*1 allegedly- received the submission never by plaintiff. to each
made summary judgment The motion allowing In motion I have allowed. ignored allegedly opposing not affida- my Thackeray which, in vit of Louis G. judgment, as an ex- fails to establish him pert opinion whose would be admissible affidavit, at trial and evidence whose any any event, does not controvert way and, affidavit, material Hoskin course, purely it does not meet le- gal issue not ma- whether or may protected by copy- terial suit
right aas matter of law. Judgment for defendants. al., Plaintiffs,
Richard SINCOCK et v. al., Mabel Roman V. GATELY et Defendants. Civ. A. No. 2470. United States District Court
D. Delaware. Jan. Wright, J., Caleb M. dissented in part. *4 F. A. Theisen and Victor Bat-
Vincent
Del.,
plaintiffs.
taglia, Wilmington,
Buckson,
Dover,
Atty. Gen.,
P.
David
Wilmington,
Delaware,
O’Donnell,
Frank
Del.,
Del.,
Hughes,
Dover,
III,
H.
James
Georgetown, Del., Roy
Maull,
H. Edward
Dover, Del.,
Shiels,
for defendants.
S.
743
1449,
Sincock,
695,
Judge,
84
BIGGS,
v.
U.S.
S.Ct.
Circuit
Before
(1964),
Judges.
two
stat
LAYTON,
L.Ed.2d 620
new
District
WRIGHT and
designated
utes,
(Senate Bill) S.B.
as
336,
appor
created
new
S.B.
Judge.
BIGGS, Circuit
Delaware,
apportionment
an
tionment for
Background
History
Factual
July 13,
on
which became effective
Litigation
Present
convenience,
For
than
the sake
rather
verbatim,
repeating S.B.
S.B. 336
history
332 and
long
The case at bar has a
here,
refer to
29 of the Dela
we
Title
requires only
here for
a résumé
appears
ware Code Annotated. S.B. 332
history
fully
appears
decisions
I,
Subchapter
in toto in
Sections 601-609.
cited in the
is sufficient
footnote.1 It
S.B.
which sets out the districts
bar
the suit at
was
state here that
Assembly appears
toto in
the General
brought originally action
a class
Subchapters
YI, inclusive,
II to
Sections
citizens, taxpayers
seven
and voters
621-622,
641-642,
631-632,
651-652
urban and
areas of Delaware.
suburban
Del.C.Ann.Cum.Supp.
661. 29
shallWe
adjudication
sought
An
Section
quote
portions
certain
S.B. 332
Article II of
Constitution
S.B. 336 hereinafter as need arises.
amended,
State
Delaware
Del.C.Ann., and the
Amendments
provides
Rep-
S.B. 332
for House of
thereto,
Equal
in violation
composed
mem-
*5
resentatives
be
of 35
Protection and Due Process Clauses of
years,
bers
2
to hold office for
the
that
the Fourteenth
the Con-
Amendment to
representative
State
divided
35
be
into
stitution of the United States. The elec- districts,
representative
and that each
tion
named
officers were
as defendants
representative.
choose one
S.B.
and are still named as such but it should
provides
composed
332
for a
Senate
be borne in mind that
de-
certain former
of
4
18 members
hold
each to
office for
parties
fendants have
as
been relieved
years. The State is
18
divided into
sen-
by
quitting
upon
reason of their
office
districts,
atorial
of which
elect
each
shall
ending
the
of their terms and the elec- one senator.
332
the
S.B.
states that
of
tions
their
been
successors who have
terms of office of the several senators
party-defendants.
substituted as
These
staggered
shall
than
be so
that not moire
bearing
facts have no substantial
on the
9
shall
bien-
senators
be elected at each
presented by
litigation
issues
in its
general
nial
election.
Act further
present form.
provides
representa-
that there shall be 8
2,
II,
heldWe
that Section Article
of
City Wilmington,
tive districts in
of
the
the Constitution of the
of
State
Dela-
representative
16
in
districts New Castle
ware and the 1963 Amendments thereto County
Wilmington,
City
outside the
of
Equal
constituted a violation of the
Pro-
representative
County,
5
in
districts Kent
tection Clause of the Fourteenth Amend-
representative
and 6
districts in Sussex
Duffy, D.C.,
ment. Sincock v.
F.
215
County.
provides
The Act further
that
Supp.
(1963). Following
entry
169
the
there shall be 4 senatorial
districts
judgments
appeal
of our
an
was taken
city Wilmington,
8
dis-
senatorial
Supreme
Court of the United
tricts in New Castle
Following
outside
States.
the affirmance of our
by
City
Supreme
Wilmington,
decision
Court in Roman
3 senatorial districts
Terry,
judgments
D.C.,
following
F.Supp.
opinion
1. See Sincock v.
entered
our
207
205; D.C.,
F.Supp. 395; D.C.,
Duffy, supra,
F.Supp.
in Sincock
210
210
v.
215
F.Supp.
(1962);
Duffy,
Roman, D.C.,
169. See also
396
Sincock v.
v.
Sincock
D.C.,
F.Supp.
(1963);
F.Supp.
(1964).
233
215
and
615
169
Sin
D.C.,
Roman,
F.Supp.
cock v.
232
844
(1964).
appears
importantly,
opin
Chap-
2. Senate Bill
More
332 also
see
as
Supreme
Chap-
ion of the
Roman
ter 360 and
Court
v.
Senate Bill 336 as
Sincock,
1449,
361,
ter
377 U.S.
84 S.Ct.
Volume
Laws
of Dela-
affirming
(1964),
12 L.Ed.2d
620
ware.
(small rivers),
Chesapeake
County,
Dela
and
in Kent
and senatorial districts
County.
Canal,
ware
which
other boundaries
Sussex
clearly
in most cases are
identifiable
provides
Section 607
S.B. 332
rep
except
15th,
19th and 24th
Assembly
“The
shall
General
determine
por
as
resentative districts are defined
Representa-
the boundaries
the several
tions
other
of Hundreds not included in
tive
City Wilmington
Senatorial Districts within the
representative districts. The senatorial
and within the sev-
County,
of New Castle
outside
districts
by
eral
Assembly
counties
an act of
General Wilmington, comprise
combinations
in such manner
there shall
representative
in New Castle
districts
equality
be substantial
Wilmington,
County, outside
num
among
Representative
Dis-
several
ber,
designated
portion of
in that
among
tricts
Senatorial
several
relating
representative
S.B.
dis
Districts.”
tricts.
provides
Section 609 of
S.B.
boundaries
S.B. 336 defines the
newly
apportionment
created
shall
Assembly representative dis-
General
continue in effect until the official re-
combining
Kent
tricts in
porting
of the United
President
existing representative dis-
heretofore
States
Federal Decennial Census
641(a)
County.
of Kent
Sections
tricts
reporting of
and that after the
dealing respectively
641(d)
with
following
each
sus,
Federal Decennial Cen-
25th
and 28th
Assembly
reappor-
the General
shall
typical.
County perhaps are
Sec-
Kent
tion
State
such
redistrict
twenty-fifth
641(a)
“The
tion
states:
manner that
the several
comprise
Representative District shall
and senatorial districts shall be substan-
existing
all
and consti-
of the heretofore
tially equal
population.
First,
Repre-
Fourth
tuted
Third and
County.”
S.B. 332 was enacted
the General
of Kent
sentative Districts
*6
Assembly
July 6,
twenty-
1964,
641(d) provides:
on
and S.B. 336
“The
Section
July 8,
eighth Representative
was enacted
it on
1964.3
com-
S.B.
shall
District
designates
existing
repre-
of
prise
the boundaries
and
336
all of the heretofore
Eighth Repre-
districts
sentative and senatorial
in the
constituted
and
Seventh
City Wilmington largely
County
of
street
and
of Kent
Districts
sentative
existing
street.
the
and constituted
heretofore
Rep-
of the
First Election District
Sixth
designates
336
the boundaries of
S.B.
County.”
District of Kent
resentative
representative
New
districts in
Castle
County,
Wilmington,
City
dis-
S.B. 336 states that
senatorial
outside the
of
County
composed
consisting
state, county tricts of Kent
shall be
of
boundaries
city lines, roads, railroads,
previously
of
of
and
new combinations
creeks
testimony
Reynolds
repeat
4.
“Hun-
here
definition of
See
of
du-
We
Senator
opinion
Pont,
objection
in
in Sincock
An
was
dred” contained
our
made
Duffy,
F.Supp.
follows:
v.
“
215
at
as
the defendants
to Senator duPont’s
testimony,
in
in Delaware
intended
‘Hundred’
is used
insofar
it was
as
original-
sense,
believe,
express
we
it
the General
as was
to
the intent
of
same
signify
objec-
ly
English
Assembly.
regard
employed
‘A
law to
do not
We
county,
pertinent
point.
being
make
which some
division of
tion as
at this
originally
noted,
(Except
especially
of 100 hides
to
consisted
hereinafter
have
as
tithings
transcript
land,
free
or 100
tes-
of
others of 10
of
all references
to
Dictionary,
timony,
example
note,
Law
families.’
Bouvier’s
for
in this
as
states,
hearings
transcripts
3rd
Bouvier
also
Rawle’s
Rev.
are to
made at the
on
county
Implement
of a
Mandate
‘In Delaware
subdivisions
the “Motion to
They correspond
Supreme
to
hundreds.
shall refer
are called
of the
Court”. We
townships
transcripts
England,
page
New
of
those
towns
to
numbers
Louisiana,
Pennsylvania,
parishes
footnotes.)
opinion
and
and in its
in this
Collegiate
like.’ See also Webster’s
the
Dictionary.”
existing
proceedings
and of
to
of
cial
as
the correctness
boundaries,
(c)
De-
of
The several
certain of the old election districts
designated.
County
partments of
shall cause such
Kent
Elections
they
maps,
copies
additional
rep-
provides
several
that the
S.B.
necessary
properly
deem
advise the
resentative districts
Sussex
public,
prepared and distributed.”
to be
previously
composed
ex-
shall be
Maps
been
referred to in
661 have
Section
isting representative
of cer-
districts and
certified and filed and we shall deal with
Coun-
tain old election districts
Sussex
point
opinion.
them at a later
in this
ty.
provisions
In
this connection the
rep-
651(a), relating
Section
to the 30th
Relating
Preparation
II. Facts
may
district,
to be
resentative
be deemed
and
S.B. 332
S.B.
typical:
Representative
“The thirtieth
Shortly
the decision
after
comprise
District shall
all
the hereto-
Supreme
in Roman v. Sincock
Court
existing
Rep-
fore
First
constituted
meeting
15,1964,
a series of
on June
or
resentative District of Sussex
meetings
Capitol Build
were held
existing
all of the heretofore
and consti-
ing
Delaware,
Dover,
June
at
on
about
tuted First and Third election districts
party
17, by members of the Democratic
Representative
of the Second
District
put
proposals
to be
before
to discuss
County.”
Sussex
Assembly
reappor
provide
General
phrase
We shall discuss the
“heretofore
with the decision
tionment
accordance
existing and
constituted” as referred
Supreme
in Roman v. Sin-
Court
641(a),
651(a),
641(d)
in Sections
Supreme
decis
Court
cock and the related
point
opinion.
at a later
in this
22, 1964,
ions.5,
On June
Governor
S.B. 336 states that the senatorial dis-
meeting
Carvel held a
of the leaders
composed
tricts shall be
of combinations
parties
Legislature. This
both
of the new
districts.
meeting
bipartisan meet
was called as a
ing,
during
Section 661 of
“Ef-
S.B.
headed
but
the Gov
the course
it
fectuation”, provides: “Preparing
stated, according
ernor
uncontra
districts,
filing maps
(a)
respec-
testimony
Reynolds
du
dicted
Pont,
of Senator
Departments
tive
majority party
of Elections shall cause
“that the
prepared by Registered
to be
majority party
going
Land Sur-
to do the
it was
veyors maps
county showing
reapportionment.”
of each
In
to S.B.
Cook,
pro
boundaries of the several General Assem- 332
Allen J.
President
Senator
districts,
bly
Registered
(b)
tempore
Land
the Senate advised
Senate
*7
Surveyors
prepare
maps
who
shall
the
in the course of
imme
the limited debate
certify
diately
on them
preceding
passage
as to their correctness
the
of the bill
respective Departments
and
through
the
Senate,
of Elec-
the
that
was
S.B. 332
appropriate maps
tions shall
majority
bill,”
they
cause the
party’s
“the
and
were
to be
going
recorded in the Recorders Office
to make the
“because
best effort
in the
maps
they
majority,
for which the
were
of
the
to take care
prepared. Upon
recording, maps
party
such
the
the Democratic
in the redistrict
prima
shall
judi-
ing.”
permissible
evidence in
facie
all
It is a
inference to be
testimony
Latchum,
legisla
5. See the
of James L.
that
the statements
individual
of
Esquire,
employed
tors
should not be
to con
legislature
strue
the
intent
of
the
if
Mr,
testimony
6. See the
of
L. Winfred
support
bill
is
the
enacted.
In
of this
Hughes,
seq.,
Raymond
et
82
of Mr.
V.
Justice)
position,
(now
Mr.
Associate
West,
seq.,
121 et
of Mr. F. Earl Mc
Statutory
Sutherland,
Herrmann
cited
Ginnes,
seq.,
189 et
L.
James
Latch
Construction,
ed.,
Horick,
2,
Vol.
sec
3rd
um, Esquire,
seq.
374 et
seq.
et
Mr.
tions 5014
But see
Justice
testimony
Reynolds
Plywood
opinion
Algoma
7. See the
of Senator
in
Frankfurter’s
duPont,
seq., 1471,
Employment
1403 et
and 1482.
& Veneer Co. v. Wisconsin
objections
by
301, 307-15,
Board,
There
de-
the
336 U.S.
made
Relations
(1949).
testimony,
584,
fendants
to this
in substance
69 S.Ct.
the
that
Wilming-
City
legislation
apportionment
of
in the new
tionment embodied
of
2,
chairman
place
Arti-
ton. Mr. Latchum had been
of Section
took the
which
City
of Wil-
the
Committee
of Delaware
Democratic
II of
Constitution
cle
the
secretary
mington,
repre-
of
and chairman and
thereto
the
Amendments
1963
Com-
partisan
of the Demo-
the New Castle
Democratic
sented the
efforts
pre-
Assembly
first
mittee.10 He testified
he
cratic
of the General
members
pared
meetings
the boundaries of
4 senatorial
hereinbefore
result of the
as a
districts,
repre-
finding
and next
of the 8
is fortified
those
to. Our
referred
districts;
forming
passed
in
336
sentative
332 and S.B.
the fact that S.B.
Assembly by
senatorial
he used census tract
reason
the General
Wilmington,
figures
City
of the Democratic members
votes
out in
set
his affidavit.11 He testified
The fact
House
Senate.8
necessary
split
that he found it
exist-
legislation
passed
was
Democratic ma-
ing
districts,
election
“some 36 or 37”
jorities
does not necessar-
in both Houses
them. Mr. Latchum also testified that
legislation
ily
insofar as
invalidate
prepared
map
description
he
a
a
Equal
Four-
Protection Clause of the
the districts and sent
these
Secre-
concerned,
is
but it
teenth Amendment
tary
State
who “was head-
Delaware
a fact
be considered
allegations
gerrymandering
ing
thing up,
gathering
made
or at
least
plaintiffs which
be discussed at
will
plan
in his office.” He státed that
opinion.
point
later
in this
dividing
City Wilmington,
after
reading
Supreme
opinion”,
“the
Court
two mea-
Prior to the enactment of the
attempted
respective
he
to make the
dis-
sures, apparently
22 and
between June
29,
Latchum,
substantially
equal
population,
tricts
L.
Es-
June
1964 James
pare
Justice Vinson’s
8. The
on
in the
is il-
also Mr.
vote
S.B. 332
Senate
Chief
opinion
party
in the
States
case
United
lustrative of the strict
lines ad-
voting
passed
Mine Workers
America v. United
hered to
which
280-283,
America,
legislation.
S.
67
Ham
new
Nine Democratic
330 U.S.
sena-
332;
(1947).
See
S.B.
one
13. Defendants’ Ex. 8 and its map, Defendants’ Ex. 9. 17. Id. at 198. McGinnes, 14. 191-92. 18. Id. at 199. persons number of within the 2d resulted from election error that could have the representative approximations.” The district of the old 2d dis- above-mentioned regis- Knowing judicial trict. were 1079 court notice of the substan- there takes accuracy tered in 2d election tial voters the old district of Mr. McGinnes’statement district, representative quoted of the old Hughes Mr. in- 2d find that the above we 4,000 there population estimated that crease in County in Rural New Castle persons large 2d within the old election dis- at as least as stated representative trict of the old 2d district. him. appears testimony This from his and his presi- Hughes was the Mr. L. Winfred Hughes frankly affidavit.22 Mr. con- Department County of dent of Kent the testimony subsequent ceded in that the chair- was the one time and at Elections 4,000 persons as estimated him was County Com- Democratic ofman the Kent perhaps high. per- too The number of in he assisted mittee. He stated sons, person- United States Government redistricting legislative preparing the nel, living in and around the Dover Air plan and S.B. S.B. embraced representative Force Base in old 2d County aid from with some for Kent district has been much mooted in the County Democratic the Kent chairman of litigation factor, course of this but this Hughes re- some Mr. made Committee.20 course, pertinency of respect has County apportionment Kent estimates equality representation of new passage prior S.B. S.B. to the representative 26th and 27th districts. employed Hughes a ratio also 336.21 Mr. Hughes composed Mr. the three new sen- population registered to total voters County using atorial districts of Kent forming An in example of his estimates. some portions representative old dis- fac- An unknown will suffice. tricts and old election districts of Kent tor, required of course and one which County. He used estimates determination, per- the number of was to the 14th and 15th senatorial districts district of the old sons in 2d election appears from his affidavit.23 are, representative 2d district. There course, figures large degree Raymond for the en- 1960 census Mr. West to Y. representative old district includ- tire 2d prepared reapportionment of Sussex ing personnel of the Dover Air Force County populations in- and estimated living in and around Base but Base Assembly dis- cluded within the General figures are no 1960 census avail- there tricts 332 and in relation to S.B. S.B. able for comprising individual election districts Mr. that he was em- 336. West testified old 2d dis- ployed department personnel fig- According trict. to the 1960 census Highway Department the State and was 17,806 persons ures in the old there were County chairman Demo- of the Sussex and, according 2d Committee; cratic that he had served in Department to the County, of Elections of Kent Delaware, Assembly the General on the 4,000 approximately there were Drainage Commission, Sussex registered voters in that district. Mr. years spent and had on seven a local Hughes employed a therefore ratio of approximately school He testified that he did 4 to 1 to board. estimate the population (Wil- of New Castle 19. 4. Mr. McGinnes Defendants’ Ex. mington County) testimony New his and Rural Castle affidavit his inad- 347,084 persons, popula- vertently was and that misstated City Wilmington 94,606 County. tion of was Rural actual New Castle persons. 211,916, figure prior was not increase, 211,619. minor was This is a but Hughes, 20. 83-84. typographical error. 17, 17(a), Id. 21. at Exs. 84—86. Court’s judgment Bur- considered 38, 39 and 40. Statistics, eau of Vital Delaware State seq., 22. Id. Ex. 2. at 89 et and Defendants’ July 1, Health, Board approximation Defendants’ Ex. that a reasonable *10 along said, T He will formation me. representative and senatori- not draw the any gerrymandering; go along with not lines, supplied the he but that al district my county, county, your or in neither in else who did “someone information for any county; plan I a that other and want employed also draw the lines.” Mr. West here, accepted, sell which I can can be arriving at instances in ratios some charged expect I with and gerrymandering.’ don’t to be populations employing sub- estimates of ” 25 also Mr. West tes- stantially as that same method used * ** “Now, tified I notice as follows: Hughes Mr. and McGinnes. He Mr. charged gerrymandering I that am with making stated of that basic method a certain I it would district. would think popula- his determination was to take the logical Party more the Democratic representative tion of each of district charge that, me with down in because County Sussex from Federal district,- the southwestern area of the Development published by Census as county, in the southwestern area of the Department of the State of Delaware and strength. is the And I Democratic think dividing figure by this the total number probably today the records that here registered are of voters the election dis- verify saying, will I what am that far composing representa- tricts each of the put Repre- more Democrats are into a tive districts. He received the informa- sentative there District than there are respecting registered tion voters from the Republicans in the other districts. We Department of Elections for Sussex just by taking did this these Election County. appears He stated and also * * * working Districts and them from his excep- affidavit that with the very nicely, out. And it worked out tion of trict, the new 32nd dis- against they other, where fitted one remaining representative dis- they adjacent. and seemed to be And viz., tricts of County, Sussex 30th, got put when we out 31st, we what was left 33rd, 34th and 35th over in No. 35. Some of them are by adding districts were pop- created swing26 districts. I think there is one ulation of one or more of the old elec- fairly these that Democrat is sure tion This, course, districts. required being elected in. I think there estimating.24 is one much appear As will here- Republicans fairly that the inafter, sure of complicating there are factors being in. I elected think the remainder Sussex presented which diffi- depend.” those other four will culties reapportionment in the of that (Sic.)27 County. pointed It should be out that while gerrymander- In issue Latehum, Mr. Hughes Mr. McGinnes Mr. ing, explicit. Mr. West was He stated: express did not make as denials gotten “I had information relative re- gerrymandering West, as did Mr. districting. figures maps I mean gentlemen nonetheless these three assert- and information from the Board Elec- stoutly positively they ed that Department tion of Sussex or the endeavoring reapportion- to deal with County. Election I [sic.] Sussex fairly equitably ment and on the legal had a committee with advice. I had equal representation. basis of with the connections members of the testimony Assembly from the they General It will be observed that told me what he, at they sense expected. wanted Latehum and what I Mr. recall por- least, progenitor those majority was the leader of the General Assembly 336 which 332 and S.B. passed tions S.B. House this in- might go West, seq., to the Re- 24. which et as a district Defendants’ Ex. publican candidate to the Democratic 3. particu- margin depending on a narrow West, 124-25. attending peculiar lar or circumstances specific election. “swing” may 26. A be defined West, West, 126-27. context which it was used Mr. *11 750 particularly with more deal We shall Wilmington, same we and the dealt with concerning popula- in deviations issues insofar the record
believe is shown gerrymandering hereinafter. respect tion and in concerned McGinnes is as Mr. County, of Wil- outside to New Castle the Committee Work of III. of mington. appears record from the It also Reapportionment 39 Hughes were to and West that Messrs. the Committee Plans of degree of those creators some at least the respec- portions dealt a volunteer of 336 which is S.B. of 39 The Committee representa- tively organization creation of the devoted non-profit with in government effecting good in Kent tive and senatorial purpose of Latchum, began Mc- Messrs. Sussex Counties. work its It Delaware. shortly mind, Hughes Ginnes, had in and West in Delaware reapportionment representa- Supreme Court respectively of the number of the decision after 186, 82 S.Ct. Carr, be allocated to the tives and senators to 369 U.S. Baker v. City Wilmington, (1962), Castle Coun- it cannot of to New 691, L.Ed.2d ty Wilmington, this vol- outside of to Kent and to members doubted be Counties, Mr. particular Sussex and the 1960 census organization, unteer Hess, figures Sidney as to number of inhabitants W. and Mr. James Weaver geographical Stargatt, Esquire, in each its coun- Delaware M. Bruce many divisions en- referred to. It should be noted in their hours sel, devoted have understanding also once 332 was enacted S.B. the court aid deavors to very a ex- Procrustean bed created in which presented was problems impossibility it litigation. was a virtual for sub- The Committee tensive stantially equal representation having to be intervene allowed been given pre- on proceedings, inhabitants of Delaware curiae in these amicus person, reappor- But plan basis “one one vote”. alia for the inter sented period upon it should also be observed that exten- based tionment of Delaware gentlemen computer.28 of time in which the four of a use and the sive data whom we have named had entitled available to article plan out in an set This is system reapportionment work out a for District- Non-Partisan “Procedure for comparatively Computer whole Delaware Tech- Development ing: Supreme short portion for the decision of very niques.” A substantial Court in Roman v. Sincock was in sub- handed is what devoted to this article is primary down on June 1964 and plan Committee stance the reapportionment Delaware year election in Delaware that for the was to ap- techniques computer as will Saturday, August 15th, be held on the use entertain pear upon examination. We general being held, course, election on plan advanced that the doubt but little November 1964. In the two months the State serve of 39 would the Committee period first stated candidates had to an- However, as the Com- of Delaware well. candidacies, nounce their slates had be apportionment points out the of 39 mittee prepared by respective political par- counties, among representatives of 35 ties, Departments and the of Elections including Wilmington, aon prepare primaries had to if devia- in a minimum would result basis general expressing election the will of the the Counties between tions 7% people of Delaware was to be conducted This population-per-representative.30 according to law on November 3rd. Time representa- number of the fixed due to was indeed of the essence. tasks the out boundaries as set and fixed tives performed large four sub- men render 336 which ones and and S.B. S.B. 332 practical stantially equal representation a swiftly. were effected (1963). 1412-60, 288-308 1031-37, Tale L.J. Weaver, 548-830, 29. 73 1862-1909. n. 25. Id. at 294 impossibility. as afford- such of the Fourteenth Amendment If fixed boundaries lines, ing Wilmington City representation County lines, equal to the citizens (cid:127)as practica- lines and of Delaware insofar as and Hundred were obliterated appearing from charts the data certain ble. *12 opinion point out at a later in this set Plans the IV. Plaintiffs for of appear, were made use of as will a better Reapportionment system reapportionment could de- of be suggested plaintiffs The also have
vised for Delaware. It is asserted plans reapportionment and means for the com- such a course would an almost entail the first of the State. We dealt with recasting plete county governments of briefly, plan submitted, somewhat albeit county and and functions those opinion appendix in to our in Sincock the Wilmington City of cannot as well. We Duffy, F.Supp. 215 v. 192-95. at find a of this to be the election fact for plaintiffs’ plan apportioning the for representatives and to the Gen- senators crossing requires of Delaware also State Assembly sys- operated eral could be as a Wilmington City the limits in county apart from tem the election of of- 34 district 4 and senatorial general compara- ficers at elections with district 8.35>36 slight tively difficulties. plaintiffs submitted have now plan of the the noted that It should be reappor- plan providing for the another the 39 as submitted of Committee Wilmington tionment of we shall and County disregarding requires court point later discuss this some detail at a Wilmington City lines of lines and opinion. in this following respects: dis senatorial the Wilmington 2, 3, 12 cross by 10 and tricts City lines; Data Submitted Witnesses V. of 7 crosses district senatorial the Parties and the Com- of line; County-Kent Castle New 39 mittee of 15 crosses district and senatorial accumulat- The record which has been Rep County-Sussex line.31 Kent portion case, on ed in this of based 14 and districts 9 resentative filing by plaintiffs mo- of their Wilmington City lines; representa cross implement mandate of the tion to Castle tive 28 crosses the New following Supreme its decision Court line; represen County-Kent County and large Roman and some- v. Sincock is a Kent Coun tative district 30 crosses the contradictory of what one. It consists ty-Sussex County plan of the line.32 The given by a evidence 25 witnesses provides for 17 senato Committee of 39 pages, transcript of 3000 taken more than dis rial instead of 18 senatorial districts during largely on the merits the trial tricts, provides of number but the same August and on various between occasions for the State 21, 1965, In 3 addition, December inclusive. 336.33 Delaware as do S.B. 332 and S.B. exhibits, there are over 125 duty many not maps But court is of which are series this several designated system reapportionment by impose un- subnumbers or letters upon Delaware, principal if a task such der the exhibit numbers. These State possibly avoided, maps up can for as we have set re- the contentions many duty apportion spective parties said those of the times the as well as Legislature. duty very ment lies with the Our Committee of 39. A considerable adjudicate presented portion prior is to the issue of the evidencewas received proceedings denying plaintiffs’ instant to our mo- which is whether order preliminary injunction reapportionment not the created S.B. tion for filed on September requirements 332 and Ro- S.B. 336 meets the 1964. See Sincock v. 31. Exs. and 35. 34. Court’s 34 Ex. Plaintiffs’ 48.
32. Court’s Exs. 32 33. 35. Plaintiffs’ Exs. and 52. Weaver, 590, 618, Niederhauser, 33. and 666. (1964). man, F.Supp. ordered a held conference to be At further counsel, plaintiffs, all and ordered the time we reviewed our determination defendants, and the amicus curiae to the defendants’ dismiss. Sub- motions to findings requests sequent study file briefs for intensive indicated that law, and set the deficiencies fact conclusions there existed substantial argument July 16,1965. on case down Counsel in this case record. preparation rushed for time in In the same order the court directed findings filing requests for record and in parties stipulate,. “To insofar as is conclusions, and the court fact and possible, to the admission evidence necessary reach a conclu- itself felt it maps prep- prepared, or in course of sion on the dismiss and for motions to aration, required 29 Del.C.Ann. § preliminary injunction pos- as soon as * ** *13 [viz.,] maps (Supp.) show- 661 Departments of sible the end that the to ing the districts and sena- proceed Elections of the could ef- State throughout of the torial districts State general ficiently of with the election Wilmington, by counties and in Delaware districts, popula- and the and the election January 18, On memorandum of as of the 1965 a tions each election district law, being time that S.B. 336 became it by was submitted to the court counsel Court, proper the intention of if the containing complicated ques- a number of met, proof of such standards to admit by by tions to be or the answered counsel ** figures maps evidence, and in parties. January 25, opin- On the 1965 subsequent- portion This of order was thé Attorney ion of the General of the State ly by striking any reference amended out Delaware, 155, respecting of Document respec- to the election districts and their Senators, the status of three hold-over populations. tive proceeding, was filed this and on Jan- uary 26, by 1965 a conference was held order, court’s In accordance with the the court and counsel. At this conference by conferences, by of counsel series the court stated to counsel its desire to by telephone other communica- calls and maps have the record which would court, tions, endeav- the with the aid of representa- show the of boundaries each filing maps as of to the the ored secure tive district and each senatorial district 1,1965, by required 661. On June Section City Wilmington, for for New Departments appearing that it County Wilmington, Castle outside of for Coun- Kent Castle Elections New County County Kent and for Sussex provisions of complied with the ties had reapportionment pro- accordance with the Department of 661 but Section by 336, pre- vided S.B. 332 S.B. County had not so Elections of Sussex pared by Departments of Elections complied, an order di- the court issued by required of the State of Delaware as to the the Sussex rected members appeared Section 661 S.B. 336. It then County Department show Elections to Department of Elections of New comply why they with should not cause prepared maps Castle had such rule provisions This of Section but had not had them or filed certified on made returnable to show cause was Departments and that the two other duly 7, On 1965 served. June and was Elections of the had State of Delaware 7, appearing the De- June it maps prepared. not caused the to be partment of Elections of Sussex requested every Counsel were to make ef- provisions complied Sec- had with maps required by fort to have the Section discharged. 661, On the rule tion was certified and filed soon prepared, as 16, was a further conference June possible. as en- counsel in an held court and stipu- May 12, 1965, maps, required could not On to see if counsel deavor disputed in Kent having areas Section late as to certain 661 not been certified stipulation, filed, court, This to or and Sussex Counties. in order that 16, might 174, of, filed on June disposed Document was promptly case be more deviations, however, 1965, undisputed are minor facts ones sets out greatly respect Republican need not concern court to certain Senators reviewing who, indicated, Tribunal deci- since the as has been assert right sion issues involved herein “hold-over” in the Gener- to sit substantially Assembly, purports not affected these small al correct cer- testimony popu- deviations. tain errors in as to appears
lation in some localities maps required In Sec- examination, stipulates on esti- 661, tion respective certified to and filed in the populations mated 1960 offices of the Recorders and senatorial districts the State Deeds in the three of Dela- .counties Delaware under 336 insofar S.B. ware,38 stipulation in Docu- contained agreement possible We at that time. following, ment 174 states the “9. The advisedly “purports” have used the term respective Departments of Elections have immediately preceding sentence prepared by registered caused to be land parties on March because surveyors’ county maps of each which filed Document which is intended purport show the boundaries figures correct certain ing relat- Assembly several General Districts. The Assembly General districts Kent registered surveyors prepared land who County. 174, therefore, Document is to maps conjunction have certified on them as to *14 be read in with Document correctness, respective 195. 195 for their Document the first time and the De- supplies “Election partments Results under S.B. of Elections have caused the Districts”, 6-page Senatorial “Exhibit maps to be in recorded the Recorder’s Of- pointed 2”. But as out hereinafter cer- they in fice the in which figures stipulated tain corrected prepared compliance provi- with the even in Document 195 do not coincide Subchapter sions VI, of 661 of Section respects prepared some with those agreed parties Senate Bill 336.” The that this court as demonstrated in the charts maps put these should be marked and into heading “VI.”, set out under infra. The 38, supra. evidence as indicated note presently 37. No Democratic Senator asserts representa- 10E shows the 19th and 20th right a “hold-over” to sit in the Gen- tive districts and the 10th senatorial Assembly. eral district. representa- 10G shows the 21st and 22nd Stipulation 11, map Wilmington, Ex. of tive the 11th senatorial districts and showing representative districts, Wilming- district. ton. representa- 10H the shows 23rd and 24th Stipulation 12, map Wilmington, Ex. of tive and 12th districts senatorial showing Wilmington. districts, senatorial district. Stipulation through 10H, Ex. 1ÓA in- Stipulation 14, map County, Ex. of Kent (8 maps), County, clusive New Castle showing senatorial districts. showing representative and senatorial dis- Stipulation 13, map County, Ex. of Kent tricts, as follows: showing representative districts. representa- 10A shows 9th and 10th Stipulation 9, map Ex. of Sussex Coun- tive districts and 5th senatorial ty, showing district. senatorial and representa- 10B (single map). shows the 11th and 12th tive districts and 6th senatorial maps Wilmington The and of New district. per populations Castle show the representa- 10C shows the 13th and 14th representative district and senatorial dis- tive districts and the 7th senatorial trict, aá' demonstrated the records district. Department of New Elections representa- 10D shows the 15th 16th and County. maps Castle Kent and tive districts and the 8th senatorial popula- Sussex Counties do not show district. figures. par- tion This because representa- 10E shows the 17th and 18th stipulate ties were unable to as to the tive districts and the 9th senatorial population figures district. in some districts. Repre- provides with to the correlative stipulation further that. agreed popu- parties sentative Districts. that “the also Paragraph figures lation referred to maps parties stipulate that “The appearing Stipulation, 1(b) of this prepared Castle of the New on behalf Stipula- S(l) on Exhibit attached Elections, County Department includ- popula- tion, represent agreed 1960 accurately ing Wilmington, correctly and Representative tion of Districts Representa- of the reflect boundaries Wilming- including County, New Castle tive Districts Districts Senatorial agree They the Plaintiffs’ ton. also stipulate They further that area. regard population with contention Depart- maps prepared for that the Representative and 29 Districts of Elections of Kent Sussex ments County, that there in Kent correct represent efforts Counties conscientious populations dispute only remains in Departments part on of Elec- of the Representative 26 and Districts present as ac- tions curately those Counties respective The Exhibit sets forth the county single possible on a and Defend- contentions Plaintiffs map in accord- boundaries the District regard ants with to those Districts. Representative ance and Sena- with the employed by Departments torial lines figures are derived “The Defendants’ five Elections. Sev- the last General in five out estimates from Rep- Election eral these Districts districts, Representative six Sussex by map defined Districts are resentative viz., 30, 31, 33, these As to 34 and 35. only description in terms written districts, plain make it Plaintiffs wish ‘hun- the boundaries of the traditional agree they Defendants do not many In dreds’ in both these counties. proof satisfactory presented have instances, unambiguous descriptions of precise populations districts. said within exist; the possible do and it is im- hundreds not However, purpose of this hear- for the *15 in to determine Sussex ing, that will indicate Plaintiffs now boundary mark- the exact location of the they propose present do evidence not to Repre- comprise ers and lines which the opposition populations. the in to they and Senatorial Districts as sentative 32, Representative the “As to District ‘heretofore’ existed. population was of this District derived regard to “With the Sussex data, from census and Plaintiffs reliable map, Depart- it was determined the that concede Defendants’ contention that the had a ment of Elections had theretofore population is as to the of this District map significant which contained a devia- factually correct. present tion in boundaries between the agree popula- parties “The the Representative all 34th and 35th Districts. figures Paragraph 1 map tion referred into This deviation continued in the was Stipulation appearing (b) May 1, on 1965, prepared by this and dated Simpson Messrs. Stipulation S(2) Burton, significance Exhibit represent attached this to and had no population regard the the Sen- with to and has been County, map they pre- atorial including of New Castle Districts corrected pared which Wilmington. regard 29, to With and which is dated June 1965.” County, parties agree Kent spect re- the with parties stipulated The further District, 13th to Senatorial but the corrections, Representa- “after these disagree respect the 14th and with to maps tive District boundaries on these 15th Senatorial Districts and set have correspond to the in boundaries used con- respective S(2) forth in Exhibit their ducting the last five General Elections regard popula- contentions with to the corresponding for Election Districts.” tion of Districts those maps Following the admission regard stipu- “With filing the Senatorial Dis- into and evidence County, 174, lation, tricts of the Plaintiffs the brief of the Sussex Document findings proposed incorporate defendants and their herein made the comments Arranged filed on of law were State Senators fact conclusions Total by post- Legislative August day original 3, later the 1965. One Districts”. The figures plaintiffs prepared was filed. for this trial brief of the exhibit were for prior plaintiffs upon 39, by re- the Committee their Mr. Donald The stood Nied- findings erhauser, published by quests conclu- from for fact returns out in their brief “News-Journal newspapers”, sions of law as set the Wil- mington “Morning support preliminary of their motion for a News” and Wil- mington “Evening injunction requests. Journal”, and did not file new from and not plaintiffs’ respective made Pro- But the “Conclusion” of returns to the thonotaries of “Post-Trial Brief”39 contains a series the three Counties in ac- prayers 15, cordance for we treat with Section relief which will Title Del. figures orig- pleading an C.Ann. The and as contained in amendment to part plaintiffs’ therefore, inal imple- exhibit, were not official motion to figures Supreme ment and the the mandate of the court deemed it neces- Court. sary briefly These are the exhibit be discussed later under corrected to the heading Remedy.” figures might end that the official “XVI. be be- present fore court. The exhibit maps August hereinbefore On 9th entitled “Plaintiff’s [sic.] Exhibit 60 n designated 38, supra, intro- in note Substitute” and was filed on March argument had was duced evidence respect parties to all issues filing of 195 cor- With the Document pertinent instant them in the deemed recting supplying the August 174 and proceedings. Document the counsel On 16th brief filed a letter court with the election results under S.B. defendants gerrymandering, a brief on the issue of districts, 336 as to senatorial “Exhibit replied which letter brief page 2”, protract- the evidence in this 6— August plaintiffs 30th. filed on long complete. ed case at last seems to be Despite court the actions taken digest and endeavored court above, the court and counsel as set out difficult extensive understand still found contain certain the record to many popula- maps many, re- deficiencies in It contains record. quired by and on Section 661 of S.B. 336 figures parties and the which the tion December 1965 held a further confer- at- have its counsel of 39 and Committee ence with counsel and informed them as successfully, many tempted, instances to what the some of court deemed *16 geographic specific such areas to tie to Subsequently, the deficiencies. on De- representative and senatorial as 15, 1965, cember counsel for the defend- new, dis- election to districts, both old and reopen ants filed a motion to the record City tricts, respect the of Wil- and in to appear will as from their motion. block-by-block mington loca- to even by reopen opposed motion to not figures many are of these tions. But plaintiffs. On December 20-21 the testimony conflicting and to detail the hearing court a further to held receive herein would create the various witnesses by presented maps. evidence on issues greater permissible opinion an maps required by than Section 661 appears length. were admitted into evidence To the that all the issues end 38, subject supra, note to the minor de- may brought focus, into insofar as we be heading ficiencies to referred under so, are are able to do a series of charts “XIII.”, infra. heading opin- set out in the next of this clarify ion which we think will serve to requires One other exhibit mention and, hope, give per- the record we will plaintiffs’ and that is 60. This Ex. spective which we ad- to the issues must purported exhibit “1956-1962 to show judicate. complete Voting Representatives To the end that for Records State Brief, pp. Post-Trial 84-88. 39. Plaintiffs’ See Tables may picture presented be have includ- VI. we to referred ed in certain charts Table I below shows the House of brought during upon facts record Representatives by political subdivisions. case; viz., v. Explanations trial of this Sincock first its abbreviations symbols Duffy, supra, F.Supp. set out the footnote.40 4, geo- Rep. Column 1 of Table I indicates the entitled “No. of Al- Column lotted”, viz., representa- Delaware; graphic shows the number of subdivisions per political “Wilmington”, tives Rural allotted as indi- “R. New area Castle” (Com- pursuant County, cated Column 1 to S.B. “New Castle New Castle Wilmington 336, indicating City bined)”, and S.B. and Column 5 entitled County Rep.” “Act. Per Wil- Pers. means the actual Castle outside of and New mington persons combined, number of be in “Sus- which would each and “Kent” and representative indicating, course, if the number and Sus- district sex” Kent representatives particular Counties, allocated to the and the “Total” sex signifies word population area was total divided into the census the total of the State. population by gives found the 1960 Federal 2 entitled “1960 Census” Column particular designated political Census to exist des- areas ignated figures per population respective area. area 6, 12,- by Column “Deviations from Mean the 1960 Census with a total as shown 751”, explanation. 446,292 persons. needs no Column Deviation entitled from “Table shown At the bottom of I” is “% or minus wise Mean”, plus population shows in- of Delaware as total mean, viz., per- Census, 446,292, deviation from the viz., the 1960 dicated centage per- representa- deviation from the mean or the number of divided representation figure provided by fect based on census S.B. and the tives figures. Rep- 12,751 or as the “Mean Perfect 8, 9, appor- District”, perfect Columns show the actual if resentative percentage per representative, respect possible. the de- In tionment percentage I, viation from the mean and all the indeed Table Wilmington opinion assuming of deviation had or “Mean” in this where tables seven and Rural Castle had New used in connection with “Perfect” representatives. seventeen for the The reason “district”, under the circumstances word figures contained in last three “Average” bar, “Norm” or at the words allegation columns is because of the equal accuracy. employed with could be dealt hereinafter that S.B. with “Pop. 12,751” -4- 3 entitled Column Wilmington and S.B. 336 allocate to one geographic for each shows more it should than dividing popula- subdivision total allocate New one less Castle by mean tion each subdivision such should, treating than it popu- perfect representative geographic respective these two areas 12,751. lation as wholes. *18 figures population dis- Table II deals with Senate below for senatorial performs I political sub- tricts Table as does subdivisions regard stantially the with districts.41 same functions the “Mean or Perfect Senatorial Dis- 41. At the bottom of Table is shown II apportionment pos- trict”, perfect as indicated if total of Delaware 446,292, given viz., meaning Census, divided sible. As to to be the 1960 “Perfect”, by by provided “Mean” see the number of senators words figure 24,794 paragraph supra. note third S.B. and the *20 760 populat in III demonstrates cal subdivision relation Table below per voting power politi ions.42
allocation tors, Assembly political 42. 1 in General for Column subdivi- each states substantially geographic area. does Column 9 shows sions Delaware as percentage voting power 1 in I” in the General “Table and “Table II.” Column representatives figures Assembly supplied both 2 for Column sets out Assembly. 1960 senators the General Federal Census. Column 3 percentage Column 10 is headed “Deviation popula- states state % legend Pop.” according This 1960 of Power Minus tion Census % locality geographic the devia- indicated. that Column shows as Column means voting power percentage-wise appears, rep- number tion of as shows figures geographic geographic per area in ac- each area. resentatives These subtracting instance cordance with Column 5 shows each S.B. 332. arrived at voting power percentage percentage as shown according percentage Representatives from the House Column 3 Assembly respective geographic voting power B. in the General Column the number of shown in areas. Column shows figures geographic senators allocated to each It be observed that if the should larger figures shows area S.B. 332. Column 7 Column 3 are than voting power negative figure percentage ar- in the in Column respective geographic at, in the case in Senate rived areas. County. total number of Rural Column shows the New Castle members, representatives both and sena- *21 voting had Rural Castle sentatives New allocation Table IV shows per relation power political 17.43 subdivision repre- Wilmington had 7 if headings Only hypothetical, on the based one of the columnar in Column 4 assumption requires explanation. perhaps representatives for the Table IV of 7 designated Rep. representatives City Wilmington Column 4 is “No. and 17 (Hypo.)”. “Hypo.” County, word indicates outside of Wil- for New Castle representatives mington. number of set out
764 single population Castle Coun- Dela- instance of Rural New Table V shows ty, by political i. outside of Wil- for e. New Castle subdivisions ware population years 1930, 1940, 1950, 1960, mington, 1964.44 for 44, single shows the New Castle show increases. Column 8 In the instance of itself, percentage County, appears in decreases increases or as the chart from figure populations population 1950 federal ar- as for 1964 is popula- 38,000 adding figure by that the census and demonstrates at rived Wilmington persons tion has decreased Mr. McGinnes’ af- as shown 1.9% persons increases while there had been substantial number shown fidavit geographical figure. popula- in other as indicated The the 1960 census figures exception The with which we are concerned. areas with the tion speak figure them- population re- other column heads in Column 1964 County, appear lating be noted that de- but it should selves to New Castle Wilmington population opinion Duf- crease in Sincock v. out our set fy, F.Supp. 11 shown in Column os 1960 at 174-75. 13.2% legend three columns show of Column last at the head pos- population (Dec.)” New Castle of Rural means a shown “Inc. indicating 250,000 persons though in 1964 was it should sible increase or decrease 38,381 persons figures over the an increase Column be noted that census, population an shown Column 5 4 all demonstrate increases. figures percentage mentioned or de- increase of of increases shows 18.1%. columns, fed- last three over the 1930 creases supported V of Table shows that Wil- 13 and Column eral census. mington’s population McGinnes, by 2,- Defend- of Mr. had decreased affidavit persons ants’ Ex. the 1940 federal census since figures in the column other but all the *25 766 up pursuant S.B. popu- Delaware set Table shows estimated VI below figure 12,751 using norm or mean relation the House
lations persons.45 population of Representatives and the indeterminate and inde- out used mínimums set 45. The 1; populations and for terminate máximums in a manner in Column in estimated figures later which will discussed from Column the reasons 2. The Column affidavits, respec- opinion. appears a blank in in from the Wherever 2 are taken dealing portion Latchum, tively, Ex. with of Column Mr. Defendants’ McGinnes, 5; Ex. and indetermi- mínimums of Mr. Defendants’ indeterminate 3; máximums, West, 4; it the Committee Ex. nate means of Mr. Defendants’ Hughes, data of the 1960 Defendants’ Ex. followed the actual of Mr. Column shows arithmetically the devia- Census and that there were no Federal split population figures from enumeration districts. tion clarity per- For the we have cited the shows the sake norm mean. Column figures centages the order in which the deviations. Column shows affidavits are figures employedin of 39 which Table VI. of the Committee *28 using popula- Table estimated VII shows the to S.B. the norm or mean 24,794 persons.46 tions in relation to senatorial pursuant Delaware figures format of Table VII is substan- with the of the Committee of 39 tially the same as that of Table VI ex- which uses indeterminate mínimums cept required by máximums, for differences the fact indeterminate means that it dealing that we are with senatorial dis- followed the actual Committee tricts instead of districts. data of the 1960 Federal Census Again point ap- split we out that where blanks there were no census enumeration pear portion dealing in that of Column 5 districts. *29 enlarged necessarily because con- of error are to and Table VII Table VI Ex. is increased. conjunction the number estimates with Court’s sidered *30 Populations District entitled “New can, accuracy of estimates such Assembly Under for Delaware’s General however, a limited be checked within presents This Bill 336.” exhibit Senate range. hypo- example, For assume that analysis has of S.B. 336 and a valuable Representative is thetical composed District No. 1 accuracy of to test enabled the court following hypothetical by population estimates as asserted census enumeration districts with the defendants. following hypothetical populations: Putting briefly appor- matter 5,000 A-2 by Legislature plan tionment created 3,000 A-3 by some S.B. 332 and 336 resulted in S.B. 2,000 A-4 splitting of enumeration districts. census 10,000 Total Delaware, In the case of enumer- census ation is the smallest unit district Representative Assume further that Dis- figures which census maintained, or collected portions 1 trict No. also contains Wilmington. In of outside following census enumeration districts Wilmington, data census was available following populations: with the total by city part for the In most blocks. split instant case a census enumeration 2,000 A-l portion district of occurred when a 3,000 A-5 geographical area of a census enumera- 5,000 Total placed representa- tion district was in one tive district Now, indicated, or senatorial while district we cannot tell from the remaining portion placed in of many it was available census material of how representative another dis- 5,000 persons or senatorial the split contained in the two trict. In census one or two instances census enumeration districts reside split Representative But, enumeration districts were and were No. we District do representative know that it can no added to one contain fewer than or more or persons 5,000 0 and no more than from .senatorial districts. split these two enumeration census dis- When is a census enumeration district Therefore, tricts. range can we calculate a split representative to form or senatorial Representative for District No. impossible, cen- (cid:127)districts it is unless block 10,000, viz., 10,000 of a minimum of figures City sus are available as for the population plus split known zero from Wilmington, figures from to tell census districts, census enumeration to maxi- population por- how much of each 15,000, 10,000 viz., plus mum of known split tion dis- census enumeration split from the two census enumera- 5.000 representative is trict or included in each tion districts. example, senatorial For district. assume Assuming accuracy fig- these that census enumeration A-l con- district impossibility ures, is a it mathematical population persons tains a total of 900 Representative con- District No. 1 to and assume further that census enumera- 10,000 or tain fewer than more than split repre- tion district A-l between persons. Therefore, the esti- 15.000 if. representa- sentative district No. 1 and population representative mated for this tive district No. it cannot from be told 9,000 16,000 persons, was figures many the census how persons, we at would once that the know persons specified are included in district estimate inaccurate must be Therefore, No. 2. an estimate is neces- 1,000 persons. error at least sary. problem difficulty increases in when a district contains máximums Absolute mínimums and portions split several enumeration dis- and senatorial districts occurs, possibility tricts. When computed by this the Committee providing representatives Ex. These 336 for 8 and are Court’s shown and 4 figures, Minimum” senators.47 “Indeterminate been have Maximum” “Indeterminate figures In connection with the of this transposed respectively Column 5 into table and other data will we discuss the Tables VI and VII. plaintiffs’ apportionment plan for the Wilmington below, City VIII, set out shows submitted Table August City their Counsels’ letter within deviations Wilmington point opinion. 332 and S.B. a later created S.B. at *31 per is or mean norm wide we “deviations” term we use the 47. When persons norm 12,751 the state-wide mean norm or from the mean deviations 24,794 persons. per senator Wilmington. mean City In so within point state- out stating, we providing representatives IX Table shows below Castle deviations within Rural New 8 senators.48 created 332 and S.B. S.B. *32 itself, We reiterate from deviations within Rural New Castle point again the norm or mean shown are deviations and we out as we did in con- providing rep- Table X 332 and shows the devia- B. S.B. 336 within Kent created resentatives and 3
tions S. senators.49 *33 itself, and we state- within deviations VIII that with Table nection again point in connection per is out as we did or mean norm wide 12,751 persons, norm state-wide and the IX VIII and the state-wide with Tables 24,794 persons. per 12,- senator is per representative or mean or norm mean persons norm and that the state-wide from deviations reiterate 49. We persons. per 24,794 senator is mean in this shown Table or mean the norm below, XI, providing representatives set out shows Table for 6 deviations within Sussex senators.50 332 and S.B. creáted S.B. *34 XII, Stipulation er, acting Table 3 39, “Exhibit for the Committee of filed (Exhibit S-l”, Stipulation designated and “Ex- with Document 174 an exhibit Ip (Exhibit S-2)”: hibit (Exhibit re- S-l)”, We have as “Exhibit 3 the latter 174, ferred stipulation designation, several to parentheses, times Document the that enclosed in July 16, meaning Though filed now Stipulation 1965. is It Exhibit 1. again. par- necessary designated to refer to The “Proposed Stipu- it this is aas 39, with; ties the aid the Committee of by approved lation” and as such was not particular and in that Mr. filed, with of Weav- the Court when nonetheless we find per representative 50. We reiterate that the from deviations wide norm or mean is 12,751 persons norm or mean the shown are deviations and that the state-wide out, county point per 24,794 per- within the itself. We norm or mean senator is previously, as we have the state- sons. 776 regard Repre- parties population it intention
it the of the with to the binding upon them.51 The 29 are cor- sentative 28 and 25, treated as Districts by. approved the re- it rect in Kent and that there extent to which will be opinion. only dispute court in in the is stated later this mains Stipulation Representative check- 26 Exhibit 1 is based on and Districts ing respective compromises reach- con- census totals and The exhibit sets forth the meeting by following on parties a and Defendants ed tentions Plaintiffs the regard following February 3, other 1965 to these districts.” with “slight allegedly meetings, and includes 9, 6-7, stipulation, paragraph pp. The changes” figures in up from certain set disputed respect in sena- to the states summary for the defendants’ motion County the follow- in torial districts Kent judgment, and from Document ing agree popu- parties all that the : “The figures up plaintiffs’ proposed in set figures 1 Paragraph lation referred to findings fact, p. 11, as Document appearing (b) Stipulation on of this appears. Stipula- S(2) Exhibit attached to out districts are set represent population of the tion the I960 including County, for Wil- New Castle Coun- of New Castle Senatorial Districts mington, regard in Column as are including Wilmington. those ty, With popula- Kent Counties. agree County, parties Sussex re- Kent with to figures tion on behalf of District, asserted spect but to 13th Senatorial are out in the second disagree defendants set 15th to 14th and with populations column and the asserted forth Districts have set Senatorial plaintiffs third set out S(2) respective conten- in Exhibit their regard column. population of tions with in 1960. those Districts “Proposed Document 174 also contains designated Stipulation” as parties regard to Dis- “With the Senatorial (Exhibit S-2)”, de- latter “Exhibit A County, in- Plaintiffs tricts of Sussex signation, parentheses, that enclosed in corporate with made herein the comments meaning Stipulation we Exhibit which Representative respect to the correlative pari will materia Exhibit treat with Districts.” admissibility S-l) (Exhibit insofar as Document It noted also that must be part is concerned and hence deem it to be corrected, pursuant has been express- record this case agreement parties as set out ing parties. Exhibit intent supplementing Document Document displays setup stipulated S-2 parties alike for senatorial districts stipulated parties re- to that XII, page of marked The last Table spect as shown continued,52 stipulation an elabora *35 by Stipulation Exhibit 1. respective of the tion of contentions respect regard populations It will noted Docu- parties that in to to dispute 174 ment existed between districts senatorial parties populations 26th County. as to the of the be included it We have Kent in Kent and 27th districts it controversies cause reduces the County. portion geographic paragraph A populations 9 pp. 5-6, parties stipulation, parties states the def areas asserted “agree cognizable Plaintiffs’ contention inite form. Orange Corp. Rayherstz page Stipulation v. Theatre Exhibit 51. Cf. a second Corp., (3 F.2d with Amusement 130 186 deals but since document See, 1942). parties respective States Read- United v. contentions Cir. 1961). (3 rep- ing Co., regard populations F.2d Cir. of both Pennsylvania Compare R. Derewecki v. and senatorial resentative appro- County, Co., 1965). (3 more we deemed it Kent F.2d Cir. priate put continuation so-called Stipulation page XII of Table XII, 1 at end last of Table marked “(S-l cont.)” so. and have done included the exhibit *37 geographic areas in accordance with the Democratic XIII shows Table e., “Representative- specified: representatives i. Republican for cast votes ness” the election.53 election seats and senators Cy.” XIII of Table show Rural fourth sheets means New Castle 53. “Outer Wilmington. the votes results under S.B. election New Castle outside representatives, County” Re- Democratic and for publican, by the vote includes “New Castle and Wil- of Rural mington. Castle New general elections Table XIII second sheet of respect to same information states the 1964 general third and election. The *40 consisting Appor- Negro population. The Plan The VII. 84% Plaintiffs’ for simply tioning Representative Districts defendants assert that this is Wilmington having City result Mr. Latchum followed census is- tract boundaries. One August dated Document 181 is a letter presented by sues Document 181 30,1965, counsel to the court delivered gerrymandering. This dealt with will be plaintiffs, for A. Theisen Vincent point opinion. at a are later in this We Battaglia, Esquires.54 letter Victor presently aspects concerned with which City of plan for the addresses itself to a Wilmington popula- primarily relate to differences large de- would avoid which representative tion of districts within representative in the districts viations City Wilmington. plaintiffs City. apparent Mr. Latch- It is at assert were and tools preparing um in dis- proper hand with which allocations Wilmington largely City tricts populations ignored ran which historic boundaries easily could have been made and that this City easterly westerly of Wil- potent is a factor to be considered in re- *41 mington, alleged re- and it is that he spect representation equal practi- as as versed the course of the districts so that cable in order that discrimina- invidious southerly, they northerly now run and by required tion be avoided Four- as thereby splitting eliminating pockets teenth Amendment.55 Republican strength contained City immediately old Wilmington 7th 9th Wards of the We set out below as Table compressed of the XIV the chart contained in Document 41% Negro figures. precise population total into one district 181 in its words City ing, Wilmington, Delaware, 54. For refer brevity sake we will map Blocks”, accompanying and Defendants’ Ex. to this and its plan data City showing using census tracts by the name of senior plaintiffs’ Wilmington. except Mr. counsel, Theisen. find that We descriptions minor errors of areas Mr. Theisen’s data We have checked figures employed by Theisen are Mr. using Ex. by pamphlet Defendants’ substantially correct. entitled of Hous- “United States Census may representa- To end that it be demonstrated shows The first column Wilmington City of works, in the plan tive districts how have Mr. Theisen's we shows number. The second column 56, infra, set in Table XV in note out representative population by by representative district column, en- The third under S.B. 336. City Wilmington, the represents from Ideal” titled “Dev. and the total of the block census number repre- persons each number which population by census, Mr. Thei block the ideal sentative district deviates from figure population as contrast sen’s final population we have déscribed which figure, population Latchum's ed with Mr. “norm” “mean”. The earlier or num as to as a statement well fourth Theisen’s column shows Mr. “ideal”, persons ber of under or over the adjustments plan's dis- rep figure mean, population for each population dif- trict lines to reduce the accompanied brief ferences, resentative district descriptive and the fifth column entitled ap also have formulae. the number We “Dev. from Ideal” shows pended representative dis XV, persons Table each district which deviates district, by representative trict bounda from ideal we which have “norm” ries of or subtracted areas.56 as the or “mean”. added described *46 County split respect in Kent the boundaries in Kent VIII. districts, many there- En- census enumeration Its Base and Force Dover Air and, College rendering impossible follow it Delaware State virons repre- newly-created census in data portion the evidence substantial A This, sentative and districts. senatorial maps been have in case and several this course, population of necessary. estimates made presented to the issues devoted already out the have set We and Delaware State Air Force Base Dover Hughes employed by mak- method Mr. in surrounding voting College areas and the ing his estimates. an earlier As indicated at them. point we have Brown, Dr. C. Harold called opinion, Mr. L. Winfred in this plaintiffs expert,57 that as an testified re-districting Hughes preparing the in generally registration in- ratios are voter repre- Kent combined old regis- accurate because the of voter level repre- comprise new sentative districts to vary from area de- tration will area to districts, but senatorial sentative and new pending social, on the economicand ethnic lay emphasis fact that old elec- we on the complexions populations. Pin- split. was tion districts not It stated pointing precise problem in Kent districts the reason that old election County, county con- testified that the he split were not was that the boards tained the Air Force Base and Dover in election districts elections the various College. Delaware cannot be State It registered lacked the addresses persons living doubted at Dover many portions voters in of more rural College Air Force Base and at have County. if of Kent followed that new It residencies of a more transient character election it would districts were created regularly living persons than those of impossible have been which to determine those areas and that former do not registered voters lived in the new election register may tend to or from what vote primary time to hold the “temporary” be called quently fre- their homes as August 1964, election in time even group. latter members general for the 1964 election Novem- making suggested Brown means Dr. estimates, ber. If new election cre- districts were counting physically other than necessary ated it would have been to have population, yield which could more accu- general re-registration had a and it was Hughes’ estimates, rate results than Mr. concluded that the limited time available data, analyses utility company such as permit accomplished. would not this to be postal information, house and actual clear, however, It is that the 1960 Fed- sparsely These counts settled areas. eral census enumeration districts followed methods, course, would have been time the old lines consuming. that therefore no census enumeration dis- boundary boundary trict any crossed the Hughes Mr. that he was aware stated representative district, e., old i. registration like- the fact voter is such existed in 1960. But the census ly military be lower in an area which enumeration districts did not old personnel lives; nonetheless, made he election district boundaries and the census only adjustment one on account of this enumeration district did boundaries cross accomplished factor and he old election district lines so that the re- guess. Hughes split following old 2d Mr. sult of old election district Agricultural College of sociologist and Mechanical 57. Dr. Brown is a of the Di- County, Texas, College Station, University Brazos vision of Urban Affairs of the years, at profes- two and that while Texas of Delaware. He an associate University sociology University. done of Delaware he has sor of at He Wilmington analyst De- research for the Greater testified that he was a research velopment in- Population that his work Council and for the “Farm Division” of the Wilming- analyses population volved Farm Bureau of the United De- States County. partment Agriculture ton and New Castle had and that he analyses done while at *47 Therefore, representative the the new sentative district. indeter- district between representative in- minate maximum would have been new and the 27th 26th estimating of the indeterminate minimum the number creased while In districts. however, If, we persons district would remain the same. old 2d election the (con’t.)”' stipulation, representative now turn to the district “S-l of old 2d the XII, supra, representa- Table see the representa- 27th we in the new defend- contained registration district, ratio ants’ estimate for the 26th the voter tive Hughes yielded 17,806persons, re- is employed tive district the census Mr. a figure, 4,000 Hughes’ Hughes, persons, how- persons. less Mr. Mr. of 4701 sult judgment, estimate, 13,806 persons,59' ever, his or a net of of exercise plaintiffs’ persons. while the is arrived off 701 estimate struck by taking 17,806 figure at the of census representative district new 26th The 2,300 subtracting persons therefrom Force Base the Air contains Dover persons according testimony of the representative new the new 26th and 27th Niederhauser, plaintiffs,60' Mr. of one in and around districts contain the areas figure 15,506 per- which leaves net of It in these areas that is base. sons. challenge seriously plaintiffs most population representative Mr. made estimates respect 27th In Hughes. (con’t.)” the stipulation “S-l district, the cen- with the starts estimate defendants’ 5 Table It will be noted Column 4,000 plus figure 9,125 persons sus population VI a minimum for shows repre- 26th persons, from deducted representative 9,779 new 26th district above, a. appears as sentative persons, Ex. 41 shows a while Court’s plaintiffs’ 13,125 persons. The net figure 15,986 persons for minimum figure of begins census with the estimate representative the same district. The 2,300 persons, plus taken persons 9,125 difference is asserted to be attributable representative district 26th from the testimony of Mr. Weaver figure leaving above, a net set out 11,425 persons.61 upon Committee of 39 recheck- ing apportionment 336 and S.B. thereunder, found he that more census respect dis In 14th senatorial split enumeration districts were in this County, esti trict Kent defendants’ area than he had at first.58 calculated 17,005persons, cen mate with starts range (maximum— He testified that 4,000 figure, per sus and adds thereto minimum) for the 27th 21,005 persons.62 The- sons for a total of district remained the as indicated same 17,005- plaintiffs’ with estimate starts on Court’s Ex. 41. But insofar we can 2,300' figure, persons, adds the census ascertain from record this statement 19,305 persons persons.63 for a total of clarify does not the situation for the 15th dis- the 27th In senatorial dis- with, 10,006 trict, minimum, trict defendants’ estimate starts remained at figure 10,097 persons splits if Mr. Weaver did take from enu- census 23,903 repre- 13,806 persons total meration districts out of the adds 26th district, they necessity persons plaintiffs’ starts estimate sentative must of figure 10,097 persons put by repre- have been him with census into the 27th 58. Weaver, Hughes, 62. 1021-22. 766-67. Hughes, 59. 109-13. relying Again on Mr. Niederhauser’» 63. testimony, 60, supra. n. see Niederhauser, 1702.
60. testimony, Hughes’ Again relying figure again plaintiffs’ on based Mr. supra. testimony Niederhauser, n. n. see see on the supra. *48 persons. approximately This was 15,506 persons a of for total adds Hughes by Mr. fact that caused 25,503 persons.65 thought splitting a census enumer- he was be- evidence no substantial We have not. fact he was district when in ation upon triers as the fore us which we Therefore, stipulation, Document figures. rely resolve these fact can to population aside, for the the corrected testimony by Mr. Niederhauser There was 14,- representative be would 28th district a had made that Harold Brown Dr. C. representative district 209. The 29th district house count in the old 2d election by persons to take be decreased should representative but old 2d district66 just stated. correction into account the made, count”, was this “house if it was addition, appears minor to be a In there course, and, not offered evidence repre- persons 29th in the error of 10 might what Mr. Niederhauser have been 13th senatorial district and the sentative say able to about its contents would have district.68 hearsay been inadmissible as evidence. testimony No direct offered as to the County Population IX. Sussex persons, military, number of civilian Figures and Estimates employed or at the Dover Air Base where charge many plaintiffs that they any lived. Nor do we direct have by ap- Mr. estimates made West persons evidence as to the number of liv- County portionment in- are Sussex ing College or at near Delaware State correct for the reasons which caused same Though either as students as teachers. fig- apportionment inaccuracies in the ensuing shortness time before the County. point out ures Kent We primary general election and the election County as in Kent election that Sussex required preparation haste in the respected but district lines plan apportionment embodied in S.B. many required splitting cen- this help and S.B. we cannot but enumeration districts. It follows that sus comparatively conclude that a small effort population nec- estimates were numerous might brought figures have more realistic essary by upon regard made Mr. West and these were record in actual persons employed by using registration number of in or about ratios in the voter the Dover Air Base and the number of explained manner at an which we have persons living at or near Delaware State Nothing opinion. point in earlier this College as students and teachers. prob- presented such Sussex Hugh- by foregoing, Air lems those the Dover In addition Mr. as caused largest es testified that since 1960 the growth State Col- Force Base and Delaware area in Kent is that com- lege County. It is also fact Kent prised representative of the old 5th dis- figures registration that the ratio voter judicial trict.67 We take notice presented Mr. of the Com- Weaver correct, fact this statement is indicate as wide a mittee of 39 do not growth mis- tends counteract the population disparity in the defendants’ calculation in the old 2d election district figures presented Coun- as is the Kent tending representative district, of the 2d ty population figures. plain- While the bring population new 27th tiffs’ does cast some doubt on evidence representative parity district closer into reliability popula- of the estimated with the new 26th dis- figures computed the defend- tion trict. ants, we find these doubts to be less serious nature than those we entertain The new 28th County, respect point population figure to Kent but we contains an error Again Hughes, relying 67. 65. 1059. on Mr. Niederhauser’s testimony, supra. n. see 68. 5 of Tables VI and VH. See column Weaver, Niederhauser, 69. 792-93. respective representative districts, out could been have
computed accurately geo- the means more fact renders the creation of which suggested by plaintiffs’ witness, Dr. graphic easy, be deemed divisions cannot though Brown, C. Harold this would have insignificant. entirely In more em- taken time than the method leaving districts, out to the senatorial ployed by Mr. West. districts, disputed it 14th 15th only appear 2 out would that there *49 Analysis Reapportionment X. of in mean of the 16 districts which the 24,794 persons or norm of is substantial- Figures Population Comparison A. of ly met. Dis- by Representative and Senatorial Mean or Norm tricts with the Representative and B. Deviations Focusing mean from the on deviations City the within Districts Senatorial of supra, general VI, shows Table norm in or Wilmington representative dis- five there are stipulations Again referring the 34th, 8th, 12th, 28th, 29th and tricts, the supra, subheading “A.”, designated under than norm more the that deviate from find devia- VII, we VI and and Tables supra, are VII, shows there Table 10%. We political subdivisions. tions within 6th, districts, the the three senatorial Wilmington. first shall deal with 14th, the from that deviate 13th the and The mean more than norm or 10%. that the small- from Table VI We find figures as insofar Table VII shown 8th, district, has representative the est they 13th senatorial 6th and relate the 11,114, population com- of an estimated stip- with districts are in accordance the largest representative dis- pared to the S-2)”. (Exhibit In ulation, “Exhibit h 5th, trict, has an estimated which the respect to the 14th senatorial district repre- 12,917. population of The 8th gives stipulation County, as the Kent the from has a deviation sentative district per- figure 21,005 population defendants’ -12.84%, the of the or norm mean figure plaintiffs’ is shown sons and the representative has a devia- 5th district 19,325 persons, de- but the whether two districts tion of While the +1.30%. figure figure plaintiffs’ or the fendants’ they designated contiguous, are not taken, percentage is in be the deviation only representative separated by the 6th figure plaintiffs’ excess of If the 10%. populations district. difference if the is be taken deviation 22.4% representative between the 5th and 8th figure the defendants’ taken the devia- be persons presenting a districts is 1803 tion is 15.28%. will noted ratio of 1.16-1. It also be repre- 1st, 2d, 4th, 3rd, that the and 7th figures from Aside exhibits Wilmington have sentative districts showing larger and Tables VI and VII advantages representational substantial deviations, it will that in be noted larger districts, viz., over the 5th representative to both dis- and senatorial 6th. tricts, plaintiffs’ figures or whether the figures Coming employed, now the sena- defendants’ deviations Wilmington rarely satisfactorily mean find or norm torial within we met. districts districts, representative In case that the deviation between the 3rd sena- only district, largest, 24,630persons, there are torial districts of the 35 out populations district, 23,563, where the created the 1st senatorial S.B. substantially smallest, persons. 332 and S.B. 336 meet the is 1067 differ- 12,751 persons, populations mean norm and the ence in the 3rd between deviations, particularly in view senatorial district and the 1st senatorial comparatively populations small involved district has a 1.05-1. Table ratio ing supporting m data contained gives from VIII,70 supra, the deviations in mind gives pop- It borne Table XV. should be and also or norm the mean in substance figures that Mr. Latchum was districts for the senatorial ulation progenitor apportionment Wilmington. new City The differ- for the Wilmington. City plan for 3rd population between ences and 4th and the" 2d senatorial district Representa- C. Deviations within the same as is about districts senatorial tive and Rural Senatorial Districts persons involved. number New Castle of first the course Mr. Latchum chose Making use of and IX and Tables VI creating for the senatorial districts S-l)” (Exhibit “Exhibit 3 of Document City Wilmington, proceeded then stipulation we find shows districts to create the the smallest Wilmington. four of the for There are Wilming- County, New outside of Castle eight Mr. Latchum mer and of the latter. ton, 20th, 12,- is the with a compose did not the senatorial *50 VI, 741. Table Column shows the by combining representative as districts figure, of same Column 6 Table VI respec while did Mr. McGinnes and Mr. West figure population and Table IX show a County tively of for Castle outside New 12,191.73 stipulation of County.71 The shows Wilmington No and for Sussex largest representative the district logical why appears Mr. reason as Wilming- County, New of Castle outside compose repre Latchum did not first the ton, population of Wilmington 10th, is the with a sentative districts for and 13,928. VI, Table Column the shows appear then follow the what would be figure stipulation same the creating Wilmington as the but natural of method figure Table corrected in Column 6 of senatorial representative of districts combinations fig- population districts.72 shall deal VI and IX We Table show a subject again with this on issue of the 14,046 representa- ure of 12th the gerrymandering. figure tive district.74 If the last referred point to of IX correct the Tables VI and We also out feel constrained to figures that there un- representative are block available 12th district is of course census, very excep- der the 1960 with few largest population-wise the New in Rural tions, Wilmington. for the whole of We County. Castle perceive why can no valid reason Mr. Taking figure “Exhibit the from Latchum could not have made use of (Exhibit treating S-l)” the 10th and figures representa- these block to create larg- having representative district nearly tive and senatorial districts population Coun- est in Rural New Castle equal population as those set out in plaintiffs’ ty, we find difference between the plan City the mington, for the of Wil- largest XIV, accompany- repre- smallest,
Table
and its
and the
the 20th
population figures
gives
figure
quoted
70. Table VIII
73.
arrived at
last
is
City Wilmington
correcting
within the
of
and the de-
an
made Mr.
error
McGinnes
percentage
concerning
viations
in number and
from
167th census enumeration
City
map
the norm or mean within
he in-
Due to an incorrect
district.
Wilmington.
advertently
split
enu-
the 167th census
district between the 20th
meration
Hughes
compose
71. Mr.
could not
senatorial
representative
Mc-
districts.
See
21st
County
districts
in Kent
from combina-
Ginnes, 247-49.
representative
tions of
Kent
districts
figure
quoted
at
is arrived
last
County
County
because Kent
has
five
correcting
by Mr. McGin-
an error made
representative
only three
concerning
enumera-
census
nes
31st
senatorial districts.
map showed
Mr. McGinnes’
tion district.
stipulation
11, map
72. See
district
exhibit
enumeration
Wil-
the 31st census
mington,
repre-
showing
representative
split
11th
12th
between the
dis-
was
Actually
Wilmington
pursuant
tricts
districts.
there
to S.B.
sentative
split.
no
See 234-35.
or
district,
persons, pre-
Table VI shows
state-wide norm
sentative
be 1187
12,-
senting
per representative
to be
mean
district
a
If we take the
ratio
1.09-1.
persons.
S
representative
“Exhibit
The stipulation,
or
for the
mean
norm
County
(Exhibit S-l)”,
smallest
that the
shows
districts of
New Castle
Rural
City
representative
whole,
district
as a
aside from the state-wide
Wilmington
population
13,-
12,751,
is the
with a
or
which
8th
norm mean
226,75
largest
11,114
repre-
persons,
of
representative
we
the sixteen
and that
find that of
only
six
New
are
district
Castle
sentative districts there
Wilmington
norm,
approximate
is the 10th
or
which
the mean
outside
13,928persons. The
County.
population
of Rural
The devia- with
New Castle
therefore,
representative district,
approximately
tions
as the 8th
the same
persons
populations
the norm
contains
less than
deviation between the
representative dis-
representative districts.
or mean and the 10th
10th and
20th
persons
trict contains 1177
more than
Turning now to the senatorial districts
percent-
norm or mean. The
state-wide
compar-
Rural
New Castle
age
of the 8th
deviation
ing
another, employing
them with one
-12.
or
district from the norm mean is
S-2)”
Stipulation
(Exhibit
“Exhibit h
84%,
percentage
deviation
and the
IX, we find
and Tables
VII
from
the 10th
largest is the 6th
district with
senatorial
VI,
norm mean is
Table
See
+9.23%.
27,715.
In
repre-
compare
8th
If we
Column 4.
6th
senatorial district the tables and
repre-
sentative district with the 10th
stipulation display no difference. Ac-
*51
district,
repre-
10th
sentative
find the
we
cording
stipulation
the
the
smallest sen-
2,814 more
district contains
sentative
atorial
in
district Rural New Castle Coun-
representative
persons
dis-
than the 8th
ty
8th,
25,686.
population
is the
with
of
a
repre-
8th
trict. The ratio between the
VII,
According
Column 6 of Table
sentative district
the 10th is 1.25-1.
and
the smallest senatorial district
is the
compare
populations
If
we
the
25,414.
10th,
population of
The
with a
in Rural
senatorial districts
New Castle
,-samefigure
in
is shown
Table IX. We County
populations
with the
of the sena-
figures.
employ
stipulated
Ac-
the
will
Wilmington,
torial
we find
districts in
cording
figures,
to these
the difference
according
to Tables VII and IX and
population
senatorial
in
between
6th
the
stipulation
to,
the
smallest
referred
the
27,715
population
a
and
(cid:127)district with
popu-
district is the
senatorial
1st with
25,686,
population
is
the
with a
8th
largest
23,563 persons,
lation of
and the
persons.
2,029
ratio
the
The
between
popu-
senatorial district
the 6th with
is
point
two
1.079-1. We
the
districts is
persons.
27,715
This is a dif-
lation
population
mean
out that
the norm or
persons.
ference of 4152
ratio be-
County,
New
accord-
Rural
Castle
within
district,
the
tween the 1st senatorial
26,452,
IX,
compared
ing
Table
is
district,
smallest, and the 6th senatorial
average
for sena-
an
norm mean
with
or
largest,
is 1.17-1.
throughout
State
torial districts
persons. Only
24,794
of the 8 sena-
Representative
Deviations in
E.
County
Coun-
in Rural New Castle
torial districts
Kent
Senatorial Districts within
mean for
ty approximate
norm or
again
Turning
now to Table X and
County.
Rural New Castle
174, Stipulation, “Exhibit 3
Document
(Exhibit S-l)”,
smallest
find that the
we
Popu-
Comparison Deviations
D.
County
representative
is
district Kent
Assembly. Districts
General
lations of
29th, containing 11,350 persons, New
Wilmington
Rural
Those
with
largest
28th, which con-
is the
County
Castle
IX.
75. Table
repre-
in Kent Coun-
smallest
ty,
district
14,209 persons.76
senatorial
These two
tains
15th,
contiguous.
13th,
largest,
and the
districts
sentative
n differencebetween
figures
23,903
figures
using
is
defendants’
two
these
20,743,
3,160 persons.
is
two and
therefore
persons.
The ratio between
'2859
dis-
The ratio
the 13th senatorial
representative
1.25-1.
between
districts is
is
trict and the 15th
district
senatorial
or
the norm
It should
noted that
be
1.15-1.
n mean
figure
populations of the
for the
n representative
County
is
for the
The norm mean
Kent
districts in
distinguished
18,130 persons
from
Kent Coun-
for senatorial districts within
12,751per-
norm or
for the State of
mean
ty
21,884 persons.
sena-
is
None
County mean, it
sons. As to the Kent
approximates
norm.
torial districts
only
repre-
will
observed that
two
sena-
The norm or mean for state-wide
County,
sentative districts
Kent
24,794persons, and none
torial districts is
districts,
representative
(cid:127)25th and the 27th
County
districts
Kent
senatorial
approximate
Kent
the mean or norm for
approximates this norm.
County, and that none of the Kent Coun-
ty
Representative
approximates F. Deviations in
12,751
County
the mean or norm of
State
Senatorial Districts
Sussex
tjie
persons.
Again making use of Document
XI,
(Exhibit S-l)”,
As to the senatorial districts in Kent
“Exhibit and Table
n stipulated
is
it
that the smallest we find that the smallest
containing
senatorial
is
district
the 13th
con-
Sussex
is the 34th
(cid:127)20,743
figure
persons.
corresponds
taining
fig-
11,017
This
persons and that the
with that
but
stipu-
set out on Table X and is
ures in Table XI
coincide with
figure appearing
largest
10 more than the
in lation. The
shown to be
largest
again
Column 2 of
containing
Table VII.78 The
13,458 persons
32d
County,
figures
senatorial
district Kent
wheth-
and the
defendants
figures
employ
er we
or plaintiffs
the defendants’
stipulation
coincide
*52
figures
plaintiffs’
the
is senatorial dis-
by
no differences are
XI.
shown
Table
stipulation
trict 15. See the
largest
“Exhibit 3 The
and
difference
the
between
(Exhibit S-l)”.
stipulation
The
representative
shows
the
in
smallest
district
23,-
population figure
as the defendants’
County, therefore,
persons.
Sussex
is
figure
plaintiffs’ population
903 and the
representative
The
between the
ratio
two
25,583.
population
as
districts,
Table X shows a
smallest,
the
the 34th contain-
figure
23,903
and
ing 11,017
Column 2 of Table
largest,
and the
32d con-
the
figure.
VII
taining 13,458
shows the identical
haveWe
is 1.22-1. The norm or
population
made
use
the defendants’
County per representa-
mean for Sussex
figures
past.
We shall do so in this
12,199
tive district is
the
and
state-wide
instance. The
the
12,751.
difference between
norm is
Stipulation,
County.
It will be observed
the
representative
that
The 25th
district
(Exhibit S-l)” gives
13,161
“Exhibit 3
persons pursuant
different
contains
representative
figures
totals for the 28th and 29th
representative
census
and the 27th
districts,
stating
district, assuming
the “Defendants”
column
the defendants estimate
populations,
respectively,
13,-
that
the
correct,
13,125
are
persons.
to be
contains
11,811,
748 and
and the
(Exhibit
“Plaintiffs”
See Document
Exhibit 3
S-
stating,
populations,
column
1).
that
re-
spectively,
14,209
11,350.
are
and
It
is
78. Column 2 of Table VII shows 10 more
stipulated,
Document
the correct
persons
stipu-
than does Table IX and the
figures
14,209
11,350.
are
and
to,
lation
simple
referred
but
this is a
77. As we have
in
stated
text
this
mathematical
error. We believe the small-
opinion,
ap-
figure
two
districts
er
is correct.
proximate
the mean
norm for Kent
County
population
27,715
As to the
districts in
senatorial
Sus-
a
which has
County,
figure
stipulated,
persons.
stipulated to,
sex
is
Document
it
This
is
(Exhibit
(Exhibit S-2)”.
S-2)”,
“Exhibit
also
“Exhibit
See
smallest
district
is the 18th Table VII. The
dis-
senatorial
smallest senatorial
having
containing
persons.
22,686
County,
There
no trict is
in
is
the 13th Kent
disparity
stipulation
population
20,743 persons.
This also
between the
figures
stipulation
plaintiffs’
is
defendants’
covered
and
largest
any discrepancy
figures,
Table VII.
nor
in re-
The ratio between the
does
districts,
appear
spect
thereto
XI.
the smallest
Table
senatorial
largest
appears
is 1.33-1. The difference in-
from therefore
senatorial district
populations
6,972 persons.
stipulation
is
and from the
is the
While
table
numerically
6,972
16th, containing 25,517
persons
persons.
is
The dif-
differencé
largest
population
small-
difference created
ference
between
largest
per-
State whether
est and the
is 2881
between
districts
districts,
therefore,
1.12-1.
districts or
and the
ratio,
sons. The
is
senatorial
highest ratio,
ratio
1.33-1 is the
none-
The norm or mean for
senatorial
stipulation
theless an examination of the
24,398
is
Sussex
within
and the
show a substantial
exhibits will
only
persons,
dis-
the 17th senatorial
almost
number of senatorial districts
approximates
The norm
this norm.
trict
lacking
giving
equally
parity
ra-
through-
or mean
senatorial districts
last
tios close
stated.
again
24,794 persons, and
out the state is
only
approach-
the 17th
district
senatorial
be con-
There
other factors to
be noted that
brought
es
norm.
It should
into
is
sidered. One of these
of Sussex
the three senatorial districts
shows,
focus
I
as we have
Table which
contiguous.
County are
voting
said, geographic
their
areas and
accept
respective populations.
If we
Representative and Sena-
A View
G.
and the
from norm or mean
deviations
Delaware
torial Districts
the State
percentages of
shown
such deviations as
as a Whole
I,
view
of Table
Columns 6 and 7
geographic
four
subdivisions
largest representative
against the
shown in Column
State
representative dis-
is the 28th
State
background
whole,
we
the State as
embracing
14,209
in Kent
trict
Wilmington boundaries
find
if
that even
figure
stipu-
persons. This
dividing
Coun-
lines
and the
between
S-l).”
(Exhibit
lated to.
“Exhibit 3
*53
respected,
in actual
be
ties
deviations
is
The smallest
See also
VI.
Table
percentages
persons
are
numbers of
and
Sussex
district
in
34th
large.
comparatively
other
On the
still
County
11,017 persons.
contains
which
(Com-
hand, if
examine “New Castle
we
appears
stipulated
also is
to and also
This
bined)”,
County
e.,
includ-
popula-
i. New Castle
in
on Table VI. The difference
ing Wilmington,
persons.
the devia-
3,192
find that
between
we
is
The ratio
tion
largest
representa-
by way
of
the smallest
tion
of number
from the mean
persons
But
examin-
only
1.289-1.
an
norm
districts is
tive
59 more than the
map ex-
stipulation and
12,751
of the
persons
percent-
ation
or mean of
will demonstrate
hibits and the Tables
age-wise
only
amounts
+.5%.
many
representative districts
other
large
If
ordered for
an
at
election
equally
throughout
almost
State
including Wilming-
County
New Castle
of line.
out
ton,
perfect rep-
it would
in
result
almost
political
resentation of these
in re-
largest
units
in
The
senatorial
spect
Castle
to each other.
Rural New
the 6th
is
State
Looking
County
New
now to the senatorial
Castle
which
shown as
having
II,
seat-power
we find more substan-
shown
Table
of
the Gen-
45.3%
County
Assembly
only
a
tial
eral
deviations. Kent
shows
with a
of
deviation
persons
percent-
deviation of -2910
and a
-2.1%.
age
County
deviation
Sussex
-11.74%.
emphasis
The defendants
on
have laid
persons
-396
shows a deviation of but
testimony
Dr.
of Malcolm E. Jewell.79
only
percentage
and a
deviation
Dr. Jewell
testified
under S.B. 332
that_
Wilming-
other
On the
hand
—1.6%.
employing
and S.B.
1960 census
persons and
ton shows
deviation of
a
-837
figures,
population
of the
of Dela-
46.9%
percentage
-3.38%,
a
deviation of
where- ware could
elect
senators or one-half
as Rural
Castle
shows a de-
New
Senate,
popula-
and that
of the
52.4%
percent-
persons
viation of
a
+1658
majority
tion could
elect
of the Senate
age
deviation
+6.69%.
or 10 senators. Dr. Jewell also testified
gives
rep-
Column 8
total number
could elect
48.9%
resentatives
and senators in the General
representatives
majority
or a
political
Assembly by
subdivision, com-
Representatives.
House
He testified
bining
representatives
seats
he arrived at these
conclusions
III,
senators.
In Table
find the
we
Representatives,
to the House of
conclu-
smallest deviation is in Kent
with
correct, by
sions which we find to be
add-
seat-power
As-
the General
15.1%
ing together
sembly
only
percentage
the 18
dis-
and a
deviation of
largest
is in Rural
population,80
deviation
tricts “smallest” in
and it
+.4%.
professor'of
University
79. Dr. Jewell
is an associate
Political Science at
Kentucky.
degree
University,
He has a Bachelor of Arts
from Harvard
degree
degree
University,
Master
Arts
from Columbia
and a
of Doctor
Philosophy
majored
University.
political
from Penn State
He
He
science.
taught political
Kentucky
University
he
testified
has
science since 1958 at the
year
visiting professor
University.
and served one
as a
at Duke
He is a mem-
engaged
political
ber of a number of learned societies
with
science and has edited
Reapportionment,”
Press, 1962, published
a book titled “The
Politics
Atherton
shortly
Carr,
(1962).
pub-
after
decision
Baker v.
clusions the Senate As together per 13,226 inhabitants. allotted districts small- the 9 senatorial I, tes- Column 7 of Table under S.B. population.81 also shown Dr. Jewell est in Wilmington 336, judg- State, 332 and S.B. is in his tified that no other correctly over-represented political mathematically most subdivi- ment, as and New Castle sion in the State Rural apportioned is Delaware. as County under-represented is the most however, appears noted, as It should be political If subdivision in Wil- the State. representative and senatorial from the given mington representatives and 7 designated 81 notes 80 districts County representa- 17 Rural New Castle tives, supra population, that as the smallest in from. the mean or deviations throughout widely these are distributed percentage populations and norm in these chance of and that the State very be much deviations would not voting Republican or Democratic larger, 10 as shown Columns unison, say, required if Dr. so to as is I, Wilmington than if were to Table assumption percentages is to Jewell’s representatives retain 8 and Rural its unlikely to unless be effective is an one County New its 16. But will be Castle it general is as was the case 1964 there given Wilmington rep- noted that if involving presidential candi election and Rural New Castle Coun- resentatives great popularity.82 date of ty from representatives, the deviation 12,751 vexing As or norm of the state-wide mean come to a issue. We now persons referring persons I, rises from -773 +939 shown Table to to Wilmington percentage of deviation City New from the Rural vis-a-vis County e., mean norm from to rises Castle i. Castle New County, -6.06% Wilmington. For New Rural Wilmington, number outside of representatives and the +7.36% geo- from Castle the deviation allocated to each graphical population-wise and S.B. unit S.B. 332 state-wide mean or norm Wilmington given repre- we find that persons persons -303 falls from to +475 and Rural sentatives New Castle percentage from the deviation representatives. is allotted The same mean from We falls to -2.38%. +3.73% popu- Wilmington shows has a table Wilmington most is the reiterate that 95,827 according persons lation of overrepresented political State unit Castle 1960 census and that Rural New by without is made us this statement according has a regard 38,000 persons referred to 211,619 persons. have census As we augmenting the McGinnes affidavit pointed earlier, I out of Table Column 5 population Rural Castle Coun- New persons shows that the actual number of immediately ty, here- which is dealt with Wilmington per representative allotted 11,978 representative per inhabi- inafter. was one seq. Jewell, 304 et following figures Dr. evidence: from Jewell’s have been deduced
82. See Table XIII. given important should have to Rural factor ential been This is another Wilming- carefully County and New Castle not to which weighed. considered and must be 38,000 persons ton for is about Mr. in his af- McGinnes stated 18% 211,619 persons fidavit, quoted, and about hereinbefore that 40% County population 95,827 population Wil- persons, in New Rural Castle mington by If approximately 38,000 by had as census. shown the 1960 increased assuming persons employed, these differentials be between 1960 and the date Wilmington, affidavit,83 population July no execution of loss in his County en- Rural would be We find Mr. New Castle McGinnes’ statement representatives to be to and Wil- titled 17.3 correct therefore we find that mington representatives. population the increase in to It should 6.6 between moreover, County mind, and 1964 in Wil- be in that Rural New Castle borne mington every approximately 38,000 population cen- persons. was in has lost 1960, inclusive, sus from 1930 as dem- to alone, figures Using as em- census onstrated Table V. witness, ployed by Dr. defendants’ representa- Wilmington Jewell, Though with 8 how we are to unable state representatives Wilming- many persons, any, tives should have but 7.4 quit if have has but which Rural Castle census, New 24,794 ton since the 1960 since repre- representatives 16.7 have persons perfect should is or the mean or norm suggest sentatives.84, do that not population We district, for a we senatorial physi- representatives be Wilmington can should say can and do is enti- may cally divided, and the differences viz., senators, tled less than 4 to 3.3 sena- is so seem to indeed but this not small County be tors and Rural New 8.6 Castle given reality in be figures even if no effect senators. We are believe that our population in in New Castle accurate, increase they but if even are not entire- County affi- ly larger as set out in the McGinnes so, disparity representa- logical ap- proper or davit for no reason Wilmington tion between New and Rural Wilmington pears why as to should County respect Castle to senatorial County favored over Rural New Castle representation is We will make obvious. denigrated County and Rural New Castle findings fact, further population for the excess of was and is 38,000 per- increase of substantially in New Cas- favor Rural County sons in Rural New Castle County. I, tle As shown Table census- appropriate points seems at later in this 13,326 persons per rep- wise there were opinion, logical but there seems to be no resentative Rural New Castle explanation insofar as arithmetical con- 11,978 persons per representa- permissible but siderations or other factors justifies are Wilmington. dispari- concerned which Furthermore, tive em- immediately preced- ties dealt with in the ploying figures of 3 of Column Table ing paragraphs. peculiarly This is II, Wilmington we find entitled case view of the admonition of Section to 3.86 Rural senators and New Castle expressly provides of S.B. 332 which only 8.5 senators. that the boundaries of go If we further and into con- take senatorial districts shall be determined approximately sideration the increase Assembly the General in such a man- 38,000 persons previous over the total ner that equal- there shall be substantial ity 211,619 population among persons repre- in Rural New Castle the several County, sentative and demonstrated the Mc- senatorial districts. The plaintiffs affidavit, disparities Ginnes find we it to be even assert that the any gerrymandering. clearer due to differ- conscious benefit figures I, Defendants’ 85. The Ex. 4. from Table Column Wilmington indicate that should have 7.51 supra. representatives seq., 84. See 304 et and note and Rural New Castle representatives. should have 16.59 *56 mington Gerrymandering City Analysis proceed line and eastward XL of along Brandywine to Riddle River City Wilmington As to the A. of Avenue, approximately southeast thence of reapportionment Parkway, preparing to thence west In Kentmere to Wilmington Street, by first created Mr. Latchum Union thence southwest to west Street, and next created four districts Sixth east to DuPont senatorial thence along eight Street, not representative He districts. did thence south DuPont Street Avenue, of Wil- compose districts on Lan- the senatorial to Lancaster thence west mington representa- Street, by of combinations to Union thence caster Avenue McGinnes, curving slightly districts, Mr. on to or old. tive new south Union Street composed Wilmington City recalled, sixteen line it representative first the southwest to the will along Wilming- south, Rural New for on thence districts City north, to west combined them ton line courses Castle and then various beginning. eight place West Mr. form senatorial districts. and east to the of plan for Coun- followed the same Sussex representative com- as The 8th district Hughes ty. plan follow this Mr. could not by Latchum, posed be ob- Mr. as will representative districts since he had five 11, Stipulation map, Ex. from served compose and three senatorial districts longitudinally the western runs down however, County. Hughes, for Kent Mr. Wilmington portion from north to of representative did create pockets of splits and in effect two south pursued The course Kent first. strength Republican in the 7th Ward creating by Mr. senato- Latchum in first Wilmington, pockets had two which Wilmington City rial districts for the representa- Republican time some elected representa- composing than rather first Assembly. Under tives the General districts, opinion our was some- tive pocket of apportionment the the Latchum Republican unusual, perceive no can what and we strength was re- the west logical which sound for the course basis representative dis- 8th tained trict, the new pursued. he find could have We that he pocket Republican and the eight creating elected the course first strength put new into the to the east Wilmington representative districts for representative 6th district.87 composed dis- and then have senatorial re- so, same achieved result was tricts from them. If he had done spect S.B. district 4th senatorial certain, shapes least, of at the odd noted, which, had a district will be it representative sena- sizes some 23,910 persons shown Wilmington a by have torial districts in could bound- 1960 census. eastern charges been avoided and some ary district runs 4th plaintiffs, senatorial gerrymandering leveled along Broom Street Assembly north and south at least insofar as General Dis- of Union Wilmington which six blocks west concerned, lies tricts could Street, boundary 8th the western been have obviated.86 representative sena- The 4th district. example, the 8th For largest district is the second torial has Latchum Mr. as created Wilmington. according persons 11,114 population of composed on the western This senatorial district lies 1960 census large part of Wilmington. be- of a consists boundaries Mr. Latchum Its side Ward, a Ward, of the 5th Wil- gin a slice corner the 7th northwest at the overlay, map Court’s Stipulation and its of Wil- Court’s Ex. 17 Ex. See 86. 11(c) 17a, Ex. admitted showing mington dis- Ex. Court’s proceeding 5/16/63, pursuant in evidence to S.B. 336. tricts F.Supp. Duffy, 215 nom. sub Sincock v. Voting, seq. Rec- “1956-1962 Niederhauser, 169. See also et and 1649 1600 et Arranged by Legislative Stipulation Districts ords seq.; Harrison, See Representative (State and State Sena- its Ex. 11 and Plaintiffs’ Ex. tor)’’, Plaintiffs’ Ex. 60. overlay, See also Ex. 50. Plaintiffs’ *57 part representative substantial the 12th Ward 1st and 2d dis- portion pockets tricts, however, by of the 11th Ward. Two were formed Mr. strength which, dividing Republican by a con- for Latehum the 1st senatorial period time, by running roughly siderable had elected a district a line north- Republican along to As- senator the General west to southeast Concord Avenue Baynard sembly split Boulevard, to and combined with thence north on greater Baynard strength, Street, one areas of Democratic Boulevard to 26th thence being pocket, west, by along that to included in east the south 26th Street to North- district, other, Boulevard, east the 4th senatorial and the Governor Printz Boule- vard. In being large east, put part to both the new 1st to the representative districts, the 2d new con- the 3rd senatorial district.88 taining respectively populations 11,710 composed district, as 1st senatorial 11,853 persons by as shown the 1960 point Latehum, at from a Mr. starts census, apparent it is the traditional pro- Wilmington’s northwest corner strength part Republican the eastern line, along City at Rock- ceeds the east of the 9th Ward was divided between along west, Road, south, east wood thence portion these two new districts. Each Republican strength City the Printz the line to the Governor combined with strength areas of along Democratic in the Boulevard, the thence southwest parts western of the two Bran- Governor Printz Boulevard to the Thus, single districts. a substantial dywine along River, middle thence pocket Republican strength was di- Brandywine point line of the River to vided pockets.91 into two smaller Wilming- where latter intersects composed Mr. Latehum along the 2d sena- City line, ton and thence northwest Begin- torial district in an odd manner. Wilmington City place of line to ning at northeast corner of new beginning. This district is senatorial 1st senatorial district a line he drew composed excep- of the 9th with Ward Brandywine River, southwest to the 1st, 2d, tion of the 3rd and 10th elec- along thence west the middle line tion districts.89 Brandywine Street, to River Adams stated, along As has been the 1st senatorial thence southwest the west line Wilmington Brandywine composed by district was the first Mr. Ceme- entirely tery, along Latehum.90 thence southeast It lies 9th Delaware therewith, Ward but Avenue, cutting it is not portion coextensive off a of the ceme- tery, indicated the last sentence Street, to Jefferson south- thence previous paragraph. perceive along no Street, We west Jefferson Street to 9th any charge gerryman- sound basis for along thence east 9th Street West dering composition along as the Street, insofar thence southwest West concerned, 1st senatorial approximately to 7th Street two Street though previous our blocks, along to the statement thence east 7th Street rather unusual course chosen Mr. Street, one block to south- Tatnall thence creating Street, Latehum in along senatorial districts Tatnall 2d west Street along before should be thence two blocks 2d Street west Washington borne in mind. Street, thence two blocks Niederhauser, seq., Legislative 88. (State Representa- See 1600 et and 1649 Districts seq. Stipulation Senator)”, et See Ex. and Plain tive and State Plaintiffs’ Ex. overlay, tiffs’ Ex. and its Plaintiffs’ 60. 51. Ex. See also Court’s Ex. 18 and its 89. See the exhibits referred to note overlay, Ex. Court’s 17a. See also Court’s supra. 11(e), Ex. admitted in evidence 5/16/63 Latchum, seq. 374 et reported proceedings sub nom. Sin Duffy, F.Supp. cock v. Niederhauser, 169. See also 1654. See all of note Voting, Arranged supra, “1956-1962 Records save the first sentence. Avenue, impinges easterly southwest to Lancaster thence line on the side Mary- approximately two blocks west to River, along City Delaware thence along Avenue, land southwest thence following line west north, various Maryland Avenue southwest to the west and courses south to boundary Wilmington, along thence Maryland Avenue, along then northeast
Wilmington boundary by various courses Maryland Street, Avenue Lan- to Front *58 west, east, place to the north and to the Avenue, along thence caster east Front beginning, Stipulation appears Washington of from to Street, Street thence along Washington many- peculiar Ex. 12. The result a north is Street one block figure embracing Street, along 2d sided an to thence two area which 2d Street larger along Street, is size than of blocks east to Tatnall thence somewhat the rest Wilmington. stating this, Street, north After Tatnall Street to 7th thence how- along ever, point one block west West 7th Street to we out that at least two-thirds along large Street, north thence West of this area includes much marsh- Street Street, along land, Wilmington Terminal, to 9th thence 9th Street the Marine Street, two blocks west Jefferson River, the to Christiana Christina the along north to thence Jefferson Street Delaware shore of the Delaware River Avenue, along debouching Dela- Delaware thence and various small streams Street, therein, Pennsylvania to Adams part ware Avenue northwest along freight yard. Adams thence northeast Street The Railroad classification Brandywine population of to the middle line the total of 2d dis- the senatorial along large River, despite area, 23,724 per- middle line trict, thence east the its is Brandywine sons, according of River to Market It to the 1960 census. Street, along pointed should thence Market Street south out also in to along by Street, 15th thence the 2d senatorial district Mr. southwest to Latch- King thence Street, 15th Street east to um followed census enumeration tracts along King to precisely.92 south two blocks Street of Insofar as creation along Street, qua east 13th 13th thence Street senatorial this senatorial district Street, south concerned, perceive thence no two blocks to Walnut district is we can along Street, charge gerryman- 4th Street thence Walnut sound for a of basis along Ave- dering to Christina 4th Street east can be no but there doubt along nue, Ave- Christina lacking compactness. thence is the district River, Christiana nue southeast to the story however, appears, on A different along of the Chris- the middle line thence repre- of the 3rd and 4th examination southeast tina River northeast included districts which are sentative River, easterly of the Delaware side repre- 4th 2d district. The senatorial easterly along of bank south thence figure 28-sided district sentative point be- of River to the the Delaware “gro- plaintiffs have called which the ginning. Appendix. See “galloping designated tesque” as the This, graphically appears creating representative on ex- horse”. the 4th But in only Stipulation and the parts, Ex. 1193 of Mr. Latchum used but amination district 6th, 3rd, 5th, opinion. 1st, 4th, Appendix parts, The district 2d, this repre- as follows: the new be described courses and 11th Wards and can 7th only beginning parts, cor- but at extreme southeast contains district sentative City Wilmington previously point exist- parts, where the all of the five ner at a 103, infra, Jersey Stipulation 12. Ex. side. See note the New circle twelve-mile which refers Stipulation is indefinite one Ex. Jersey of New decision State Actually particular. the east- immaterial Delaware, 291 U.S. v. State Wilmington erly extends to the border (1934). L.Ed. 847 River on S.Ct. mark of Delaware low-water Wilming- ing representative created a district which 84% Negroes Negro population ton.94 and the representative of this district, The 3rd Negro comprises popula of the total 41% large immediately course, part lies in Wilmington.95 plaintiffs tion con larger repre- part of 4th north pre tend that as the lines were drawn one graphical- appears district and sentative Negro dominantly district was created ly Stipulation de- on Ex. 11. It can be representation and the racial beginning scribed courses as follows: minority has been but one limited to easterly point bank of at a on the eight out of allotted point Delaware River at where Negro Wilmington. S.B. 332 for the Dela- Christina River debouches into population, point out, plaintiffs as the along River, middle line ware thence constitutes than total more 25% point Christina to a where River population Wilmington.96 *59 its middle line intersects Christina Ave- nue, cutting thence across Park Christina facts must be But certain additional by Street, north to Church thence west Forty-six per considered. cent of the along Street, 4th to Street Walnut thence population representative dis- of the 4th Street, north on Walnut 13th Street to Negroes comprised and trict is of 36% by along west 13th to thence north Street population rep- of the of 5th esenta- along King Street, by east thence north Negroes. comprised tive district is of along King Street, 15th Street to thence representative The small districts with approximately 15th one-half Street block Negro proportions populations of are the Street, point west to Market which at this 1st, 6th, 7th, popula- and 8th. The west, approximately runs due east representative tion of 2d dis- along thence Market to middle Street Negro. 96, supra. trict note See 15% Brandywine point line of the to a River difficulty perceiving We how the have just past Park, approxi- Kirkwood thence large Negro percentages population mately along due east and west Northeast representative the 3rd and 4th districts Wilmington City Boulevard to the bound- dispersed effectively among could be ary north, point at the at the where the having representative those districts legend ap- “Governor Printz Boulevard” Negro percentages populations smaller of pears Stipulation on Ex. and thence representative unless districts by along boundary south east of line longi- extending created in slices narrow City Wilmington easterly of to the tudinally through from north to south along bank River, of the Delaware thence City done, and even if this were tre- easterly bank of the Delaware River problems equality repre- mendous place beginning. The district presented, prob- sentation still would be 11,890 persons according contains lems which in our view be almost would 1960 census. Moreover, judicial insoluble. we take general notice boundary in the election of 1964 repre
The lines of the 3rd district, City Wilmington sentative as drawn Mr. the voters Lateh Stipulation um and as shown on Negro Ex. senator, perfect elected one a re- seq. 94. Niederhauser 849 et Negroes See also 96. Mr. Harrison testified that con- 11(c), Court’s Ex. referred *60 district had 3rd senatorial composed achieved drafted Latchum before he by boundary districts, line run representative been cut in half boundaries along ning 6th ignored pattern southwest he northeast he we find representative dis two pursued to create he 1st Street had divided the when designate matter, for the district, practical we tricts which will as a senatorial
805 voting clarity “(b)”.97 “(a)” If tricts sake had the followed the Demo original cratic-Republican party Mr. Latchum had followed his lines of the 1960 strength pattern pocket Republican general and 1962 elections.98 We find plaintiffs northern of the 3rd senatorial half those assertions of the re change preserved lating pattern would district have been to Mr. Latchum’s “(a)” strength pocket Republican for such a proof adequate district would have con be based on and to be cor strong Republican tained rect. election dis See the chart that is set out Upon checking appears greater equality Defendants’ Exs. 8 and it boundary running could along be achieved if a line northeast southwest Fifth plaintiffs Street rather employed. than Sixth Street as contended population designated by “(a)” lying of the district us as to the north of 12,132 persons Fifth Street would consist of while the of the district designated by “(b)” lying us as to the south of Fifth would Street consist of 12,498 persons.
(North Street) of Fifth Senatorial District
Census Tracts Population Blocks 11 3028 15 3355 16 4318 21 1 122 13 73 208 *61 97 30 18 37 22 195 1 143 15 130 16 ' 75 29 48 30 35 31 12,132. Total Street)
(South Fifth District 3rd Senatorial Population
Census Tracts 5330 26 (minus 1, 13, 21 blocks 14 30, 37) 28, 29, (4246-805) (minus 1, 15, blocks 31) 29, 30, (4353-626) _ 12,498. Population Total Niederhauser, seq. Stipulation 43, 46, 1656 et Exs. Exs. Plaintiffs’ 50 and 51. gerrymandering prove upon not infra," But this does which based note 6th 98, supra. if new for we take out in note the evidence set *62 up district and add the Democratic and in note infra, we see that Republican votes as cast in majority the 1960 Democratic in 1960 was 1962 elections shown on the chart set out in 1962 was 106.100 *63 808 however, figures, upon
These are based this constitute a basis from which this assumption the all of in that the voters gerrymander political court should find split the election in districts voted the as that term is hereinafter? defined representative which, new 6th districts considered ? What other factors are to be course, split was the case. If the not 1st, 2d, 3rd Mr. Latchum formed the excluded, election are the districts Demo- large representative in and 4th districts majority cratic 1960 would have been running part by boundary approxi- lines 219, but and in 1962 would have been southeast, mately but northwest exactly plaintiffs zero. And the have remaining representa- forming the four figures fit seen to furnish not us with pattern used was not tive districts 13th, 14th, which demonstrate boundary though lines there 15th, 16th, 17th, 18th and 19th election running approximately northwest Ward, shown districts the 7th running approx- southeast, boundary lines in red on Plaintiffs’ Ex. were more largely imately southwest northeast potently arrayed apportionment in the remaining representa- four created Wilmington prior reapportion- also disre- Mr. Latchum tive districts. ment created 332 and 336. S.B. S.B. garded boundaries the historical Treating just the election districts de- and, said, adopted Wards, he as we have scribed, part which lie the eastern cre- course of first the rather unusual representative district, apart old 3rd ating cre- and then senatorial districts portion representative from that of that ating representative there But districts. constituting district now new 8th advantage gained by Demo- was an representative lying in the west- Party reappor- by Mr. Latchum’s cratic portion say ern Wilmington, we cannot if it the 1960 test tionment we plaintiffs political proved have and 1962 In 1960 1962 returns. election gerrymander as that defined here repre- Party Republican elected one described hereinafter. seats and out available of five sentative But in the creation only being senator, there one 1962 elected representative new and 8th 6th election in the latter one available seat substantially from old 3rd what was year. Republican percentage in Wil- representative district, is clear it mington 1962 in the election 39.6% pockets Mr. of Re- Latchum divided two Document 1964 See and in was 38.9%. strength appears publican from Plain- But 1964 4 A” B”. “S and “S 46. tiffs’ Ex. Party Republican elect even failed to eight representative district had when seats The old 3rd one majorities rep- Republican one sen- for a elect even returned and failed to available In and 1962 were available. the 1960 four seats resentative both ator when Party Republican In in the there elections. election short approximately election, same were 4524 Democratic votes and with * Republican 1962 elec- Republican votes, giving percentage in the votes representa- majority tion, either a and in 1962 election failed to elect although number of or a 3241 Democratic votes and tive senator there were votes, giving Republi- Republican senatorial seats Wilmington City had in- majority been Ex. can See Plaintiffs’ respectively. including two, By pockets of Re- creased three and these strength from the court draw the inference publican 8th Should new 6th and *64 reappor- respectively, facts that the Latchum representative these districts gerry- political strength rep- Republican tionment constituted a in the old 3rd Wilmington? City of the mander district divided. Does resentative assert, true, plaintiffs election several areas as the districts It is also disregarded creating Latchum, old Hundred lines. both that Mr. representative districts senatorial and plaintiffs point The out that in cre- City Wilmington, largely disre- ating representative the new 24th dis- garded boundary lines of the traditional trict, departed Mr. from the McGinnes representative Wards and old and sen- boundary Clay historic between White districts. atorial Hundred, Creek Hundred and Pencader contigu- compactness In cutting some census enumeration district ity representative districts of Wil- of the lines and some election In district lines. viewing mington, upon of the evidence all drawing rep- of the boundaries 24th case, relating aspect and in along- proceeded resentative district he shape particular the location boundary of Pencader Hundred to- horse”, “galloping can it head of the Road, Marrows distance thence short compactness and the tests of said that along Road, north to Newark then New- met, did the contiguity have been ark Road to the southwest to Chestnut political figure grotesque from result Road, Hill then northwest to Christina gerrymander hereinafter? as defined Road, along thence southwest Newark representative Upon consideration Ogletown Road, Road to thence to the Wilmington and their rela- Lion, town of Red to- thence southwest prepared Mr. other as tion to each village of Kirkwood various cours- we set out S.B. Latchum and as point along es to a the Wildlife Area of the 4th conclusion that forced to the Canal, Chesapeake and Delaware “galloping district, along approximately thence west the line horse”, of com- not meet the does test Delaware-Maryland of the Canal to the ger- political pactness and is a result place boundary, and north thence City rymandering of Wil- within the beginning. boundary lines These mington. repre- caused 24th to be included comparatively small sentative district Rural New Castle B. As to parts Clay Hundred and of White Creek Hundred.101 New Castle plaintiffs Mr. Mc- assert apportionment of Rural New Ginnes’ district,, The new 13th County, out- Castle Castle New McGinnes, th& as drawn Mr. includes Wilmington, repre- resulted in side of larger part Hundred but of Christina grossly and senatorial districts sentative representative- of this boundaries contiguity lacking compactness follow none of the Christina causing gerrymandering. Mr. McGinnes except that. where Hundred boundaries equali- stated that he used the criteria Wilmington.102 Hundred borders on ty preservation of and the great- district, pre- put historic that he senatorial boundaries but 7th McGinnes, pared by emphasis upon an. er the factor first stated. Mr. extends ' along said, approximately the- As we have Mr. McGinnes cut the arc for 21 miles Delaware-Pennsylvania to the- boundaries of some 1960 census enumera- border large curving line, part of a. tion districts and made use es- north. This is a Town, timating point procedures from as hereinbefore circle drawn through Hundred. Castle stated. He also some of New Castle in New cut Stipulation foregoing Stipulation and Court’s 101. As to the see Ex. 102. See Ex. 10 C 10 H and Court’s Ex. 19. See also Nied- Ex. 19. seq. erhauser, 1643 et *65 810 miles.103The senatorial of 12 it in the 7th on a radius as to concentrate and based eliminating possi- thereby may district, the be described district
7th senatorial Repub- electing point bility beginning one a on the more than of as follows: at Delaware-Pennsylvania Mill and Christi- at Creek border lican senator doubt no point There is Foulk Road crosses na Hundreds. where the westerly Hundreds border, proceeding Mill Creek Christina and thence strongly Republican has been in- point 12 Mile Circle where period Road, of time. Hopkins due west for a substantial thence the case tersects judicial facts. of these juncture notice of Delaware-Penn- We take to the representative boundaries, sylvania-Maryland thence and 14th The new 13th Maryland- Republican along even of the districts were line due south know, which, re- point as we all where the 1964 election Delaware border victory near of Dela- in a Democratic cuts the sulted Hundred line Pencader creating the approxi- proportions. ware-Maryland border, In landslide thence Road, Mr. McGinnes mately ex- senatorial district Elkton an new 7th due east to cutting not district Capitol in one senatorial combined Trail, tension through thence larg- turning only representative districts on east the two Newark and due geographical put into distance, also area but thence est Main a short Street for single College of one sen- along for the election in a unit North Avenue north boundary representative following two ator those northern Newark largest Republi- having along Newark, the State Road thence Creek along majorities.105 east, can various courses thence Harmony Clay the line of Creek to White accuracy de- of our statement Harmony Road, Road to thence north on figures if make monstrable we use along Highway, Kirk- Kirkwood thence supra. 105, 6”, note shown “Exhibit Highway Road, wood to Limestone thence representative The 13th district along Road, northwest Limestone thence 6,980 Republican 1964 election delivered along in- northeast Milltown Road its against 2,850 for votes Democratic votes Road, tersection with Duncan thence 4,130 votes, majority Republican a along Faulk- Duncan Road to northwest delivered the 14th following land Road Faulk- and thence 3,044 against 5,119 Republican votes boundary land Road east to the of Wil- Republican ma- votes for a Democratic along mington, various courses thence Combining 2,075 jority votes. boundary Wilmington Concord Republican and Democratic votes Avenue, Avenue, along thence Concord find that and 14th districts we there 13th Talleyville, east thence north to thence against 5,- 12,099 Republican votes along north and south east Silver- Republican for 894 Democratic votes Road, and thence side Road to Foulk majority 6,205 sena- votes. The 7th along place north Foulk Road to the comprises 13th torial district beginning.104 districts. At 14th according plaintiffs plan count contend that in to official his election reapportionment for New Castle Rural cast senator in the 7th sen- the votes 12,670 care to ar- Mr. McGinnes took as follows: atorial district were range strength way Republican Republican such for the candidate votes description scope Esquire, 103. For a Bars of Delaware of New Twelve-Mile Circle see State of Maine. Jersey Delaware, v. State U.S. Stipulation Ex. Ex. 10C and Court’s (1934), L.Ed. 847 S.Ct and note cited to the text at the stated page. 20 and Docu- Exs. 19 and 105. See Court’s Delaware”, 174, Stipulation Results “Election See “The Bounds of ment also Wilming Publishing Company, 336”, “Exhibit 6”. The Star under S.B. ton, Delaware, seq., Dudley Lunt, 64 et
811 voting be districts of the two But if the for a 5,424 candidate Democratic for the 8,170 would be a total 7,246 combined there Republican majority votes.106 6,383 against Republican a total votes Mc- Mr. plaintiffs contend The major- Republican for a Democratic votes ity gerrymandered the Re- Ginnes in effect voting 1,787 for sena- votes.107The strength and publican Mill Creek reasonable followedwith torial candidates Repub- one Hundreds so that Christina voting representatives. for exactitude the only elected be one could lican senator and if the combinations It would follow that aof in the creation and that this resulted suggested paragraph been em- had in this long large very with McGinnes, senatorial district ployed one additional Mr. as described Republican borders which cannot be been have senator would although internally compact con- it elected. tiguous. point plaintiffs out The foregoing The can be demonstrated geographical various other combinations sug- Using follows: the combinations only representative not districts were gested Niederhauser,108 find by Mr. we possible suitable but were indeed more be would that the 5th district senatorial rational and effected a more would have representa- composed of 9th and 10th a result and one have caused which would a tive and have elected districts would voting strength equal more division Republican election. senator in 1962 major political parties. between the two be com- The 6th senatorial district would They state, example, if the 13th posed representative of the 11th and 12th representative had been com- district a elected and also would have districts representatiye dis- bined with the 17th Republican senator. The 7th senatorial Republican trict a senator would have composed 13th district would be taking Again been elected in 1964. representative and districts and 17th figures 6”, from su- “Exhibit note Republican senator. would have elected a pra, representative find we that the 13th be com- The 8th senatorial district would 6,980 Republican district returned votes posed representative of the 14th and 15th against 2,850 Democratic votes for a Re- Repub- a and would elected districts have publican majority 4,130 and that votes district lican senator. The 9th senatorial representative the 17th district returned composed 19th would of the 18th be 2,113 Republican against 3,729 votes representative and would have districts Democratic votes for a Democratic ma- 10th The elected a Democratic senator. jority 1,616 votes re- but that of the composed of senatorial district would be spective voting returns, Republican and representative dis- the 20th 21st repre- Democratic of the 13th and 17th a Demo- tricts and have elected would sentative districts be added there would dis- The senatorial cratic senator. 11th 9,093 against Republican be 6,579 votes composed 16th and trict would be Republican Democratic votes and a ma- representative would districts and 24th jority 2,514 votes would result. Republican senator. have elected a 14th returned com- 12th senatorial district would 5,119 against Republican 3,044 votes posed of the 22nd and 23rd Republican Democratic votes for ma- a Demo- elected have would
jority 2,075 votes, repre- and the 15th Thus, election if 1962 cratic senator. 3,051 Republi- sentative district returned Republican patterns followed, 5 had been against 3,339 can votes Democratic votes 4 have been rather than would senators majority for a of 288 Democratic votes. fact, find in 1964. We it to be elected 6-page 106. Document Exhibit 2. Plaintiffs’Exs. Niederhauser, seq.,
107. See et Plaintiffs’ Ex. 53. general elections, therefore, that if Mr. McGinnes had em- Democratic all four suggested ployed inclusive, grouped combinations Mr. to- gether testimony “swing” representa- and as Niederhauser his to create a district, e., represen- exhibits in notes 107 tive i. the new 10th demonstrated *67 stretching 108, district, Republican more senator tative the new dis- one very 1964, enough trict far include would have elected a to the south to been district, strong year. con- the old 7th strongly which was Democratic Does this election means, By proof gerrymandering? stitute Democratic. of say plaintiffs, represen- the a Democratic larg- district is the The 7th senatorial tative was elected in the 1964 election New Cas- in Rural district est senatorial representative In new 10th district. the County. an it at have described tle We support plaintiffs of this the contention need opinion point and we in this earlier representative asserted that the new 10th previ- repeat said here we have not ously. what State, populous district is the in the most oddly shaped. sprawling and It is containing according 18,928 persons to wit- McGinnes, on the when he was Mr. the 1960 This subse- census. assertion thorough stand, a demonstrated ness knowledge quently plaintiffs was withdrawn and the Castle of Rural New stipulated representative the 28th significance political the elec- of and the County, population district in Kent awith districts, representative districts tion persons 14,209 of as shown the 1960 en- can therein. We senatorial districts largest census, was the State.109 aware no doubt that he was tertain representative is, The 10th ever, how- district of party-wise of the combination results populous the second most employed him representative districts State. It commences at the low-water district, and compose 7th senatorial to Jersey mark on side New if weigh fact the additional when we along Delaware River the arc Dela- patterns had senatorial district the 1962 boundary ware’s northern hereinbefore heavily Demo- followed, even been to, point referred thence to the where the election, Republican sena- five cratic right-of-way' of the Baltimore & Ohio been four would have rather than tors north, Railroad cuts the arc on the com- elected, Mr. McGinnes’ find that we along thence southwest the line he posing district senatorial the 7th Holly right-of-way of the Railroad to gerrymander political has constituted Creek, Holly along Oak thence southeast sena- hereinafter. The 7th as described point Holly Oak Creek to a where Oak test meet the district does not torial would cross Harrison Avenue if Harri- shape elongated is compactness and its projected son Avenue the north- gerryman- political the result east, along thence Harrison southwest sena- with the In connection 7th der. along Holly Road, Avenue Oak thence district, to the attention we call torial very Holly Oak Road to the Delaware River shapes sena- and 6th of the 5th odd and across Delaware River to the low- districts, geographic com- oddities torial along Jersey shore, water mark the New senatorial pelled form of 7th and thence to the low-water mark at the district. easterly bank of the Delaware River plaintiffs there assert that Jersey, New and thence northeast follow- gerrymandering by McGin- Mr. also ing the low-water mark of the Delaware representa- 10th nes in the creation place beginning.110’ River to the easterly tive district which embraces plaintiffs Mc- assert that if Mr. They Brandywine part as- Hundred. boundary placed only had lower Ginnes four districts sert that the election Holly Brandywine representative voted Hundred that district at 10th “E(v- 174, Stipulation 407, L.Ed. 109. See Document text at 54 S.Ct. S-l)”. (Exhibit UUt 3 847. 10A, Stipulation 103, supra, Ex. Ex. Plaintiffs’ of New See note State See Appendix. Jersey Delaware, note cited v. State through any any population election district nor Creek, of the 10th Oak district.113 census enumeration been would have district figure 12,905 persons, ideal close to the immediately XYI, out herein- Table set 12,751 persons state-wide voting by after, parties in the shows the and also mean or norm close comprising the old election now 13,226 persons for Rural New Castle We new 10th district. speaks think the chart for itself and that County.112 We find these assertions explanation no figures further of its words factually plaintiffs correct. necessary. Moreover, followed if had Mr. McGinnes represen- just stated, By including the course 10th the 7th election *68 through representative district, in the 10th Mr. tative district wouldnot have cut 112. See Table accompanynig IX. overlays, Ex. 19 and its 19A Exs. and 19B. We find that Court’s 113. Mr. Niederhauser asserted that no cen- Court’s Ex. 21 is correct and that sus enumeration district would be cut. maps par- other three in error in seq. this 1636 et We conclude his state- ticular, comparatively Compare which of course is a ment was correct. Court’s Ex. (cid:127) cutting 21 which no shows with small Court’s one. substantially two-thirds of seats enumeration ten two census did cut McGinnes districts, representatives 37th, in Rural New Castle thus re- and the the 12th by- County slightly populations with less than quiring to estimate him 50% plaintiffs the fore- using voting ratios, the vote. The tender have described. as we gerrymandering going proof addi- plaintiffs’ contention is that The Viewing County. to the Rural New Castle district 7th election tion proof whole, we think the representative area as a district made 10th charge. “swing” sustain representative insufficient 10th district perceived district, from the but as can be representative dis- senatorial legend XVI, of Table “Number bottom County are Castle tricts Rural New 7th from the Extra Democratic Votes contiguous and, exceptions here- with the District”, Election the added Democratic they noted, inbefore can be said margins are indeed narrow ones. state, reasonably compact.115 how- We plaintiffs inclu- contention of that the representative ever, new sion the 7th election histori- senatorial districts do not follow 10th district constitutes great any de- cal lines or boundaries gerrymandering sup- finds insufficient gree and we find that the 7th senatorial port in dis- the evidence. The election meeting compactness. the test does not comprising tricts the 10th *69 majorities Republican Wilmington returned City and. the As to C. of 1956, 1958, in the elections of 1960 and County Rural New Castle 1962. It is true that in the 1964 election length previous at a at some We dealt representative 10th district returned “X.”, heading opinion, point under in this majority votes, a of but Democratic 154 Reapportionment”, sub- “Analysis of stated, as we have the election in 1964 vexing heading issue “G.”, with proportions was of in landslide Delaware disparity was that the arithmetical many point as in other states. We' out Wilmington eight by giving created year in that 1964 the number Dem- Castle New representatives Rural and gained by adding ocratic votes the 7th County representatives, and sixteen representa- election district to the 10th and giving Wilmington four senators tive district numbered but 58. eight County sena- but Rural tors, particularly Castle New state- of the viewing in find, view We Rural New Castle affidavit, which McGinnes, County whole, in Mr. ments McGinnes’ aas that Mr. correct, there that creating found to be representative we districts as we have population above, in the has an increase have been indicated concentrated the County approxi- Republican Castle Rural New vote Rural New Castle in mately persons 1960 cen- 38,000 County Republican since and created five safe is, of disparity populations 12th, districts, 11th, sus. The course, viz., 13th 9th, plaintiffs a as 14th; asserted Demo- and four at least “safe” gerrymandering proof in favor districts, probably when six cratic party. voting 17th, is no doubt normally, viz., There party Democratic runs Wilmington, City 19th, 23rd; as it voted 21st, 20th, and five 22nd and Democratic, heavily 15th, election, “swing” iOth, was districts, viz., 1962 32,743 for cast 16th, votes for out of a total 18th and last creation This 24th. 19,775 representatives Demo- there 1962 were 1956 was an area from against Republican 12,968 ordinarily Republican. 1964 cratic votes In the voted figure including 3,282 votes, heavily the latter election in which the vote was represen- Democratic, auditor votes in the 4th and 5th Democratic candidates Republican can- no tative where Castle the fifteen districts of Rural New The Democratic County contested,114captured didate ran for office. which were state, Republican narrow a small 115. Delaware is candidate for 114. There was no any compass, representative representative atlas will demonstrate. in the 20th district. Wilmington D. As to majority that election Kent 6,807 votes. therefore said, County, In Kent as we have Wilmington again district, Hughes split In no the 1964 election Mr. election electing eight Democratic, representative Demo- senatorial dis- went new eight representatives seats cratic formed from combinations tricts were existing numbered Democratic votes find that available. 27,335 election districts. We against 12,887 Republican Hughes votes. bound- Mr. adhered to historical party elected four sen- He The Democratic do so. aries insofar as he could representative four senatorial seats dis- ators out created new 27th party available. The Democratic secured dis- from trict the old 5th 26,873 Republican party votes and the 5th trict. In the election old 12,375 composed In Rural New secured votes. district was 2d, party districts, 1st, Castle the Democratic elect- viz., election four representatives ed eleven and the Re- dis- 3rd 4th. Of these four election publican party representatives tricts, only Republican out five had ma- two There jorities. They sixteen seats available. total 3rd election dis- were the 52,296 51,931 voting trict, representa- Democratic votes in which the for Republican Republican votes. tive was 438 votes to giving Republican Democratic votes majority conclude We was a substan- there dis- of 126 and the 4th election favoring Wilmington tial over Rural voting trict, represen- in which for County. judicial New Castle We no- take Republican was 305 votes tative tice 122nd that Democratic leaders of the large Assembly po- giving Republican General were men of Democratic votes experience, adequate possessing litical majority of dis- 36. In the 1st election knowledge figures of salient voting trict, representative was larger geographical at least of the areas Republican votes to Democratic *70 Wilmington of the State such as and giving majority of votes a Democratic County, Rural New and were Castle district, 14 In the 2d election votes. apportion- aware of the of the result voting representative the was 365 by ments created S.B. and 332 S.B. Republican votes votes to 414 Democratic e., favoring Wilmington, a of believed i. giving majority 49 a Democratic of Democratic, to be over Rural New Castle Taking dis- Republican.116 the votes in all the County, Should votes. believed to be unjustified ap- we together, Republican major- find that the tricts the Wilmington portionments Rural of and ity was 99 votes. County New Castle in relation to each In were three the 1960 election there gerry- political other of the result were repre- light election districts in old 5th mandering? the answer, Our in the 1st, circumstances, of viz., all the in affirm- 2d district, is the the and sentative Moreover, population ative. the since 3rd. The was added 4th election district County Rural has increased of New Castle population because of in in the increase substantially 1960 census—a since the All three dis- West Dover.117 election throughout generally the known fact majorities. Republican In tricts returned gerrymander is all more State —the the 445 1st election there were the district apparent. Mr. Mc- Mr. Latchum and Republican to 356 votes Democratic large political Ginnes also of are men majority votes, giving Republican a of knowledge experience popu- of the Wilmington City In there were of 89. the 2d election lations of district the of They County. must Rural New Castle Republican 779 votes to 772 Democratic re- be deemed to have been aware votes, giving Republican majority of 7 a Wilming- apportionments sults In district there votes. the 3rd election County in re- ton and Rural New Castle Republican 313 Demo- were 364 votes to other, by S.B. 332 lation to each and S.B. created giving major- votes, Republican a cratic implemented them as ity Taking 51 votes in all votes. hereinbefore described. 1829; Niederhauser, Hughes, 116. 1059. Document 195. 816 representatives together, Republican County districts can in has Kent majority was votes. ebbed and in na- 147 flowed accordance with political is Hughes tional and local tides. There 2d Mr. old added the election no doubt 336 concentrate representative that S.B. does of the 2d dis- district old strength County Republican representative Kent old trict 5th district judicial in one We take notice complete representative district. new 27th
n district. the fact 1960 plain- election point asserted Republican party representa- elected 4 is that 2d election district tiffs the old tives in Kent to the ten seats available representative old re- of the 2d district County election, represen- 1958 2 in the largest majorities Republican turned the any n ; election, rep- in the 1956 County tatives 3 election Kent resentatives. in both the and 1962 elections and 1960 the addition of the old 2d elec- the 27th It borne mind that must be stated, tion district 336 limited S.B. “lop-eared representative is the possibility Republi- of the election district, shape is of which rabbit” representatives can from Kent most unusual.119 We conclude representative. (cid:127)one not test 27th district does compactness meet the following appear support facts term used. See as that is fig- plaintiffs' old In the contention. Appendix. no There are in 1960 were '2nd election district there dis- election ures in record for the against Republican 299 representa- (cid:127)639 cast adjacent votes tricts to the 27th votes, giving Republican a Democratic of Kent the census tracts tive district and (cid:127)majority In 1962 there election dis- do not follow the Republican 259 Democratic tricts, votes cast to appears no com- there but (cid:127)votes, giving majority Republican precise pelling combina- for the reason :237 votes. Had the election districts Mr. tion of Hughes districts effected election representative constituting creating representa- now 27th the 27th aligned (cid:127)district been 1962 as tive district. n they presently aligned S.B. however, Hughes, Mr. did observe the district would have County to historic Kent boundaries given a return votes of 1740 Democratic degree. It a correct as a substantial .against votes, Republican Re- or a plaintiffs sertion concen that he publican majority of votes in the strength Republican 27th trated election, given and would have district where there *71 against return of 1551 Democratic votes majority of in fact 386 a Democratic Republican votes, Republican 1887 or a votes in Nonetheless the 1964 election. -majority of 336 votes in the 1962 elec- representa adjacent in the 28th and 26th plaintiffs tion.118 The assert what that alleged districts, tive where is not it did S.B. 336 Re- was to concentrate the any plaintiffs concen the there was that strength publican single represen- in one strength, Republican tration the Dem of tative This the district. is converse were, only majorities respectively, ocratic argument they (cid:127)the have made in which perceive 438 votes and 325 votes.120 We respect Wilmington. charge a no evidence sufficient sustain course, Republican were, no There gerrymandering here. County (cid:127)representatives in Kent elected plaintiffs in The also assert that which, election, 1964 we have in the gerryman- the 1964 election because pro- repeatedly, of landslide was (cid:127)stated dering “a party made the Democratic portions But such unusual in Delaware. sweep seats” clean three senatorial the the invalidate do not results election plaintiffs’ argu- County. plaintiffs’ in The Kent Republican Two contentions. They largely ment here is statistical. representatives Kent elected in point Republican in the votes out that the County judicial notice in take 1962. We election of 1964 amounted Republi- 42.1% election (cid:127)of the that the fact 174, “Exbibit 120. 6”. 118. Document Plaintiffs’ Ex. 60 Substitute. 38, 39,
119. Court’s Exs.
817 both, larger”, meaning, we of 1962 “is far the in election and that the the total believe, Republicans out in ordi- senator to state substance that elected one narily running representative office.121 old district majori- for however, 10th the three then largest Republican state, returned the These facts. We County. party Republican ties in In 1960 Sussex in the 1962 election the elections, 1962 election dis- approximately total the old 3rd received 48.1% representative County trict of dis- the old 10th for state sena- vote cast in Kent largest majori- Republican and trict had the The tors. difference between 42.1% County. ties in Mr. Sussex Niederhauser we think is not unsubstantial but 48.1% strength Republican party asserted that Republican car- the fact that the repre- in was concentrated the new 34th in Kent one in 1962 ried senatorial seat which, opinion, sentative district in his County party due fact that the is Republican stronger reduced the chances of the 1962 far in Kent was “carrying [representa- party percentages additional than it was in 1964 as [rep- districts, many sup- additional tive] does not The evidence stated show. districts.”122 port plaintiffs’ resentative] contention. of the old The old 1st election district E. As to Sussex representative district, 1960 7th election, in the representatives County 6 In Sussex votes returned 549 Democratic The election. in the 1964
were elected against Republican for a Re- 780 votes Republican plaintiffs contend that publican majority In the of 231 votes. deliberately strength concentrated election, Democratic 1962 it returned 427 repre- 35th 34th and Mr. West against a Republican for votes votes 688 the 18th senatori- sentative districts and Republican majority of 261 votes. combining these al district formed old 10th old 3rd election district of the representative and that this two districts elec- the 1960 They gerrymandering. as- constituted tion votes returned 985 Democratic unlikely consequence it that as a sert against Republican for a Re- 1400 votes Republican party elect could votes, publican majority of 415 representatives more than 2 6 out returned 796 Democratic election it 1 out of County, in Sussex or more than votes, against Republican for a votes senators, the 3 even with 50% Republican majority To of 561 votes. point Republican vote. We out strong Republican districts these election party a senator from 18th elected Mr. 8th West added the old senatorial district 1964 election. Dem- district which in 1960 returned plaintiffs’ substance conten- against Republican ocratic votes substantially tion here is same as it majority Republican of 80 votes regard gerryman- inwas to the asserted votes, 638 Democra- and in 1962 returned dering County, viz., Kent that S.B. against Republican tic votes votes strength Republican concentrated the majority of for a Democratic 3 votes. single obviating possibility area Totalling the three election any large representation Republican *72 repre- comprise 34th which now the new County from Sussex in the House Sen- district, find in the that sentative we ate. 1960 election there would have been Mr. Niederhauser testified that the against returned 2189 Democratic votes strongest Republican two districts were Republican Republican 2915 for a votes old the 1st election of district the old 7th majority votes, in the of 726 and that representative district and old 3rd the 1962 election there have been re- would repre- election district of the old 10th against turned 1861 votes Democratic sentative district. He the old stated that Republican Republican repre- 2680 for 3rd votes a election of old 10th district the district, majority sentative which includes Reho- of 819 votes. Niederhauser, seq.
121. Plaintiffs’Ex. 60 Substitute. 1710 et 818 trict, Republi- representative the of district then chairman the The 35th County by up can composed Committee for Sussex Coun- 336 is made the S.B. ty, repeatedly public representative man district and the a elected to 9th
old office, and not a of the because of concentra- old 1st and 2d election districts Republicans representative tion of in the 18th sena- Total- old 10th district. by ling composed torial district as it the election districts which three the representative comprise representa- 34th and 35th districts. now the new 35th way. Indeed the look the we facts other for the 1960 election tive district plaintiffs’ We find that the contention that 2623 would find Democratic votes gerrymandering against aspect on this the 3123 Re- have been returned as publican Republican major- case cannot be sustained. for a votes ity and in the 1962 election 2509 argument plaintiffs’ Part Democratic votes would have been re- gerrymandering respecting Sussex in against Republican turned as votes 2534 They out point County is statistical. Republican majority for a of 25. It would polled Republican party that the 43.8% appear repre- should 35th that the new representatives in vote for the total pattern sentative district es- follow but 1964 election Sussex in the elections, tablished 1960 1962 1962 that in the out of elected 0 “swing” Mr. But West created district. Republican party 3 elected election representatives repre- the new 34th when and new 35th securing of the out sentative to form districts were combined representa- of the votes cast for 47.2% district, the new 18th senatorial there plaintiffs correct- The also state tives. majorities Republican would have been ly in 3 elected in 1962 senators were that of 1226 in the votes 1960 election 844 County, Republican par- Sussex that votes 1962 election. ty 1 the total elected senator Republican said, vote cast for senators plaintiffs assert, as have we amounted to strength Republican concen- 47.3%. repre- 34th Mr. in the trated West difficulty grasping the We have out, point how- sentative ever, We district. plaintiffs’ statistical conten- force 34th that in 1964 election landslide tions. year It is true representative a Demo- district returned party Republican elected of 1964 the majority of But the cratic 447 votes. Statistically speaking, elect 1 senator. it, representative district, adjoining 33rd out of total of 3 senator 47.3% Republican is al- where no concentration inequitable for seem the vote would not leged by plaintiffs, a Dem- returned majority plaintiffs’ own party majority only reasoning did In ocratic 464 votes. elected and should have the 35th in the elect senators. majority of 1964 election a Democratic plaintiffs that because assert votes If we add was returned. Republican party secured 43.8% majorities 34th and Democratic in the Republi- votes cast Sussex the 1964 35th districts in party in the can should have done better they proof
election find that total constitutes we election that this gerrymandering. support plaintiffs, of of The truth votes. But the Republican party did is that the matter their contention the concentration not well fare election strength, Republican point fact Assembly members General that the 18th senatorial district return- County. plain- The answer to the Sussex Republican majority ed a of 915 votes *73 form tiffs’ contention here is our despite proportions landslide government representational victory in in 1964. Democratic Delaware not statistical. unusu- think fact was due We this strength charge Republican gerrymandering candidate re- al of the No spect be sustained dis- to Sussex can senator in 18th senatorial showings proof plaintiffs on the made with the 1962 election where argument. support Republican their statistical candidates won 5 out of the 10 senatorial which were con- seats F. Assertions Based on Plaintiffs plaintiffs tested but the fail refer to State-wide Results Statistical the fact that in the 1962 election the Re- again We refer to Exhibits “S4A” publican candidates received 54.2% relating, re- of Document 174 “S4B” plaintiffs the vote. The contend that spectively, “Representativeness” apportion- demonstrates that of the 1962 for mem- and 1964 elections plan ment S.B. 336 “has S.B. Assembly. plain- bers General operated efficiently to minimize and can- point Republican tiffs party to the fact that the voting strength cel out the of the mem- only elected 5 of the 35 members minority bers party”, the House or one-seventh of the total development “Under law representatives number in 1964 de- stands, [present it apportion- now spite Republican the fact that candi- pass ment] scheme cannot constitution- vote, dates received and that 44.4% al muster and should be held invalid in Republican party in the Senate the elect- entirety.”123 its only despite ed 5 of the 18 candidates plaintiffs fact that placed those candidates received have in their 45% They of the votes cast. contrast setting these brief a table124 out the 1964 elec- post-trial brief, 123. Plaintiffs’ post-trial brief, 73-74. 124. Plaintiffs’ 74-75.
820 districts, by representative size of vote. This table is set out be- tion returns ranged voting in order low.125 ar totals 1964 Election Results Voting Arranged by Representative Totals Districts Representative Vote D R Total %R No. District (R.N.C.) 71.0 2850 6980 9830 13 (R.N.C.) 62.7 3044 5119 8163 14 (R.N.C.) 62.2 3014 4970 11 7984 (R.N.C.) 66.6 2612 7814 5202 12 (R.N.C.) 56.6 2853 9 3732 6585 (R.N.C.) 37.7 4056 19 6514 2458 (R.N.C.) 47.7 3339 15 3051 6390 (Wilm.) 38.8 3887 1 2469 6356 (R.N.C.) 39.4 3779 2466 6245 22 (R.N.C.) 48.8 3154 3009 6163 10 (R.N.C.) 38.9 3578 5864 2286 18 (R.N.C.) 36.1 2113 3729 17 5842 (Sussex) 43.4 3259 2506 32 5765 (Sussex) 43.5 3239 2500 5739 35 (R.N.C.) 47.2 2701 3010 5711 16 (R.N.C.) 41.9 3290 2376 5666 23 (Wilm.) 42.2 2392 3270 5662 8 (Wilm.) 3157 43.7 2459 5616 6 (R.N.C.) 2953 46.8 2598 24 5551 (Sussex) 40.4 31 2178 3204 5382 (R.N.C.) 23.6 4080 21 5340 1260 (Wilm.) 24.4 7 3940 5216 1276 (Sussex) 45.6 2352 2799 5151 34 (Kent) 37.4 1925 3220 5145 25 (Sussex) 2797 45.5 2333 5130 33 (Sussex) 2831 44.6 5110 30 2279 (Wilm.) 37.9 1921 3142 2 5063 (Kent) 45.4 28 4848 2205 2643 (Kent) 39.7 1819 2754 29 4573 (R.N.C.) 35.2 1607 2955 20 4562 (Kent) 45.7 2032 2418 4450 27 (Wilm.) 3443 19.1 4257 814 5 (Wilm.) 21.4 907 3333 4240 4 (Wilm.) 3163 14.5 3702 539 3 2j 1431 43.5 (Kent; 1106 2537 87,940 110,226 198,166 44.4 Summary: Representative Vote for No.
Size oi District Vote) (Total State Total Districts %R % 2,537-5,000 33.2 16.7 5,000-5,500 21.0 37.4 5,500-6,000 42.7 26.0 6,000-7,000 19.3 44.9 7,000-9,830 65.9 17.1 no figures where 1607 auditor votes include The 20th ’Republican candidate ran. Moore, report compiled Charles Com- figures of Mr. F. from the These proceedings. Elections, Delaware, these Document State of missioner
821 Results”, present tion. note On the correct The “1964 Election record the largest repre- population supra, 7 old district does show that the the 2d election according State, representative of the old 2d in the district can- sentative districts totals, ascertained, Castle not be in Rural New clear to vote but it is that Hughes’ high. County, 4 smallest Mr. estimate and that the 3 was too Wilming- representative are in districts proof We find that the submitted also The 1964 Election Results ton. plaintiffs support the in of their conten- out, show, point plaintiffs that the as the subheading, “F.”, tions under this is too largest representative 4 speculative point to be sustained. We County, are in Rural New State Castle out, however, malapportion- that the repre- in that the 1964 election these foregoing headings ments described in 7,000 from votes sentative districts cast do totality of course affect the of the re- averaging Repub- 9,830 to votes 65.9% apportionment of Delaware under S.B. agree lican. the contention We with 332 and S.B. 336. We have also found possess plaintiffs facts these the previous subheadings under instances significance divi- in gerrymandering but we conclude that the representatives New sion of between proof gerrymandering brought for- Wilmington, County outside of Castle plaintiffs ward the under this sub- e., County, and the i. City Rural New Castle heading, “F.”, is insufficient. Wilmington indicated as we have previously. mat- shall deal with this We in XII. The Law as to Deviations again opinion. point later in this Population ter at a Gerrymandering plaintiffs point the also out that representative of Kent 26th district Popu- A. The Law as to Deviations in any rep- County cast smallest vote of lation election, in 1964 resentative district heading under this We will discuss figure viz., votes, casts 2537 and that this dealing popula- in law with deviations upon accuracy doubt of the estimate they tions out hereinbe- have been set calculating Hughes at Mr. in arrived opinion, in this has fore this and when population of the old dis- 2d election completed, been under the next subhead- representative dis- trict of old 2d ing “B.”, insofar discuss the law we will trict, comprising part of 27th the new gerryman- applies as it to the issue of representative district, by the use dering. ratio heretofore described. method Duffy, opinion in v. In our Sincock point in As was stated at an earlier F.Supp. 169,190, the view we stated opinion, Hughes Mr. knew there geo exceeding 1.5-1 between a ratio not registered were 1079 old 2d voters voting Del graphic units of the State representa- election district of the 2d old great a too not constitute aware would Using, roughly, tive district. ratio stating on a. disparity. In we relied so 4-1, 4,000 he estimated there were sug number of state court decisions and gested though people in the area designated, Yale Law of The examination subsequent testimony he conceded Appen Journal, 1, p. 93 and Vol. No. 4,000 persons estimated him was B, pp. appeal On to the Su dix 101-04. high. perhaps too preme Court, however, Justice- Mr. Chief majority opinion delivering plaintiffs Warren, asserted that a substan- affirming judgment persons inhabiting in Sincock v. tial number of our nom., Base, Sincock, Duffy, Air sub. Roman v. Dover Force which lies representative 695, 710, 1458, 12 L. old 2d U.S. S.Ct. referred (1964), representative to and Ed.2d stated: “Our affirm is now in the 26th district, not do not ance of the decision below is vote. The small number approval of votes cast the 26th meant indicate attempt district for to state in math the 1964 District Court’s constitutionally language plaintiffs’ election bears out the conten- ematical given, scrutiny in de must of course be permissible cial bounds of discretion schemes, according evaluating apportionment viating apportionment state from degree problem as the population. In character as well our view any from a strict uniform deviations such does formula, lend itself to not *76 678, Mann, practicable Davis nor basis.” v. 377 U.S. See and it is neither 1441, (1964). rigid 609 84 12 L.Ed.2d S.Ct. mathematical desirable to establish evaluating for the constitu standards Rey- in also stated Justice Chief legislative appor validity of a tional state 577, supra, at Sims, 84 S.Ct. nolds v. at Equal Pro the tionment scheme under Equal Pro- the mean that “[W]e 1390:. judi Rather, proper tection the Clause. requires make a that State tection Clause whether, approach is ascertain cial to good con- effort to an honest and faith particular exist circumstances leg- under the districts, of its houses struct both legisla ing whose the individual State nearly population islature, equal as issue, apportionment has at there tive is a it is practicable. realize that as is We plan of to a been a adherence faithful legisla- arrange practical impossibility to population-based representation, with an has each one so that tive districts only may such as occur minor deviations citizens, residents, or number of identical recognizing factors that certain or exactness or voters. Mathematical any of arbitrariness free from taint hardly precision constitu- a workable is discrimination.” Justice requirement.” The Chief tional at 580-81, pointed 84 S.Ct. out, id. at language Though employed Mr. justification for 1391, be that there could quoted does above Justice Warren Chief population-based from some deviations suggested explicitly disapprove the not legislatures in representation in state maximum allowable ratio deviation, 1.5-1 as the political “to to insure some voice order suggested our we concludethat subdivisions”, political subdivisions, as eyes ratio did not meet with favor legiti-. may and further State “[A] Supreme our had Court and along mately to construct districts desire to our decision statement been relevant political lines to deter subdivision merely dictum, disapproval and not gerrymandering.” possibilities of might express have been instead well Following implied. the decision of Supreme has Court therefore Roman, Supreme re- v. Court Sincock heavy emphasis upon the factor laid placed liance nonetheless been has apportionment. first rationality Our argument defendants, an'd in oral both therefore, inquiry, the ra must upon brief, upon their of 1.5-1 ratio apportionment tionality the Delaware reliance to be referred to. We deem this judice. plan sub now unwarranted. already course, fact, is, It Many factors, course, out, Latchum, Mc- pointed must be con- that Mr. Mr. Hughes determining plan Ginnes, had to sidered in Mr. West whether Mr. very together apportionment put apportionment plan Delaware of by created for an elapsing quickly. The time between the S.B. 332 336 meets S.B. person, Supreme Roman standard of “one one That vote”. decision of the Court 15, pri- require con- on June 1964 and the deviations careful v. Sincock general mary state- 1964 was sideration is demonstrated elections of Reynolds mind, Sims, ment have in our from v. 377 U.S. short. We this in but gentlemen 1392, opinion 12 L.Ed.2d 84 S.Ct. these the General facing (1964) “[Cjareful judi- Assembly, hard found a task, as follows: necessarily Mr. ratios In to the text of in excess thereof would note cited population-based opinion from it involve deviations Chief Justice Warren’s suggested apportionment too extreme be constitu- stated: “The court below tionally F.Supp., population-variance ratios smaller than sustainable. See presumably comport with at would 190.” 1%-to-l requisites, while constitutional minimal agree, practically however, Table III obliterated. way would be hard it. We solve any perceive E. sound reason for Nor can we of Dr. Malcolm the statement with Wilmington City adhering strictly so Delaware Jewell who testified plan, judgment plan plaintiffs’ In plan boundaries. best his any plaintiffs’ apportionment had district crosses' 4th senatorial State testimony, City Wilmington northeast line to the as of the time of his evolved Brandywine August 5, viz., and includes small area of 1964.127 The members very equitable Assembly re- 122nd of Dela- Hundred but with a General from deserve credit sult.128 ware the rural areas voluntarily depriving
and honor Referring portion of our now to that large very part themselves of a designated Analysis opinion as “X. *77 great they controlling leg- power held in * * * Reapportionment, B. Devia- away giving islation in Delaware and in Representative in tions and Senatorial very large part power of that Wil- to Wilming- City Districts within the mington upstate and not areas. We do ton”, we reiterate the we found that denigrate intend to their efforts. Never- populations difference in between the light plan theless we must view in the the representative largest, district, 5th the Supreme the decisions containing the Court 12,917 persons, and the 8th district, and our own smallest, consciences. the con- taining 11,114 persons, per- to be 1803 plan un- progenitors of the What the sons, the and ratio between them to be scrutiny suit cut the did to der here was 1.16-1. together without of clothes and sew it having any very sound measurements districts, In we to senatorial had to wear man who the stature the popula- found difference in have that the garment. also cut tailors the The four district, tion 3rd between the senatorial garment portions of the and their sewed largest, containing 24,630 persons, S.B. Once collaboration. with but little district, and the 1st senatorial inescapable passed, 332 there were was persons, smallest, containing 23,563 to disparities popu- built-in mathematical persons, be and the ratio between 1067 be avoided lation-wise which could not largest be 1.05-1. and the smallest to inescapa- in 336. Deviations were S.B. Ordinarily these would be considered to Wilmington City long lines ble so as the comparatively disparities and minor be were adhered and the number of sena- to signifi- to be of we would not deem them representatives and tors were divided consequence for fact cant it not were among respective political areas as Wilmington comparatively small that is a by allocated S.B. 332. city, easily divided, geographically, and perceive why We cannot the General Wilmington the additional fact Assembly upon seized 18 as the number figures block census in Lat- were Mr. provided of senators. If 332 had S.B. chum’s hands.129 In addition these to senators; Wilmington, for 9 19 4 for very pertinent ratios circumstances the County, for Rural Castle 3 for Kent New could have been dif- reduced without County, County, and 3 for Sussex ficulty very of 1.01-1 low ratio percentages political power in the plaintiffs’ plan as is demonstrated Assembly General have been as would Wilmington, Table XIV. Wilmington 21.05, follows: Rural New in mind that must be borne It County 47.36, County 15.78, Castle Kent Wilmington are political units within Compare and Sussex 15.78. very clear that the small. Moreover it is percentages cited 3 7 with columns and and senatorial of Table III. It will be observed that the Wilmington, 332 inequalities political as created S.B. power are which regard not unsubstantial as demonstrated laid down without S.B. Jewell, Latchum, 127. 305-06.
128. See Plaintiffs’ Exs. and 49. 48 only magnitudes boundaries, of themselves such historical save Wilmington itself, ? discrimination which have as to constitute invidious
bounds of Mc- no fact that Mr. here other in delineat- bear mind the relevance than We ing Wilmington. block cen- political not unit of did have available Ginnes apportion- figures plan for Wil- and in view ease with which a better sus pro- mington presented provided by 332 had to than that S.B. ment S.B. by splitting census enu- 336 could have been evolved numerous S.B. ceed assuredly districts, employing ratios and is a factor to considered meration estimating light principles quoted in this as described means of other Assuming portion opinion Reynolds opinion. Mr. from this going v. make use Sims to the issue of what was McGinnes entitled practicable ap- ap- making political necessary effect the methods portionments. e., splitting popu- made, portionment deviations i. that he making disparities lation of the ratios enumeration districts census smaller, however, estimates, those the re- much than can conclude we by any regarding achieved, far condemned insofar Rural thus court he sults that gave unit, re- we have been able Cf. to ascertain. as a New Castle Carr, F.Supp. person, Baker and Ba- insofar “one one vote” v. sult of (M.D. Clement, thereby meeting F.Supp. ker practicable, v. *78 Tenn.1965). Reynolds It will that the con- be observed We of v. Sims? standards figures with Tennes- district the Mr. did not con- which clude that McGinnes Three-Judge nearly dealing see representative are as Courts districts struct large compared practicable equal population indeed to those which we was as of therefore, and, us for have before the districts. Delaware circumstances, under the compel duty apportionment While not our it is to the not the does this meet Assembly Reynolds of General to create a Delaware test of v. Sims. plan apportionment, of better it is our portion again Referring of to that plan task to determine the be- whether dealing designated but opinion last our transgresses Equal fore us the Protection Ru- districts the senatorial now with Clause of the Amendment. Fourteenth County, as we stated New Castle ral light foregoing, In the we conclude largest 6th is the senatorial district the Wilmington apportionment plan that the 27,715 population of with an estimated Reynolds to fails meet the test of v. 8th persons the sena- and the smallest is Sims, above, quoted it does not that popu- estimated district with an torial nearly equal construct districts “as of 25,686 persons. The differ- of lation population practicable.” as is persons and found be 2029 ence was to be between the two to ratio respect Castle In to Rural New Assuming again that Mr. Mc- 1.079-1. representative County and sena and its use to make of was entitled Ginnes districts, rele torial we set out the have apportionment employed of method “X.”, “G.”, heading under vant statistics him, he find result we that district, supra. representative 10th The treating achieved, Rural New Castle containing 13,928 largest, is shown as County unit, did effect the re- as not rep persons, smallest, and the the 20th person, of “one vote” insofar as sult one containing 12,741 district, resentative practicable. creating persons, of a difference according (Exhibit persons, to 8- “Exhibit respect In be to deviations S-l)”, populations and the difference of representative dis and senatorial tween of 1.09-1. was shown to be at a ratio respectively Wilmington in- tricts vis-á comparable in size While these ratios are representative vis and senatorial districts preceding to those ratios described County, in Rural New we refer Castle Wilmington paragraph in again portion to the in that to statistics districts, representative designated. previously opinion We senatorial our representative found the district should we these smallest find deviations to mington, Wilmington, pro- we cannot consider it with an esti- to be the 8th in nearly equality population an 11,114 persons, population vides mated practicable. largest representa- isas be the 10th to tive district in Rural New Castle Coun- background The statistical material 13,- ty population with an estimated over-representation problem the persons. The difference is 2814 Wilmington City in relation persons. The ratio between the two dis- County Rural has set New been Castle tricts we foünd to be 1.25-1. The state- headings “XI.”, “X.”, out under “G." representative norm wide for the dis- again to column of “C”. We also refer 12,751 persons. is tricts difference Tables I and II. Under the census between the state-wide norm and the 8th is Rural New entitled Castle persons, district is -1637 representatives 16.59 8.5 senators and the difference between statewide Wilmington only is while entitled 7.51 norm and the district 10th representatives and 3.86 senators on the persons. percentage is +1177 regard census, basis the 1960 without repre- deviation the case of the 8th 38,000 persons in- have moved who sentative is from district -12.84% to Rural New Castle since that norm, repre- and in case of the 10th according to McGinnes’ census Mr. affi- sentative from +9.23% clearly appears from the davit.130 It norm. These are deviations not insub- foregoing that Rural Castle Coun- New stantial under the circumstances of ty dis- has been victim of invidious question case. The which confronts crimination. If we add to is, they sufficiently large us are to break County, of by Castle as shown Rural New person, the standard “one one vote”? people census, 38,000 the 1960 who they opinion We are of the too have ty Rural Castle Coun- moved into New large and do not conform to the stand- clearly demon- since that census it is *79 person, ard of “one vote” one insofar Wilming- of that inhabitants strated ton, practicable. as is advantage unit, as a have a 30+% over the inhabitants Rural New Castle of districts, As to senatorial we found County, Conversely ap- as a unit. largest that the was the 6th senatorial portionments repre- have decreased the County, district in Rural New Castle sentation of the inhabitants of Rural population 27,715 with an estimated of treating County, Castle them New as persons, and the in smallest was the 1st unit, by about Wilmington 18'%. population 23,563 awith of persons, advantage given The difference to the inhabitants was 4152 persons. Wilmington The ratio here of can in another was found to be be stated rep- 1.17-1. The state-wide norm for manner. We have found that the 8 sena- 24,794 persons. Wilmington torial repre- districts is of each The resentatives 11,978 difference persons, between the state-wide norm a mean or norm of sent according and the 38,- 6th senatorial district in to If Rural Table VIII. we add County New persons, Castle population is persons to of Rural +2921 County difference between the state-wide New as shown the 1960 Castle census, norm and population approxi- 1st senatorial is district the total is persons. 250,000 -1231 mately persons. The 1st senatorial dis- of Bach Wilmington contiguous trict in representatives is in New elected Rural portion runs County represents with a the- of southern Castle about therefore boundary 15,625 persons, representa- 6th senatorial whereas each County. in Wilmington represents Rural New Castle This is too tive elected in high and, imposing 11,978 ratio persons. even the stric- about The difference observing ture representa- the boundaries of Wil- demonstrates an in increase 130. See again page the statements from the McGinnes’ affidavit referred to on 5 of this opinion finding. and our per in tion elected The in each difference between the County 3,647 per- 28th Rural New and 29th Castle advantage 2,859 persons sons. of an inhabitant was found to be and the Wilmington Rural ratio over inhabitant of was determined to be an 1.25-1. An is, course, presented. issue of New Castle is thus demonstrated law 30+%, approximately to be as we stated. Are these deviations such con- as to be fortiori,
A
all the more mani-
stitutionally
it
impermissible
becomes
within the
County has
fest
New
that Rural
Castle
Reynolds
are,
They
rule of
v. Sims?
subject
been the
invidious discrimina-
course, substantially
smaller
than
tion.
any deviation which has been held uncon-
any
respect to stitutional
presented
decided case
that we
The situation
County vis-a-vis Wil-
Rural New Castle
have been able to discover.
mington
directly opposite to that
is
Hughes
pointed out
Mr.
We have
Three-Judge Court
which was before the
Latchum,
faced,
Mr. Mc-
Mr.
was
F.Supp. 629
Carr, 247
in Baker v.
necessity
West,
Ginnes and Mr.
with
(M.D.Tenn.1965).
One
the stated
apportion-
very
preparing
quickly
an
Reapportion-
purposes of the Tennessee
period
plan
available
ment
in the short
Act,131
equalize in one
“to
was
ment
general
prior
primary
elections
representa-
any inequalities
house
Hughes
if the
1964. Mr.
testified
neces-
found to
tion of certain areas
be em-
election districts were not to
old
No
sary
Id. at 633.
house.”
the other
creating
re-
ployed
to in
and adhered
purpose appears
an exami-
equalizing
on
registration
apportionment,
would
a new
332 and
of S.B.
S.B.
nation
necessary
was insuf-
and there
been
have
representation,
Respecting senatorial
registration.
a new
time to effect
ficient
be divided
if
8 senators
find that
we
holding
enjoin
We refused to
popula
a Rural New Castle
into
Roman, 233
1964 elections. Sincock v.
representa
250,000 persons, the
tion
F.Supp.
(1964).
stated
We
senator,
per
31,250persons
where
is
tion
necessary
opinion
ex-
that it
cited
Wilmington
continues
each
senator
apportionment of Dela-
entire
amine the
dif
23,957
persons.
represent
336 before
and S.B.
ware under S.B. 332
again re
7,293 persons, which
ference
any
could be reached
conclusions
definite
advantage
*80
in
the
in a
sults
30+%
constitutionality
appor-
as to the
Wilmington
inhab
the
over
habitants
populations
disparity in
The
tionment.
County.132
Rural New Castle
itants
representative
Kent
within
in
districts
too
disparities demonstrated
The
intra-county
highest
County
in the
is the
that
acceptable.
conclude
large
We
to be
perti-
Upon
of all
consideration
State.
constitutionally impermissible.
they are
factors, including
circumstances
nent
the
certainly
in
pressure
statistical
the
time is
not
that the
dealt with
We
great
in sena
and S.B.
respecting deviations
as
now when
as
S.B.
formation
in Kent
in-
representative districts
units
336 were enacted and that the
and
torial
“X.”,
indeed,
heading
County
“E.”
County
volved in Kent
are small
the
under
largest
the
the
we are forced to the conclusion that
opinion.
that
We found
this
County,
disparity
large
representational
to
in Kent
is too
representative district
14,209
County reap-
permissible.
be
The
contain
28th,
to
Kent
estimated
was
the
portionment
smallest,
29th,
respects
the
the
indicated
persons,
the
and that
11,350 persons.
practicability.
does not meet the test of
contain
to
was deemed
course,
percentages,
Chapter
the
Extraordi-
remain
No.
The
1965 Public
Assembly),
(84th
nary
same.
General
Session
10, signed
the Governor
Bill No.
Senate
28,1965.
May
on
largest
respect
and
districts in
district
the smallest district
In
to senatorial
2,831persons.
County,
previously, was found to be
The ratio
Kent
as we stated
Assuming
populations of
dis- was found to be 1.12-1.
that
where
senatorial
the
employ
apportionment
dispute
employed
de-
are in
~we
method
tricts
figures. According
permissible,
de- Mr.
West was
we conclude
fendants’
signifi-
largest
figures,
fendants’
senatorial
that
deviation is
this
of sufficient
district
which cance and size to raise a constitutional
the 15th
Kent
23,-
population
is asserted to have a
issue.
13th,
persons,
and
smallest
is the
repre-
disparities in
to state-wide
As
which, according
figures
districts,
senatorial
and
sentative
stipulation,
20,743
has
un-
background
found
will be
statistical
persons. The difference
found to
was
opin-
“X.”,
heading
of this
“G.”
der
3,160 persons.
population-
be
The ratio
largest
repre-
found
ion. We
wise between the two senatorial districts
be the
in the State
district
sentative
was determined to be 1.15-1. Assum-
having
County,
estimated
Kent
28th of
ing
apportionment
the method of
14,209 persons. The
population of
employed by
Hughes
per-
Mr.
to be a
was
representative
smallest
bearing
missible one and
in mind that
County,
in Sussex
be the 34th
found to
dealing
we are
larger
here with the
11,017 per-
found to contain
which was
units of senatorial districts and not with
figures
accord-
are in
cited
sons.
representative districts, we find this de-
195 and
ance with Documents
viation
consequential
signifi-
be
figures
Table
set
with the area
out
cant and conclude
it
is of a suffi-
populations was
difference in
VI. The
degree
cient
or size to fall within the
rep-
3,192 persons. The 8th
found
be
prohibition.
constitutional
Wilmington, found
resentative district
Stipulation
11,114 persons,
to contain
represen
As to
deviations
34th
is almost as small
Ex.
Assembly
tativeness of the
Dis
General
representative
The ratio be-
district.
County,
tricts in Sussex
the statistical da
largest
repre-
the smallest
tween the
heading “X.”,
ta is set out under the
“F.”
State, the 34th
districts
sentative
largest
opinion.
representa
of this
be
28th,
was determined to
32nd,
tive district was shown to
previously under the
As stated
1.289-1.
containing 13,458persons, and the small
designated
beginning
heading
at the
containing
per
34th,
11,017
est was the
paragraph, an examination Docu-
figures
stipulated
sons. The
coincide with
195, map
174 and
ments
exhibits
those set
out
our Table XI. The dif
pop-
the tables will demonstrate
persons.
ference was 2441
The ratio
ulations of several other
between the two
districts
throughout
State
are almost
was determined to be 1.22-1. We find
equally out of balance.
that a ratio of 1.25-1 in Kent
impermissible, and
ratio here is but
*81
In
to senatorial dis
legal
less.
.03
Our
conclusion is the same
larg
statewide,
tricts
found the
we
respect
disparate rep
it was
as
in
to the
est
senatorial district
in the State
County.
resentative districts in Kent
to be the 6th in Rural
Castle
New
population
has
which
a
ac
larg-
districts,
As to
senatorial
the
the
cording
27,-
to
1960
the
census of
County,
est senatorial
in
district
Sussex
persons,
715
and the smallest senatorial
appears
stipulation
as
from the
and Table
County,
district
to be the
in
13th Kent
IX, was found to be
16th
the
with a
population
20,743 persons.
which has a
population
25,517 persons,
and the
figures
stipulated
These
and also
to
18th,
smallest
found to
be the
esti-
are in accord with Table
dif
VII. The
22,686 persons,
mated to contain
accord-
populations
6,972 persons.
ference in
is
ing
stipulation
ahd Table IX. The
largest
The ratio between the
and the
population
in
difference
between the
smallest senatorial districts was found to
828
heading
representative
prepared
sena-
the
and
the
1.33-1. As we said under
be
respective political
designated
“X.”
differ-
districts
“G.” while
a
torial
as
Moreover,
numerically
the
fails
persons
divisions.
record
to
is
the
ence of 6.972
Assembly
any
largest
any
coordination
demonstrate
studied
created in
General
populations
the
therein
the
districts
in
the ratio
the State
Assembly.
highest
General
While we are aware
ratio,
1.33-1 is
an examina-
the
presumption
stipulation
of constitutional va-
exhibits
tion
and the
lidity
every legislative
that
en-
attends
al-
will show several senatorial districts
actment,
compelled
equally lacking
parity
we are
adhere to
to
most
in
and these
apportionment
supply
fairly
our conclusion
the
that
last
will
that
ratios
close to
Delaware,
as created
332 and S.B.
stated.
S.B.
336, fails to meet the constitutional
test
Taking
the state-
consideration
into
in that
statutes
these
do
adhere
not
to
pop-
disparate
showing
respect to
in
wide
principle
person,
the
of “one
one vote”
sena-
in both
ulations
practicable
required
insofar
as
considering
all
torial districts
Reynolds v. Sims.
speed
including
circumstances,
the
subject
disparities
whole
The
plan for
reapportionment
with which the
present
apportionment
Delaware
in
together,
put
none-
to be
Delaware had
by quoting
up
lan
be
can
summed
compelled
conclu-
we are
theless
guage
in
Warren
of Mr. Chief Justice
point-
disparities
the state-wide
sion that
710,
supra,
Sineock,
at
U.S.
Roman
377
v.
constitutionally
impermissi-
out are
ed
judicial
proper
at 1458: “[T]he
84 S.Ct.
if
is true that
we contrast
ble.
It
whether,
approach
under
is to ascertain
ap-
present
in
Delaware
deviations
existing in
particular
circumstances
portionment
set
States
with those
ap
legislative
individual
whose
State
Appendix
opinion of
“B” to
out
issue,
portionment
has been
at
there
is
Carr, su-
District
Court
Baker v.
popula
plan
faithful
adherence
642,
pra,
F.Supp.
Delaware
247
at
representation,
such mi
with
tion-based
small,
disparities
it must
seem
but
only
may
occur
re
nor deviations
borne mind that
the entire
cognizing
are free
certain factors
many
hardly equals
of Delaware
those
any
or dis
of arbitrariness
from
taint
federal
districts
pro
reapportionment
The
crimination.”
mass
second
the Delaware land
is the
not
does
336
S.B.
vided
S.B.
being
smallest
the States
but
quoted above.
meet
test
Evaluating
square miles.
Delaware
totality
apportionment
cannot
in its
we
Gerrymandering
Law as
B.
been
avoid the conclusion that
has
there
law
now consider
must
compliance
Equal
We
an insufficient
with the
including
gerrymandering,
Lucas
For-
Protection Clause.
v. General
ger
e.,
race,
gerrymandering
i.
Colorado,
on
based
ty-Fourth Assembly of
State
the Su
rymandering
1459,
as was before
713, 735,
such
U.S.
n.
84 S.Ct.
Lightfoot,
preme
in Gomillion v.
(1964).
reap-
Court
of General
out above under
nent
facts are set
only
considering
populations,
not
them
heading,
Relating
Facts
to the Is
“XI.
*82
they
as
upon
basis but also
Gerrymandering.
a state-wide
of
A. As
sues
Wilmington”.
City
political sub
the conten
the individual
It
is
within
exist
State,
plaintiffs,
have
we reiterate
of the
and we
stated
tion
divisions
particularly
of ef
more
under
coordination
that contention
but
little
there
heading
to,
Mr.
creating
reapportionment
last
referred
fort
gentlemen
and did
by
who Latchum endeavored to create
four
Delaware
legal
disharmony
Negro
in from
predominantly
its
with the
order.
a
create
Any system
apportionment may
representative dis-
Wilmington,
3rd
systems,
gerrymandered, although
trict,
representation of
some
and that the
minority thereby
apportionment
Negro
pro-
been such as the free
racial
has
portional representation,
are more dif-
limited to but one
out
gerrymander
eight
by
332 Wil-
ficult to
others.
allocated
S.B.
to
than
the
mington, though Negroes
more
constitute
gerrymander
commonly
“The
most
ob-
population.
than
But
total
25%
politics
served in American
ably
understand-
according
out,
pointed
as we
to
prevailing system ap-
affects the
Wilmington
election, the voters
elected
portionment by
survey.
territorial
In
Negro
perfect
per-
one
senator, a
result
Carolina,
example,
North
one finds
centage-wise,
representatives,
and two
long
strips
certain
up
bacon-like
that slice
perfect
percentage-wise.
an almost
result
Republican
pieces
vote into
man-
abundantly
It is
clear to us that there
ageable by the dominant
A
Democrats.
gerrymandering.
was no racial
We con-
gerrymander may
territorial
violate the
Supreme
clude
decision of the
stipulated
popula-
condition that district
Wright Rockefeller,
Court in
52,
v.
376 U.S.
equal
tions be
or that district boundaries
(1964),
84 S.Ct.
accepted perfectly population-wise and it be traditional balanced here, equal emphasize can dis- an and be number of in is well to inhabitants each gener- general tinguished assembly yet readily from the more set district be so values, up arranged struggle geographically or to achieve social al that the apportionment majority party process greatly could or which the reduce minority represen- part.”133 party even obliterate forms tation. least at there are point out that We Though plaintiffs the to have referred legal prob- answers two conceivable opinions decisions or as of lower courts might lie posed. One answer lem here ger supporting theory political the that malapportion- holding where in that rymandering cognizable, is the fact is gerrymandering the from results ment opinion no lower that or decision court would vote” person, one of “one principle supports their contentions with the ex prohibit mal- the would applicable and be ception opinions in dicta our in gerry- resulting from the apportionment Duffy, supra, F.Supp. Sincock v. 215 at reality mandering. in This answer 188-89, supra, and Roman, Sincock v. malapportionment. Another on based F.Supp. 233 at 620.134 Nonetheless we politi- purely holding that in lies answer will review the lower courts’ decisions. distinguished gerrymandering, cal race, gain support plaintiffs no can gerrymandering on based from Supreme regard Court malapportionment, from the decision to without Bloom, Pennsylvania Four- in Butcher v. the interdiction falls within 438, example 467-68, 556, 573 203 A.2d will 415 An Pa. Amendment. teenth (1964).135 in just In more decision recent clarify written: we have what gen- Supreme every cited, the Court the case last where is conceivable situation Pennsylvania reapportioned itself Penn- assembly could in a state eral Assembly. Representative of the General We shall not “Apportionment and 133. analyze pre- attempt Grazia, to the evidence Government”, 66-67, now de Alfred opinion.” York, on Praeger, sented this issue in this New A. Frederick Niederhauser, 1545-46. also See quote opinion plaintiffs from Duffy, opinion 215 Bloom, in Sincock v. 134. In our in v. Pa. 467- Butcher 415 F.Supp. 169, (1963), (1964) “As 188 we stated: 203 A.2d 573 in which Pennsylvania Supreme to to 2 additional senators allotted Court stated: superimposed court, agree and Sussex Counties Kent on would with the district “We districts, viz., existing any however,, Dis senatorial in the absence of rea- justification (historical in Sussex Coun 6 and Kent and or other- tricts sonable ties, wise), districting might in Kent and Sussex so that voters re- such partisan gerrymandering will while ad- Counties elect two senators sult of for vantage and, event, will con of New would be ar- (cid:127)voters Castle senator, bitrary capricious.” tinue to vote for but one gerrymander involve a hidden The reference is to decision of the seems to Three-Judge if the cannot be countenanced and District Court Drew v. (M.D.Pa. Scranton, F.Supp. 310, reapportionment the 1963 created Judge requirements 1964), Maris, Amendment met re- wherein Circuit Equal spects, ferring disparate other re Protection Clause in all to treatment accord- not, quite homogeneous though adjoining it does this feature ed three any Pennsylvania, alone, Berks, absence of substantial counties er Lancast- require possibility severability, York, us would stated: “In the absence any history adjudge legislative explana- the whole Amendment uncon or other justifying it, none, tion we stitutional.” have found Roman, opinion only districting can In our Sincock v. we conclude that this F.Supp. 615, (1964), gerrymandering “As we stated: is either the result plain partisan gerrymandering, advantage, suggested issue of at support hearing, wholly arbitrary have offered evidence in or that it is tiffs charge capricious.” Judge while defendants vehe But Maris’ their mently deny any state- gerrymander ment political gerrymandering protected intent to on does not sanction the doctrine that Assembly right part of the General and that offends a any apportionment new will result the Constitution of the the unfairness, partisan Unit- any otherwise, ed States. political party in election of members
831
erwise,
constituency ap-
opinion,
sylvania
per
420 Pa.
in a
curiam
multi-member
portionment scheme,
(1966).
305,
under the circum-
A.2d 457
Mr. Justice
216
particular case,
op-
stating
dissented,
stances of
as his view
would
Musmanno
representa-
minimize or
erate to
cancel out the vot-
both
to
and
that
senatorial
ing strength
political
Supreme
Penn-
or
of racial
ele-
Court
districts
tive
sylvania
voting population.
gerrymandered
ments of the
had
When
itself
Assembly
is
Pennsylvania
this
demonstrated it will
time
districts
be
General
enough
gerry-
system
to consider whether the
the conclusion that
reached
passes
mandering
constitutionally prohibit-
still
constitutional
This
was
muster.
Eagen
question, however,
presented by
not
at 465-69.
ed.
Id.
Mr. Justice
ground
Supreme
the record before
upon
that the
us.” The
also dissented
ger-
Pennsylvania
Court in
Supreme
dealing,
the cited case
Court of
had
was
stated
rymandered
Brennan,
Mr.
Justice
the senatorial
“a
with
constituency.”
multi-member
and he concluded
this
State
also
constitutionally prohibited.
course was
WMCA,
But in
Inc. v.
238
Lomenzo,
F.
Supp. 916,
(S.D.N.Y.1965),
925
We reiterate
we can find no de-
Three-Judge
ruling
Court,
upon
clearly
New
cision of the lower courts which
apportionment
York
statutes,
supports
plaintiffs’ position
stated:
in re-
“Plaintiffs, supported by
Nassau
spect
political gerrymandering,
purely
City,
New
great
York
claim with
ve-
it,
as we have described
and none has
hemence that Plan A violates the XIV
been
cited
us.
Amendment of the United States Consti-
We turn now to
consideration
tution, because
allegedly
it
gerryman-
opinions
Supreme
Court of
ders the
partisan
state for
political ad-
Representation strictly
United States.
vantage.
according
population
compara
is a
“At
hearing
the start of the
on Janu-
tively
concept.
new
Baker
Before
v.
ary 21, 1965, we ruled that these attacks
Carr,
186,
691,
369 U.S.
82
L.Ed.
S.Ct.
7
questions
‘do not raise
under the Federal
(1962),
2d 663
political
effectiveness
Constitution,
consequently
we re-
of an individual’s vote was considered to
quest
you
you
your
devote none of
beyond
scope
be
protection.
of constitutional
addressing
time in
us with reference
g.,
See, e. Mr. Justice Frank
”
thereto.’
Carr, supra,
furter’s
dissent Baker v.
301,
Following
Three-Judge
at
82
at
S.Ct.
Baker
The decision of the
Court
Supreme
v. Carr the
per
Court enunciated the
in the cited case was affirmed
curiam
rule of
person,
“one
Supreme Court,
one vote” Wesber
4,
382 U.S.
86
ry
1,
526, 11
v. Sanders, 376
24,15
U.S. 84
(1965),
S.Ct.
S.Ct.
L.Ed.2d 2
con-
with a
(1964). Reynolds Sims,
L.Ed.2d 481
curring
In
opinion
Harlan,
v.
Mr. Justice
supra,
565,
1383,
137. Document at 7. political speci- they areas five as concerned.138The and Senatorial Districts maps in note ‘heretofore’ existed. on set out fied clearly recognizable prob- present no regard “With to the Sussex identification, as we lem of soon but map, Depart- it was determined that Wilmington City of leave the Rural ment of Elections had heretofore had New Castle and enter Kent significant map devia- contained which we encounter difficulties as will Sussex present tion in between the boundaries appear hereinafter. Representative 34th and 35th Districts. “They provides that Document 174 also map This deviation continued stipulate parties] further [the 1, 1965, May prepared dated Messrs. Departments of maps prepared for the Burton, significance Simpson and had no Counties of Kent and Sussex Elections regard has been with on represent conscientious efforts they prepared map which corrected in the Departments part of Elections which is dated June accurately present as those Counties to stipulated “It that after is further single county map the possible aon corrections, Representative Dis these *87 in accordance with District boundaries maps cor trict respond on boundaries these lines Representative and Senatorial used in con to the boundaries by Departments last employed ducting Elections five the last General these of Elections. Several five General corresponding Districts.” Election Representative and Election Districts >140 139 by map or written are defined Districts County respect maps In to the of Kent only description of bound- in terms County purporting and show Sussex to ‘Hundreds’ of the traditional aries many representative in- In dis- of these counties. both and senatorial unambiguous descriptions stances, of if tricts it will aid the reader we think exist; impos- and it is repeat part not hundreds do we under what we stated County the heading Turning descrip- determine Sussex sible to “I.” to boundary markers exact location tions of the districts out set Sections Representa- comprise 641, 642, 336, which and lines 651 and we 652 of S.B. 11, map lOg “Map Stipulation”, representa- Ex. 138. See shows the 21st and 22nd representative Wilmington, showing dis- of dis- tive districts and the senatorial 11th tricts, Wilmington. trict. map 12, “Map Stipulation”, representa- of Wil- Ex. lOh shows the 23rd and 24th showing districts, mington, Wil- senatorial districts and the dis- tive 12th senatorial mington. trict. through “Map Stipulation”, 38, supra. Compare Ex. 10a note (8 maps), lOh, New inclusive Castle “Map Stipulation”, 14, map 139. of Ex. County, showing representative and sena- showing County, Kent districts. senatorial districts, as follows: torial “Map Stipulation”, map Ex. of Kent representa- 10th shows the 9th and 10a County, representative showing districts. senatorial dis- tive districts and the 5th “Map Stipulation”, 9, map of Ex. Sussex trict. County, showing represent- senatorial and representa- 12th 10b shows the 11th and (single map). ative districts the 6th senatorial dis- tive districts and maps Wilmington The and New trict. County populations per Castle show the representa- 14th shows the 13th and 10c representative district and senatorial dis- dis- tive districts and the 7th senatorial trict, as demonstrated the records of trict. Department of New Elections Cas- representa- shows the 15th and 16th lOd County tle and as shown in office of districts and senatorial tive the 8th dis- Prothonotary. maps The of Kent and trict. population Sussex do Counties not show representa- shows the 17th and 18th lOe figures. parties This is because the districts and the senatorial dis- tive 9th stipulate unable to as to the trict. figures in some districts. representa- lOf shows the 19th and 20th 38, supra. note See dis- and 10th senatorial tive districts at Document 7-8. trict. authority districts election specific divide to frequent use of find the greater voters number contain a representative which language district conveniently dis- in such comprise” can than vote “shall or a senatorial say goes existing on to trict.” The brochure “heretofore certain gives “[FJollowing the bound- list representative districts constituted” respect districts designated. aries the various election County In Kent February 1,1958.” “New First typical comes (a) County, Section Kent County Wilmington”. Next Representa- Castle “Twenty-fifth provides, — commencing County Kent at comes twenty-fifth Repre- The tive District: Coun- Sussex the brochure followed comprise all of District shall sentative ty commencing at The references existing and constituted the heretofore course, are, of to old districts election First, Representative Fourth Third and old and senatorial County.” This formu- Districts Kent districts. again again through- repeated la is respect representa- out Section 641 Departments of Elections of Kent County, tive and in districts in Kent Sec- Counties, pursuant and Sussex to the au respect tion 651 in to the thority of Section 4103 of Title 15 County. districts in Sussex The sena- Annotated, present Code Delaware have torial districts Sus- Kent proceeded to recast some the election County, sex respectively as created in Kent and Counties. Sussex composed Sections 642 and brief, plaintiffs, post-trial on their existing “the heretofore and constituted” maps state: re “With representative districts of Kent and Sus- quired prepared respective sex except respectively, where *88 departments maps elections, been of have 642(b), smaller units are used. Section prepared Wilmington, City of for the creating the 14th senatorial district in County County, New Castle Kent and County typical County Kent is of Kent County. respect Sussex With to Sussex creation follows, and is as “Fourteenth County, of several the election districts Senatorial District: The Fourteenth Sen- representative and districts are defined atorial District comprise shall all of the only in of terms of the boundaries existing heretofore and constituted Fifth im traditional ‘hundreds’ and it has been and Representative Seventh of Districts possible County to Sussex determine in County Kent and all of the heretofore boundaries, the exact of location existing and constituted Second Election comprise markers and lines which of District Representative the Second representative and senatorial districts as District of County.” Kent The formula they ‘heretofore existed’.”142 in County Sussex rep- for the creation of parties stipulated respect The in to resentative and senatorial is districts County Department Sussex that while the same. County heretofore Elections of Sussex Court’s Ex. 16 is the brochure entitled Simpson map prepared by had a Messrs. Boundaries”, “Delaware Election District registered May Burton, surveyors, and on Killen, issued Mr. Ernest E. who was 1, 1961,143 significant which contains a the Commissioner of Elections in 1958. deviation in 34th boundaries between the designated It is “Appendix”, as an at districts, representative and 35th this 233 entitled: “Election District Bound- regard significance deviation had no with authority aries” and it states that “Under population to and was corrected in 15, 4103, Code,I141* § Title Delaware map Simpson Burton which Messrs. and Department granted each of Elections is prepared, 29, But dated June 1965.144 post-trial present 141. 142. Plaintiffs’ brief at 7-8. Delaware Code Annotated Assembly was enacted the General and 189. Document approved by was on the Governor Febru- map 144. This that is referred to in note “ ary 12, Page V, 38, supra, ‘Map 9, Stipulation’, Publisher’s Pref- Ex. as Map County.” ace. Sussex 836 641, and districts Sections 651 642, the old election and to 652 of in S.B. 336, and and representative Kent districts of boundaries of several hun- old' candidly stipulation dreds Counties, were described ancient land- Sussex marks, describing dis- Court’s 16 election of these that several Ex. election states districts, vague de- now representative districts non-existent as so tricts and presently to be description” unascertainable, “by map it or written that fined perhaps followed many “hun- that only in terms boundaries Gen- 1953, Assembly eral they districts in dreds”, seemingly existed in and as Kent Sus- sex unambiguous Counties were counties, described and that so indefi- in these nitely as to apportionment render their hundreds descriptions some constitutionally County invalid. not do See Sussex Jordan v. and Kent George, De 223, 341 U.S. therefore, in- 703, 71 that, in some S.Ct. exist, and L.Ed. 886 (1951), Adler impossible determine v. Board of Edu- it stances was City cation of the boundary of New markers York, 342 U.S. exact location 485, 380, 72 S.Ct. (1952), L.Ed. 517 lines some and American they existed”. Communications Associa- “heretofore
districts tion, Douds, CIO v. differ- U.S. Despite stipulation 70 S. Ct. (1950). L.Ed. 925 34th between the ence in Sussex districts 35th Having possible imperfections these minimal, be we find to which mind, record in on December 20 and vague finding correct, render cannot our 21, 1965, point as stated at an earlier vague and indefinite. lines less opinion, the court had a further hear- ing respecting maps required by Sec- re- mind borne It must tion 661 of S.B. 336, and numerous wit- no Counties Sussex Kent spect nesses who had previously testified were enumeration census made was use recalled. Additional witnesses this, given for reason tracts. heard and additional put exhibits were created apportionment support of record, appears from the tran- was there was S.B. S.B. script.145 rearrange elec- time insufficient enu- according to census Dr. C. Harold Brown recalled tion *89 the short of the in view stand and testified he that had made districts meration oncoming primary elec- copies maps available to Mr. McGinnes of the period before 1964. of general populations election and actual counts of as and the shown tion elec- to the stipulation in census enumeration of districts the But the representative districts par- State of Delaware. He and testified in districts tion and, Counties, there- representative ticular Sussex that old dis- Kent and districts necessarily, fore, were the senatorial tricts treated the United States ambig- vague and was of Bureau Counties the Census minor civil di- of these as study Following record a visions and that uous. no census enumeration presented question boundary a 1965 November crossed the boundaries con- representative as to court whether of old itself to districts. made He stipulation such as to were prepared it clear a tents that he himself had set statutory prima pre- facie maps showing overcome the census enumeration maps of and sumption Kent Sus- that district boundaries in each of the three pursuant to Section given filed Counties sex counties and had Mr. Mc- these to McGinnes, was of Ginnes.146 The court Mr. recalled were valid. when 661 witness, geographic a bound- as testified that he had turned opinion since the maps Raymond Assembly dis- over Mr. and West General of certain aries Hartnett, to Mr. Maurice member of the a Sussex Counties Kent and tricts in Delaware, existing” Bar of has not been iden- who as “heretofore described Brown, hearing transcript December 145. See 2224-2551, 192, 1965, 20-21, Document exhibits. and to witnesses index and
837 adequately record. Further and South tified on this Murderkill Hundred.150 It unnecessary, however, as identification is should be borne in mind as will be seen showing map appear A from the will hereinafter. Constitution of the State II, census enumeration districts Delaware of Sus- Article Section County into evidence. sex was admitted Const.Del.C.Ann. Vol. the Hun showing County Maps played large part ap the Kent census dreds a in the portionment. and enumeration the Sussex districts The same is true of County prior enumeration districts were census Constitutions of Delaware the original provisions in the admitted at the trial for the sake of which brevity case.147 introduced There was also we will not cite here. The pertinent por- difficulty photographs locating evidence census enumer year tracts, representative tions of a ation Beer’s Atlas old districts reproduction photographic districts, and a small and old hence senatorial and large Hundreds, map exemplified by Coun- a which Kent was was well Mr. ty surveyor’s Brown office.148 when he “I I stated: think do Representative know that the former registered Brown, Mr. C. C. land sur- Districts, Senatorial County, Hundreds Kent veyor Stipulation prepared Exs. who up have been least set of at County,149 14, Maps for Kent tes- ago years knowledge, from common generally tified dis- that he was able my knowledge from of research of deeds Assembly cern the General though many County in the Kent I Court House know confronted difficulties County that Kent been has laid out in attempted him when he to ascertain these Hundreds the Revolu since before old district boundaries. tion. Some of the Hundreds have been Beer’s It will be observed years.” subdivided in later The court family maps Atlas with are studded judicial takes notice these facts. farms, indicating names houses candidly Hughes, Mr. admitted which Brown Mr. L. recalled as Winfred running repre- witness, made the out of old he was with testified that very Department He sentative district difficult. lines in Kent of Elections eight years testified in substance that nonetheless time for that within that impossible an one while task was not familiar with became county; he un- there were some which was areas of that and the election districts complete Department able to definite- ascertain with for Elections that many example, map point, giving years map ness. We had had a being description designated boundary “K-18” the election dis of all lines Hundred, in South Murderkill Court’s been used tricts and which had anciently Department Ex. which “Mur- of Kent of Elections knowledge, and, derkill Hundred” at some date had never to the witness’ *90 appear dispute. from which does not the rec- in “In set He testified: been ting Districts, any your up ord from source which if there other Election ascertain, anyone they we have was where been able to who know is wants to they divided into Hundred North Murderkill live and in what Election District testimony 2272, seq. 147. admitted 2248. of Defendants’ Ex. 14 at 148. Brown et 18, “Geographic Brown, registered surveyor, See also Defendants’ Ex. 0. land O. the Scheme, Delaware, Identification should Code not be with that of Dr. confused just upon District of Columbia”. In the record O. Harold Brown the stand who took prior Duffy, hearing which our decision in Sincock v. to G. O. Brown at the of F.Supp. (1963), based, 20, map 215 was 169 a December 1965. See Exs. 45 Court’s showing County the Kent enumeration and dis- 46. 5”, tricts was introduced as “CX a and 38, supra. 149. See note map County showing the Sussex enumera- tion districts was introduced as “CX 6” Brown, 150. and, course, presently of available Brown, here. 2281-82. 838 original map, has by and it that that himself drew determine it testified the he many years.”152 He maps Assembly in for the
been use for dis new General County and, Kent he the stated that when created tricts in examin Kent after map County apportionment ing Stipulation again, used the he Exs. 13 and he combining agreed exactly maps election dis referred to in stated in that the by dis map tricts to form the to new “lines” used with the County Department informa tricts he received his the and that Kent of Elections published many years.155 population Hughes’ tion as to for from Mr. testi pamphlet mony Stipulation United Bureau States is Exs. well tied in to Hughes 14, shown Census.153 then Mr. was 13 and we find his and statements maps County, Stipulation of Kent to be correct. 14, state Exs. 13 and to was asked Registered Surveyor sub- Brown was inspection whether he could tell from an jected searching to a cross-examination of these new Gen exhibits whether the County as to the re- Kent districts in Assembly in eral districts S.B. embodied spect to Kent the election districts maps, formed as shown were County susceptible of which not by combining old districts. election precise He that definition. indicated objec objected question was description of “K-3A” on Ex. Court's Hughes tion Mr. was was sustained. the brochure Election entitled “Delaware then the court asked if he could inform Boundaries,” District Com- issued populations of the as to what were the Killen, missioner Elections not was Assembly on districts as shown General clear and “a that there was variance Stipulation He Exs. 13 and 14. said descrip- fewa hundred feet”. As to the figures he his that could do so that tion of “K-10” Mr. Brown indicated that census. were derived from where Court’s Ex. referred Using representative dis 25th new typo- “State House” there was a example, he that this trict as an testified graphical error and it should be “Sta- complete old district consisted of three he tion House”.156 As to “K-16” which districts was doubt as to the lo- exact given total cality very Branch”, Dam a “Beaver census, though necessarily made had he part boundary; small and that the populations other estimates descriptions “K-18” and “K-19” previously in this districts as indicated except Court’s Ex. clear 16 were opinion. He said substance lane between the lands of Cole and Amos geo necessary all he could ascertain Benjamin again very Harrington, graphical new Gen boundaries portion boundary.157 small of a Assembly examin eral Hughes ing map Mr. in the office On redirect examination County. Department of the areas Kent examined as to certain Elections of was exactly map ascertained. Kent election could not A of the old which testimony Stipula- court, produced his Defend He reiterated districts was possessed, Hughes the best Exs. 13 Ex. Mr. testified tion ants’ geographi- knowledge, precise of his this exhibit was identical with map “hanging on on the used map possession cal lines as of and those County Department Elec- Department Kent of Elections wall” of the Hughes years. many He examined Mr. tions Kent in Dover.154 *91 (1963), Duffy, F.Supp. seq. Hughes, 2285, 169 was v. 215 152. et Ex. same as 6 based. Defendants’ pamphlet, 2Ex. see Plaintiffs’ 153. For this 1, p. Ex. 2296. Joint Deposition Rec- Dolan. to the of Dr. Paul F.Supp. Duffy, 169 Hughes, in ord Sincock v. 155. 2334-35. (1963). 148, supra. also See See note Brown, 156. 2308. Defendants’ Ex. 18. Brown, part 2310. 157. of the 54. Ex. 6 also is Defendants’ 1 upon record our in which decision Sincock and, maps [representative] areas on the aries the old first as to individual boundary example, regard County district bounded in New Castle as an north, taking disputed on the that involved in the Town of of a area going Smyrna, Smyr point Division a at the Delaware bit to the west of which southerly Pennsylvania Mur- na and Railroad crossed to Duck There Creek. dispute apparent concerned fore it is that these three enu derkill Creek. The boundary just meration I of the creek the districts have mentioned which branch plus Smyrna comprise district of election the Town of do line of the old 1st Representative fol- district the old 8th District No. 1”. old per- Hughes say He Mr. testified that went on to lowed. haps maps: involved to six families were three four differences between the disputed disputed major All area.158 “The one in the difference is that on the apparently map involve Census Enumeration areas seem small the Town of appears Smyrna populations map af- and it minimum was indicated on the as a testimony firmatively Hughes’ whole, unit, apparently from Mr. as as an enu employees City Bureau of the meration that of the district. of Dover County working similarly portrayed. made in Kent Census Whereas * * * * * * map possession copy on Joint Exhibit No. County. 1, Department cases, Dover, of Kent of Elections some such as old Hughes [representative] “I [that Mr. stated: assume 5th old district and the they, employees] [representative] district, used Bureau 2d the Census the divid gathering ing map] out, pointed the census line is [that shown.” He how Representative ever, dividing each District.” that no similar line was Making use, shown on Plaintiffs’ Ex. 39. surveyor, sup Brown, Mr. C. C. however, of Plaintiffs’ Ex. 2 to Dr. Do plemented Hughes’ testimony, after Mr. deposition, 29,162 upon lan’s Document Plaintiffs’ Ex. an him of examination comparison appar examination and it is 39, Census enumera the Bureau ent that the enumeration districts on County, maps Ex. tion for Kent Joint Plaintiffs’ Ex. 39 do coincide as Mr. County Map of Kent Maintenance put it, Brown “with certain or all or they showing the old election districts Representative each of the old Dist existed under the 1897 Delaware Cons ricts”.163 Mr. testified in sub Brown titution.160 three He testified that with stance, as we understand the tenor of exceptions, Joint Ex. 1 coincided with the evidence, divergences his that the small as shown on census enumeration districts significance. were of no substantial As 39; e., testified Plaintiffs’ Ex. i. he triers of the fact we reach the conclusion substance that the census enumeration substantially everyone that included populations were allocated with the census enumeration districts was geographical Kent correctness properly Assembly allocated General maps required Section districts of Kent and that but 336,161 exceptions. of S.B. with but three few, any, persons if entitled inclusion Mr. re Brown testified in some detail therein were excluded therefrom. specting stating exceptions, these Surveyor Brown he found them to enumeration testified that he found be “[A]n 1-1, 1-2, three differences area area between Plaintiffs’ Ex. indicated as another map showing here, census and an area but enumeration [said] 1-S5 districts, map and Joint Ex. the boundaries of these areas or their show- ing the old total the bound boundaries coincide with again Hughes, 162. 158. We state 2235-37. document was before inus the record on which we Hughes, F.Supp. based our decision in 215 (1963) and, is, course, part II, 160. Article Section 2. in this record case. *92 Brown, Brown,
161. 2479. 163. 2481-84. 840 County. assumption jus- Kent The first of the differ- This would seem to be Smyrna Population figures ences concerns town of which tified the record. City was for indicated on the census enumera- of Dover are broken into two unit, map, 39, parts by tion Plaintiffs’ Ex. as a Plaintiffs’ Ex. 2 Dr. Dolan’s deposition, According “as an Enumeration This dif- District”. Document 29. however, consequence, part the 1960 ference is no census the of Dover which entirely Smyrna part repre- lies constituted a old 2d since town representative population within and the new 25th sentative district contained a persons, 13th 1317 new senatorial district. the remainder part Dover which constituted a of the The second difference concerns a small representative old 5th district contained triangle of land near McNett’s Corner persons. setting 1, Joint Ex. out boundary part which was of the line be- representative districts, the old shows tween old 2d of the election district City split, Stipu- of Dover as as does representative old 6th district and the map, page lation Ex. 13. There is also a old 1st election of the old 9th district 9-3 of Plaintiffs’ Ex. 2 Dr. Dolan’s m representative triangle ap- district. This deposition entitled, “Delaware-Minor pears on Plaintiffs’ Ex. 39 to in a Representative Civil Divisions Districts” different census enumeration district City which shows the of the division than as- is on Joint 1. But allocated Ex. representative Dover between the old 2d divergence consequence this also no is of representative district and the old 5th question because land in included is The division line district. between those entirely representa- within the 29th new upon map two districts as drawn tive district and the new 13th senatorial correspond last referred to seems to with district. are, that shown on Joint Ex. 1. There City concerns the The third difference therefore, population figures maps which, to-the Town of Dover similar support Surveyor which seem to Brown’s Smyrna, Enumeration is treated “as an assumption.165 appear, It would there- on Plaintiffs’ Ex. whereas District” fore, the census enumeration dis- City on Ex. 1 the of Dover is divid Joint tricts shown on Ex. corre- Plaintiffs’ representative ed between the old 5th spond with the old dis- old 2d tricts on Joint Ex. find. sowe However, Surveyor Brown as district. Raymond West, the wit Mr. recalled to destroy sumed this did not the correct stand, prepared ness stated that he had population He of the estimates. ness showing rep map, a Joint Ex. the old get to the division be stated: “We down of Sussex resentative Representative the old respects tween Fifth corresponded in and that all Representative old and the Second map Department with the official gives population figure tabulation Elections of Sussex made apparently Fifth exclusive of that surveyor Highway Depart the old of the State City Dover, part of it within the but Mr. [Joint ment. West said that “That * * * City Dover, part copy. adds a below it Ex. an exact 3] [was] population. I Therefore [Sic.] certain I traced it line line for all Election assuming say correctly that we can am Districts. It shows all the 26 Election County.” combination of certain Enumera that a Districts Sussex He on coin Districts Exhibit 39 does tion then asked if he his own knowl knew of edge or all or each of cide with certain on or not the lines shown whether Representative past Districts.” map old had used in the been Brown, Stipu- census, 164. with the 1960 but that on population lation Ex. 13 the estimated Plaintiffs’ observe that on Ex. We given of Dover is as 12000 inhabitants. Dover is stated as stipulation maps being persons are dated 1963. accord which *93 election, eligible part person the 4th indicate that a a was determine where representative dis- district of the old 3rd knew of but that he to vote. He testified map This correc- so used trict was within the town. was one case which bearing represent- only dispute” tion has no on the new “the and that case involved that ative and districts since the of.166 He also stated senatorial that he knew e., wholly map, change 31st i. two lines are the new in the official within the last map 16th used district and the new Ex. Defendants’ Department senatorial district.171 Hitchens’ evi- of Elections of Sussex Mrs. County, eight in her view or ten dence makes it clear that had been made years he that there were no substantial deviations also testified before.167 He map Assembly working a General his data and Sussex had received County by maps gotten the as in evi- had demonstrated from Mr. McGinnes and figures from dence. census enumeration district Department of the Urban Affairs registered Perry Burton,172 Mr. T. a University He also stated of Delaware. surveyor engineer employed and an fig district the census enumeration that Highway Department the Delaware State ures, put it, “dove as the “tracts” he L. testified that he with Mr. Edward representative dist the old tailed” with surveyor, Simpson, registered another ricts.168 up map, Stipulation 9. had Ex. made map He testified that he used a of the Mrs. Hitchens testified Frances districts, old election Atlas Beer’s Depart- of the she was the chief clerk 1868 and Court’s Ex. the brochure County and ment of Elections of Sussex describing the Delaware election district employed ten such for about had been Ernest E. boundaries as issued Mr. years. map produced was which She and Mr. Killen. He testified that he Department map of Elec- used Simpson employed 336 and other S.B. had been tions of which Sussex maps County, particular Sussex glass hung on enclosed in in a frame and Joint Ex. 3. Mr. Burton testified Department office of the the wall finding- difficulties encountered in map and she stated that this Elections Mr. district boundaries. This old districts.169 showed the election think, were, I Burton stated: “There map Ex. Defendants’ was introduced as had some three locations in which we and Mrs. Hitchens testified boundary difficulty establishing the map with Joint was identical place these lines. found no where We
Ex. 3 and
with but one
was accurate
defined.”
These
Hundred lines were
exception,170 e.,
was
small
i.
that a line
discrepancies
imme
are discussed
three
shown between the 4th election
diately hereinafter.
representative district and
of the old 3rd
old 3rd
the 3rd
vague
just
election district
first
area is
south
(cid:127)representative
should not
district which
Spring
representa-
Cool
in the new 35th
put
there,
she had had
eight
have been
and that
district, approximately
miles
tive
glass covering
map a correct-
on the
Georgetown,
Seat of
east of
ing
crayon.
Hitchens testi-
with
Mrs.
County.
line
exists confusion
Here
Sussex
have followed
fied that
the line should
dis-
side
Route 291 the
as to which
surveyors again
the line of the Delaware Division
puted area
lies.
Pennsylvania
dividing the
Railroad thus
of Beer’s Atlas but
it threw
made use
way
light upon
subject.
Town of
in such a
as to
small
The area
Seaford
Stipulation
West,
166.
171.
Ex. 9.
2408-09.
See
very
Perry,
West,
change
Actually
172.
stated we believe er
167.
2409. The
Harry.
roneously in
See
minor one.
the record
Burton, 2348.
West,
168.
2413.
Burton,
173.
2350.
Hitchens,
2438-41.
Hitchens, 2441-42.
*94
approximate-
complete picture
vague
was
of
estimated to consist
The
ly
peo-
Assembly
six acres and to contain some “30
areas of
of
General
districts
ple,
eight
County
by
up
seven or
families”.
summed
Sussex
was
question
response
Mr. Burton in
to a
vagueness
A second area of
involves
asked
the court. He stated that the
Sowbridge Branch, involving
the head of
number of inhabitants involved did not
running
two small streams
bridge
into Sow-
persons
exceed 32
and we find that his
surveyors
Branch. The
testified
estimate is correct.
difficulty
ascertaining
that there was
dividing
line between the new 30th
stated,
stipulation
As we
have
districts,
representative
maps
the new 35th
pursuant
filed
of
Section 661
portion
but the area involved a
of what
336, pursuant
is
S.B.
to the
of
terms
sub-
Forest,
“(b)”
is known as Ellendale
sometimes
section
when
“shall
recorded
Swamp”.
prima
called “Great Ellendale
Mr.
judicial pro-
facie evidence in all
per-
Burton
ceedings
stated that
there
no
were
as to the
of
correctness
living
area,
disputed
sons
in the
that it
Assembly
boundaries” of the General
dis-
was marshland and most of it was State
tricts. We have also stated that S.B.
Forest.
provides
repre-
336
that certain new
comprise
sentative districts
for-
shall
vagueness allegedly
A third area of
representative
mer
districts as “hereto-
arises in
to a small area between
existing
See,
fore
example,
and constituted”.
repre-
the new 33rd and the new 35th
the 27th
sentative districts. There was a suit
in Kent
as defined
Section
Superior
of
Court
Sussex
641(c).
said,
As we have
the Con-
respecting the
of member of
election
1897,
II,
stitution of
Article
Section
Levy
County,174
of
Court
Sussex
as
2,
original
Del.C.Ann. describes the
to whether or not the elector
en-
was
Assembly
General
districts
some
titled to run from
from
the district
changed
of
these have been
as set
Only
apparently
which he was
elected.
16,
out
Court’s Ex.
“Delaware Elec-
persons
plaintiff
two
involved:
tion District Boundaries” issued Com-
question
in the suit and his wife. The
missioner of Elections Ernest E. Killen.
was never settled and
suit was
appendix
We reiterate
dropped. The record does
demon-
not
authority
the brochure states the
area,
people
strate the
involved,
the number
Departments
each of
of Elec-
gave
his
Mr. Burton
tions
Delaware “to divide election
testimony
vague
that there
no
area
greater
districts which contain a
number
accept
here. We
his conclusion.175
conveniently
of voters than can
vote in
appears upon
fourth
The
difference
authority
such districts”. The
lies in
comparing
designated
map
Stipu-
4103,
15,
Section
Title
Del.C.Ann. The
lation Ex. 9 with
is
Joint Ex. 3. It
not brochure
lists
describes
General
maps
clear from the
as to where the Assembly districts in the three Counties
boundary, approximately
long,
mile
one
go
of Delaware. We need not
back of
runs between the old 9th and old 8th
that,
the authorities cited. We conclude
along
Route
comparatively
exceptions
with the
minor
judicial
30.176
take
We
notice
the hereinbefore discussed under this head-
boundary
ap-
dispute
ing,
requirements
fact that
is
of law have been
proximately
George- met,
vague
four miles
the few
east
areas are not
farming country,
sufficiently
town,
deep
important
and the
to invalidate the
map provisions
persons
minis-
number of
involved is
S.B. 336.
Jordan
See
George, supra,
v. De
cule.
and the authorities
respective
Burton,
Levy
175.
2350-61.
Courts of the
administrative
counties of Delaware are
power.
testimony
Surveyor
9 Del.C.
also the
bodies with limited
See
See
Simpson,
Ann.
2396-2400.
§§ 301-79.
Moreover,
two'
every
a census
Moreover,
state stat-
tablished.
with it.
cited
survey,,
Counties,
presumption
allocated
lower
clothed with
ute is
making
great
Depart-
assistance
validity.
would be
v.
Davis
constitutional
principle es-
249,
fundamental
sure that the
Labor,
U.S.
S.Ct.
ment
Salsburg
Supreme
of “one
Court
(1942);
tablished
v.
L.Ed.
impaired or
not
person,
Maryland,
one vote”
74 S.Ct.
346 U.S.
State
abrogated.
plaintiffs
(1954).
voted
the enactment
S.B.
their
those three Senators
insofar as
and S.B. 336.178
by provi
tenure could be made secure
plaintiffs point
Constitution,
to Sec
sions
the Delaware
but
adjudication by
tion
Article II of
of we
the Constitution
have here an
the Su
pro
preme
holding
Delaware and state that
that section
Court of the United States
*96
only
pursuant
procedure
provisions
vides
that
of the Delaware Con
pursuant
which either house of the General Assem
stitution
to which the three
bly may “expel” duly qualified
were elected were unconstitu
members.
Senators
provides
they
Section 9 also
tional because
were in
each House
violation
Assembly
only
may
of the General
the Fourteenth
In Roman
not
Amendment.
Sincock,
expel
supra,
708,
but “shall
all other
v.
84
a member
have
377 U.S. at
powers necessary
1457,
629,
for a
12
branch of the
S.Ct. at
L.Ed.2d at
Mr.
Legislature
independent
free and
Chief
of a
Justice Warren stated:
“Neither
plaintiffs
State.”
of the
also call our at
houses of the Delaware General
Assembly,
tention to
4
Section
of Article
of the
either
XV
before or after the 1963
e.,
provides
amendment,
Delaware Constitution
constitutional
which
was so [i.
constitutionally]
apportioned.”
that “No law shall
the term of
hold
extend
We
any
therefore,
public
salary
Duffy
officer nor diminish his
as we did in Sincock v.
supra,
F.Supp.
191,
215
at
that senators
ap
or emoluments after his election or
pursuant
provisions
elected
to the
pointment.”
provision
This
has
in
been
2,
Section
II of
Article
the Delaware
terpreted in Delaware and in other states
prior
Constitution
it
as
existed
safeguard
as intended to
the terms of
1963 amendment were de
members
facto
public
they
officers whether
hold office
Assembly
of the General
and it follows
not,
provisions
under Constitutional
necessarily the three Senators with
legislature
deny
power
and to
to a
whom we are concerned were de facto
deprive
an incumbent of an office to
provisions
officers.
If the
of the Con
duly
which he has been
du
elected. Cf.
stitution under which the three Senators
Green,
566, 571,
Pont
8
v.
W.W.Harr.
were elected had not been held invalid as
273,
(1937),
195 A.
the law of the State Delaware insofar Stipulations may as the emoluments their offices be unnecessary (1) Objections concerned.180 It that we A. to to Evidence As do so for this is a matter for determina- and Evidence Motions to Strike by tion Courts. State During protracted course of these proceedings, plaintiffs’
It mo- is clear that the members of based on Assembly power Implement the 122d General had the tion “To the Mandate of the Opinion Attorney 17, 155, Delaware, 180. dated See Document General December Supreme Court”, many objections ques- percentages ap to scientist that the by portionment propounded provided by adversaries and tions their ratios S.B. parties, many adequate, proper, were made and and S.B. were objections rational, coupled pointing and these mo- with out that “Mathe were testimony. apportionment tions The to court matical exactitude can strike stated, upon expected.”182 not ruled some of from has these motions be As been many Dr. bench but took others under Jewell’s evidence was received sub ject subject plaintiffs’ later to motion to advisement to determina- strike. complex presented tion when issues ques- objected a plaintiffs to also upon could decided a full record. On “Doc- follows: Dr. tion asked Jewell 1965, December and been has education, your tor, your ex- on based stated, hearing had and the last study your Bills perience of Senate testimony witnesses exhibits again political as a 29, 1965, On received. December scientist, re- 332 and 336 do these Bills party prepare court ordered each to apportionment substantial sult objections testimony list all to has equality as that term testimony motions to strike which each Supreme the United States been used party press to the court in desired to and the cases Baker v. Carr Court in proceeding, requiring these to be case since that which have been decided February filed no later than subject Dr. matter?”183 on the same any ob- court further ordered that answer, proper- perhaps more Jewell’s jection testimony or motion large answers, ly speaking, were in his testimony specifically strike not listed part upon of record in facts based parties would be deemed to been have proceeding, and he concluded that February 7, waived. plain- On 1966 the apportionment It is rational one. was a support tiffs filed memorandum in however, true, his conclu- that he stated portions their motion to strike certain understanding” light sion of “his testimony and the defendants filed a Supreme intended the Court “Motion to Renew Motions Strike Cer- ap- Census be the basis Decennial portionment.184 Testimony” accompanying tain and an *98 memorandum of law. plaintiffs the an moved to strike objections first the We will deal with quoted questions two above. swers to the plain- plaintiffs. The of the motions plaintiffs questions, as As to both question object asked Dr. Mal- tiffs to a serted in that the answers substance “Doctor, Jewell, as colm follows: E. by Rich of law the witness. conclusions experience, education, your your on based Chelsea, City 149 Co. ard T. v. Green your study Bills 332 and of Senate (1 1945), to note F.2d 5 cited 927 Cir. Assembly, 336 of Delaware General 741, den., 326 the text at cert. U.S. you political scientist, have and as do (1945); 20 90 443 66 L.Ed. S.Ct. * * * opinion Bills to how the an (Evidence) at Section Am.Jur. meet the one man-one test as laid vote ques seq. et The answer to the second by Supreme United down States ground tion further attacked on the was in Baker versus Court the decisions improper question it that the was because Carr, Sims, Reynolds Sincock versus designed of law. a conclusion elicit Evidence, Roman, (Sic.)181 v. etcetera?” Wigmore on Sections (3rd 1940). permitted to We take the Dr. Jewell was answer ed. objection. question In his to strike the an answer substance of motions over gave length respecting his con he testified at some swers to that the witness be apportionment, plan not Dela in sub to whether or Delaware clusions as stating opinion political reapportionment his as a ware constituted invidi- stance Jewell, Jewell, 183. 318-19. 181. 299-300. Jewell, Jewell, 319-26. 300-15. presents complicated and hence falls within a more
ous discrimination situation. They (1) the Fourteenth interdiction have moved to strike all testi- mony alleged regard Amendment. “with racial dis- ground crimination” on the or not the The issue of whether plaintiffs necessary did not sta- have apportionment is unconstitu Delaware question they tus to raise the because are by tional court. In must decided this Negroes, (2) not to strike all testimo- giving did some of his answers Dr. Jewell ny alleged with racial discrimi- state on is his ultimate conclusions this ground nation on the discrimi- that such greater por sue. Nonetheless far the nation has not been found to be unconsti- directly tion of with those answers dealt Supreme tutional the United States facts which are before us for determina heading Court. We have found under portions testimony tion. These of his “XII., above, B” is suf- there not clearly of the admissible. dissection charge ficient evidence sustain portions an of Dr. Jewell’s inadmissible gerrymandering. racial We deem it un- parts swers from the admissible is our necessary, therefore, to embark in this jury function. The court sits without a already lengthy opinion upon too a dis- and the exercise of that function under cussion to decide whether or not presents the circumstances no substantial plaintiffs, Caucasians, who are have problem. making findings In fact locus standi to raise the issue of racial opinion disregard set out in this we have gerrymandering. reviewing But expressed ed all conclusions law not may Court take a different view of the only by by any Dr. Jewell but also other presented facts than do we. There testifying against witness whether for or question should availability be no validity apportionment up set higher to the Tribunal of the evidence by S.B. 332 and In view of S.B. 336. which the defendants seek to strike. For just what we have written we deem it reason, grant we will decline to order, unnecessary to enter a detailed para- first motion referred to in this specifically dissecting out Dr. Jewell’s graph. testimony whole his conclusions of law. striking An order will be entered As to the second motion referred latter from the record but the balance of preceding paragraph, to in the as we have testimony Dr. Jewell’s will be retained just stated, agree we cannot with the given weight. and will be due assertion that racial discrimination has not been found to be unconstitutional We will treat all conclusions of law Supreme ruling Court. The in Go- stated the witnesses and the motions Lightfoot, supra, million v. our view to strike these conclusions from the rec- clearly contrary albeit based ord on the same basis as we have treated upon the Fifteenth Amendment and not testimony. Dr. Jewell’s *99 What we have Again reviewing on the Fourteenth. applies, course, said to the motion to may disagree Tribunal with us and the by plaintiffs strike made to the evi- given evidence by to which the second motion is dence Dr. Harold Brown in C. question by answer to the asked de- directed should be available to that Court. fendants on cross-examination set in It, out therefore, must remain in the record. the note below.185 deny We will the motion to strike testimony relating alleged to racial dis (2) Objections As to to Evidence and crimination. by Motions to Strike Evidence as Made request Defendants also that defendants judicial the court should notice The motion take to renew motions to testimony by strike Lyndon made defendants swept “President Johnson B. you prepared pro- portionment Legislature “Are to state as a of the State based opinion Brown, nearly fessional practicable equal popula- Dr. that Senate as as on ap- Bills 332 and 336 do not create an tion?” * * * posite political gerrymandering in if an as we Delaware] State [the cognizable. carrying unprecedented Demo- have it is landslide described Assembly into General cratic candidates appeal If in of an the Su- event notwithstanding prognostica- seats preme rule that the issue Court should * * * experienced politicians tion of cognizable gerrymandering political is present make-up of the [and hence] present proceedings, in the evidence Assembly in an General is unusual con- moved to which the defendants have * * * predicted anyone by not dition ap- If on strike would be admissible. peal, litigation in this and was not the fault gerrymander- political issue of Senate Bill 336 have [sic].” We ing relevant, is there must held to be judicial opinion taken notice in this availability question be no to the victory the Democratic in in Delaware Supreme under of the evidence Court propor- the 1964 election was unusual findings respect in discussion and our only tions. This is relevant to the issue Consequently will refuse to thereto. we political gerrymandering as we have testimony strike all to referred found it exist in the case to at bar. given by exception with the of that Mr. ruling Perry, Objections This indicated. covers were made or were paragraph by presumed by “7” of made issue raised the court to been have by testimony given any in defendants’ “Motion to Renew to Motions all witness Testimony.” political respect to Strike Certain to what we have termed gerrymandering. The have defendants Stipulation, Documents As B. to the given by moved to strike the evidence Nos. and 195 1U Clayton Harrison, Jr., by Mr. S. Senator Eugene Bookhammer, Mr. Nieder D. Document have The contents of Christopher Perry, hauser, by Mr. L. opin- frequently in this been referred to n correspondent pa for the News-Journal “VI.”, supra. ion, example, Docu- pers, duPont, by plaintiff Senator supplemented and ment 174 has been germane Sincock, Richard all rele 195, filed on amended Document political gerrym vant the issue of 14, have dealt with March We 19£#i andering.186 If we in our are correct documents at an two contents these ger political conclusion that the issue point opinion and need not earlier rymandering cognizable, is not all of the repeat It is neces- have said. what we foregoing is evidence irrelevant in however, reiterate, sary that Docu- Perry’s Mr. also admissible. evidence paragraph 6 to the in by ment 174 referred hearsay. is inadmissible In McGinnes, employed Messrs. methods objections "to the first made to Senator estimating Hughes pop- and West testimony ruling duPont’s our that it reapportioned Assem- General ulations of supra. admissible is set out note paragraph bly districts, 9 referred and in testimony This referred supra, seems not maps, out in note set registered surveyors present prepared by "to the defendants their listing objections showing of the General and mo the boundaries evidence Assembly Paragraph strike, 9 of tions to albeit it char was of a districts. however, ruled states sub- acter similar to that on in note 7. Document significant record, however, To devia- clear the and to make stance there *100 reviewing position plain of some of the cur to the Court tions certain boundaries respect objection, Assembly in Kent and to the districts Senator General though testimony “conscien- on Counties and duPont’s the issue Sussex * * * gerrymandering from been made [had will not be tious efforts stricken ap- by] Departments of Elections of "the since deem be the record we it to Sincock, duPont, 1385, seq.; 1535, Harrison, 2029, seq.; Bookhammer, et et seq. Niederhauser, 1994, seq.; 1542, et et 1921, seq.; Perry, 1516, seq.; et et figures stipulated bring As- differences between as the General to those Counties” sembly by by accurately parties found and those “as the district boundaries very signifi- maps upon the court are of small possible” nonetheless the as “unambiguous descriptions adjudication is- ‘hun- cance and the of the of the presented by proceedings impossible sues the at and it is not exist dreds’ do County, upon bar in no wise can turn the differ- determine”, at least Sussex to boundary Nonethless, mark- ences indicated. the court “the exact location figures comprise Rep- finds its to be correct and there- the [d] ers and lines which figures stipulated fore insofar the dif- districts as as resentative and Senatorial therefrom, stipulation fer they The ref- the cannot be last ‘heretofore’ existed.” language approved. course, is, to the erence 336, repeatedly refer- 661 of Section S.B. respects, stip- however, In all other the quoted “XIII.”, supra. red to and approved. 16, ulation Fed.R. will Rule Civ.Proc., under that 28 U.S.C. remembered It will be out the bound- checked “XIII.” the court Remedy Assembly XVI. the General aries of very minor and and found with certain prayed, we since plaintiffs have they insignificant exceptions that “Post- of their “Conclusion” treat existing and constituted”. “heretofore as containing prayers for as Trial Brief” by parties short, efforts of the In Implement”, to their “Motion relief under language paragraph 9 of Document and S.B. this court declare S.B. that quoted in- has been rendered above un- and invalid unconstitutional 336 to be therefore, is, inapplicable. It correct and Amendment; we that Fourteenth der the enjoin impossible approve portion of the to conducting, from defendants stipulation referred to. canvassing, proclaiming results or Doc It also be general will observed any members election fig pur- amends certain incorrect Assembly ument 195 held of Delaware General they insofar re ures Document 174 as provisions 332 and of S.B. suant to the figures County. population reapportion of Kent 336; late court that this S.B. issue, therefore, presently present No Assembly in accord- of Delaware General figures or, insofar as Docu plan ed as to these plaintiffs’ as an ance with 195, 174, by Document plan ment as amended alternative, in accordance with figures. 39, is concerned in to such presented the Committee question ap- But another remains. It will be alternative, this court another comparing master, observed on point special Rule under figures develop even as amend U.S.C., Document 174 Fed.R.Civ.Proc. figures ed Document 195 with the set plan apportion 21 sena- Delaware with opinion, out our both in the text and representative dis- districts and 45 torial tricts, figures charts, stipulation compact each district to be only respects contiguous territory differ in some from those found composed of carefully substantially equal court. We have exam popula- to be figures presented by ined all of the minimum from tions with but deviations compared evidence and them with those population set or norms and to be means regard boundary contained in Document 174 as amended up lines without City Document as well as those to be of or of the of Wil- the Counties page found mington ; in Document 195 “Exhibit special master in connection 6— 2”, foregoing “Election Results accomplishment under SB with the brings give feasibility Senatorial Districts.” This sheet consideration to the upon using special the record in computer techniques; columnar form the election returns for support- the senatorial dis fees and the cost master’s they tricts in ing personnel 1964 and insofar as to assist him to be taxed gen against available the election returns for the or their suc- costs the defendants *101 capad- eral elections of 1960 and 1962. The cessors in office in their official ties; sembly, employ experts that this court declare that the disinterested to terms of the to in a three Senators referred aid it forward-looking its difficult task. Delaware is “XIV”, supra, unimpaired right under and and the of State rights, they suffrage unimpaired that us. are entitled to all the to all of is dear powers and emoluments of office The no their citizens of the State deserve First suffrage expiration right equal until the their of- terms of less. The is not ; finally, belonging particular po- fice and that this declare a matter court to a present party. the sembly As- members the General litical only. de to have status facto point out, We for with all survey Assembly, the a General reiterate, as we have We Counties, by of the a two lower aided du the past, that it is firm conclusion our perhaps not census which would involve Assembly apportion ty to General the 150,000 persons, more than could be way conform in a as to such Delaware cost, comparatively achieved at a small not and Amendment Fourteenth with the transgress survey and that such a of the census and only prohibitions, and that its Assembly General districts of Kent and this court embark should as a last resort many Sussex the Counties would solve upon apportioning State. this the task problems with which court neces- past, reiterate, our as have We we sarily struggled. has Assembly of that the General confidence long un Delaware, which has taken General As- view that With the enacting step S.B. selfish forward steps sembly promptly as such will take again undertake will reapportion- S.B. may required á be to effect ap present promptly such revisions the Fourteenth ment Amendment, accordance with portionment necessary, may or deny, be this time we will at may Assembly fit see prayers General prejudice, plaintiffs’ without bring entirely plan an new which reapportion forth court General requirements of will Assembly meet the Consti plain- accordance with tution alternative, of the United States. plan, tiffs’ or as an in ac- plan of the Committee cordance with stated, previously As we have alternative, appoint or as another pre one of the difficulties which has been special reapportion the master to State dealing gentlemen sented is that the four prayed by plaintiffs. will re- for We immediately apportion most ment, with the jurisdiction proceedings tain of these McGinnes, Latchum, Messrs. adequate forthcoming, we if no action be Hughes West, virtue of grant be will such relief as we deem circumstances, compelled to work required as, example, sponte, sua such separately and without substantial requiring general next or election guidelines laid down the Gen subsequent general held geo- elections to be Assembly. eral sembly As The General large at graphic in the State or in certain adopted itself a two-bill tech political or thereof. areas enacting nique, first S.B. 332 and then 336, thereby stated, putting, S.B. have as we As we the record in this have said, Assembly completed the General case was not until March bed, stating into a In State Procrustean a bed 1966. not so we do intend diligence opinion any imply in which in our citizens criticism of the though permitted cannot State rest of counsel Im- the “Motion to plement Supreme view of constitutional Per interdictions. the Mandate of the haps equitable July 14, 1964, a more one filed result and Court” was on approximately years which would re meet Constitutional two and one half quirements transpired could most have men- be achieved since the date last expeditiously by appointment tioned. The circumstances this liti- non-partisan gation, particularly bipartisan a small com the difficulties faced could, preparation mission if which funds were and overcome required maps made available As- the General 661 of Section S.B. *102 expiration Assembly the of presently the General have rendered period following inevitable. constituted of time referred to 1966 elections only. have de status We will facto adjudg enter a decree We will January 10, set 1968 as the date ing unconsti S.B. 332 and S.B. 336 providing appor- which a statute a new transgressing the tutional and invalid as tionment enacted, of the State shall be an Equal Protection of the Four Clause apportionment in accordance with the Constitution of teenth Amendment rulings opinion. of this enjoining de the United States Findings of fact and conclusions of law fendants and successors in office their opinion are set out in this in accordance canvassing conducting, proclaim from 52(a), Fed.R.Civ.Proc., with Rule ing the results of elections for members U.S.C. Assembly pursuant to held General provisions may of S.B. 332 and S.B. in accord- A decree be submitted opinion. will declare also that the members ance with
«52 *105 (concur- Judge
LAYTON,
necessary
separate
I
District
find it
write
opinion,
ring).
concurring
part
and dissent-
ing
First, however,
part.
I
wish
agree
majority
I
with the
Senate
accept
make it
without
clear that
I
unconstitutional.
Bills 332 and 336 are
Biggs’ findings
my
reservation
brother
doing, however,
my
I
In
base
conclu-
so
opinion.
of fact as set
in his
I also
forth
upon
sion
variation between the
29%
accept my
law,
brother’s conclusions
populations
Representative
28th
except
gerry-
relating
partisan
those
compared
District
Kent
mandering.
Representative
with
District in
the 34th
My
County,
agree
Sussex
brothers
Bills
variation
that Senate
33%
Equal
populations
332 and
between the
of the 6th
336 violate the
Protection
Sena-
Clause of
be-
torial
Castle
Amendment
District in Rural New
Coun-
Fourteenth
ty
malapportionment
cause of
tionally impermissible
and the
District
13th Senatorial
—constitu-
popu-
County.
Kent
wide
deviations
Such
deviations
Representative
population,
lation between various
a satisfac-
absence of
tory
explanation,
permissible
Senatorial Districts.
this hold-
un-
With
not
ing heartily
I
Equal
concur.
der the
Protection Clause of the
Reynolds
Sims,
federal Constitution.
v.
However,
my
as I understand
brothers
533, 568,
377 U.S.
12 L.Ed.
S.Ct.
agree
they
gerrymandering
partisan
2d 506. Nor
should
conclusion here
“political
question”,
and hence does
indicating that,
reached be taken as
aside
present
cognizable
not
an issue
mentioned,
specifically
from the districts
my
Court. But
brothers are not in com-
*106
populations
deviations between the
of a plete agreement
they
as
content
number of other districts are to be re-
“political
phrase
question.”
ascribe to the
garded
having
approval.
my
merely
I
My
Biggs
brother
Su-
believes that the
prefer
my
to rest
decision on
nar-
the
preme
gerry-
partisan
Court
that
has held
grounds
rower
stated.
above
mandering presents
nonjusticiable con-
a
troversy as
that
term was defined
Turning
question
gerry-
now the
to
Carr,
186,
691,
Baker v.
369
82
U.S.
S.Ct.
mandering,
say
presents
I cannot
that it
Lay-
(1962). My
eral In whether WMCA determine argument complied accept have with. al standards been lower court refused to question gerrymander- partisan ma- As Mr. Justice Brennan for the on said ing, jority: apportionment plan and found Supreme Court, per constitutional. consistency question here “The curiam, Mr. Justice Harlan concur- with Con- with the Federal of state action ring, affirmed the court. Mr. Jus- lower question de- no stitution. We have language opinion tice Harlan’s contains decided, political cided, toor affirming to the effect the Su- government coequal with branch of preme holding partisan ger- Court is embar- risk Nor do we Court. rymandering does violate Four- not abroad, government our rassment However, teenth Amendment. Mr. Jus- we grave if at home disturbance opinion tice Harlan’s is but a concur- issue Tennessee take with rence; accepted it was not ma- as the constitutionality here her action jority opinion. Under circum- these appellants, challenged. need the Nor stances, I find it difficult conclude action, ask order succeed in this Supreme spoken on Court has upon policy determina- to enter Court greater place I issue. would reliance manageable judicially which tions for Biggs my upon than does brother the Su- lacking. stand- Judicial are standards
preme Court’s dicta in Fortson v. Dor- Clause Equal Protection ards under sey, 433, 498, 379 U.S. 85 S.Ct. 13 L.Ed. familiar, it well-developed (1965) 2d 401 Burns v. Richard- enact- open to courts since has been son, U.S. 16 L.Ed. S.Ct. Amendment Fourteenth ment of the (1966). 2d 376 determine, particular on the facts if they re- must, that a discrimination agree position Nor I taken can with the arbitrary simply policy, flects no but partisan gerrymandering by my on broth- Carr, capricious Baker v. action.” Layton concurring opinion. As er in his (em- at at U.S. S.Ct. my position I it understand brother’s added). phasis judicial lauds the merits of abstention *107 touchy questions. a from such No doubt Brennan, who Mr. Justice same serenity, productive I course but is of Carr, majority Baker v. for in wrote the jurisprudence cannot a which adhere to given that, strongly on to intimate went require Supreme would the to Court gerryman- record, partisan a sufficient speak important questions on be- these Equal dering Protec- the would violate fore the lower courts are to confront Dorsey, U.S. tion Fortson 379 Clause. v. them. (1965); 433, 498, 85 13 401 S.Ct. L.Ed.2d Carr, Supreme in Baker v. Court 73, Richardson, 86 S.Ct. Burns v. U.S. 384 supra, extensively dealt with doctrine the 1286, (1966). 16 376 L.Ed.2d “political question.” The Court’s designedly might that, or “It well be political ques- remarks indicate that the otherwise, constitu- a multi-member doctrine, tion forth in such set cases scheme, the ency apportionment under Colegrove Green, 549, 66 v. 328 U.S. case, particular circumstances of a 1198, (1946), 90 re- S.Ct. L.Ed. 1432 is operate to or cancel would minimize involving for be- served cases a conflict voting strength or of racial out the judiciary tween the federal coordi- voting popu- political the of elements government, nate branches of the federal it demonstrated lation. this is When manageable judicially or cases where enough will to consider wheth- time be lacking. is standards are The doctrine system passes the er still constitution- not a to meant to be catch-all avoid 439, 85 S.Ct. al muster.” 379 at U.S. necessity grappling is- of with sensitive at 501. political question sues. The doctrine does Reynolds legislative requirements of not immunize action state “Where 1362, 533, judiciary 12 scrutiny 84 from to v. U.S. S.Ct. the federal Sims [377
857 met, apportionment A brief examination the record 506] L.Ed.2d of including gerrymandering dis- multi-member this as it to schemes case relates flagrant dis- an invidious will tricts will constitute demonstrate abuses only partisanship. 22, it can shown crimination if be On June 1964 Gov- otherwise, ‘designedly meeting a multi- ernor Carvel called a lead- or constituency apportionment parties. meeting ers of both At member scheme, stated, according a under circumstances Governor to Senator case, particular operate Reynolds duPont, majority par- to mini- would that “the voting strength go- ty majority party out was mize cancel and it was political ing reapportionment.” to racial or elements of the do the Record ” voting 88, population.’ Accordingly, Latchum, 384 U.S. at at 1407. Mr. City former S.Ct. at 1294. chairman of the Democratic reapportion Committee was asked to Bums Fortson involved multi- both Wilmington. city McGinnis, Mr. Gov- apportionments, constituency member Assistant, ernor Carvel’s Administrative apportionment whereas Delaware reapportion to was asked rural New single districts, if calls for member but County. Hughes, Castle Mr. President partisan gerrymandering proscribed is County Department of the Kent of Elec- logic requires it one instance then tions former chairman the Kent proscribed Perhaps par- the other. Committee, Democratic was re- may gerrymandering tisan dis- be more quested reapportion County. Kent other, cernable one instance than the And, West, Mr. Chairman of the Sussex proof but should difficulties not con- Committee, Democratic scope protec- tract constitutional reapportion County. asked to Sussex tion. Subsequently, at commencement Concededly, fairly gerrymandering the debate on Senate Bills 332 and “political deep in the thicket.” Never- Senator duPont introduced Reso- Senate theless, legislature deprive allow recording provided lution 131 which any any group representation fair proceedings during Senate would manner be to condone invidious reapportionment debate on the discrimination sort condemned bills. Lightfoot, Gomillion straight v. U.S. The resolution was defeated aon (1960). L.Ed.2d party vote, S.Ct. Fur- and sc the verbatim remarks underlying ther rationale of Baker participants reapportion- Carr, supra, aggrieved v. is that voters ment debates are not available. How- may apportionment ever, according discriminations duPont, to Senator Sena- appear in Federal Court vindicate Cook, president tempore pro tor Allen *108 rights. their stated, Since discrimination effect, “in ma- that this by partisan gerrymandering worked jority is party’s Bill, they and that by malappor- as sinister as that going worked efforts, to make their best because operate nullify tionment —both to they majority, were the to take care voting power of certain elements of the party the Democratic in the redistrict- citizenry ing.” would seem that the ration- page —it at Record Carr, supra, ale requires of Baker v. frag- I believe that these isolated and by par- those whose votes are debased mentary bespeak remarks an intent gerrymandering tisan be afforded participation maximize the of the ma- protection the Fourteenth Amend- jority party legislature. My in ment. Biggs’ findings brother of fact demon- reasons, For the aforementioned re- strate that this intent was carried out gardless of the Wilmington delicate nature of the is- and in Castle rural New presented, sues I County. am conclude unable inescapable The conclusion is partisan gerrymandering, suffi- “policy” behind Senate Bills ciently demonstrated, permissible un- and 336 to was maximize the number der the Fourteenth returning Amendment. ma- members jority party. To end certain regard boundaries were drawn with political affiliations of the inhabi- “policy” Su-
tants. Such a is what the preme v. Court had mind Baker spoke when it
Carr reflecting discrimination policy, simply “no but arbi- trary capricious To con- action.” political
centrate on the affiliations of drafting citizenry re- scheme of apportionment employ imper- is to an missible standard. agree my
Accordingly, I would with reapportionment plan brothers that the before Court the one man- violates Reynolds Sims, one vote formula of v. 377 U.S. 12 L.Ed.2d S.Ct. (1964). However, I hold also would par- the Bills unconstitutional because gerrymandering Wilmington, tisan County, re- rural New Castle spect and with Representatives number assigned Wilmington and Senators County. rural vis-á-vis New Castle Plaintiff, CEDERHOLM, Hammond v. SIDERMAR, John P. A. and W. S. Corp., Defendants. McGrath
Civ. No. 66 2395. District Court States United . York. S. D. New 9, 1967. Jan. notes stituted of the of the 1st 7% 88, supra, representative Plaintiffs’ Ex. district; ad of the 24 15% proceedings mitted in representative evidence in the sub district; of the 3r4 84% Duffy, nom. F.Supp. Sincock v. representative district; of the 4tl 46% representative district; of the 5th 36% testimony Clayton 95. See the of Mr. S. representative district; of the 6th 6% Harrison, Jr., seq. 2056 et Mr. Harrison representative district; of the 7th 5% Republican is the chairman of the State representative district, and of the 8th 7% Committee and has served as chairman of representative seq. district. 2056 et Republican Wilmington City Commit- secretary Republican tee and as New Castle Committee. representa- by dividing boundary percentage-wise, and into half lowing a line fol- suit tives, two perfect percentage- 26th form an result the 1st and almost Street mindful, course, representative districts, 2d and also wise. We are very majorities Democratic when he the 2d dis- substantial divided senatorial dividing substantially in trict in half a of the 1964 election Wilmington, Delaware, demonstrated boundary following Na- and in the Christiana line cannot, representa- tion, results 3rd 4th those election River to form the perhaps, typical but deemed Mr. Latchum to be tive districts. Instead repre- Wilmington 5th, 7th, composed 6th, and 8th nonetheless the results in Negro by complete new set senator election a a shown sentative Negro compel running a representatives courses of through in various and two boundaries Wilmington. finding part plaintiffs have of fact that the western plaintiffs Latchum a for racial if Mr. established factual assert that not basis design gerrymander apportionment pursued.the him followed in the had 3rd, 1st, 2d, or elsewhere in the creation of the 3rd districts, Wilmington result City 4th the State represen- Republican perti- been discuss the would have Delaware. We will briefly point half district in the northern on at tative nent authorities point opinion. 3rd senatorial district. later in this argue plaintiffs Turning that substantial dis- now the senatorial 3rd equality populations have been stated, would which, Mr. trict as hereinbefore