop. third and Lincoln district could 22,380) have been County popula- formed popu- Louis from St. tion City remaining portion lation situated of St. Louis would have provided County. of gressional Louis St. sufficient Such a third con- for two congressional districts, district could not each of have includ- remaining townships ed all of only would have varied in the -208 from the drawing county charter ideal. The line State that divide unassigned congres- would have been left into two example just regard nearly stated in prac- sional districts as to how practicable two congressional extremely easy metropolitan ticable St. Louis fact task an Assembly districts could because the have 74th General estab- policy prevented created; lished northerly no townships its use of the most existing precinct lines, least County necessarily of St. Louis metropolitan geographical areas Mis- assigned have to have been to still a dividing souri for use in the two districts. congressional district, fourth some of part which would have included of “out- precincts, regulated generally Urban state” Missouri. they capacity the number and voting assigned them, practicable machines neces- district third sarily relatively populations. adjoin small could have been made to the area ability precincts practicable to shift described for the first one two given dividing districts, side of line to the full a district observance *20 cities, the foi- included have against would tan cut- policy established assumed County: townships Louis lowing of St. metrópoli- ling township outside of lines DISTRICT PRACTICABLE A THIRD HOW TABLE SHOWING USING BEEN CREATED HAVE COULD POPULATION COUNTY LOUIS ST. County Louis St. Population
Township of: 40,095 Lemay 36,273 Concord 52,205 Gravois 35,649 Jefferson 51,092 Clayton 48,681 Coeur Creve 50,417 Midland Washington 19,304 37,673 Normandy 53,779 Homme Bon 9,528 Meramac 434,696 Population Total Ideal District +2,715 Variance nearly application as is 2,715 proper of the “as plus variance Whether legisla- would, principle practicable” unless table in the above indicated plan in fact observe prac- does facts, nearly equal ture’s enacted as is “as entirely course, apply an articulated State would, such ticable” any policy. upon proof dependent adduced might be such variance case challenged. The evidence in this case establishes Weintraub Justice As Chief township lines of Louis St. Falcey, noted Jones N-J- County were in fact broken the 1967 teach- valid one of the 101 at A.2d Act; precinct in fact used to lines were D.C., Avery, ings Meeksv. particular define the boundaries of con- pattern dis- is “a that where gressional by the districts created political integrity of closed which necessary to Act. It is therefore not ignored, then the subdivisions Falcey, principle apply the of Jones v. population substan- formed with could be supra, presented situation factual them; when tially equal in each in Preisler III the avoidable vari- because * * * disregard- completely lines [are] by the Act’s Districts ances created * * * many the court instances ed in +4,467, 1, 2, +7,765, and 3 of holding pattern that a justified in [is] +4,118, respectively, are far above integrity of developed in which had created variances that ignored.” political subdivisions Legislature in fact estab- had the 1967 stringent lished and the less followed merely principle That sound recognizing townships policy and ward says legislature prac that a must State lines. legisla preaches. tice A what State Change Appendix A to Preisler “D” in anticipate ture should therefore Legislature observing the 1965 purported policy par II illustrated how State changed made political the allocation lines can not ticular subdivisions there to District 7. We upon justify in its 1961 Act be relied variances above the 1965 noted that have been created those which would County had shifted (pop. Barton quite sparsely populated additional and 11,113) from District 7 to District 4. 7,087), (pop. counties of Shannon Carter above, As noted the 1967 shuffle (pop. of Kan- 3,973), Reynolds 5,161), (pop. Iron City’s sas necessary wards made it (pop. 8,041), (pop. 9,366) and Madison shift St. Clair and Benton Counties from to form the 1967 Act’s District 10. The *21 to7 District 4. Defendants’ 1967 Act’s shift additional reduced the hearing A, map by Exhibit greatest used minus variation of the 1965 majority House, leader of the shows that 8,113. Act to a minus variation of particular counties, along those with undisputable The had facts establish that other counties involved in other shifts County (pop. 10,445) Dent been added to by apparently made Act 1967 shift, the 1967 the variance of Dis- new subject special of some sort of dis- trict 10 would have been reduced to cussion because those +2,332. counties were shad- That shift would have also had pencil. ed with a lead reducing the effect of the variance adjoining +3,105. new District 8 to problem We by created the shift of further find that House Committee Sub- required St. Clair and Benton Counties stitute for Legislature Senate Committee Substitute that the 1967 shift addition- proposed for Bill population Senate No. 182 was again al into District 7. Once rejected by to and Missouri population 1967 allocated to District 8 Assembly. plan proposed General That “squeezed under the 1965 Act had County the inclusion Dent the 1967 sponge.” (pop. 9,116) like a Camden (together every shift with other one of (pop. 18,991) (both Laclede Counties other five that were fact pencil counties which were shaded on the House by Act). Acceptance of majority shifted the 1967 map) leader’s were shifted proposed rejected plan would from old District with 8 a resultant total +1,064 produced gain 10,949 a variance population net for District new District 10. produced +4,788 7. That shift a variance under the 1967 Act. Legislature was Missouri 1967 But this Court must face the required squeeze undis- put old Dis- putable Hickory fact that the addition of provide 10 the trict 8 to new District County (pop. 4,516) to population assigned by the 1967 shift Act. the 1967 4, from old District 7 to new District rural The 1967 of additional Act’s shift would have reduced new District 7’s to new Dis- 8 counties old District have, variance to siphon- a compensated +278 trict 10 was time, the same ing reduced variance population from the St. more still Leg- -12,260 new District 4 from metropolitan to a The 1967 area. Louis -7,754. pop- County Louis islature invaded St. by extending ulation the boundaries Hickory County proposed inwas fact in- district fifth still a for inclusion in District 7 several ver- County. The 1967 part of clude No. sions Senate Bill 182 as that bill town- Meramac Act added Concord progressed through the Missouri 1967 Bon particular precincts in ships and Legislature. Indeed, the Senate Substi- County new Louis Homme in St. pro- tute for Bill Senate No. 182 made District 8. vision for a District 7 that included Hickory County in which the variation portion of The addition of that St. -1,292, from the ideal district was County by caused Louis smaller, substantially variation than that city from the new 8 to stretch District eventually created Act. to within less limits St. Louis Change Ap- “E” noted in Preisler II’s city Kansas 75 miles of the limits of pendix A reflected the 1965 Act’s disregard shift City. Thus, in total Wayne County from the contiguous 1961 Act’s duty compact to draw District 8 to that Act’s District 10. placed on it Following pattern Assembly the same established in Constitution, the 74th General the 1967 shifted the Louis urban St. added pattern County essentially district rural Act “both have the same over- to an overweight out the valuation and order to balance votes geographical areas, from in shifted the rural as con- five rural counties trasted met- old 8 to new District votes the two (257 applicable ropolitan Mis- F. For the areas of the Act. State” Supp. ex gerrymander, find- see State make the same souri law on We Hitchcock, 1912, ing regard Act, particu- Mo. rel. 433, to the 1967 Barrett v. larly applies met- Preisler as it to the St. Louis 146 S.W. ropolitan Doherty, 284 S.W.2d Mo. area and the area of Kansas Lightfoot, City Compare of the Missouri River. north Gomillion 5 L.Ed.2d U.S. S.Ct. In Preisler II found and held we (1960), under for circumstances Seventy-third As- “all that the sembly General gerrymandering federal can become regard did its [in Act] *22 question. constitutionally im- to the 1961 Act held permissible in Preisler I to move In Preisler II we found as a fact that from one three small counties district against “the discrimination the St. Louis wards from another and to shift a few metropolitan area, by evidenced the 1961 metropol- one district to another in both Act, was continued under the 1965 Act” 980). (257 F.Supp. itan at We areas” (257 4). F.Supp. at fn. We find find hold in Preisler III that all the that the 1967 Act continues the same Assembly regard to 74th General did in Preisler II discrimination. found in We constitutionally in 1965 Act held void the the under both 1961 Act and the coun- Preisler II was to add a few more City City was 1965 Act “the of Kansas of rural counties and to ties to the shifts Congress- split separate between three grossly than the invade more ever before districts,” ional under and that both population in met- concentrated the two City “population the the Kan- acts * * * ropolitan areas of this State. City sas uti- continued to be lized to increase the deficient Preisler II we popula- found that the over- essentially particular tion of two rural valuation of in votes dis- districts” (257 F.Supp. 960). by make the at We tricts created the 1965 Act had been finding regard by undisputed same in the use established “the and unex- County plained City’s Clay presented Platte and facts” Kansas in that case. population regard crea- noted to District 6 We in Preisler II that did “counsel attempt suggest any II we why In Preisler not ted 1967 Act. reason it practicable the 1965 was found that the 1961 Act and not to avoid variances speaking Hitchcock illustrates case arrived relation Supreme outrageous practice year 1912, gerrymandering,. Court of holding difficulty common, no which has become Missouri had so and has so long indulged “quite firmly doc wedded it was without rebuke that * * * requirements permanency must it threatens trine that constitutional * * mandatory, rather our free institutions *. be considered directory” (146 There is 50) schoolboy S.W. at but knows what is jurisdiction legislative apportion- to entertain motives of ments; these “courts appor validity action, pass on the acts is idle for the courts to excuse districts, upon tioning grounds, keep the action state into senatorial other or to * * infringe invalid for silent as to and to declare them the real reason * * (146 57). upon the S.W. at ment Constitution 53). People complain (146 today the merits who at On S.W. about how city giving malapportion- Louis of St. federal courts held that describe case practicable ing legislatures divi when a action six senators of State should be- required population, seven come more familiar sion of the with what state flagrant say subject limited violation courts had fifty a “most on that same years ago. granted Constitution Present discretion the difficulties 54). arose, (146 course, Re Legislature” at S.W. state because courts (Giddings Michigan upon provisions lying express case ceased to enforce the Blacker, 16 L. N.W. of state supra. Mich. constitutions. See Footnote Supreme 402), of Mis Court R.A. plain time for “the souri stated * *” * 969). Kilgarlin F.Supp. (257 page We Hill. ex- On of 257
pressly rejected argument presented F.Supp. II, of Preisler we italicized precise language for the III counsel intervenors that from Tawes that the represented Supreme proper quoted 1965 Act “the that could best as the bur- gotten practical political proof under the den of rule in III. Swann v. Adams 969). And, rejected (257 F.Supp. finally, expressly circumstances” we arguments Preisler II defendants’ emphasized again again We attempted to establish considerations of the “substantial deviations arguments “political stability” their (257 “unexplained” and variances” were “economic,” concerning “political,” “his- 974). F.Supp. at We attention directed torical,” “traditional” factors as le- significant to what we called the most gitimate upon disparities grounds regard language in Drum I in we to what from based districts could be proof to be burden believed justified (257 F.Supp. at apportionment cases. We italicized language Judge legal principles Sobeloff in Tawes I that underlie those page findings course, are, of 257 the law of that antici pated holding Supreme Court’s case as Court. later affirmed B
APPENDIX Parts) (In Two *23 I. House Bill Discussion No. 870 regard specific findings proposed to Our to House Bill No. 870 rejected by and by preliminary understood 1967 can best be following examination of table: Originally House No. 870 as Introduced Bill Rejected by and the 1967 Missouri Assembly
General 870 B. Act
H. 1967 Population District 1960 Census 1960 District Population No. No. Variance - 1 851 (D 431.896 — 1 851 (2) 431.896 — (3) 431.896 - 430,361 1,6202 (5) 435,066 3,0852 + (6) - (9) 431,418 - (7) 427,972 4,0092 - 428,678 3,3032 (8) - (9) 431.897 438,733 6,7522 + (10) 4,319,813 population 1, 2, produced adjoining 2. 1. for Districts variances in the The total evenly produced 4th and in this table Districts 9 is distributed 5th those County Townships adjoining 7th, 8th, Louis were and 10th St. Dis- because substantially split precincts tricts and accurate census could be further re- into townships precincts precincts duced those is not in evi shifts of or data However, obviously practic adjoining it is from one district to another. dence. entirely “practicable” al the area Such shifts are un- able divide involved into policy equal populations the divi der that seeks to maintain most because state shifting integrity political precincts of a subdivision sion involves precinct. relatively populations. larger line no than a above small population proposed Bill Every divide total allocated House district by rejected nearly proposed the four districts more No. 870 was in House Bill districts population enacted No. or for all ten than that ideal Missouri, require excepting 5. the use does Act the 1967 computer Proper or an electronic brain. application constitutional require It did and to have principles practicability, use does one dividing figures, population City precinct to use accurate as the lines Kansas subtract, and, ability line, permitted division to add and would have important, willingness population the most desire excess arm comply explicit commands with the defined two Na- Bill Constitutions of his State and No. Districts 5 and 6 in House Any plan finding tion. (roughly comparable Districts 4 that a better Act) adopted could not have neces- almost been would 5 in the 1967 to be divided sarily clearly proposed dis- equally be held erroneous because two between those Thus, finding contrary such a would to the view- tricts. from a theoretical rejected undisputed concerning point, evidence could assigned House Bill No. 734 to one district and apparent that even other. It is therefore The witnesses called defendants accidentally re- the -803 variance testified “there probably in the 1967 sulted for District 5 * * * changes that could be made improved. could have been county the shift of a here there that] [or Defendants’ failure to obtain greatly improve this as to the 1960 census introduce in evidence the perhaps lowering extent of the difference precincts Louis data for 1967 in St. between the maximum and minimum County relieve does not St. Louis 15,000” (Tr. 36); as much as that “there making duty its isn’t a man in this room couldn’t finding popula- total fact divide the state on the 1960 assigned tion and 3 and Districts *24 up contiguous and compact, come only required is 341 in that excess of equal districts that come within close congressional for districts and four ideal population” (Tr. 58); and that the population been that such could have Legislature rejected had in fact “a better among practicably equally divided almost bill, stronger (Tr. 64). bill” Even reason, the in those districts for the as the three-time Chairman of the Senate City, precinct lines case of Kansas use of Reapportionment testified Committee those dis- boundaries of each of for the * * * mighty easy that “it’s to divide tricts, application the and constitu- state, and either could one of us tionally practica- required principle of very do it much better than this [the bility, permitted the shift would have (Dep. 14). is done” Act] congres- precincts of a from one side until, boundary the to other sional line And when argued, Preisler II the was language command in the Attorney Assistant General of Missouri nearly Wesberry is Sanders, as “as regard stated to this Court in to the congres- practicable vote in a one man’s you looking 1965 Act “if that were be worth in fact] sional election [would being factor, as sole as much as another’s.” only considered, factor that could be * * * immediately ex- I Defendants’ intervenors’ would have to * * * pressed hostility computers you prob- to confess would totally misplaced. ably get percent is electronic brains have within one drawing congressional say you The bound- variation in task of order to have ary practicable nearly your is met factor, lines as as if that is policy on an assumed some are calculated evidence that variances there such a is recog- county Missouri, policy necessary lines are a matter not Missouri. There our nized in outstate determination in this case. (first F.Supp. population may be,’ III, quoted Section Art. sole factor” as II Preisler 45.” decision in This Court’s opinion portions was cited and quite apparent It all the evi quoted. all dence that real work Act, exactly pattern July 13, Representatives followed On regard Act, Meyer Mulvaney, (27th), was left Schlef Walsh, days objection always closing hectic constitutional session. filed a parties leadership objection followed elected of both Their the House. substantially in the as House were the same form Senator Senate objection Young’s long was, except consulted after it until the House practical again matter, members late them fact all too reflected the Assembly labored correct the mistakes of committees the 74th General impression into whose of the under hands control delicate the erroneous congres- problem high reapportionment had “the been variance between placed. Compare description “more of the sional low” was district legis 25,802, similar action 16,000,” of the North Dakota instead of Meier, pending lature in Paulson N.D. discovered after defendants’ 42. Attention 36 at motion filed. that case was directed undisputed show facts Adams, Swann v. 385 U.S. high dis- actual variance between the 440 at 17 L.Ed.2d S.Ct. district, trict, every other District 501. actually excepting only ex- pattern Legis erroneously The factual maximum ceeds assumed against repeated figure only 16,000 lature was in the 1967 session variance protests of the Missouri when which the Senator constitutional Young objections filed constitutional and House. filed both the Senate Senate, help speculate 1967 Act the 28, on June One but what cannot objection happened His constitutional had the members time, Assembly, stated that “the 74th accurately at the districts General * * * regard extent created quirements do not meet re advised actually their created the Missouri Constitution variances nearly that such ‘as Act. Showing II. Additional Data the 1967 Did That Population Into Not Fact Divide Missouri’s *25 Practicably Equal Most Districts point Map Legislature 1 text illustrates that a nearly popu- equal could have created districts are more every practicable permit still lation 1967 Act and present present run from his residence. incumbent to Map particular acceptance proposed 2 districts illustrates how Assembly, presented had 1967 74th General
various bills produced combined, they have of less than variances been would practi- 2,000 population State, district in the a more for each adopted plan Act. than that 1967 cable Map practicably more that would have 3 illustrates squeezed of old to the all water out District 8 end that populations more and rural urban State realistically distributed. adopt again publica- emphasize tion for that the the Missouri We any plan is stated maps recommenda- illustrated. The data of these not a
tion nearly equal 1967 Act the fact that fact most establish practicable. did not establish districts that were that was Map 1—Practicable Districts That Would Not Disturb Congressional Representatives
Incumbent Population Variance - 431.735 - 431.735 - 431.735 431,386 - - - *26 431,851 6 130 434,250 +2,269* 7 429,688 -2,293* - 8 431.735 434,313 +2,332** 4,319,813 * particular townships Transfer in Dallas or Laclede Counties 7th bring District 8th District would both within a variation of for both districts. ** particular townships Genevieve, Francois, Transfer in either Ste. St.
Iron metropolitan or Dent from the 10th District Counties to the St. Louis (1, 2, 9) Districts or reduce variation the 10th District to 724. Composite
Map Map Redistricting from Various Plans 2— Rejected by Assembly Missouri General Population Variance Source - Simple addition 431.091 - 890 ” ”
431.091 - 890 ” ” 431.091 + 392 1967 H.B. 399 minus 432.373 Hickory
Cedar & + + plus Carroll 432.373 432,249 1967 Perf. C. S. S.
S.B. 182 430,689 -1,292 Sub.) (Sen. 1967 S.B. 182 433,821 +1,840 Simple addition — 431,090 ” ” +1,964 S.B. S.C.S. *27 1965 G.A. Howell minus
plus Texas Map Realistically 3—Practicable Districts That Would More
Distribute Urban and Rural Populations_ Population Variance - 431.819 - 431.819 - 431.818 + 973 432.954 + 432.955
433,977 +1,996 433,004 +1,023 -2,601 - 431.818 430,269 -1,712 *28 Population”
I. Defendants’ “Growth Argument APPENDIX C attempt the be- to make Defendants Fourth “the lated contention (In Parts) Four ** * * * * both Districts Sixth growth rapid population areas contain OF DISCUSSION AND REJECTION growth population such since ADDITIONAL CONTENTIONS Apart into consideration.” was taken MADE BY AND DEFENDANTS evi- no substantial from the fact upon such which introduced dence was finding INTERVENORS based, a contention such could be addition to the made contentions following by table which exploded is support of the Act have been December Missouri’s how illustrates body answered what was said by the population, as estimated opinion, of the we now various answer Health, is distrib- Division Missouri Congressional additional contentions made the de- Dis- under the uted tricting fendants and Act: intervenors. Showing Table Population As of Missouri Distribution of Health Missouri Division Estimated For Under December Variation Population 1966 Ideal Dec. b +30,531 481.377 b +30,531 481.377 b +30,531 481.377 433,071« -16,775 ° -16,775 433,071 - 7,401 442,445 —30,305 b +30,531 481.377 b +30,531 481.377 370,844 —79,002 4,498,456 December Missouri on the State of The total estimated 449,846 per figures projected 4,498,456. Thus, is for the the “ideal district” district. projected population
b figures exactly presume distribution These Projected among respective 1, 2, 3, those districts. within Districts precincts City St. Louis data was not available for wards townships County split Districts are between or for the St. Louis 2, 3, 8 and 9. exactly c Projected population 4th 5th between Districts. distributed years 1967, 1975, College University popula- and 1990. Missouri’s Agriculture, projections its tion Division in furtherance of University cooperative those of the authorized Health and extension work 30, 1914, May some in de- Missouri reflect differences Acts of 8 and June cooperation are not tail. But differences United those with the greater Agriculture, expected. Popula- Department to be States necessarily projections population projections published tion based for the
983 rates, concerning geographical and death lar data birth areas of Missouri and in migration rates, regard population trends, past population to where that is situ- usually straight pro- compared are line ated it trend to where jections that call for the exercise of sub- was situated when 1960 census was jective expert judgment depend and also taken. varying dependability of on the data where, following table illustrates particular
a time. according University to the of Missouri’s comparison population projected figures, popu- A two 1967 and projections, however, a re- establishes lations would be under distributed general regard agreement Congressional Reappor- markable 1967 Missouri growth particu- trends of and decline tionment Acts: Showing
Table Population Distribution of Missouri Projected University As of Missouri
For
Under
Projected
Projected
a
Population
Population
Variance
Variance
b
b
+
+
62,081
+27,330
486.207
596.530
b
b
+27,330
62,081
486.207
596.530
b
b
+
62,081
+27,330
486.207
596.530
—c
c
46,353
—12,063
446.814
488.096
—c
c
46,352
-12,063
488.097
446.814
49,031
583,480
444,444
-14,433
+
429,060
-29,817
433,840
-100,609
b
b
62,082
+27,331
+
596.531
486.208
b
b
62,082
+27,331
+
486.208
596.531
390,599
-166,120
-68,278
368,329
5,344,494
4,588,768
figures
respec-
projected
534,449,
for the
The “ideal districts”
tively, for
and 1975.
b
Page
(b)
table on
See footnote
982.
on
“
“
“
“
“
“
o
(c)
regard
projection policy
such a
The shortest answer
de-
selected
alleged
districts,
popu-
contention
rather
on
fendants’
about
a state-wide
basis,
growth
4 and 6 is that
is so
Districts
irrational
lation
could not
designed
legally
post
argument
acceptable.
ex
it is
facto
attempt
justify
an
successive
Hare, supra,
Calkins
Legislatures’
ef-
continued
adamant and
correctly
we believe
observed that
malapportion
of rural
fort
in favor
“Any districting,
disparate
however
geographical
is no evidence
areas. There
respect
population, may conceivably
Court could
whatsoever
on which this
justified
by saying the
ex-
finding
the 1967 74th
base
factual
pected the
either
area to
shrink or
Assembly
any policy
adopted
General
grow.”
correctly
That case
stated that
devising
projection
population
Dis-
suggestion,
more,
“If such a
without
suf-
district,
any
other
or
justify gross
tricts
fices to
dispari-
ties,
enacting
adopt
easy
And
Act.
then
answer
a constitu-
* * *
City
found.”
which has
has indeed been
Jefferson
tional denial
finger
many
employees
Judge
put
retain a
his
state
who
vot-
Talbot Smith
ing
in other
of the state
inherent
residence
areas
difficulties
one of the
allegedly]
He said
of which
[all
considered
“trends.”
use of
*30
legislature.”
difficulty
respect
their
in
that ‘‘the
right
a
constitutional
is
basic
use
that
complete
The final and
answer to all
event,
may
speculative
a
future
be lost to
post
attempted
of
ex
defendants’
facto
a
worst
unequal
and at
trade at best
they
been
rationalizations is that
expressly
Hare
cynical
v.
deprivation.” Calkins
rejected by
Supreme Court
proofs
“no
whatever”
found that
Mann,
United States. Davis
Michigan legislature had
offered
that
1441, 1448,
691,
convince are themselves that when not words of truly meaning, historic step Sanders used the lan it is ancient but a short guage saying nearly practicable,” of “as those is words have mean- little ing talking at all. step Court was somehow Should that be taken it something apparent about attainable as matter that a rationale could be de- ignore practical veloped politics. The uninformed under of a which the decision particular apportionment not ing difference between the mean case “prac- turn, “practicable” question not on of the words whether Congress plan apportionment particular does in act those first use course, congressional Congress, “as districts words. contain continued fact nearly practi- population] as is use those exact words in each suc- of its [in gen- up subjective apportionment cable,” upon acts in- cessive cluding to and but August whether, 8, 1911, judgment as a mat- the Act of eralized particular appeared practical politics, as Section 3 Stat. of' ter Code, printed legislature still could have Title States could or United state long history (For complying of con- consti- with the closer U.S.C.A. come nearly practic- I, gressional of “as use of Art. § command tutional Broom, able,” finally rejected idea see Wood v. U.S. “the Preisler II we (1923)). ‘slight- L.Ed. apportionment plan can S.Ct. that an That determina- ly unconstitutional’.” And when President tried to Truman of this case. is the law tion get Eighty-sec6rid‘~Congfess do something about failure judge major- The rationale of two congressional malapportion- deal with ity three-judge the recent Ohio case ment he used language same well-understood example an of what we believe that Con- when he recommended primrose path invitation to follow a gress provided pass a bill that would through courts, both the thicket contiguous composed of “be federal, required now State *32 territory as compact contain and and nearly, Supreme opinion, the That before enter. practicable, same number the as attempted reversal, most recent Court’s Message the from of individuals.” See the say Supreme use of that nearly Court’s the H.R. Dec. 1951). States President of United practicable” standard “as isas 9, (Jan. Cong. 1st 82d Sess. Wesberry pre- v. Sanders “established no (xiii). ‘practicability’” cise of definition Congression- A review of much earlier Having assumption, made that erroneous apportionment history al cir- reveals unsupported by any Supreme Court deci- “as cumstances under which words sion, judges felt two Ohio federal pre- nearly practicable” acquired as their “all free add that the law and the meaning. cise Interest- and established expect re- courts obtainable best [is] ingly early enough, his- reference to that ** ; result, practical the most will sult by tory to be found in decisions written is any (xvii). suffice” Without have to Supreme of Missouri. support Supreme decision of the traditionally Missouri has been one of Court, judges attempted those two to many attempts states made valiant application avoid of the constitutional apportionment problems, not to leave nearly practicable” standard of as is “as Congressman words, use Celler’s “to the to the facts established in the Ohio case whims and uncontrolled discretion of the by assuming erroneously that “an element legislature” (see above). footnote Sec- ‘practicality’ implicit concept of tion 6 of Article 4 of 1875 Missouri ‘practicability’ as of applied that term is to be required, example, Constitution (xxiii). districting case” We senatorial districts be elected state Supreme Court’s reversal believe that contig- compact from “districts of must read as an im- Ohio case be territory, near- uous ly equal as upon rejection plicit of the rationale may Bar- ex rel. be.” State as approval court based its the lower which rett Hitchcock, supra, illustrates the districting plan congressional of the Ohio why fifty years reason ago a Missouri court state. shall reasons we difficulty nearly had no with the “as equal may language long as be” in the 1875 time use of The introduction nearly practicable” Constitution. That court was as as words “as part familiar with cir- where and under what as lan- a term of art incorpo- apportionment cumstances those had guage words language apportionment. Apportionment rated into the much older (1872)); (17 The Missouri Court in February 2,1872 Stat. degree always following language There adopted from must exist some State, inequality. Report, 22d Parker [Senate earlier case still 567, Sess., Congress, No. 119 836, 18 L.R.A. 1st. Doc. N.E. Ind. original). (1832)] p. (Emphasis question somewhat “A noted that discussion now under one Congress similar recognized problem, both The obvious the United arose by every court that Webster to the year relative States I, diffi- was not since looked at Art. § upon placed section to be construction prin- apply wished to cult to solve if one ciple, the United Constitution art. distinguished from whim. Web- as S.W.) (page of64 States” Wesberry recognized, did v. San- ster ders, that: question had then noted that It committee on which
been referred to a
constitution, therefore,
be
must
as chairman.
Daniel Webster served
enjoining
understood not an absolute
court, writing
quite cor-
Indiana
equality
relative
—because
Congress finally
rectly
did in
stated what
demanding
impossibility
as—but
nearly as
the “as
1872 when wrote
requiring
Congress
ap-
to make the
practicable”
the federal
into
standard
portionment
representatives among
code. It stated:
according
States,
the several
to their
numbers,
respective
may
as near as
be.
The rule recommended
com-
perfectly,
That
done
which cannot be
subsequently adopted
mittee was
per-
Congress,
must be done in manner as near
Representatives
so that
cannot,
apportioned among
If
fection as can be.
exactness
now
the several
attained,
things,
the nature
states of the Union under it as a fixed
practicable approach
greatest
binding obligation,
(supra,
p.
then the
4)
(id.
ought
p.
to be made
to exactness
original).
(Emphasis in
We make a more detailed examination
Congress
report
Webster
made clear that
made Daniel Web-
*33
I,
ster
was bound Art.
2 of the
because the
Constitu-
nearly
§
words “as
as
practicable”
“Congress
tion because
acquired
is not absolved
their well estab-
rule, merely
meaning
from all
lished
because the
of
from
rule
what Daniel Web-
perfect
justice
applied.”
specific
ster
I,
cannot
In
said
be
in his
discussion Art.
typical language
added:
2 of
Webster
spent
§
Constitution which he
defending.
a lifetime
case,
In
approximation
such a
be-
rule;
year
In the
comes a
place
it
1832 Daniel
takes the
Webster said
of that
following
regard
other
language
preferable,
rule which
would
to
be
I,
but
inapplicable,
Art.
2:
which is found
§
and
becomes, itself,
obligation
an
of bind-
There would seem to be little diffi-
ing
approximation
force. The nearest
culty in understanding
provi-
these
right,
to exact truth or exact
when that
sions.
designed,
The terms used are
truth,
right
exact
that exact
or
cannot
doubtless to be
peculiar
received in no
reached, prevails
itself be
in other eas-
or
sense,
technical
according
but
to
es,
discretion,
not as matter of
as
but
their
popular
common
acceptation.
and
intelligible
rule,
an
and definite
dictat-
apportion,
To
by right
is to distribute
by justice,
conforming
ed
and
to the
measure;
just parts;
to set off in
to
mankind;
common
sense
rule
assign
proper
in due
proportion
and
* *
binding
no
to
less
force
cases which
Representation founded on
applicable,
be
it is
and no more to
de-
members, must
limit,
have some
and
parted
or ob-
from than
other rule
being,
nature,
thing
from its
not
ligation.
capable
subdivision,
of indefinite
it
*
precisely cannot be made
*.
The committee understands the con-
quite
therefore,
they
It is
obvious
that the
stitution as
would have under-
apportionment
representative
it,
power
stood
said,
many
it had
if
in so
precise
perfect.
words,
representatives
can never be
should be
apportioned among
House,
accord-
number
that number
States
ing
members,
respective
apportioned
their
as
shall be
to each State
may
right
near as
meaning,
be. If this be not its true
comes
which
nearest to its exact
* *
given,
according
people.
it
then
either
has
number of
its
important
requires,
this most delicate and
sub-
What the constitution
is
ject,
always imprac-
practicable approach
precise
is
a rule which
nearest
justice.
given
ticable,
approximation;
or
it has
no rule at
else
The rule is
all;
ought
therefore,
because,
repre-
approach,
if the rule be that
and we
apportioned
approach
sentatives
actly
ex-
should be
on which ever side we can
numbers,
Webster’s)
according
(Emphasis
it is im-
nearest.
Daniel
practicable
case;
every
if,
(P-
for
rule,
this reason
cannot
be the
that have been forced to answer
Courts
whatever,
is no rule
unless
then there
present day arguments
been
which have
they
appor-
the rule
shall
upon
based
erroneous idea that the
may
as near as
tioned
be.
language
nearly
practicable”
as
“as
vague
indeed,
Wesberry
construction,
somehow
This
v.
Sanders
difficulty
not,
adopt,
imprecise
their
or
more
committee
have had no
knowledge,
argument
denied;
they pro-
than the Indiana
with that
years
fifty
ago.
question
ceed in
court
In Jones
the discussion of the
had over
granted
Falcey,
taking
Senate,
48 N.J.
222 A.2d
before
Attorney
example,
(1966),
Gener-
such is the true and undeniable
nearly
meaning
(Italics
argued
Jersey
“as
al of
New
constitution.
Webster’s),
(p. 5).
practicable”
mean
Daniel
as is
could be taken
represented
the best
that which is
to be
regard
lay
As to where the burden
political compromise
the ambit
within
sustaining
apportionment,
to
anticipated
Webster
legislative poli-
practical
what is called
III
one
Swann v. Adams
Weintraub,
tics. Chief Justice
thirty-five years.
hundred
Webster
correctly
Jersey,
Supreme Court of New
said
1832 that:
Constitution,
con-
“The
stated that
disturbing
proposed
Without
Wesberry
Reynolds, does
strued
House,
number of
mere
range
contemplate
that there is
changing of
three members
these
may
which a State
deviation within
respectively,
six States
maneuver,
reason.”
or without
bring
representation
of each
nearly
practicable”
regard
to the “as
six,
whole
nearer to their
due
Sanders,
Wesberry
language
*34
according
respec-
proportion,
their
stated:
numbers,
bill,
pres-
tive
than the
in its
popula
The command is to achieve
form,
ent
In
makes it.
the
face
nearly
practicable”
equality “as
tion
as
indisputable truth, how
said
can it be
nearly
equality
and if
would be more
apportions
that
bill
members
the
these
municipali
by shifting whole
achieved
according
among those
to their
States
contiguous district, the drafts
ties to a
respective
may
numbers, as near as
equality “as
man
achieved
has not
bel
nearly
practicable,”
oth
unless some
as
principle
proposed
The
the
on which
(if
constitutionally
reason
tenable
er
* * *
founded
is lit-
amendment is
any)
justify
there
is
can be shown
transcript
tle
than a
of the words
other
political
disparity.
If
the
the lines
constitution,
and its results
the
are
ignored,
no
is
there
subdivisions
mathematical!y
The
certain.
constitu-
achieving
apparent
not
reason for
it,
tion,
the committee understand
as
subject
equality,
mathematical
appor-
representatives
says,
shall be
de minimis varia
course to inevitable
according
among
States
tioned
the
107-108).
(222
tions.
A.2d
people,
respective numbers of
as
their
by
adopted
may
The
near
be.
rule
III
defendants
as
Swann Adams
the
case,
says,
committee,
contended,
out
the whole
in this
as do defendants
“plan
as
as close
obvious variances were either unavoid-
that
Florida
comes
accept-
equal-
justified
legally
‘practical’
complete
population
able or
some
573)
ground.
ity”
(385
at
at
able
U.S.
S.Ct.
ours).
Supreme
(emphasis
Court
prohibited
Until
in 1932 Wood v.
argument
curtly
that
rather
answered the
Broom, supra,
exercising jurisdic-
may
“practicable”
mean
taken
sixty year
tion to enforce
old
the then
holding
“practical”
“it
seems
Congressional
requirement
con-
quite
have
could
obvious that
State
gressional
contigu-
compact,
districts be
providing districts
much closer to
come
nearly
practi-
and contain
ous
“as
(385
population
equal
U.S.
it did”
than
equal
inhabitants,
cable” an
number of
noting
573).
at
at
After
87 S.Ct.
difficulty
the federal courts
what-
had no
plaintiffs
“placed
had
before
understanding
either
lan-
soever in
plan
,o\yn
much
which revealed
court their
guage
applying
or in
it
the standard
es-
districts”
smaller
between the
variations
by par-
presented
tablished to
facts
“appellants
suggested
and that
cases.
ticular
specific
District Court
amendments
Wood, S.D.Miss.1932,
In Broom v.
legislative
they
plan, which,
if
had been
F.Supp 134,
example,
a lower
measurably
three-
accepted,
reduced
judge
leg-
many
Mississippi
court held
between
differences
complied
had
districts,”
islature
the con-
held
gressional command
had
been on the
a closer
facts “demonstrate that
that such
books since 1872.
held
equally
That court
approximation
populated dis-
congressional
mandatory
(385
undertaking”
“act is
tricts was
feasible
fixing
573.)
(em-
must be followed
445-446,
the states
at
U.S. at
S.Ct.
congressional
(1 F.Supp.
districts”
at
phasis added).
135).
apparent
It is
that even
state
Mississippi
It held that
there
variances
admittedly
apportionment
cases, where
“clearly
involved were
of the
violative
permissible
play
there
more
is
**
*
illegal
Congress
act of
districting,
joints
congressional
than in
(Ibid).
void.”
“practicability”
rather
the rule
one of
“practicality.”
prin
political
Mahan, E.D.Ken.1932,
In Hume
F.
ciple
apportionment
applicable
cas
to all
Kentucky
Supp.
a federal
court
es,
they
regardless
involve
of whether
Kentucky congressional
ruled the 1932
districting,
or
State
apportionment
to be in violation
practicable or,
to use
whether
nearly
practicable”
“as
es-
standard
ap
synonymous
word “feasible”
Congress.
tablished
That court
body
portioning
clos
much
to “have come
Congres-
Kentucky
concluded that
equal
providing
districts of
er to
districting
sional
act
framed in de-
“was
“spe
population than it did” and whether
disregard
federal statute”
liberate
* *
which,
if
cific amendments
setting
(1 F.Supp.
*
out
After
*
**
measurably
accepted, would have
concerning
pop-
situation
the factual
be
differences
reduced the
Kentucky,
ulation of
counties of
*35
(385
many
U.S.
of the districts”
tween
this situa-
court held that:
“In view of
573).
at
at
S.Ct.
tion,
with
the
confronted
was
dividing
difficulty
particu-
these
no
whatever
facts,
in a
if established
Such
counties into
held
one hundred and nineteen
case,
the
lar
eight congressional
substan-
approximation
of
districts
that a closer
“demonstrate
tially equal population,
without
feasi-
and this
a
populated
was
districts
equally
county;
445-446,
necessity
dividing any
and
of
undertaking”
(385
the
at
U.S.
ble
course,
presents
topography
no
of
573).
means,
the
the state
of
This
at
S.Ct.
carving
out of
districts
obstacle to
these
plan
held
must be
apportionment
that
the
territory”
(id.
contiguous
compact
particular
a
State
unless
unconstitutional
150)
p.
showing
the
of
burden
carries
the
any
anticipation
reapportionment
the rule of decision enact
act
In
of
follow-
census,
ing
v. Adams III
settled
Swann
the 1920
had also intention-
now
thirty
Kilgarlin Hill,
ally
that court stated
failed to include the 1872 standard
v.
years ago
nearly
practicable” in its bill
that:
of “as
as
applicable
reapportionment
to be
to the
example
with which
of the ease
As
federal
under
1930 census.
two
the
coun-
these one hundred and nineteen
just
were,
course,
of
decided
cases
cited
eight congres-
can
into
ties
be erected
theory
prac-
nearly as
“as
the
the
composed contiguous
districts,
of
sional
a
effect as
ticable” standard was still in
congressional
territory
compact
with sub-
the Act of
command under
equal population,
court
stantially
August 8,
courts said
1911. What those
argument
upon
during
coun-
called
regard
should
how that standard
be
plaintiff
map
show-
sel
a
file
good
today
applied
is as
law
as was
ing if
done.
and how this could be
Such
thirty years ago. The
when written over
map
prepared
ex-
as an
filed
Wesberry
made the
fact
Sanders
map
hibit in the case. This
shows
nearly
practicable”
“as
as
a constitution-
off
these counties could
been laid
have
validity of
al standard does not afect the
eight congressional
into
districts
applied
the rationale
those cases.
greater
be-
no
difference
approximately
tween them than
nearly
as
standard
“as
doing
people, and this
violence
without
today
practicable”
it meant
means
what
requirement
has meant
to Daniel Webster and
composed
compact and
con-
must
history.
throughout our
Within the con
(Id.
tiguous territory.
p.
plans
congressional districting, if
text of
real
clear that “no
That court made
legislature or in
be
before the
evidence
difficulty
Legislature in
confronted
equal dis
fore court establish that
more
substantially complying
federal
with the
tricting was
that which
obtainable than
law.”
court
that “Instead
That
added
obviously
adopted,
plan
then
en
however,
doing
Legislature,
so,
with-
acted,
facts,
now
on the
does not meet the
far
I can
reason whatever
as
so
out
district
constitutional command
ing
exigencies of
other than the
discover
nearly
practicable.”
isas
“as
redistricting
practical politics,
gross inequality in
out
state worked
apparent
It
that efforts to
should be
respective
dis-
between
“practical
substitute
considerations
analysis
After
tricts.”
further
legislative
politics” and ideas of “best
population Ken-
actual distribution
compromise”
meaning
the historic
again anticipating
tucky,
held,
the court
the now
command
“as
constitutional
apportionment
decision
rules of
current
nearly
practicable”
were foreclosed
by thirty-five years, that:
Compromise,
Great
embodied
these
with which
view of the ease
I, 2,
interpreted Wes-
Article
and as
§
avoid-
discriminations could have been
ed,
berry
ap-
also be
v. Sanders.
It should
forced to the conclusion
we are
parent to all
want to understand
who
them,
attempt
no
was made to avoid
legislative
no
the
longer
bodies of this Nation
but that other considerations
plain
license to violate
securing
equality
population dic-
explicit
commands of
Constitu-
laying out of
districts.
tated the
these
States,
tion
that those who
United
(Ibid)
required
make
laws
to follow the
course,
was,
This case
reversed on
all
Constitution in the same manner as
authority
supra.
Brown,
persons,
of Wood v.
do
See other
and that all
failures
Secretary Hume,
Mahan,
subject
287 U.S.
traditional
so are
same
*36
223,
continuing
re-
judicial
77 L.Ed.
But such
ex-
S.Ct.
remedies that our
solely
ground
periment
versal
of
was based
on
from
time
evolved
having
Congress,
that the
after
failed
John Marshall.
“Comparative
bearing
Table”
one State has
III. Defendants’
little
on
valid-
ity
Argument
of a similar variation
in another
(385
445,
572).
State”
U.S. at
87 S.Ct. at
pages
forth
set
on
Defendants
Reynolds
Sims,
See also
U.S. at picture presents country Mr. State Appendix attached in the forth degree from her sister Wesberry v. different dissent Harlan’s Justice 49, page States. at S.Ct. Sanders, 376 U.S. single performs following table. We table cumulated function: number present a limited data for Showing Malapportionment Congressional (1964)
Pre-Wesberry Variances Maximum v. Sanders Largest Districts of and Smallest Between Defendants’ 1967 Chart Ranked on States Compiled Appendix Frankfurter’s to Mr. Justice I attached Data Additional 557-559, Colegrove Green, dissenting opinion 66 S.Ct. U.S. 32S dissenting opinion Appendix in 'Wes Mr. Justice Harlan’s L.Ed. 526,11 49-50, berry Sanders, L.Ed.2d 481. S.Ct. U.S. State 415,704 600,345 237,235 439,S95 202,792
Florida 315.292 186,831 187,474 188,630 407.077 S,027 423,110 253,004 14,162 127.S1S 575,385 423,152 220,261 453.507 Arkansas 330.292 180,348 177,470 332,844 443.892 147.800 72,455 242,541 245,070 149,044 9.675 393,210 711,045 Maryland 534.508 208.165 311.413 194,508 195,427 3S3.237 243.570 153.912 9,973 339,141 467,475 116,845 54,253 572,054 229,907 Rep. 451.804 438,703 293.922 Utah 317,973 250,38S (At 219.489 Large) 13,101 254,081 37,534 10,418 417,020 S02,994 419,007 191,841 Michigan 533.74S 177,431 200,205 14S,626 403.203 19S.679 13,703 218,742 335,009 43,215 025.503 yet 325,080 189,472 416,863 390.101 Not Oklahoma 552.503 227,692 380,734 189,547 Admitted 15,427 325,171 227,310
130,208 404,90S 027,019 3SS,938 199,972 290,396 Tennessee 145,403 223,3S7 225,918 153,773 3S8.240 16,728 403,632 163,020 46,199 150,993 491,461 423,750 358,573 239,040 408,139 202,760 204,6S6 North 406,474 277,861 160.288 Carolina 17,276 213,600 205,379 119,533 44,398 347,701 333,476 323,597 Rep. 400.573 1 (At Montana 327,019 274,194 235,859 215.413 Large) 20,082 87,738 126,379 writing April, view, 1966 issue his- data reflects cumulated accurately publication, summa- malappor- of that pattern of toric Wesberry post-Wesberry con- v. Sanders rized (when before tionment history gressional when apportionment decided) dramatic and the v. Sanders “Comparatively fan- little D. he stated that: J. William impact decision. of that accompanied wholesale Re- Civic fare National Boyd, of- the editor *38 congressional change made Senator Howard Baker of Ten- place February, has taken since nessee to the United States Senate on (Cong. when United States November 1967. Rec. 90th they substantially equal Cong., Sess., ordered 1st S He there population.” reported He that within decision, Wesberry stated that “since the years Wesberry first two v. after reshaped district lines have been in 33 completed Sanders that 25 States had “many States.” He added States redistricting, adding “Al- their voluntarily; redistricted with some though redistricting process order; encouragement of a court’s disputes, pace caused several con- and, legisla- in a few States where the gressional change rapid has been more agree, tures could not courts them- legisla- and less controversial than state selves the lines.” redrew reapportionment; tive therefore Press has taken far less notice of the why bones statement of The bare changes taking place.” how the on the came States table above Wesberry post- The most recent Sanders statement to redistrict after v. Wesberry progress decided, v. Sanders was was is as follows: Subsequent
Action Taken Wesberry State v. Sanders plan supra, Gong Kirk, after Florida Court ordered v. repeated legislative failures following Legislature adopted present plan
Arkansas Park v. Faubus, E.D.Ark., 1965, F.Supp. 62. Comm,
Maryland plan Maryland Court ordered Citizens repeated Cong. Tawes, supra, Fair Red. v. after legislative failures Voluntary Wesberry
Utah .legislative subsequent action Sanders;
v. neces- no additional court action was sary.
Michigan adopted present plan following Calkins Hare, E.D.Mich., 1964, F.Supp.
v. Voluntary subsequent Wesberry legislative Oklahoma action Sanders; v. action neces- no additional court was sary.
Tennessee plan Ellington, supra, Court ordered in Baker v. repeated
after legislative failures. North Carolina Legislature adopted present plan earlier after two
failures; held to be Drum not unconstitutional in Seawell, supra. Legislature adopted present plan Montana following Roberts Babcock, D.Mont., 1965, being deter- totally Davis v. Mann’s States” Consistent irrelevant to the study question fact that a mination whether the 1967 Missouri eighth ranking “Virginia has in fact law showed divided the immaterial, we State of among Missouri into the States” dis- argument nearly III Preisler tricts as reject defendants’ as is eighth among practicable “ranks that Missouri accordance with the com- D94 constitutionally and United Act held void of both the Missouri mand Act, II. Preisler today which we Constitutions. States unconstitutional, only hold to be argue table also their Defendants highest cut the variance between the that, “by comparison, recent shows 25,792. fail lowest *39 district We Missouri efforts comparison understand infinitely with the how redistricting truly congressional com are increasingly large job an better Apart that from fact mendable.” pro- number done to other States have proper un comparison not a criterion is rights tect of their constitutional cases, hard Supreme Court der argu- support can said to an citizens be reapportfcn concerning Missouri’s facts progress be ment that Missouri’s should fairly be to said ment cannot be efforts “truly prog- called commendable.” The history “truly commendable.” The including Missouri, State, can ress of no reapportionment in Mis fairly until be said to be commendable states, souri, like all her that of Sister fairly fully and unless such a State But progress made. has been shows complies with command of both State say thing progress has is one to and federal constitutional law. made; thing quite another it is say progress can be described fairly progress Missouri’s be cannot unless, course, commendable, described as commendable viewed when comply progress has been sufficient light legislatures of the fact that the with the Constitution. adjoining of both Utah and Oklahoma voluntarily complied Wesberry regard with Missouri’s facts shortly necessity progress 1928, Sanders without the fur- that in establish congres- court ther action. Those most States enacted before Missouri’s recent large, apparently substantially what are better sional the variation election 521,- plans highest (pop. than those which has been between its district Missouri 587) (pop. 138,807) able to was enact after at- three abortive its lowest legislatures tempts. Michigan,
'382,708.
ex-
fear
The converse
Montana,
adjoining
by
Congressman
pressed
needed
Bowlin
Arkansas
Missouri
only
by
to be told
judge
three-
Louis
once
federal
in 1844
vote in
that “One
St.
legislatures
court for the
of those
be
to four or five
[would made]
apparently
country”
pass;
three States
job
do
an
better
had in fact
come
ratio, however,
nearly
than
do
Missouri has been
same.
able
separate attempts.
in three
representa-
From
when
1928 to
Indeed,
being
mal-
the unvarnished truth is that
were
tives
elected from those
fifty
only
districts, majority
Missouri
one of
.apportioned
Mis-
four of the
in States
Union that
had to
time
souri’s
the first
told more
began
Constitu-
history,
twice
areas.
to live
urban
her
tion of the
throughout
States
will
United
three
must
But
all
time
Supreme
be enforced
representatives
as the
of the
elec-
Law
of Missouri’s
Land in
people
order that
Kansas
from
from
ted
Louis
St.
one
United
City;
remaining
States who
in Missouri
then
reside
12 of the
with the
government by
by
delegation
law
Mis-
rather than
16 member
outstate
men.
souri.
quite
reapportion by
apparent
It
a loss
Forced to
that a broader
census,
congres-
representation
progress
review
under
Missouri’s
apportionment presents
its
sional
quite
Missouri cut the variation between
by
picture
highest
quality
different
lowest district
legislatures.
consti-
efforts
That Act
held
recent
its 1961 Act.
tutionally
Following
We cannot find
in Preisler I.
are
void
those efforts
Act,
Missouri,
decision,
commendablebecause we
its
find that
cannot
highest
yet complied
and Missouri has
com-
cut the
between the
variance
84,655.
I,
The 1965 mand of
Art.
2 of the
lowest districts
Constitution.
§
Attempted
quires
“questions presented”
IV. Defendants’
On
that the
Reliance
appellant
Mississippi
separately
Recent
Not
Case
Tenable
set forth in
appellant’s Jurisdictional Statement and
compara
As a facet of their untenable
question
that while “the statement of a
argument,
tive table
defendants direct
presented
every
will be deemed to include
particular
attention to the decision of
subsidiary
question fairly
comprised
three-judge
Mississippi
court in Con
therein,” appellants
put
on notice that
Johnson,
No.3830,
nor v.
S.D.Miss.
“only
questions
juris-
set forth in the
September 30,
decided
fairly comprised
dictional
or
statement
per
affirmed
curi
therein will be considered” and that “the
am,
L.Ed.
386 U.S.
S.Ct.
jurisdictional
may
statement
not raise
(1967).
2d
questions
change
additional
or
the sub-
*40
Defendants insist
that
the Su
questions already present-
the
stance of
preme Court’s affirmance of that case in
ed.”
approved
fact
the variances contained in
Wesberry
Sanders, supra,
v.
in order
Mississippi
plan,
the 1966
any possible
to foreclose
future claim of
and therefore contend that “the constitu
confusion, expressly stated that
tionality
the deci-
of the
Redistrict
sion in that
ques-
case was limited to
ing
amply
by
Act is
demonstrated
this
presented
tion
I,
under Art.
2.
Mississippi
The Su-
§
decision.”14 We do not
preme Court stated: “We do
agree.
not reach
arguments
Georgia
that
statute
implicit
15,
Considerations
in Rule
Process, Equal
violates the Due
Protec-
1(c)
Supreme
subd.
of
Court of the
.
tion,
Privileges
and
and Immunities
principle
appel-
United States and
of
Clauses of the Fourteenth Amendment”
repeatedly
late review
announced and
(376
8,
10,
U.S.
footnote
84 S.Ct. at
specifically applied by
Supreme
Court
530).
apportionment
cases, prohibits
this
holding
Supreme
that
Court
The fact
that a Fourteenth Amend-
any way intended, by
Court in
affirmance
apportionment challenge
ment
can not be
Johnson,
approve
of Connor
v.
ipso
said
be included
in a case
facto
variances contained in the 1966 Missis-
presents only
I,
which
an Art.
2 in-
§
sippi plan or to overrule what it had so equality
population question
un-
was
recently
III
stated in
v. Adams
Swann
very day Wesberry
derlined the
v. Sand-
Kilgarlin
and
v. Hill.
Wright
ers was decided.
v. Rockefel-
ler,
15,
1(c)
of the
Rule
subd.
of the Rules
who are
so little biased
(302).
the Constitution”
views,
local
perplexed,
are so much
expected
how can it be
legisla-
July 13,
on
show that
The debates
hereafter,
ture
under
the full bias of
1787:
views,
those
will be able to settle a
RANDOLPH,
On the motion of Mr.
(297).
standard?
Monday last, authorizing
the vote of
legislature
adjust,
Gorham
added
from time to
convinced,
that he “was
arguments
time,
representation upon
prin-
others and his own
reflections,
ciples of wealth
ought
and numbers of inhab-
the Convention
itants,
fix
(297).
was
some
reconsidered
common
standard or other”
consent,
wealth,
in order to strike out
fought
Gouverneur Morris
to the end
adjust
the resolution to that
re-
against any constitutional
standard. He
periodical
according
quiring
revisions
continued
reflect his fear of the men
to the number of
whites
three-
who would come from what he described
(Italics
(307-8)
blacks
fifths
as “the remote wilderness.”
“If
Debates.)
people get
power
western
into their
op-
Randolph’s
passed
motion
no
hands,”
cried, “they
he
will ruin the At-
Delaware, however,
posing votes;
re-
was
professed
lantic
interests.”
He
to be
clearly
as divided. That action
corded
outraged
apparent
being
at the
distrust
that,
of the Convention
reflects the view
against
“fidelity”
legis-
evidenced
having
words,
Madison’s
“all men
to use
argued
legislators’
lators. He
if the
ought
power
a certain
to be distrusted to
“duty,
honor,
oaths,
their
and their
will
degree,”
determination
and its
them,
put
not bind
let us not
into their
duty
reapportion
periodically in ac-
liberty,
great
hands our
all our
other
constitutionally required
cordance with
interests;
government
let us have no
to which
situation
census
(298).
all.”
applicable.
principle was
The debates show that James Madison
Papers
The Federalist
show that when
immediately took the floor. The debates
people
it came time to
convince
report
that:
adopted,
the Constitution should
Mr. MADISON was not a little sur-
idea
insure that
the census would
prised
implicit
to hear confidence
representation
equal population
based on
urged by
who,
a member
occa-
all
adjusted
periodically
em-
would be
sions,
strongly
had inculcated so
why
phasized
reason
as a fundamental
political depravity
men,
and the ne-
adopted.
the Constitution should
cessity
checking
one
inter-
vice and
by opposing
orig-
original
est
to them another vice
number of 65 for
(298).
Congress
and interest.
inal
was defended
Federal-
*46
perfectly
ground
No.
the consti-
Federalist
60 made
clear
the
ist No. 55
remedy
power
tutionally required
would
“an
over elec-
uncontrollable
census
not,
government
an-
the
could
malapportionment
to the federal
tions
future
hazard,
reapportionments re-
the
to
ticipated periodic
be
without
committed
great
I,
legislatures”
in-
(373).
No.
stated:
quired
With
Art.
State
§
pre-
foresight,
sight
No. 60
and accurate
years a
is to be
Within three
census
represen-
particular
dicted that a
states’
may
aug-
taken, when the number
be
Congress would
tation
the national
every thirty thou-
mented to one for
copy
ma-
“generally
a faithful
be
every
inhabitants;
within
sand
legisla-
prevail
jorities
in the State
[that
years
period
cen-
of ten
the
successive
taught
the
History
(377).
tures]”
augmenta-
renewed,
sus is to be
les-
hard
the
people of
United
States
may
under
continue
be made
tions
legisla-
malapportioned State
son that a
*
* *
limitation.
above
inevitably produce a mal-
almost
ture will
apportioned
aug-
representatives
be
of
will
number
delegation.
Congressional
man-
time in the
from time to
mented
On
provided
Constitution.
ner
history
I,
The constitutional
of Art.
§
contrary supposition, I
admit
should
apparent
seem to
it
would
make
great
very
objection
have
cen-
Founders included
decennial
Sons,
(Putnams
weight indeed.
sus in that section as a central instru-
edition, p. 347).
designed
specifically
to control and
ment
adjust
constitutionally required fu-
charge
Federalist No. 58 answered a
apportionments
Rep-
of the House of
ture
that “the
of
numbers members
[of
historically
It would seem
resentatives.
incongruous
Representatives]
not be
House
will
require
not to
the use of the
augmented
time,
time
from
in the es-
constitutional decennial census
progress
may
demand.”
congressional districts
tablishment
supported
if
Madison conceded that
“well
rejection
within the States.
* *
A
*
*
*
*
objection
this
federal decennial census as the exclusive
weight”
great
But,
(362).
Madison
guideline
congressional districting
stated:
grave
particular signifi-
would have
urge
objection
Those who
seem
congressional reappor-
cance
future
not to have recollected that the federal
tionment
appropriate
We
it
cases.
therefore deem
*
* *
Constitution
not
will
suffer
to articulate some
con-
security provided
gradual
for a
we
must
siderations that
sarily
believe
neces-
augmentation
repre-
of the number of
be
into account
cases
taken
sentatives. The number
is to
which
problem
precise
in more
will be
prevail in the first instance is declared
questions pre-
under
focus than it is
temporary.
Its
is lim-
duration
case.
sented
years.
ited
the short term three
every
It is our view that
Within
term
ten
successive
the constitutional
requirement
years
that a
a census
inhabitants is to
decennial census must
unequivocal objects
repeated.
concept
be taken embodies a
that is an
integral part
are, first,
readjust,
regulations
Compromise
these
Great
itself;
designed
rectify
time,
apportionment
time to
and to
protect against
representatives
probability
in-
foreseen
to the number
of
habitants,
injustice
exception
single
future unremedied
under
malapportionments.
repre-
that each
shall have one
Constitution
State
aug-
required
least;
secondly,
therefore
that the census be a
sentative
regular
representatives
census and that it be a
ment the number
federal
explic-
periods,
limita-
decennial census. The Founders
under the sole
the same
itly recognized
were not
number shall
the States
tion that
whole
upon
every thirty
to be relied
matter in which
thousand
one
exceed
ours).
respective
(emphasis
(362)
their
interests were so ob-
inhabitants.
*47
year
viously
period
disagreement
apparent. The ten
ate to indicate our
with the
period
designed
Avery
a
of relative
to fix
rationale of Meeks
and Lucas
was
during
stability
all
States
Rhodes.
asserting
required to wait before
be
urged
legislatures
have
that
Some
representation. And
for additional
claim
courts in the
should wait until
1960’s
on accurate
be based
claims were to
their
attempting
after the 1970 census before
by the federal
population
collected
data
compliance
I,
of
with the command Art.
government.
Wesberry
2 as construed in
v. Sanders.
§
argument
that
1960 census
The
figures
runs
apportionment
repre-
The
of
of
idea
hopelessly
date to-
out of
are so
among
sentatives
the States based on
if
day
result
would
that discrimination
the notion
federal census
that
figures
current re-
are used
a
those
districting
for election
within
States
districting
that
plan.
this
It seems to us
may
representatives
be based
of federal
argument
must
said to be
be
is an
of
would seem
on
sort
state census
some
itself.
Constitution
foreclosed
basically
pri-
with the
inconsistent
to be
mary
Founder’s insistence
reason
apportion-
a
idea
mid-census
constitutionally required decen-
may
plan
discriminatory
be
because
ment
self-
a
census. The
be
nial census
growth
federal
enu-
since the last
decennial
particular
sectors of
at least
interest of
disregards
the fact
meration
manipulate
local cen-
their own
States
anticipated that
one re-
Constitution
obviously
figures
a dras-
would
sus
districting
decennial
would follow each
composition
impact on the
tic
political
year period of
The ten
census.
Representatives.
House
anticipated by
stability
the Founders
destroyed
population
if
data
be
would
course,
are,We
familiar with the
should be
census
than the decennial
other
Avery, supra,
fact that Meeks v.
without
ascertain-
the standard for
as
looked to
guidance,
benefit of
if the decennial
population. For
ment
legislature
that the Kansas
com-
found
disregarded
pur-
can
census
be
for the
fault”
it
mitted “no constitutional
when
justifying
pose
depart
variances
figures rather
state census
used
nearly equal
practica-
“as
from the
recently
case
reversed
federal.
I,
popula-
of Art.
ble” standard
§
Rhodes, supra,
its
indicated
Lucas v.
census
than the decennial
tion
other
data
Both
agreement
cases
notion.
with that
logically
an attack
be
available
Richardson,
U.S.
Burns v.
cited
which,
initially
plan
but
be-
a
valid
(1966),
L.Ed.2d
86 S.Ct.
shifts, developed
population
sub-
cause
We
opportionment case.
state
Hawaii
next decen-
before the
variances
stantial
very
Supreme Court’s
believe
taken.
nial census
use
that case
statement
careful
registration figures satisfies
of voter
Those who wish to wait until
only be-
Clause
Equal Protection
are,
“the
effect,
after
census
to have
found
record was
questioning
relevancy
cause on
the constitutional
legislators not
produced a distribution
sup
of the 1960 decennial census. But
pose
substantially
Assembly
different from that which
1971 the General
congressional
passes
use
would have resulted from the
permissible
of Missouri
re
basis,”
signif-
population
districting
fact
is then in
bill that
icantly
nearly equal
practicable”;
apportionments
limited to. state
law “as
indiscriminately
suppose
and should not
that current
read
further
growth
principle
as the
areas continue
appli-
of a
in urban
establishment
trends
congressional apportionment
through
cable
the 1970’s. Is the constitutional
eas-
precise question
relevancy
es. We
reach
to be
do
1970 census
sub
any figures
jected
challenge
every
III
Preisler
of whether
con
before
gressional
during
other than the federal decennial census
election
that decade?
may
support
legislature
used
redistrict
Must the
districting plan,
appropri-
but we deem it
order to account
proper
metropolitan counties)
as the
We
trends?
for current
areas,
metropolitan
and to
the decennial units for those
think that
think not. We
county
implicitly
in the re-
unit
tool
as the
constitutional
use
as a
census
requires
*48
changes
population
in-
State.
mainder
the
that the
mandatory period
year
ten
in its
herent
If
the
which
variations
decennial
until the next
must be tolerated
exist in the
resulted from the
1967 Act
period of
the
contemplated
to maintain
in order
census
existing
preservation
political
bound-
stability
political
relative
plan, I
no
aries under that
have
would
by the Constitution.
quarrel with it.
signifi-
feel that
constitutional
We
the
But the variations in this Act do not
must be
should and
census
cance
the
any attempted preservation
result from
redistricting
maintained
largest
of boundaries. The
variations re-
yet
Supreme
Court as
The
cases.
sult from failure to remove
coun-
entire
directly
problem; and
the
considered
not
place
ties from their old district and
them
not,
not,
reach
do
therefore
need
we
adjoining
example,
in an
district. For
question discussed.
precise
the
County
if
taken from the 8th
Dent
(+13,542)
placed
District
10th
the
COLLINSON,
Judge:
(-8,113),
the 8th would then be
appropriate
I
it
add a
+2,332.
deem
word
+3,097 and
10th
be
opinion
my joinder
majority
Hickory
in the
made of
A similar shift
be
could
my
light
construction that
Brother
County
the 4th
from the
District to
7th
suggests might
placed
Matthes
districts
Louis
District.
three St.
opinion
adjacent
of the Court.
16,000 long, but the
are over
next
short and the 6th
9th is
that the
or contend
No one can believe
9,750 short.
it is
Supreme
“one-
that the
has said
requires that
doctrine
man one-vote”
I
do
condemn the 1967 Act because
exactly equal
Congressional
districts
equal plans
there
were more
defeated
majority
certainly the
population;
Legislature;
nor do I condemn it be-
neither
But
opinion
not so state.
does
County
it
cause divides
Louis
between
St.
there
Court said
has the
a
I
number
districts.
believe
inequality
formula
ais mathematical
plan is unconstitutional
on its
because
percentage) which will
(within a certain
undisputed evidence
face and under the
practicable”
“nearly equal
satisfy
as
attempt
is not an
to divide
State
Congressional
rule.
districts
of Missouri
nearly
equal in
as
that are as
existing voting
It seems obvious that
reason
practicable.
this for the
And
cast,
units,
which the
are
within
votes
counties
that entire
it is obvious
building
tallied,
counted,
are
adjoining
with
can be moved
congressional districts
blocks
which
resulting
decrease
substantial
equally
It seems
obvious
are constructed.
present
population in the
considerably
vary
variances
these units
since
m
no evidence
there is
equal- Act and because
population, exact mathematical
in
ity
explain
be said to
can
changing
record that
this
attained without
cannot be
why
not done.
justify
or
building
None
blocks.
size
requires
that the cases
this. All
the cases
1967"
short,
proponents of
In
adopt
legislature
require
is that
State
carry
burden
failed
to be
policy”
to the units
as
rational
“a
by law.
imposed
themon
proof
will
used,
then
variations
existing political
use of
from the
result
(dissent-
Judge
MATTHES, Circuit
justifiable.
boundaries
ing).
apparent, although undeclared,
respectfully
I
dissent.
existing
policy
political
bound-
effectively
majority
my
In
view
aries in
before the
the 1967 Act now
unwarrantedly
knell
the death
city
sounds
precincts (in the
but
Court was
use
nicety is not
re-
field matical
a constitutional
to the “de minimis” doctrine
redistricting.
Congressional
quisite”
If
:
majority
opinion
and becomes
practical
survives
“We realize that
it is a
im-
redistricting
Congressional
law,
arrange
legislative
no
possibility
dis-
enacted
the Missouri
act
ricts so that each one has an identical
long
judicial scrutiny so
citizens,
can withstand
residents,
or
or
number of
conceivably
body
formulate
pre-
could
Mathematical exactness or
voters.
mathematically
plan which would
hardly
better
constitu-
cision
workable
greater equality.
the state
redistrict
requirement.”
U.S. at
tional
rejects
short,
majority
Mis-
84 S.Ct. at
*49
relatively
despite
minor
plan
the
souri
Sincock,
695, 710,
Cf. Roman v.
377 U.S.
populations
in
variations
dis-
between
1449,
(1964).
84 S.Ct.
less believe recognized applicability preme of the doc- Court as well as other Three- Judge Speaking approval Preisler II. for the lies in their trine in courts Judge redistricting Oliver stated: acts contained which have degree disparity measurably greater such words ‘feasible’ “Use of between districts than does the Missouri ‘practicable’ in a careful statement Johnson, infra. princi- Act. See Connor v.
the fundamental
constitutional
recognition that
ple
but a
constitutes
opinion
my
majority
view has
minimis
the familiar doctrine
de
large part by
an errone-
been induced
designed to make
applicable
and is
concept
of the extent
ous
legislature would
a State
clear
legislation
proponents
redistricting
entirely
expected
new
create
proof
carry
forward the burden
must
political
in order
lines
subdivision
Adams, supra enunciated in Swann v.
precise mathemati-
absolute and
Hill,
Kilgarlin
120, 87
S.Ct.
U.S.
equality
dis-
in its
cal
(1967).
In Swann
Per Population Ideal No. From Variation 439,746 1.8 + One 436,448 Two 1.03 436,099 + Three .95 419,721 Four 2.84 .19 Five 431,178 422,238 Six 2.26 + + 436,769 Seven 1.11 Eight 445,523 3.13 428,223 Nine .87 423,868 Ten 1.88 per 431,981 Ideal district: Average variation Ideal: 1.6% largest to smallest Ratio district: 1.06 to 1 Number above Ideal:
Number of districts below Ideal: of districts within Ideal:
Number 1.88% largest Population between difference smallest districts: *52 in By way comparison, produced Preisler Congressional the 1961 II average districts with an variation of voided in Preisler I created districts with from the ideal district. The 6.54% disparity average from the an variation of 8.47% largest ratio of the to smallest striking In to the 1967 ideal. contrast district population was 1.218 1to or a population Act the in between difference spread 85,015. 128,- largest the and smallest district disparity to 1. of 1.339 practical 355 or a ratio What is the effect of these The unconstitutional 1965 Act declared maximum Simply stated, variations? states, page opinion in sub- 2. the On 5 letters dated October 11th and October stance, 17, (copies Judge learned that that after defendants 1967 to Collinson and population me) in produce actual variances the that he desired to witnesses substantially greater many hearing. Attorney instances the The General motion, appearing letter, in defendants’ those did not in state either or in they desire to my knowledge advised the court of their other communication within evidence, justify attempt attempt the justify to “adduce he would the greater greater in my variations that had fact variations. In view of basic comport position, great This does sig- established.” this matter is of no knowledge understanding my fairness, the however, In nificance. Attorney proceedings. pre-hearing Attorney General, my comprehension The Judge transpired Oliver General of Missouri advised what should be recorded.
1009
Eighth
summary
Congressman
District Court’s
affirmance of the dis-
from the
25,802
validating
(the largest)
represent
trict court’s decision
1966
Mississippi Redistricting
counterpart
Act. The fact
than his
more constituents
is,
smallest).
(the
as revealed
the district court’s
from the Fourth District
Congress-
Johnson,
opinion,
No.
Considering
v.
Civil
that each
Connor
fact
3830,
1966,
S.D.Miss., September 28,
431,981 persons
256
represent
if
man would
exactly
962,
population
F.Supp.
in
on an
variance
be divided
the state could
difficulty
Congressional
basis,
among
equal population
I
districts was
have
jurisdic-
comprehending
issue
the residents
before that court.
how.
context,
statement,
would,
practical
considered
Eighth
tional
deprived
before
purposes,
appreciably
of sub-
that this same issue was
discloses
though
Supreme
stantially
representation in
Even
Con-
Court.3
squarely
appellants
gress.
Certainly
in Connor did not
variation
6%
430,- present
Supreme
cry
plan
from the
the case
far
before
is a
issue,
I,
spread
districts
population
in terms of an Article
between
Court
§
approximate-
Wesberry,
Supreme
I
or the
submit
found
ly
fac-
variations
concerned with the substance
all
to 40%
30%
Rhodes,
Act,
Kilgarlin,
Mississippi
Swann,
Civil
and would
Lucas v.
ets
N.D.Ohio, 1967,
per
65-264,
unhesitatingly
rev’d
vari-
reversed if
No.
L.
curiam,
populations
one
violated its
U.S.
S.Ct.
ations
large
concept
(1967);
man,
varia-
one
as enunciated
Ed.2d 423
vote
Rockefeller, supra.
prior
v.
cases.
tions Wells
popula-
difference in
as the
Inasmuch
Mississippi
Despite
Case.
largest
and smallest
tion between
my
sweep
herculean efforts of
brothers to
26,265,
Mississippi
com-
Johnson,
Connor
87 S.
U.S.
Act,
pared
under the Missouri
rug wholly
(1967),
Ct. 1174
under the
1, I
disparity
of 1.062
ratio
or a
us,
(see
irrelevant
to the case before
that Connor
conclusion
am driven
Appendix
majority opinion) I
C
authority
approval of the
impelling
strongly
my
supports
believe that Connor
Act before us.4
conclusion that
Act is con-
the Missouri
stitutional,
the variations
view
the strictness
of their
holding
majority
unwarrantedly
therein
“de mini-
can
be considered
given
propose
great emphasis
mis” in nature.
I do not
to the failure of the
engage
lengthy
Assembly
in a
of words over General
to use
battle
figures
underlying
accurately
reason for the
the 1960
reflected
adopted
legislature’s
Fortson,
(N.D.
3. “Nor
does
Toombs
plan
popula-
Georgia, 1965),
opinion,
standards
conform to
affirmed without
equality
compared
tion
when
S.Ct.
L.Ed.
U.S.
*53
(1966),
departure
available alternatives.
The difference
2d 482
teaches that a
largest
figure
permissible.
between the
and the smallest
of
is
I am mindful
15%
plan adopted
28,-
reapportionment
district under
the
Toombs
involved
is
061;
figure
Georgia
Assembly.
the
the same
for
the Revised
of
This
General
13,672,
strength
pro-
Plan is
less than half.
does not dilute the
the
Delta
greatest
The
deviation from the norm
nouncement
of the Toombs court. The
adopted plan
15,332;
Supreme
held, by implication
in
is
in the
the
Court has
Plan,
7,572.
expressly,
The
Revised Delta
is
if not
the
standards
for
average
testing
validity
apportion-
of all five
in
the
deviation
of a state
11,547;
plan
adopted plan
applicable
determining
in
ment
the
is
the Re-
in
3,767. Clearly,
Congressional
redistricting
Plan it
vised Delta
is
whether
a
the
to achieve mathematical
scheme
satisfies
the
desire
mandate
the
population equality
Grills,
for
was not decisive
Constitution.
Huddleston v.
legislature
Mississippi
in
choice
the
its
U.S.
87 S.Ct.
1011 I APPENDIX * by Supreme Court Affirmed Held Unconstitutional.
A—Plans Adopted Subsequently **Court Plan
Population Ratio of Difference Largest Largest Between Smallest Districts Smallest CASE STATE 465,274 Klahr v. Goddard ARIZONA D.C., F.Supp. 537 250 242,541 tó 1 1.73 Park v. Faubus ARKANSAS D.C., F.Supp. 62 238 Gong 90,495 v. Kirk FLORIDA D.C., F.Supp. 133 278 MARYLAND* [**] Maryland Citizens 113,505 1.34 1
Comm., v. Tawes etc.
D.C., F.Supp. 253 731 102,626 Volpe 1 1.27 Dinis MASSACHUSETTS v. D.C., F.Supp. 425 264 188,084 1to 1.6 Calkins v. Hare MICHIGAN D.C., F.Supp. 228 824
NEW YORK [*] Wells v. Rockefeller 120,366
D.C., 984 126,403 to 1 1.312 Exon v. Tiemann NEBRASKA D.C., F.Supp. 603
(1967) Falcey 64,760 Jones NEW JERSEY N.J. A.2d [**] 111,830 1.32 Baker v.
TENNESSEE Clement D.C., F.Supp. 886 1.68 Wilkins Davis
VIRGINIA Va. S.E.2d *55 1012 n by Supreme Court *Reversed Constitutional
B—Held by Supreme Court **Affirmed Ratio Population Difference Largest Largest Between Districts Smallest Smallest CASE STATE_ 1 54,505 1.14 Moore Moore v. ALABAMA F.Supp. D.C., 246 578 57,046 ..... Kirby Illinois State v. ILLINOIS Board Electoral F.Supp.
D.C., 908 INDIANA [*] Grills D.C., v. Branigin F.Supp. 155 84,545 1.2 to 1 15,060 Avery to 1 1.03521 Meeks v. KANSAS D.C., F.Supp. 26,265 1to 1.062 v. Johnson Connor MISSISSIPPI D.C., F.Supp. 492 Maynard 56,715 to 1 1.2 Levitt v. NEW HAMPSHIRE A.2d N.H. - 17,276 to 1 1.04 Drum Seawell NORTH CAROLINA F.Supp. D.C., 271
[*] OHIO Lucas (Unreported) Rhodes 137,806 1.430 to 1 to 1 1.22 Martin Bush v. TEXAS D.C., provisionally con- [Held
stitutional]