Rice v. EnglishRice v. English
This case involves a state-law challenge to the new redistricting plan for Alabama senate districts. That plan, proposed by Act No. 2001-727, 2001 Ala. Acts (hereinafter “the redistricting plan“), was approved by Governor Don Siegelman on July 3, 2001, and was precleared by the Attorney General of the United States on October 15, 2001. John W. Rice, William McCall Harris, and Patricia Christine N. Wood (hereinafter collectively referred to as “the Rice plaintiffs“) challenged the redistricting plan, naming as defendants state election officials and contending that the plan failed to satisfy the one-person, one-vote standard they viewed as mandated by
I. Constitutional Background
“It shall be the duty of the legislature at its first session after taking of the decennial census of the United States in the year nineteen hundred and ten, and after each subsequent decennial census, to fix by law the number of senators, and to divide the state into as many senatorial districts as there are senators, which districts shall be as nearly equal to each other in the number of inhabitants as may be, and each shall be entitled to one senator, and no more; and such districts, when formed, shall not be changed until the next apportioning session of the legislature, after the next decennial census of the United States shall have been taken; provided, that counties created after the next preceding apportioning session of the legislature may be attached to senatorial districts. No county shall be divided between two districts, and no district shall be made up of two or more counties not contiguous to each other.”
(Emphasis added.)
Section 200 prohibits a districting plan that divides a county between two districts. In other words, county lines must be preserved in any redistricting plan. To accommodate the obvious fact that only a remarkably fortuitous circumstance would permit absolute equality in population between districts while observing the integrity of county lines § 200 speaks in practical terms of the goal that the population of the districts be equal. It requires the districts to be “as nearly equal to each other in the number of inhabitants as may be.”
In earlier litigation challenging the constitutionality of Alabama legislative districts on the basis of population disparity under the “one-man, one-vote” requirement as expressed in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court discussed the necessity of harmonizing the requirement of § 200 for integrity of county lines with the requirement for substantial equality of population in legislative districts. Of course, pursuant to the Supremacy Clause in
“In approving the crossing of county lines, we necessarily fail to give effect to that part of Art. IX, § 200, Alabama Constitution of 1901, which forbids splitting any county between two or more legislative districts. We find that the requirements of equal protection necessitate, in some instances, that county lines give way in drawing legislative districts. To the extent that Section 200 forbids such, it must yield for `when there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.‘”
336 F.Supp. at 939 n. 20 (quoting Reynolds v. Sims, 377 U.S. at 584, 84 S.Ct. 1362).
II. Procedural History
On August 9, 2001, the Rice plaintiffs filed their complaint in the Montgomery Circuit Court, seeking declaratory and injunctive relief. The Rice plaintiffs named Bill English, probate judge of Lee County, and 13 other probate judges, as well as Secretary of State James Bennett, each in his or her official capacity, as defendants (hereinafter collectively referred to as “the election officials“). The Rice plaintiffs contended that the new senate districts failed to satisfy
The election officials answered the complaint and moved to stay further proceedings pending preclearance of the plan by federal officials. When the State received a letter from the United States Department of Justice stating that the Attorney General of the United States interposed no objection to the plan, the State advised the trial court that the plan had been precleared by filing a copy of the letter with the court.
While preclearance of the redistricting plan was pending, Governor Siegelman moved to intervene as a defendant; the trial court granted his motion. After the State obtained preclearance, Senators Lowell Barron and Henry Sanders also moved to intervene as defendants. The trial court granted that motion on January 10, 2002.
On November 19, 2001, the trial court entered a scheduling order, pursuant to which the parties were to file any dispositive motions by December 19, 2001, and were to argue those motions at a hearing to be held on January 10, 2002. On December 19, 2001, Secretary of State Bennett, for himself and the other election officials, filed a motion for a summary judgment, together with a supporting brief and a narrative summary of the undisputed material facts. Governor Siegelman joined in the election officials’ motion. Even though their motion to intervene had not been ruled on, Senators Barron and Sanders, on December 19, 2001, also moved for a summary judgment in their favor. On January 10, 2002, the trial court heard oral argument on the election officials’ summary-judgment motion. At the time of the hearing, the Rice plaintiffs had not filed any written response to any of the summary-judgment motions. They did not file any response until January 17, 2002, when they filed what they entitled “Rice Plaintiffs’ Response and Objection to
On January 28, 2002, the trial court entered two orders. In the first order, it held that the state-law claims before it were justiciable. In the second, it (1) granted the election officials’ motion for a summary judgment, in which it noted that Senators Barron and Sanders had orally joined in the motion to the extent that it addressed the merits of the Rice plaintiffs’ claims (as opposed to the justiciability of those claims); (2) stated that the summary-judgment motion filed by Senators Barron and Sanders was not before the court on January 9, 2002, and would not be considered; and (3) held that the Rice plaintiffs’ response was not timely filed and would not be considered. On February 11, 2002, the Rice plaintiffs filed a notice of appeal.
The trial court‘s findings in its summary-judgment order can be summarized as follows:
(1) In adopting
(2) Apportionment is primarily a legislative function; courts should act only if the Legislature fails to act constitutionally after having had a reasonable opportunity to do so. Brooks v. Bobbie, 631 So.2d 883, 890 (Ala.1993);
(3) The Legislature has itself adopted a 10% variance rule in its guidelines for reapportionment;
(4) Other states also apply a 10% variance rule;
(5) A federal district court in Alabama has already ruled that § 200 does not require greater equality in population in legislative districts than does federal law, and federal law generally permits deviations not exceeding 10%. Sims v. Amos, supra; and
(6) The plain meaning of § 200 itself does not require absolute population equality; instead, it requires the districts to be “as nearly equal as ... may be.”
III. Jurisdiction
The election officials argue that the separation-of-powers doctrine enshrined in
Justice Houston‘s special concurrence states that Brooks v. Hobbie confused this Court‘s responsibility under federal law with “our responsibility under State law, where our jurisdiction is restricted by the separation-of-powers provision in the Alabama Constitution.” 835 So.2d at 168 n. 4. It then concludes that “it is for the Legislature, not the judiciary, to determine whether these senatorial districts are as `nearly equal to each other in the number of inhabitants as may be,‘” citing
However, in Ex parte Selma & Gulf R.R., this Court, while recognizing the Court‘s power to exercise judicial review of acts of the Legislature, was also mindful of the need for restraint. This Court there stated:
“No power of this grave nature [i.e., judicial review of legislative acts] is expressly given. Considering its importance, it is a little strange that it has been wholly omitted. But, grant that it exists. It can not be permitted to rest upon mere inference and argument; because, if the inference is a mistake, or the argument is false, its exercise is an usurpation by one branch of the government against the authority of another. Did the people mean to grant such a power, unless some express clause of the constitution was clearly disregarded? I think not.”
45 Ala. at 728 (emphasis added).
This discussion of the doctrine of judicial review is remarkably parallel to the observations of Judge Learned Hand, speaking of the United States Constitution, almost 80 years later. Judge Hand stated:
“There was nothing in the United States Constitution that gave courts any authority to review the decisions of Congress; and it was a plausible—indeed to my mind an unanswerable—argument that it invaded the `Separation of Powers’ which, as so many then believed, was the condition of all free government.”
Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, 10-11 (Harvard University Press 1958). However, Judge Hand justified the propriety of judicial review as follows:
“For centuries it has been an accepted canon in interpretation of documents to interpolate into the text such provisions, though not expressed, as are essential to prevent the defeat of the venture at hand; and this applies with especial force to the interpretation of constitutions, which, since they are designed to cover a great multitude of necessarily unforeseen occasions, must be cast in general language, unless they are constantly amended. If so, it was altogether in keeping with established practice for the Supreme Court to assume an authority to keep the states, Congress, and the President within their prescribed powers. Otherwise the government could not proceed as planned; and indeed would almost certainly have foundered, as in fact it almost did over that very issue. “However, since this power is not a logical deduction from the structure of the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court sees, or thinks that is sees, an invasion of the Constitution.”
Id. at 14-15 (emphasis added). Judge Hand later described the power of judicial review as “no doubt a dangerous liberty, not lightly to be resorted to....” Id. at 29.
When Ex parte Selma & Gulf R.R. was written, a separation-of-powers clause appeared in Article III of the Constitution of 1868. The same text had appeared in every version of the Constitution since statehood in 1819. Article III of the Constitution of 1868 was copied word-for-word into Article III of the Constitution of 1875. The text was slightly modified in
IV. Standard of Review
In Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000), this Court restated the long-standing rules governing review of acts of the Legislature under constitutional attack:
“`In reviewing [a question regarding] the constitutionality of a statute, we “approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.“’ Moore v. Mobile Infirmary Ass‘n, 592 So.2d 156, 159 (Ala.1991) (quoting Alabama State Fed‘n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)). Moreover, `[w]here the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction [that] would uphold it.’ McAdory, 246 Ala. at 10, 18 So.2d at 815. In McAdory, this Court further stated:
“`[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear
beyond reasonable doubt that it is violative of the fundamental law.’ 246 Ala. at 9, 18 So.2d at 815 (citation omitted). We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits. Id.”
V. Analysis
By the redistricting plan, the Legislature established 35 senate districts for the State. The Senate, according to the redistricting plan, is to be composed of 35 members, each representing a district whose total population is within plus or minus five percent of the ideal population of a senate district. In creating those districts, the Legislature split 30 of the State‘s 67 counties. While the Rice plaintiffs rely on § 200, they concede, as they must, that, notwithstanding the clear prohibition of § 200, disregard of county lines is necessary to accommodate enforcement of the
The Rice plaintiffs base a significant portion of their appellate argument on the contention that splitting counties must be held to the absolute minimum and that the Legislature‘s attempt in the redistricting plan to satisfy the requirements of population equality at the expense of preserving county lines exceeds the absolute minimum. The trial court‘s order conspicuously fails to address this contention; however, that omission is not an oversight.
The Rice plaintiffs contended in the trial court that the redistricting act violated § 200 in that the act disregarded the requirement of the Alabama Constitution that senate districts must have equal populations. The Rice plaintiffs’ complaint stated:
“32. [I]n order to achieve required population equality among Alabama‘s thirty-five (35) state senate districts, as proscribed by Ala. Const. art. IX, § 200, the population of each state Senate district should be 127,060 persons with each senate district `as nearly equal to each other in the number of inhabitants as may be.’ See Ala. Const. art. IX, § 200.
“33. Pursuant to Act No. 2001-727, Alabama‘s most populous state senate district, Senate District 8, has 133,302 persons. Accordingly, Senate District 8 exceeds the constitutionally required population by 6,242 persons, or 4.91%. Alabama‘s least populous state senate district, Senate District 6, has 120,942 persons. Accordingly, Senate District 6 falls short of the constitutionally required population by 6,118 persons, or 4.82%. The difference between the populations of the most populous and the least populous state senate districts in Act No. 2001-727 is 12,360 persons, which constitutes a `relative overall range’ of 9.73%.”
(Footnotes omitted.) Nowhere in the complaint do the Rice plaintiffs challenge the degree to which county lines were disregarded. Likewise, in the summary-judgment hearing held by the trial court on January 10, 2002, the Rice plaintiffs argued:
“MR. MONTIEL [counsel for the Rice plaintiffs]: The first argument that the State makes, which is joined apparently by intervenors Barron and Sanders, is that Section 200 does not mean what we contend it is; that is, that the districts be as nearly as equal in the inhabitants as may be.
“....
“Article 1, Section 2 [of the United States Constitution] deals with congressional districts. Federal courts are crystal clear, and the caselaw is undisputed in this country. The congressional districts, because of that language in
the Federal Constitution, have to be drawn as nearly as equal, and I will submit to Your Honor that most states draw on to zero deviation; i.e., equal population. “THE COURT: But not all of them?
“MR. MONTIEL: Occasionally a very, very small, de minimis, and the courts have said that these ranges, this, plus or minus 5 percent wouldn‘t be de minimis. There‘s no case—it‘s going to be like .017 percent, very small. It‘s where they may not be splitting a precinct and leave a few hundred people in the district. Might be constitutional or permissible under Article 1, Section 2 for the Constitution in congressional districts.
“THE COURT: The drafters of this 1901 provision, if they wanted equal, all they had to say was equal—draw them equal. Why would they modify that by saying nearly equal?
“MR. MONTIEL: Well, I think at that time—and I think that‘s why the court has to look at the development of technology. They wrote, `shall be‘—it‘s mandatory—`shall be as nearly equal to each other in number of inhabitants as may be.’ And we believe that requires the court to analyze whether or not the State of Alabama—
“THE COURT: If I were drafting this statute and I wanted—and my intention was for the districts to be equal, I would have written, `they shall be equal.’
“MR. MONTIEL: And we submit that‘s what it says.... It says `shall be as nearly as equal.’ And as nearly as equal in inhabitants as may be in 2001 is zero deviation. And for purposes of the record, every district should have an equal number of inhabitants.
“....
“THE COURT: Doesn‘t [the phrase `as may be‘] allow for some movement there, some—I mean, doesn‘t it conjure up the notion that somebody realized that these things couldn‘t be mathematically certain?
“MR. MONTIEL: Judge, ... the answer to that is, if you are not splitting counties—
“THE COURT: Uh-huh.
“MR. MONTIEL: And that‘s another part of Section 200 you‘re going to read.... You cannot use splitting counties as an excuse to violate equal population requirements under federal law. That‘s what the federal courts have determined in Reynolds v. Sims [377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)]. And what the federal court did in Reynolds v. Sims is [it] determined that certain provisions of Section 200 are unconstitutional, but—and there‘s caselaw, plenty of caselaw at this point, Judge.... [The federal court] specifies that all provisions of Section 200 ... that don‘t violate federal law, should continue in existence, and certainly as-nearly-as-equal-in-inhabitants language doesn‘t violate federal law. I mean, that‘s saying if it‘s zero deviation, that violates no one.”
The only reference to splitting counties in the argument before the trial court during the hearing on the summary-judgment motion occurs in the context of recognizing the ineffectiveness of that portion of § 200 condemning the splitting of counties when it stands in the way of the requirement of population equality in the legislative districts.
The Rice plaintiffs did not submit any written opposition to the summary-judgment motion, either before or at the hearing. At the conclusion of the hearing, the trial court gave the Rice plaintiffs permission to file additional materials
The Rice plaintiffs, therefore, contend for the first time on appeal that the redistricting act unnecessarily and excessively splits county lines in creating the State senate districts. Recently, in Porter v. Colonial Life & Accident Insurance Co., 828 So.2d 907, 908 (Ala.2002), we restated the long-standing general rule that “[t]he appellate courts will not consider a challenge to an order or a judgment of a trial court asserted for the first time on appeal.” This Court has often applied that general rule in the specific context of attempts to overturn a trial court‘s summary judgment. See Ex parte Ryals, 773 So.2d 1011 (Ala.2000), where this Court stated, “[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” 773 So.2d at 1013 (citing Andrews v. Mertitt Oil Co., 612 So.2d 409 (Ala.1992)) (second emphasis added). See also Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312 (Ala.2001), where this Court, after stating the general rule, observed:
“Put another way, on an appeal from a summary judgment, this Court cannot hold the trial court in error on the basis of arguments made for the first time on appeal. See Barnett v. Funding Plus of America, Inc., 740 So.2d 1069 (Ala.1999); West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.2d 1290 (Ala. 1993).”
The Rice plaintiffs seek to avoid this result by contending that § 200 requires, in addition to an evaluation of the population-equality requirement, an analysis of split counties. The Rice plaintiffs, however, cite no authority for setting aside the general rule requiring presentation of issues in the trial court as a predicate for appellate review in civil cases. The “plain-error” rule, which dispenses with the necessity for error preservation, is confined to death-penalty cases. The Rice plaintiffs’ efforts to urge for the first time on appeal excessive disregard of county lines
The Rice plaintiffs also contend that the trial court erroneously applied the standard for equal protection under the
“It is a familiar canon of statutory construction that `where there is doubt as to the meaning and intent of a statute by reason of the language employed, or arising from the context, courts may look to the history, conditions which lead to that enactment, the material surrounding circumstances, the ends to be accomplished, and evils to be avoided or corrected, in order that the legislative intent be ascertained and given effect, if possible.‘”
Eagerton v. Graves, 252 Ala. 326, 331-32, 40 So.2d 417, 422 (1949) (quoting Henry v. McCormack Bros. Motor Car Co., 232 Ala. 196, 198, 167 So. 256, 257 (1936)). See also State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 648, 285 So.2d 917, 918 (1973) (“This question [of statutory construction] cannot be answered apart from the historical context within which the statute was passed.“). The trial court did not inappropriately adhere to principles applicable only to proceedings governed by the Equal Protection Clause of the
The Rice plaintiffs also contend that the trial court failed to consider “the obviously racially discriminatory pattern of population assignments” in the redistricting plan. Yet the Rice plaintiffs stated in the trial court, “[W]e don‘t make any allegations of race in this case.”
VI. Conclusion
The trial court afforded the Legislature appropriate deference in its solution to the difficult question of dividing the State into 35 senate districts with approximately equal population. The districts created by the Legislature are within plus or minus five percent of the ideal population of a senate district. While various members of this Court, had we been privileged to participate in the legislative deliberations and then to cast votes according to our respective consciences, might have opted for different district boundaries, less disregard of county lines, or greater concern for more uniformity of
The trial court properly entered a summary judgment in favor of the election officials, as joined in by the intervenors; we affirm that judgment.
AFFIRMED.
BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.
HOUSTON, J., concurs specially.
MOORE, C.J., and SEE, J., dissent.
HOUSTON, Justice (concurring specially).
The Legislature did its duty. (“It shall be the duty of the legislature ... after each ... decennial census, to fix by law the number of senators, and to divide the state into as many senatorial districts as there are senators....”
The Legislature has done its constitutional duty; in doing so, it has in no way violated an express constitutional prohibition, such as encroaching on the rights retained in the Declaration of Rights of the Alabama Constitution (
MOORE, Chief Justice (dissenting).
I strongly disagree with this Court‘s affirmance of the summary judgment in this important case.
The standard of review for a summary judgment is well-settled.
“We review a summary judgment de novo.... A summary judgment is proper where `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. ... [A] party moving for a summary judgment always bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that it argues demonstrate the absence of a genuine issue of material fact.”
Northwest Florida Truss, Inc. v. Baldwin County Commission, 782 So.2d 274, 276 (Ala.2000).
The defendants presented only three pieces of evidence to support their argument for a summary judgment: (1) the October 15, 2001, letter from the United States Department of Justice indicating that Act No. 2001-727, Ala. Acts 2001, had received preclearance under § 5 of the Voting Rights Act; (2) 1903 records of the State of Alabama Department of Archives and History, showing the population of Alabama counties from 1800 to 1900; and (3) an affidavit of Ms. Bonnie P. Shanholtzer, authenticating the reapportionment committee guidelines for the legislative, state board of education, and Congressional redistricting for the State of Alabama.
These submissions lack any relevance to the question before us in this case, which is whether Act No. 2001-727 violates
The population records from 1903 were submitted ostensibly to demonstrate that the State permitted wide deviations in the populations of districts at the time of the adoption of
Nevertheless, the trial court cited the population deviation of districts at the time of the adoption of
Finally, the reapportionment committee guidelines merely show what the Legislature feels to be the criteria that must be met to satisfy federal and state constitutional standards in executing a redistricting plan. The guidelines stipulate that “the relative population deviation for any legislative ... district should not exceed plus or minus five percent (+ —5%),” but this rule exists expressly to ensure “that the overall deviation in the plan” meets the “permissible overall deviation” according to “federal judicial decisions.” Reapportionment Committee Guidelines for Legislative, State Board of Education, and Congressional Redistricting, Il.l.b. (emphasis added). This rule does not address whether the requirements of
Furthermore, a review of the guidelines shows that its stipulations were not followed in structuring this redistricting plan. The guidelines specifically state that “proponents of Legislative and State Board of Education reapportionment plans should establish as a high priority minimizing population deviations among districts.” Guidelines, Il.l.b. The plus-or-minus-five-percent range is intended as a last resort, not a goal, when designing a redistricting plan. The guidelines require that any deviations in population contained in a proposed plan must be justified in a written “detailed explanation” that shows how the deviations “further[ ] rational state policies.” II.l.c. Maintaining county boundaries is not only listed as one of those “rational state policies,” but is also a state constitutional requirement under
None of the evidence submitted by the defendants addresses the state constitutional question at issue and some of the evidence even shows a clear violation of the legislature‘s own reapportionment guidelines. Nevertheless, the trial court cited all of these submissions as undisputed facts in support for granting the defendants’ motions for a summary judgment. This misapplication, alone, of the evidence to the issue of state constitutionality merits reversing the summary judgment in this case.
But even if the defendants had met their initial burden, the arguments and evidence presented by the Rice plaintiffs constitute substantial evidence creating a genuine issue of material fact. Once the moving party makes an initial showing in favor of a summary judgment, the burden shifts to the nonmoving party to present substantial evidence creating a genuine issue of material fact in order to avoid a summary judgment. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment
Initially, the Rice plaintiffs pointed out, and the defendants conceded, that this is an issue of first impression in Alabama. Only three cases have been decided construing the meaning of the requirements of
Additionally, the Rice plaintiffs’ written response to the motion for a summary judgment submitted by Senators Barron and Sanders raises several genuine issues regarding the reapportionment plan. The trial court curiously considered neither Senators Barron and Sanders‘s motion for a summary judgment nor the Rice plaintiffs’ response—ruling that both were untimely. The Barron and Sanders motion was filed on January 9, 2002; the trial court did not rule on their motion to intervene in the case until the January 10 hearing. The summary-judgment motion of those defendants could not even have been officially filed with the court until January 10; therefore, holding that their motion for a summary judgment was untimely makes no sense, particularly when the trial court heard arguments on the motion from their counsel at the January 10 hearing.
The motion for a summary judgment filed by Senators Barron and Sanders was filed on January 10; the Rice plaintiffs filed their response to that motion on January 17, certainly a timely response. In fact, the trial judge told the Rice plaintiffs at the January 10 hearing that they could file their response by January 24. Despite this statement by the trial court, the court subsequently ruled on January 28 that the response was untimely, and the court did not consider in its decision the arguments made in the motion or response or the affidavits submitted therewith.
Those affidavits clearly show that the redistricting plan at issue had not been submitted to the permanent legislative committee on reapportionment, the committee charged with considering those issues and that the plan did not conform fully with the legislative committee guidelines. As explained above, those guidelines clearly provide that deviations in population require a detailed written explanation justifying the deviations as furthering rational state goals. The guidelines also state that redistricting plans should strive to maintain county boundaries.5 Although this redistricting plan failed in all of these respects, the trial court still found no genuine issues of material fact.
However, even if we ignore the Rice plaintiffs’ response to the summary-judgment motion of Senators Barron and Sanders, their remaining arguments demonstrate
The federal district court for the Middle District of Alabama ordered a relaxation of the “no-division” provision of
The district court in Sims explained that “the justification most often advanced by the states for permitting deviation from the ideal of one man one vote is the necessity for maintaining the integrity of political subdivisions such as counties.” 336 F.Supp. at 933. Indeed, the United States Supreme Court observed in Reynolds:
“It may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting while still affording adequate representation to all parts of the State.... Somewhat more flexibility may therefore be constitutionally permissible with respect to state legislative apportionment than in congressional districting....
“A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme.”
377 U.S. at 578, 84 S.Ct. 1362.
Thus, the United States Supreme Court‘s rationale for allowing a five-percent deviation in population for state legislative apportionment is to enable states to maintain political subdivisions, such as counties, yet the redistricting plan at issue here deviates substantially from the “nearly as equal ... as may be” population requirement of
The few federal district court cases referenced earlier that have examined the
When all of the facts and arguments are considered, it would appear that Act No. 2001-727 probably violates
The majority of this Court discusses the propriety of judicial review and the Court‘s need to practice restraint in exercising that power. However, our power and scope of judicial review is not in issue here, where, as the majority recognizes, we would abdicate our responsibility if we allow the Legislature to conduct “itself in a manner inconsistent with [our] constitution and when it does, it is incumbent upon the judiciary to nullify a legislative enactment contrary to the constitution.” 835 So.2d at 162.
The Court is necessarily exercising judicial review in this case, because it reviews the constitutionality of Act No. 2001-727; the outcome of that review does not determine whether we are exercising that power. If the Court believes that it does not have the power to review this issue because it presents a purely legislative matter, then it should so state and refrain. But a determination that the Rice plaintiffs have not overcome the presumption of constitutionality is, in essence, an exercise of judicial review. An argument that judicial review precludes a review of a summary judgment on such an important constitutional issue is, in actuality, an avoidance of our constitutional responsibility.
Representation is the bedrock tool of our democratic republican government. “[R]epresentative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State‘s legislative bodies.” Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). It means just as much, if not more, where state legislative bodies are concerned as it does for Congress, because “[s]tate legislatures are, historically, the fountainhead of representative government in this country.” Reynolds, 377 U.S. at 564, 84 S.Ct. 1362. Pretermitting argument on the legislative reapportionment scheme when possible constitutional violations are at stake is unconscionable. Further consideration of the issues is warranted; thus, summary judgment should not have been granted. Accordingly, I dissent.
I do not disagree with the well-reasoned main opinion; I dissent only because, given the importance of this case, I would grant oral argument solely on the question of the effect of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), on the obligation the Alabama Constitution,
I agree with the main opinion that this Court is not without the power to review whether the Legislature has carried out its constitutional duty to redistrict. See Rice v. English, 835 So.2d 157 (Ala.2002). However, for prudential reasons, that power should rarely be exercised.6 Legislators take the same oath of office that we do:
“I solemnly swear that I will support the Constitution of the United States, and Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.”
Thus, it well may be that whatever the answer to my question, I ultimately would defer to the judgment of the Legislature, but I cannot know that without first resolving the Reynolds v. Sims question.