State Ex Rel. Lockert v. Crowell

of Tennessee ex rel. W. B. LOC STATE Jr., Attorney

KERT, General for District and Tom P. 21st Judicial Circuit Attorney Jr.,

Thompson, District Gener Circuit, Bill the 5th Jim

al for Judicial

Davis, County, and Wilson Cheatham Grissom,

County, Denis Dozi K. Dickson Haile, Harding George Don H.

er

Simpson, individually his official and in

capacity County Judge of Wilson as (and

County, Tennessee each as individ relator), plaintiff well as Plain

ual

tiffs-Appellees, CROWELL,

Gentry Secretary of State Tennessee; Lamar Alexan

the State of Tennessee;

der, of the State of Governor Leech, Jr., Attorney M.

William Tennessee; David Col State

lins, of Elections of the Coordinator Tennessee; Harp E. and James

State Seaton, Powell,

ster, Tommy Jack C. Landers, Holcomb, Lytle

Richard Board of

Commissioner of

Elections, Defendants-Appellants. Tennessee,

Supreme Court of

at Nashville.

March Rochelle, Lebanon,

Robert T. Robert L. Jr., Perry, Haile, Ashland City, Henry Nashville, for plaintiffs-appellees. Nashville, L. McCoy, Carol for amicus curiae, League of Women Voters of Tenn. Lanier, James E. Dyersburg, for amicus curiae, Dyer County. Littleton, B. Sp. Gen.,

Robert Asst. Atty. Catalano, and Michael Gen., Atty. Asst. Nashville, for defendants-appellants. Dinkins, Nashville, Richard H. Jack Nabrit, Greenberg, III, M. James Napo- Williams, Legal leon Defense Fund New City, curiae, York for amicus Tennessee Voters Unincorporated Council and Ass’n Williams, its General Chairman Avon N. Jr.

OPINION DROWOTA, Justice.

This case appeal1 comes us on direct from grant plaintiffs’ the Chancellor’s summary motion judgment. pri- mary question presented is the constitution- ality Reapportionment of the Senate Act of appeal pursuant Jurisdiction of to T.C.A. § 16-4-103. reapportionment and did sary by-product 1981,2 reapportioned Act not violate the Constitution. federal de- to the 1980 response II, Art. census, required by § cennial of action was that the Act Another cause The defend- of the Tennessee Constitution. II, 3 of the violated Art. Constitution § the Chancellor’s cite as error ants consecutively number districts failing to 6 of Article that the Act “contravenes county having more than one senatorial providing the Tennessee Constitution The Chancellor reserved this issue district. forming a divided in county no shall be his the Act was in view of district, of the contravention and senate reason and unconstitutional for another II, the necessary to meet Art. 6 is not must be redrawn. § that the Senate districts requirement of the one vote’ person, ‘one third, cause of action principal, The and of the Fourteenth protection clause equal Art. clearly the Act violated was that Constitu- Amendment to the United States Constitution, the which reads: 6 of § unconstitutional. and is therefore tion” appor- of shall be The number Senators enjoined the defendants also The Chancellor among the General by tioned general or conducting primary from substan- several counties districts the set out Act. For reasons under the election and shall tially according population, to below, proper was not a we hold that this Rep- the number of not exceed one-third and we remand summary judgment case for having two or resentatives. Counties further the trial court for this cause to sepa- into shall be divided more Senators opinion. this consistent with proceedings composed of districts. district rate counties, county shall more each two or AND BACKGROUND HISTORY such one other of adjoin at least brought on November The action was district; county shall be divided and no the coun- following plaintiffs: by the forming such a district. Cheatham, Dis- by their Wilson and ties of original phrase was in our emphasized The General; repre- the Senator Attorneys trict sub- and found the Constitution of prior appor- the District 27 under senting of 1870 and sequent Constitutions in ef- act, incumbency was whose tionment 1966. Act; citizens and the and fect abolished summary moved for The defendants Bedford, Cheatham registered voters of upon exhibits judgment based Counties, was a Wilson one of whom Wilson complied with the “one showed that the Act another of whom County Commissioner of the Unit- requirements vote” person, one Judge and ex officio County was Wilson upon popula- Based ed States Constitution. The County of the Commission. Chairman tion, 33-member size of a the “ideal” district issue. is not in standing to sue plaintiffs’ census. 139,114, the 1980 under Senate State, Secretary of Gov- are the Defendants this variance from greatest positive The General, of Co-ordinator ernor, Attorney .73%, negative greatest + and the size was of the State - Commissioners Elections and .92%, vari- maximum for a total Board of Elections. Thus, plan was close the ance of 1.65%. Defendants perfection. to mathematical alleged three complaint The amended requirements argued that if these was that in One of these of action. causes the Tennes- met, under there was no basis were re- reapportionment, district to hold the Act on which see Constitution from were transferred and voters drawn invalid. districts, vice numbered to even odd pre- would be for summa- effect of this cross-motion versa. The Plaintiffs filed a complaint, cer- voting upon in a Senate judgment voters from based many ry clude parties, and affida- years, stipulations by four con- every as tain frequently race the follow- included stipulations I, vits. 5 of Constitution. trary to Art. § issue: principal pertinent matters ing neces- was a held that this Chancellor (1981 1981; Supp.) 3-1- T.C.A. Acts of Public 2. Ch. map pri- A cross lines. It stated that the

1. districts established un- mary problem arose in the metropoli- der Act. four tan counties because their populations are A optimum 2. statement dis- multiples of ideal population of 139,- size trict for a 33-member was 139,114. A percentages chart set out the 114. each variance for of these counties showing Charts population crossed, county lines were a low from vari- Act, each district under the County ance of +3.41% Hamilton to a parts of each of counties in each high County. of +14.89% in Knox It con- district, percentage the raw number and that since cluded each these variances size, variance of each district from ideal positive, with the lowest the four variance, the total maximum distribution 3.41%, figures being “some of the multi- variance, variance, average similar negative will have districts vari- true. agreed statistics Attempts from optimum ance district size. plan 4. A 30-member and a 31-member thirty-three a plan to draw such member proposed by plaintiffs, which gross (combining result in a total variance any county cross lines. The 30-member greatest positive greatest negative and var- 153,025, plan had an ideal of district size iance) of over 22%.”3 the and total maximum variance was summary judgment The motions for - + 5.98%, 4.46% or and 10.44%. The 31- 9, 18, argued February 1982. February On plan member had an ideal of district size the Chancellor entered a Memorandum 148,101, awith total maximum of Opinion, 23, on February and his Decree. 13.82%. In par- addition the above-mentioned A plan 33-member which crossed the ties, following participated have Davidson, of only Shelby, and Knox appeal from this Court as amici curiae: Hamilton County Counties. was divided League Voters, of Women the Tennessee districts, part into two thereof but was Council, Dyer through County Voters joined county. in a district with other County Attorney. its The total plan maximum variance of this stipulated to be 9.99%. JUSTICIABILITY stipulation 6. A toas the instructions A threshold issue by decided given Hinton, to Mr. Frank D. Director of appealed by Chancellor and the defendants Government, Comptroller Local of Office of complaint justiciable is that the a presented Treasury, by guid- for his Senate issue. The charge reappor defendants in preparing reapportion- ance proposed nonjusticiable tionment is because it ais plans: “(a) ment that all districts should political question legisla and because it a perfection as possi- near mathematical as Separation tive function under the of Pow ble, but at the same time the districts that, They argue ers Doctrine. further split (b) few possible;” should as counties as should the declare the Act courts unconsti keep that districts should the same numbers tutional and fail to had, they previously had or least their act, pass a constitutional the courts would status; that, “(c) odd even numbered power grant be without the ultimate (2) possible, no two incumbents in the remedy formulating reappor their own placed Senate should be in the same State plan. tionment district.” view the evolution in this area of

The defendants filed affidavit law which taken place Hinton, addressing D. Frank the difficulties since the United Court’s States Carr, drawing 186, a which did not 33-member decision in Baker v. 369 U.S. 82 figures, opinion. 3. Mr. Hinton’s manner discussed in footnote 5 them, we which conclude he arrived at are 706 tion, 691, (1962), disagree, Carr, as 7 L.Ed.2d 663 we enunciated in Baker v.

S.Ct. 369 186, 691, 82 7 (1962), affirm the that U.S. S.Ct. L.Ed.2d 663 Chancellor’s applied legislative to state Egan by v. bodies justiciable this is a issue. See Sims, 533, Reynolds v. 377 U.S. 84 S.Ct. Hammond, 856, 1972); (Alaska 502 P.2d 865 1362, (1963). 12 L.Ed.2d 506 Legislature of the of California v. State Reinecke, 396, 718, Cal.Rptr. 10 110 Cal.3d reapportionment plan The Senate with a Anderson, (1973); 516 P.2d 6 White v. 155 maximum variance of is close to 291, (1964); v. Colo. 394 P.2d 333 Guntert perfection. mathematical divides Richardson, 444, 394 P.2d 449 Haw. thirty-three sixteen counties. A Senator Bloom, II, (1964); Butcher v. Pa. 203 plan which conforms to Art. 6 and § (1964); produce A.2d 559-560 Smith v. Crad does not divide counties would dick, (Tex.1971); total variance of over 22%. Such a vari- In re S.W.2d Sen ance, argue, defendants is far above the Bill 294 A.2d 653 ate 130 Vt. permitted by equal maximum deviation Zimmerman, (1972); Wis.2d protection Defendants submit that .clause. (1964); 126 N.W.2d 560-563 25 Am. there is an unavoidable conflict between the (1966); Jur.2d Elections C.J.S. Con § equal protection provisions clause and the (1956). Law These and stitutional § Constitution, of Art. 6 of our State upon opinion relied in this are other cases complied and the chose a replete apportionment with statements that clause. function, primarily legislative and that legislature proposed the two the courts should act if the Defendants aver that submitted having had constitutionally fails to act after substantially to the trial court If the opportunity a reasonable to do so. disparities increase in over the court were forced in such an event to devise present plan. contend that Defendants re- it not in plan, its own constitutional would ducing may the size of the raise Senate preempting Assembly. effect be the General questions relative to serious constitutional representation the of minorities within the THE CONTENTIONS OF PARTIES the Senate. Defendants further aver that out a they Plaintiffs contend that made determination of the number of Senators is unconstitutionality, be- prima facie case of solely Assembly vested in the the Act crossed the boundaries of 16 cause abridge imposition of such a would the setting up 95 counties in the of State’s of Separation Doctrine of Powers. thirty-three districts. Plaintiffs Senate curiae, Amicus the Tennessee Voters no unavoida- position take the that there is Council, minority groups contends Tennessee constitu- ble conflict between the specific which are concentrated within a prohibition against dividing counties tional represen- county, of a which now have area one forming districts and the in Senate Senate, should not be tation requirement of the federal person, one vote adoption stripped representation, constitution, is if the number of Senators plan. of a 30 or 31 member Senate plans introduced two reduced. Plaintiffs curiae, League of senatorial districts Women Voters reducing the number Amici 30, County, seek affirm- plans Dyer had maximum of Tennessee and to 31 and ance of the Chancellor’s decision respec- variances of 13.82%and 10.44% total Act unconstitutional. of these Plaintiffs aver that neither tively. lines and the vari-

plans any county crosses AND FEDERAL CONSTITU- STATE equal protec- plans ances in both meet the REQUIREMENTS TIONAL FOR requirements. tion REAPPORTIONMENT PLANS the division of Defendants contend that Person, Equal A. Protection —“One necessary counties is Vote” One under the person, “one one vote” doctrine equal protection clause of the Fourteenth There are several constitutional which the must con- standards Amendment of the United States Constitu-

707 tional if the state has a reapportionment plan. policy rational in adopting sider in requirement support First and foremost is Virginia’s thereof. variance 16.4% districts, equality population among which, inso is greatest knowledge, to our practicable. v. Gaffney far as is Cum constitutional, been court found in 735, 2321, mings, 93 37 412 U.S. S.Ct. approached Mahan speculated that this Howell, (1973); 410 L.Ed.2d 298 Mahan v. limit of variance. Apportion- 315, 979, 93 35 320 U.S. S.Ct. L.Ed.2d greater ment with statutes variances than Sims, (1973); Reynolds supra; v. Clements down, this have been struck see Whitcomb Valles, (Tex.1981); v. 620 112 S.W.2d Smith 1858, Chavis, v. 91 403 U.S. S.Ct. 29 Craddick, (Tex. 1971). v. S.W.2d Hill, (1971); Kilgarlin L.Ed.2d 363 v. only required by Not is this the Fourteenth U.S. 87 S.Ct. L.Ed.2d Amendment of the Constitu United States Adams, (1967); v. Swann U.S. tion, it required by but also is Art. 4§§ (1967).4 S.Ct. 17 L.Ed.2d 501 and 6 of the Tennessee Constitution. say That is not to that a with less Act, Under the the General cre- than automatically 10% must be ated with senatorial districts a maximum upheld equal an protection in the face of largest total variance between the challenge. When the variance than is less smallest districts of 1.65%. should 10%, Supreme the United States Court has larger be remembered that variances than held that prima showing there facie Indeed, would constitutional. unconstitutionality. Plaintiffs such White United States Court in v. case have prove more: Regester, 412 U.S. S.Ct. 37 plan invidiously discriminated. also do We (1973), L.Ed.2d 314 v. Gaffney Cum- not hold up with a variance of mings, supra, attacking held that those upheld merely 16.4%would be because it state apportionment had failed to lines, did not cross and because prima protection show a facie equal viola- upheld Virginia. 16.4% was As the tion where the maximum total variances Reynolds Sims, supra, held White, and 1.81%for Con- marginally “What in one permissible necticut House 7.83%for the another, may unsatisfactory be de- Howell, Gaffney. supra, In Mahan v. pending the particular on of circumstances larger may Court held a total variance the case.” 377 84 U.S. at S.Ct. at 1390. justified be constitutional if it is in order to Howell, It later v. supra, noted Mahan particu- further a rational policy. state Adams, quoting supra, from Swann v. “the lar, a variance of 16.4%was for validated fact that a 10% or 15%variation from the Virginia Delegates House when norm is approved in one State has little purpose state’s had to main- therefor been bearing of a validity on similar varia- integrity tain the and traditional tion in another State.” U.S. at city Reynolds boundaries. The Court in v. at S.Ct. 987. must be remembered that Sims, supra, recognized validity Equal requires “the Protection Clause maintaining political subdivision lines as a good State make an honest and faith per- justifying deviation from mathematical districts, effort to construct in both houses (as drawing to con- opposed fection in state legislature, nearly popula- of its of equal gressional) legislative districts. Sims, Reynolds tion as is practicable.” v. cases, supra, 577, 84 From these a “rule of thumb” 377 U.S. at S.Ct. at 1390. appears developed, policy urged justification have var “For a whereunder State’s justified population, or in district disparity iances of 10% less need not be however rational, permit- showing constitutionally absent a of invidious discrimina cannot be tion; goal greater will constitu- ted to of substantial variances emasculate Adams, Chavis, reapportion- 26.58%; plan, v. Swann v. Florida 4. Whitcomb Indiana Act, ment in the House and in the House and in the Senate. 28.2% 33.55% 25.65% Senate; Hill, Kilgarlin plan, v. Texas Jr., of Act Howell, whether not the is “a neces- supra, v. equality.” Mahan sary avoiding at 986. means for an unlawful dilu- 93 S.Ct. U.S. strength.” Many minority voting tion of the re principles these Applying Supreme Court cases have United States Senate, Tennessee we of the apportionment that a certain argument dealt with the largest variance between feel that the legislative districting, usually at- form of could increase substantial smallest districts districting, large, multi-member has result- boundaries ly preserve county in order to minority in unconstitutional dilution of ed stan with other constitutional See, v. voting strength. e.g., City of Mobile Crowell, F.Supp. dards. See Sullivan Bolden, 1490, 64 446 U.S. 100 S.Ct. (W.D.Tenn.1978), reappor wherein a (1980); Regester, L.Ed.2d 47 White v. in among tionment several House districts 2332, 37 L.Ed.2d 314 U.S. 93 S.Ct. variance from 4.51% to 12.51% creased the Chavis, (1973); Whitcomb v. 403 U.S. having voting precincts in order to avoid (1971); 29 L.Ed.2d 363 S.Ct. were in two districts. The wherein voters cases cases cited therein. These contain this was a valid reason for court held that instructive statements as to what consti- However, if a increasing the variance. area, in this tutes invidious discrimination which would achieve the could be devised and what does not. maintaining while much lower same end remand, hearing evidence variances, would be un At the on the 12.51%variance concerning be heard whether or not equal protection Yet should constitutional. invidiously are discriminated not be thrown to minorities certainly factor should against by any apportionment indicates Specifically, the record winds. court; whether, assuming plan which can be before the the best 33-Senator invidiously does discrimi crossing any county lines that the Act without drawn nate, variance of alternative have a maximum total would can be drawn which also does not invidious We cannot conceive of such over 22%.5 to the ly yet one discriminate and conforms being held constitutional. The require guidelines constitutionality under the principle vote person, one forth herein. than this. Tennessee Constitution set substantially variance of less Against Crossing County Strength C. Prohibition Minority Voting B. Dilution Lines, Article 6§ which, like the a second issue There is issue, requirements two discussed The first falls under Unit- issue, A and B dealt with state and in Sections This is ed States Constitution. standards. Not divid appeal to this federal constitutional the first time on raised for require ing county solely lines is a state Tennessee Voters by amicus curiae association, If there is an unavoidable conflict Council, by ment. unincorporated an as Williams, requirements federal and state between Avon N. the General Chairman 119,453 Senators, represent people, each would Hinton stated that of Frank D. 5. The affidavit County the norm. If Knox major problem in a 33-mem- or below with variance 14.13% Senators, given represent crossing county each would plan is in the were lines ber major metropolitan not 159,847 people, Dividing above the norm. If their or counties. 14.90% Senators, represent given by each would it were populations census the ideal under the 1980 106,565 139,114, people, below the norm.. population can or the Court district 23.4% County qualify for 2.1 Shelby County Hamilton would to 5.6 Since would be entitled see Senators, obviously 3.4; given each of Senators; County it would be Knox to Davidson 143,870 represent people, 2.3; County or County 2.1. If whom would to to and Hamilton 3.4% Senators, figures which we County given the norm. These are Shelby each above were derive, they figures correspond 155,423 to used people, can represent or would 11.72% does not given affidavit. The affidavit in the Hinton explain it were each above the norm. If possible 129,519 that the least people, his conclusion represent or below 6.9% however, 22%; County given is some variance in such 3 Sena- were norm. tors, If Davidson 159,270 figure parties the lowest people, as represent or all possible conceded each would argument. during given oral total it were norm. If above the county assert, 3.When has more than require- defendants then the state suf- secondary necessity ments become to the population Repre- ficient to entitled to a be complying clause. Representatives, sentative or he or they parties erroneously All of the assumed that apportioned county. shall be to that For only alternative constitutional to the any surplus may joined it be population, in Act, present lines, 16 county which crosses county a district with any other counties. county is a which crosses no The that the equal protec- court first held in the whatsoever. was shown trial court requirement precedence, tion took and “any that at least one 33 Senator can be inconsistency therewith in the Texas Con- significantly devised which crosses fewer stitution is thereby vitiated.” S.W.2d Act, county yet lines than does at 377. clearly protection equal guide- meets the prohibition

lines delineated above. The When requirements “super- federal against county crossing lines should com- be imposed,” were, upon provi- as it the above plied possible equal with insofar as is under sions, upon the following effects the State protection requirements. There are excel- Constitution were had: policy lent the presence reasons for of a Clause be only 1: This would effective so provision represented that counties must be Howell, long supra; county population Mahan v. was Senate. within the Reynolds Sims, v. As supra. complaint permissible limits of variance. alleges: this case Clause 2: When or more two counties are ... Counties are divided and thus their district, needed aup only to make “the citizens are their denied impairment of this mandate is that a right to represented be in the State Sen- may be do so is necessary divided to political by ate as a group senators sub- order to with” the Fourteenth ject to election all voters within that Amendment. political group. These aver Clause 3: This was nullified. It became legal that the political framework of permissible join portion to of a

Tennessee requires allows and legislature surplus population enact which there legislation having only a was local application. legislature Thus the in a district wholly county, within the with through legislation has the local ability to contiguous area or another to form a directly merely affect citizens because district. necessary It was still for a county particular those citizens in a reside coun- to receive the number districts to which Therefore, ty. legislature has the its population own was entitled when the right govern to citizens in one equalled “ideal” or exceed- differently from citizens another coun- ed. ty- It was court interpreted clear that very persuasive We find the law which the language of its Constitution mean developed under the in Texas cases of whole, that counties must be dealt with as a Craddick, (Tex. v. Smith 471 S.W.2d 375 and that meaning it allowed that 1971) Valles, Clements S.W.2d softened extent necessary to the (Tex.1981). pertinent provision comply with the federal constitution. (Art III, 26) the Texas Constitution dic tated as follows: plan passed Texas by the Craddick, supra, in v. cut Smith the bounda- 1. Whenever a has sufficient Forty-three ries of 33 counties. of one hun- population to Representa- to be entitled a fifty portion dred a districts contained of a tive, separate such form a shall dis- county. As the court held: trict. offered no evidence to es- [Defendants]

2. When two or counties are re- more tablish that the wholesale cutting quired population to up make sufficient district, contiguous. required . . either they shall be . was sary one-man, precision, plan seg- mathematical justified comply with the mented an excessive number of towns in one-vote decisions. The burden on one attacking forming hearing an act to establish its invalidi- the districts. At the court, ty. plaintiffs federal district introduced omitted.] [Plaintiffs] [Citations proved conclusively that statute fails apportionment plans three alternative required by to do what is constitution cuts, required although fewer town-line all respects in those discussed . .. above. plans three involved total deviations from presumption validity No remains in the in population equality excess of the 7.83% showing. districting face of that If these plan. contained in the House A fourth requirements were excused re- plan alternative was submitted which had a quirements equal representation, 2.61%, maximum variation of but had present- had the burden of [defendants] regard integrity for the of town lines. ing They presented that evidence. none. The district court invalidated the at Id. 378. enjoined its future use in elections. apportionment plan The down in struck The stayed the district Valles, supra, Clements v. also sets out the judgment upheld original court’s of counties failed way which division plan, which violated the Connecticut Consti- v. Craddick Smith prohibition against crossing tution’s town analogous to the guidelines. These are following perti- lines. The Court made the Tennessee Act. The Texas Act cut 34 coun- nent observations: ties, surplus population 24 with and 10 with outset, . very recog- .. From the we population insufficient to form a district. task, the apportionment nized that deal- presented numerous alterna- as it must with fundamental “choices ing closely followed tive more representation” the nature about [cita- permissi- lines and still maintained omitted], primarily political tion ble deviations. legislative process. . . . Cummings, 412 Gaffney

In U.S. (1973), the 37 L.Ed.2d 298 Su- S.Ct. political . .. Politics and considerations preme Court considered the constitutionali- inseparable districting ap- are from ty plan apportioning of a Connecticut .. . portionment. Connecticut, than House. In towns rather govern- counties are the basic unit of local . .. may districts [M]ultimember provides The state ment. Constitution vulnerable, groups political racial or the purpose “no town shall be divided” for political proc- have been fenced out of the districts, where creating except House strength ess and their voting invidiously “wholly are formed within districts minimized. provides, town.” The Constitution further 749, 753, 754, at at U.S. 93 S.Ct. own, that the “establishment of as does our 2331, 2332, L.Ed.2d districts ... shall be consistent with federal that, point This case illustrates the standards.” The House necessary meet federal constitu where Gaffney boundary cut 47 scrutiny under requirements, a state constitutional tional state’s 169 towns. As in the lines of the extent, an but provision may be violated to bar, brought seeking case at an action was all given must be due consideration and still injunctive against relief im- declaratory and possible effect. plan. plementation erro- complaint alleged that Consecutively Contiguous D. Amendment neously applied the Fourteenth Numbered Counties from as to achieve smaller deviations so require In the above districts than addition to population equality for the C, A, B and the courts the Fourteenth ments Sections required under unneces- must of course consider other factors achieving such Amendment. 7H passing upon the increase or constitutionality of a state decrease after each decennial apportionment plan. The counties in each census. TCA 3-1-101 expressly § man- II, district must be contiguous (Art. 6). Senators, dates that there shall be 33 § county having validity In a more than one senatori- this statute has not been district, challenged such in this Clearly, al districts action. shall be numbered stat- (Art. II, ute consecutively 3). legislative evidences a intent as to the §

number of Senators. NUMBER OF SENATORS We contemplate problem another in re- Another matter which must be addressed ducing the number of Senators. ei- Under considering when state constitutional stan- ther a 30 plan, or 31 Senator the Senator dards is the number of members which the elected in the 32nd senatorial district can Senate contain under a constitutional term, 1980 year II, for a 4 specified by Art. plan. stipulations made to the trial Constitution, 3 of our § would have his court included both a 30 and 31 Senator senatorial district during abolished his term plan, neither of which crossed lines. of office. A problem more serious in reduc- The variances were 10.44%and 13.82%re- ing the number of Senators has been raised spectively. The Chancellor noted these curiae, is, by amicus reducing plans We, however, approvingly. see sever- size of the Senate raises ques- al problems which weighed should be when tions representation relative to the mi- considering the advisabil- norities within the They Senate. contend ity of changing the number of Senators. plaintiffs’ 30 and 31 Senator unlawfully dilute minority voting strength, Certainly, it would be constitutional particularly in Shelby and Davidson Coun- for the Senate contain fewer than 33 ties. Constitution, II, 6, members. The Art. § view, sets Senate, maximum size of the our the decision as num- at one-third the ber Representatives. belongs number of of Senators to the General As- However, sembly; the maximum political II, number of it is a Repre matter. Art. sentatives has been set at 99 We shall not upon §4. since the Con intrude legisla- 6 stitution prerogative, of 1835 and the tive being number of Sena mindful of the Doc- tors has Separation remained in trine of practice actual one- Powers under Art. third the number 1 Representatives. and 2 of our §§ Constitution. The Gener- Code of 1884 Assembly set the al Representa perfectly number of free to reduce the tives at 99 and the number of number of by amending Senators at Senators TCA 3-1-101, and the same composition keep membership existed in the House and so long Senate since that date.7 The as the plan which it adopts framers of the Constitution and the otherwise meets Legis constitutional stan- lature as early as 1884 dards. sought stability in

the General Assembly by fixing specific FEDERAL TENNESSEE COURT CASES number of Representatives. Senators and FROM THE 1970’S nearly years For 100 composition changed. Senate has not plaintiffs’ Under Mention should be made of federal dis- theory the number likely of Senators would trict during court cases decided the 1970’s Composition 6. Number of Members of Assembly provid- of the General Constitution ed statute: House Senate IV, Code of Art. 91 House 1796 less than 22 not not less than V3 y2 (Acts 4) 197, § of 1851 Ch. 25 75 99 not than not more than 26 (11 counties) less Ill, Code of Art. 114 33 Ill, Code of Art. 99 33 greater 1835 not than 75 until 122, §2 Acts of Ch. greater than reaches 1.5 V3 (E.S.), 3, § Acts of 1965 Ch. million, thereafter (TCA 101) §3 1 greater than 99 as in 1835 same as in 1835 same 1966 99 members same as 712 discussing were so close. The court apportionment

and Tennessee found that plans under the United Legislature’s making States Constitution. reasons for cases, order, chronological unjustified, These in are: changes were so they were held Carr, (M.D.Tenn. 343 Kopald F.Supp. 51 unconstitutional. The case that held 1972); Crowell, White v. F.Supp. 434 1119 of the six variances districts would have Crowell, (W.D.Tenn.1977); part Sullivan v. 444 been constitutional if they had been F.Supp. (W.D.Tenn.1978); general 806 Mader v. 1973 reapportionment ordered Crowell, F.Supp. (M.D.Tenn.1980). However, 498 Kopald. in the variances which resulted from the reapportionment Interestingly, Ch. 2 of the Public variances, smaller much than the 1976 expressly designed which was Acts of demonstrating thus that the 1976variances Carr, response supra, as a to Baker v. did improved upon. could be Clearly court Kopald not divide counties. dealt was concerned with man- Assembly’s apportionment first by dated the federal constitution almost to census, plan after the 1970 which was en- the exclusion all other considerations. actually acted in consisted of a Sullivan, and an principal plan. supra, alternate was was actually three consol- cases, “Sullivan,” that the which principal plan, admitted did idated referred to as “Al- unconstitutional; lines, county good" not cross was and “Nelson.” The Sullivan case plan, the alternate and that which crossed dealt with four House by districts altered a lines, act; Algood had over a 21%variance dealt with House nine House, acts; principally malapportionment by from districts altered two 1976 and Nel- The Shelby in Knox Counties. court son dealt with seven House districts altered changes by made certain in Ruther- act. these and a 1976 Counties, brought ford which the variance Sullivan, the maximum total variance apportion- below to well 10%. It noted that question the districts in was increased function; primarily legislative ment was a 21.78%; from to Algood, it was had that submitted even increased from 2.39%to 35.57%. The court that the mathematically precise; more but recognized leg- of state showed evidence that “the lesser mathemat- judged islative districts was with a more may precision ical [court’s] than congressional appor- flexible standard justified legitimate on the basis of state tionment; and fairly large variances F.Supp. at 53- policy considerations.” 343 they are tolerated when result from the added). (emphasis implementation even-handed of a rational Here, policy. justification state State’s opinion May was issued “ ‘put was to the counties together’ back modified The court’s was effective taking a magisterial small number of dis- elections, giv- with the Legislature legisla- tricts of a isolated a 1, 1973, July en until to devise constitu- tive combining district and them with the plan. tional larger of other number districts in the coun- Crowell, supra, It is reflected in White v. ty they to all belong.” F.Supp. Legislature passed the court-de- at 610. apportionment plan prior July vised argu- did accept court such an deadline. This crossed ment in that case because changes in lines. White dealt with 1976 (“Gillock Amendment”) reap- does not show three Senate the record that these Shelby County. portionment significantly three House districts in measures have changes, from ideal the division dis- magisterial After the the variance reduced increased, although size was even tricts in the affected does district counties. Nor largest of was show an attempt by then the the six variances the record the State changes “putting +3.304%. The were chal- effect statewide policy May, together.” so that took no the counties back this rec- lenged court On ord, time elections the court does not find relation- primary action at that since ship between The Mader case brought March, unification and the reapportionment legislation before the challenge reapportionment the 1973 court. Kopald ordered in the case. The court is- Similarly, Algood, 15, Id. at 611. sued holding January 1979, there was its initial legitimate “no discernible reason” advanced reported which is as A Appendix to the justify greatly increasing so the variance 27, 1980, opinion published of March at 498 in the affected district. F.Supp. opinion 226. The 1979 held the agree We court’s unconstitutional be- the variances Algood in Sullivan and cause the maximum total deviation there- significantly larger any figure than 18.03%, under was greater far than the Secondly, been held constitutional. the approximately 4% deviation plan under the huge creation aof variance would not be court, Kopald devised the under which acceptable magisterial a few dis- the 1972 elections had been held. The State Third, tricts were unified. language the was unable to justify the 18.03% deviation implies that if the supported record had the Legislature’s under the plan. The court argument truly trying that the State was observed: keep together, counties and if the variances Although point defendants out that Arti- smaller, reapportionment had been cle section 6 of the Tennessee Constitu- could have been held constitutional. “prefers tion districts that contain whole Nelson, maximum among counties,” contiguous (Defendants’ Reply seven affected House districts was in- Argument, Brief and filed November 12.51%, creased from 4.51%to a much small- 7), defendants have failed to Also, er increase. part justi- at least indicate how the under attack fur- fication for the change was to eliminate this preference thers or even that “split precincts” precincts where voters — preference rises to the level of an estab- legislative from two districts vote at lished policy. state Tennessee Code An- polling place. same There question was no notated section 3-1-102 creates a number split precincts confusion, cause delays, lines, districts that cut across lines, long expenses for additional vot- ing Thus, and several of these machines. districts deviate court held that their elimination markedly optimum. “would be a valid reason from the Although increasing population for disparities among [supra] Mahan teaches that other policy legislative percent districts to the 12.51 lev- might considerations justify exceptions to here, el demonstrated if no alternative cre- general policy observing existing po- ating less severe imbalances available.” boundaries, litical justifications no such Id. at 614 (emphasis added). appeared have been identified for noncontigu- the plaintiffs had a which would ous districts now existing in this state. also eliminage split precincts while maintain- 498 F.Supp. at 234. ing lower variances. The gave instructed to The court study matter and take until June appropriate action. plan, “The devise a new elimination of and this split precincts justification cannot deadline was complied serve as a with.8 Under such for malapportionment plan, if it new possible to maximum total variance was a eliminate split precincts case, while mere maintaining .89%.9 In the second legislative districts of more nearly equal made no equal protection challenge, but population.” Id. challenged grounds on two appealed January plan, crossed, 8. The State had order to Under the lines were part the United States Court. The Court and 20 Senate districts contained of at action, light Assembly’s county joined in mately of the General ulti- least one with at least one other county. remanded the cause to the district court proceedings might appro- for such further Mader, priate. Crowell v. 444 U.S. (1980). S.Ct. 62 L.Ed.2d 701 case, appeal; relevant in this their which has not been considered by the Chan- challenges upheld. Nothing were not fur cellor. crossing

ther was said about districts coun Whether the state made an honest ty lines. good faith effort to construct senatorial districts which comply with both federal THE PROPRIETY OF SUMMARYJUDG- and state constitutions is an issue of fact MENT—AND OUR CONCLUSIONS which we requires believe a full evidentiary granted plaintiffs’ The Chancellor motion hearing question justifica as does the summary judgment “because the de- tion. The parties should also be allowed to fendants have not demonstrated an una- properly develop present evidence on voidable conflict between prohibition [the whether or not necessary the Act is a means against dividing Con- counties] avoiding for an unlawful dilution of minori person, and the stitution one one vote re- ty voting strength. quirement of the federal Constitution.” We proper hold that this was not a ease We cannot reach the same conclusion based summary judgment. for There remained upon the limited record before us. disputed questions of material fact as to Plaintiffs showed that the Act vio plan whether the under the Act was actual- prohibitions lates state’s constitutional ly necessary, in view of other action which lines, against crossing county Art. II 6.§ taken, Legislature could have in order The burden therefore shifted to the defend to comply paramount with constitutional justi ants to show that the standards. This cause is therefore remand- passing reapportionment fied in act which Chancery ed to the of Davidson county stipulated crossed lines. It was that County, the defendants shall file their an- reapportionment plan, which swer, proceed and this cause shall to a hear- lines, crosses has a maximum vari ing on the merits. ance This meets clearly of 1.65%. guide As a to the trial court and the requirement equality pop the federal recapitulate we our hold- among ulation districts. ing: The defendants aver and the population 1. The variance under the concede that a 33 member Act comply can be increased and still with lines, crossing county would plan, not result equal protection standards. The variance We gross in a total variance of over 22%. possible, equali- should be as low as because a variance exceeds the maximum hold such ty principal is still the consid- permitted by deviation certainly eration. The variance should not of the Fourteenth Amendment. We clause greater any figure than be which has been conflict, thus have an unavoidable unless approved by the United States hold, upon we were to based the bare con- Court; figure nor would such maximum presented, evidence that the 31 and clusory automatically approved, because the var- plans, 30 member which cross no any judged solely by iance for state will be lines, meet the federal constitutional re- the circumstances present that state. quirements reapportionment plans. Primary 2. consideration must also be stipulated plans has been that these have given to preserving minority strength to maximum total variances of 13.82% and required by the extent United States Su- respectively, preme Court cases cited above. Chan- probability equality popula- all meet the reappor- cellor should consider whether the of the state and federal requirement tion any tionment Act or other unconstitu- However, the record fails to constitutions. tionally opportunity dilutes the of minori- minor- establish whether either dilutes participate political to process. ties ity voting strength. ques- This is a serious tion, provisions amicus curiae 3. The of the Tennessee one which was raised Con- stitution, appeal, although secondary import and one for the first time on equal protection requirements, Nothing beyond redundancy al. are nonethe- can result less valid purpose and must be from a for the of obtaining enforced insofar as is remand possible. adjudication possible If the State is an it correct in its insis- it is not tence that there is way possible population equality to meet federal with guidelines mandates of the crossing county federal and state without lines or con- stitutions without crossing county lines, chapter 538 does or does not unlawful- then we hold that the plan adopted ly minority must dilute voting strength. No cross as few necessary findings as is combination of on those issues comply with validating the federal would result in chapter constitutional re- 538. quirements. majority opinion contains a full and In addition to equal protection, pre- accurate analysis legal of all the principles serving minority voting strength, and not relevant to this lawsuit. We are in full crossing lines, stan- accord with all of the conclusions reached dards which must be dealt with in except those that are said to support a include contiguity of territory and consecu- remand for trial and dissolution of the in- tive numbering of districts. junction. Although point the law on this is not chapter We would hold 538 unconstitu- fully developed, the cases indicate that po- tional shows, because this record beyond litical considerations are reality a and also dispute, Legislature that the has not re- have place a in the legislative creation of stricted its breach of lines to the Weiser, districts. See White v. 412 U.S. minimum necessary to comply with federal 783, 791, 2348, 2352-2353, 98 S.Ct. 37 population requirements. parties The have Gaffney Cummings, (1973); L.Ed.2d 335 stipulated and exhibited in this record a supra, 752-753, 2331, U.S. 93 S.Ct. at thirty-three member with a total vari- 37 L.Ed.2d at 312. But see Legislature of ance of 9.99% with districts numbered con- Reinecke, State of California v. 10 Cal.3d secutively, only crosses three county that 396, Cal.Rptr. 718, 721-722, 516 P.2d lines. That meets all constitutional (1973). requirements, federal, state except that portion Shelby, a

The Davidson and sustaining plaintiffs’ order Knox motion Counties are combined with summary judgment adjoining for dis- is overruled and the tricts. It is beyond question that pri- cause remanded to the the Chancery Court of mary problem in complying with County equal Davidson the proceedings further population and the county line opinion. accordance with this mandates is injunc- The the populations fact that the by tion issued of the four enjoining the Chancellor the metropolitan counties are not exact defendants from multi- conducting any primary or 139,114. ples of It follows that if general election under it is Chapter Public impossible to draw a thirty-three member Acts of is The dissolved. costs inci- plan that equal population meets the man- appeal dent to this will be equally divided counties, date without splitting the parties; between the mini- all other costs will be mum county line violations would be judge. assessed the trial obtained by combining adjoining with coun- COOPER, J., HARBISON, J.,C. con- ties an area of the metropolitan counties cur. largest with the fractional results obtained BROCK, JJ., FONES dissent. 139,114 by dividing into the total population. That is exactly what the thir- Justice, FONES, dissenting. member, ty-three split three county plan respectfully disagree majori- We accomplishes. ty’s remanding action in this case for fur- proof ther on two issues. The record before majority opinion holds that the Ten- us, though even meager, is sufficient nessee county line mandate is secondary to support, beyond dispute, finding requirements, but cannot Chapter Acts of is unconstitution- be breached beyond the extent necessary to We equal fully agree with with all majority the federal that the guidelines. was principle implicitly avoiding That said about unlawful dilution Craddick, What, ask, explicitly applied minority voting strength. Smith v. we (Tex.1971), will be sup- finding S.W.2d 375 and it is the result of on remand that ported by logic. chapter reason and unassailable It was constitutional or unconsti- tutional, Crowell, respect? also sanctioned in Sullivan v. seems clear to F.Supp. chapter 606 at 614. us that 538 is doomed and therefore its effect minority voting strength on is it impossible State insists that inquiry, judicial moot. Such an deter- comply with the Federal Constitution as mination appropriate if all interpreted by Federal Courts without conceivable reapportionment plans that the crossing county lines relies on Legislature might adopt would have an Frank of February Hinton’s affidavit minority identical voting strength, effect on proof that a variance of is the 22% proposition a judicially we can notice as obtainable, minimum without breaching a fallacious. single county line. Hinton’s affidavit Knox, We agree legislative shows that Shelby reapportion- Davidson and legislative ment produce +14.89%, primarily Counties a variance of function and + we believe respectively, Legislature reapportion 14.48% and +11.71% from will itself, optimum size, constitutionally district and that some of the under the State guidelines multi-county majority opinion will have a negative districts and the 7%, guidelines, Federal so well approximately resulting variance of reviewéd and gross As summarized We would variance of 22%. therein. terminate majority out, judgment declaring this lawsuit opinion points with concede unconstitutional, chapter accuracy enjoin affidavit. Plain- Hinton’s tiffs’ of an accuracy give concession as to of that election thereunder and case, opportunity affidavit the law of this to accom- establishes as plish guidelines that Federal that before the 1982 elections. population cannot crossing met county without some lines points clearly necessity BROCK, J., to the cross- concurs this dissent. ing metropolitan three of county the four Yet,

lines. the effect remand is to proof

take and determine the issue of

whether there an unavoidable conflict line

between state mandate and equal protection requirements. Federal

Upon does, as this establishing, record Tennessee, Appellee, lines be breached to meet STATE must population requirements, the deter- federal constitutionality minative issue of the HUDSON, II, Appellant. James Owen chapter or not the 538 is whether State has 131. No. good an faith made honest and effort breaching construct districts as few Tennessee, Appeals Court of Criminal comply with federal practical lines as Jackson. guidelines. thirty-three plan breaching only three Nov. 1981. member question conclusively answers that Appeal Permission to Denied negative. Thus, the conclusion is ines- Feb. capable chapter cannot meet the test of minimum of the state con- violation finding on remand can

stitution

change or alter that result.

Case Details

Case Name: State Ex Rel. Lockert v. Crowell

Court Name: Tennessee Supreme Court

Date Published: Mar 31, 1982

Citation: 631 S.W.2d 702

Court Abbreviation: Tenn.