*1 large particular participated to a degree equitable of an formulation the entire con- workable solution United

flict between railroads States, Firemen and the Brotherhood Enginemen. dispute do not We just capable resolve

this Court But an examination

this narrow issue. litigation prior pending be- the railroads and firemen leads

tween inevitable conclusion that the action D.C, F.Supp. 953. also See one facet in before this Court is but raging dispute bitter through which has agencies and the administrative regarding general require- the courts ment firemen more modern on the By consolidating the ac-

locomotives. into one central wherever

tions possible, thereby tribunal achieving greater de-

gree uniformity, the interests

public may properly who characterized parties disputes

as the real of interest in nature,

of this best served. will Plaintiffs, et PREISLER

Paul W. al. MIS OF OF STATE

The SECRETARY Attorney General SOURI Defendants, Missouri, al, Intervenor- Heinkel et

F. V. Defendants. 1064.

No.

United States Missouri, D.W. Division. Central

Dec. 1967. Jurisdiction Noted

Probable March 1968.

See 88 S.Ct. *3 Congressional Redis

the 1961 Missouri tricting but de Act was unconstitutional granting any judicial “until ferred relief Legislature of State opportunity deal has once more had an problem;” refused presume “the all refuse to take State of Missouri will duty necessary comply action to with its Federal, as its own under well State, Preisler v. Secre Constitution.” Missouri, tary of State I). (Preisler (W.D.Mo.1965) *4 Following Seventy-third Preisler I the Assembly enacted Missouri General Act, Congressional Redistricting the 1965 9, Title Mo.Stat.Ann. 128.202-128.305 §§ ju- (1965). subjected That Act scrutiny constitu- dicial and held to be tionally ground it also void on the comply command of failed with the I, Art. the Preisler 2 of Constitution. § Preisler, Louis, Mo., Paul for W. St. Secretary Missouri, 257 of State of plaintiffs. (W.D.Mo.1966) (Preisler F.Supp. 953 Atty. Gen., Anderson, Norman H. case, II). how- decree second Our Mo., Downey, State of and Thomas H. light ever, fully for reasons stated Atty. Gen., for Asst. defendants. II, 210, Adams 86 S. Swann v. 383 U.S. MATTHES, Judge, and Before Circuit 767, permit- (1966), Ct. 15 L.Ed.2d 707 COLLINSON, District OLIVER Congressional to be ted the 1966 elections Judges. constitutionally void under conducted jurisdiction for Act. We retained OLIVER, Judge, JOHN W. District reviewing purpose Con- new joined by COLLINSON, WILLIAM R. by gressional redistricting plan enacted Judge. by signed Assembly and a future General at 982. On Governor. I. January 9, judgment of this 1967 the presents judicial case This for review by Supreme was affirmed Court by the third effort made a Missouri Gen- Kirkpatrick Court the United States. Assembly eral since the 1960 decennial Preisler, 613, 385 U.S. 87 S.Ct. census to divide this State into ten con- (1967). 17 L.Ed.2d 511 gressional nearly equal districts of as Seventy-fourth population General practicable, as is in conform- again Assembly ity of Missouri tackled with the dual Article mandates legis- problem. effort Its culminated Section 45 of the 1945 Missouri Constitu- on October tion, lation became effective I, and of V.A.M.S. Art. 2 of § hereinafter referred to Ap- Constitution of the United States. Act, 128.- plication Mo.Stat.Ann. Title principles §§ Art. established (1967). pends on I, This 202-128.305 case Constitution, 2 of § as construed Attorney mo- Missouri’s General the United approval Act and of the 1967 tion for States, requires that we hold that of this case. pass dismissal not third effort does constitutional muster. the 1967 contend that Plaintiffs Court, popula- The initial decision ren- unconstitutional because of this January 4, 1965, not “as dered tions of districts were determined figures ex- [on referred practicable,” since variances lation

as is on the United populations States are substan- based hibit] between district challenged respon- Plaintiffs’ Census 1960.” Act is not tial. suggested popula- comply pleading any ground failure to sive other than I, presented defendants federal Constitu- tion data with Art. 2 of the § accurately reflect parties intervened motion did tion. The who their urged population data. Pro- approval of the II the 1960 census Preisler adopted pre- appeared participated at a therefore 1965 Act have cedures were hearing regard accu- the 1967 under which in the same role conference promptly figures obtained Act. rate Census. Bureau of pending Defendants attached to their map motion following dif- State illustrates the table which illustrated the data boundaries ferences between purported presented by Appendix districts and to de- show actu- B attached al of each district. Defend- that established fendants’ motion and alleged figures: popu- ants’ motion that “all of the census the accurate 1960 Comparison Population Figures

Represented As Accurate in Appendix Defendants’ B With Figures Actual 1960 Census in Evidence *5 Population Variance Actual Actual Represented Represented Census Census App. App. Population B Def. B Variation Def. 436,417 4,436 439,746 7,765 + +10,321 + 442,302 436,448 4,467 + — 431,507 436,099 4,118 + — 423,815 8,166 419,721 —12,260 - — 430,412 1,569 431,178 - — 425,238 6,743 9,743 422,238 436,769 4,788 436,769 4,788 + + +13,542 439,984 8,003 445,523 + - - 428,223 3,758 428,223 3,758 — — 8,115 423,868 423,866 8,113 (Districts apparent Appen- 10) obviously is that defendants’ are mi- It 5 and accurately nor.1 dix B reflected the actual

population only of the ten dis- two concerning Before the facts the actual (Districts established, tricts The varia- population were variances regard legal tions in to two other defendants’ sole contention that apparent, however, 3,000 people is It there were more in the rural sub Appendix stantial B errors in Defendants’ than are Sixth District the census shows population there; actually Eighth District, made the allocation of the in metropolitan figures both of Missouri’s look areas 1960 census establish population 445,523, better than the facts as established an actual Defend- figures. Appendix supposed the actual census The mistakes ants’ B reflected a regard population sup population 439,984. in made to the When essentially posedly question justification allocated to what are is variances reached, obviously question rural districts even more obvious. an different Appendix presented involving alleged Defendants’ B indicated that in an a case though greater actually established, even approved on based Act Legis resulting those than notion that “the districts creating, never Redistricting Congressional lature believed it was the 1967 de ruled to be theless should still be comply de minimis with the doctrine of regard minimis. be variances defendants tween the districts.” After for hear- set Defendants’ motion was population vari learned the actual ing panel Court before full this Act were ances established the 1967 requested The evidence defendants. greater many substantially instances hearing established adduced at that pend set forth in defendants’ than those Assembly of Missouri the 1967 General ing motion, they advised time accurate at no ever considered evidence like adduce defendants would figures its federal census greater attempt justify varia Act. That evi- consideration of the 1967 tions had in fact' been established.1a’ ac- further dence established figures appro- Defendants and intervenors continue for all curate 1960 census any event, that, priate political contend the variances subdivisions ticipate production presented this time that variance case + involving undisputed rational an variance of evidence on the issue 13,542. variations; policy explain + State around, when but when comes October 9 give page dissenting opportunity 1a. Footnote 6 of we have an had opinion suggests may loe that we were unfair to further consideration matter Attorney position evidence. General. We reach a to adduce believe Attorney ours; Ibid, p. 36). (Emphasis General’s letters of October Attorney 11 and note cannot 1967 referred in that foot Assistant ad- General was properly September 26, read out of con vised confer- light pre granted text but must be read ence that leave would be and full hearing proceedings opportunity permit the tran revealed would be afforded to script September 26, put string your confer him “to alternative * * * jus- legally ence. Swann v. Adams III sub bow that there are *6 ject explain disparities of full discussion at that conference tified reasons to the 26, (September transcript, pp. finally they may 32- 1967 we determine what be” 34). 37). p. (Ibid, It was there made clear that dis of that cussion to be considered other was not and cases text, in stated the As learned that defendants after by Attorney the General population the actual var- “as an invitation either refrain from greater iances were than those set forth adducing evidence or to adduce evidence” pending they motion, ad- in defendants’ (Ibid, p. 35). stage case, At that vised the that defendants would Attorney and at a time when the Gen evidence. The letters of like adduce eral’s office did not con have information pur- 11 were written October and cerning accuracy figures pre the the time established at the suant to the pretrial table Appendix B, sented in sole the defendants’ pp. 21-29). (Ibid, conference legal contention that “the variations was did and did not Those letters not need to are within the of de minimis" doctrine Attorney that the Gen- in fact reiterate p. Sep (Ibid, At the close of the to introduce evidence on eral had elected the 26, conference, tember the Assistant 1967 justification,” described also “issue Attorney General stated: September 26, conference as at the Judge, policy to MR. I think it is issue of rational State DOWNEY: “the explain you al- about which the clear from what have said that the variations” entirely Attorney changed though mind had his our motion is founded General theory present congres- September 26, the and October on the between 9, stipulation 1967, minimis of fact es- districts fall within a de when the sional actually doctrine, justifi- in- that the issue the tablished what variations were judgment Try incident cation variations volved. We believe factors fairly Attorney policy was are inherent General a rational State whether unfairly by case, in the sentence in this in that the Court or treated the. event by all made consideration find the districts do not fall text must be should minimis; parts the record. not isolated within the doctrine of de Court, I not an- told the do as I have proposed is over- for district experienced chairman tion fact furnished Judge Biggs stated,” said: Reapportionment Chief the Missouri Senate served (the same Senator Committee inclusion exclusion or erroneous regard capacity to both same representa- districts of enumeration Acts) his con for figures 1961 and void population throws tive districts pop inaccurate sideration and use. The person is one vote —one askew. When figures presented by defendants’ ulation aim, impossible hit pending inac motion were fact sighted defectively eye with bull’s figures by population both curate used weapon. in con Senate and House reap- attempting to The difficulties legislative action nection with its in- with portion of Missouri the State Judge produced the Act.2 Chief figures viv- is made population accurate Biggs’ Duffy, D. statement Sincock v. comparison idly apparent by, Dela.1963, by the unidentified created variances considering ap apposite. proposed by actually figures used portionment plan it was for Delaware Reapportionment chairman Senate found aas fact that “census enumera original prepared the he when Committee they tion were included when enacted, Bill eventually Senate bill excluded, should have been or excluded 182, (see pages the Chair- 27-28 of No. they when have been should included.” Reapportionment the Senate man of noting they After that “to the vari- deposition), the extent Committee’s original erroneously produced included, in fact popula- were ances popu- Appendix Stipulation 16, 18, B because Exhibits defendants’ reported deposition testimony for lation there and the located, County one Reapportionment Chairman Dade of the Senate which which the for the two districts Committee establish that accurate 1960 accurately figures figures stated. census in fact were census made available phenomenon explanation Legislature by does 1967 Missouri elec- appear of record. tion City metropolitan officials the St. Louis Kansas dissenting opinion page of his areas the Bureau On contrary states, Judge Majority Matthes of the Census. The House opinion, majority “in- leader, however, map finding identified a of Mis- popu- were furnished data” souri used him which accurate certain Election figures long- various “the lation had been written in Louis, City Louis St. of St. ink. hand with red That witness testi- Boards County, en- County, figures Jackson ink fied that the blue hibit, on that ex- City That compasses area.” reflecting unexplained Kansas shift of 5,000 population finding the further as a base is used to Dis- from District 1 sponsors metropolitan area, finding the 1967 “the trict the St. Louis *7 misguided clearly im- writing. under the labored were in hand The his Chairman inac- pression the Reapportionment the sources that of the Senate Committee map. figures reliable.” testified that he had used a similar curate stated, ac- the longhand checked we ink He that red we testified the As elec- figures copied curacy the map furnished his had of the data on from stipulated popu- against longhand figures appeared on the officials tion Majority map. Census the Bureau House Leader’s The com- lation data longhand posite figures, be accurate. it found of these unexplained, even- source of which still Legislature did had but To state not use tually appeared Appendix on B attached census federal 1960 accurate pending motion. defendants’ good question faith figures any is not Legislature. Interestingly enough, Chair- member Senate us, fact, map forecloses it seems his man volunteered that he had used That the members 1961, 1965, any public other than official in connection with each of the charged Legislature can be that he but and 1967 Acts and had County’s responsibility manner recently the casual noticed that Dade 1960 important 7,577 always task had census incorrectly approached appeared map 12,647. apportionment in fact was his as Assembly. long standing affect General did not That error following figures. table makes 1960 federal census bill under comparison: Bill No. 182

Senate Originally Introduced

As the Chairman Reapportionment Committee Senate Figures Actual Actual Used Apparent Census Census S.B. Population Variance Author Variance - 8,269 —23,031 408,950 423,712 +12,481 460,469 +28,488 444,462 +16,843 462,716 +30,735 448,824 - - 3,868 3,757 428,224 428,113 - 2,478 1,569 434,459 430,412 + - - 4,271 4,271 427,710 427,710 - - 3,808 423,103 8,878 428,173 - - 2,053 5,721 429,928 426,260 - 4,668 412,249 -19,732 - 427,313 431,966 +

4,317,260 4,318,774 39b

+ 4,318,813 respective represent figures as the actual These .districts figures Townships Spanish adding Bill, the new outlined Ferguson (formerly 2nd Florissant) and of to the to the 9th District Lake District. City Stipulated b figures per for wards St. Louis Exhibit The actual census population. The than the total Bureau of the 18 are 39 less Census No. explained discrepancy from a number factors “results of technical (Stipulated processing No. Exhibit data.” ture, No. Bill author of Senate the Chairman of the Senate Reapportionment under Committee, simply he still twice testified that many introduced; impression the Missouri bills were nearly finally stormy comply adopted “as one with the could had a Wesberry passage times; practicable” many standard of was amended Sanders, L. finally barely passed 376 U.S. S.Ct. by getting of the House. within Ed.2d Defendants these contend that 2% (De- I, by Art. equality facts demanded demonstrate § that this was the best bill, 13-14, 18). respect pp. practicably position, equal popu- lation, passed, and, that could be there- evidence, fore, attempt argue consist *8 Defendants’ that the division party ing testimony lead provided of is, fact, of of in as Legisla- “nearly equal practicable.”3 of the 1967 as ers in houses is both In expressly produced possible spite politics that we the fact the best In of bill that 3. compromise political permit. rejected point would defendants’ Defendants to the (see “Majority arguments Minority II footnotes fact that Preisler in and accompanying 20, text on Leaders of both and Houses of the and Missouri 7 F.Supp.) pages de- of 257 have and 980 testified 968 that the 1967 again legislative compro- contend Act is a intervenors reasonable fendants and Assembly again General mise.” Missouri Intervenors that contend that 74th 960 S.D.Ind.1966, F.Supp. words, Branigin, would this defendants have v. 255

other “prac- 155, definition of that and remanded that case to the three- Court hold their “accept- legally judge equivalent to consid- Indiana court further ticable” legislature.” light Adams, majority a of 385 able to eration in Swann v. reject argument. 569, 440, L.Ed.2d that U.S. 87 S.Ct. 17 501 We (1967), Wesberry Sanders, v. U.S. 376 find defendants’ evidence that We 1, 526, (1964), 84 11 L.Ed.2d 481 S.Ct. that conclusion inevitable leads Sims, Reynolds 533, and 84 v. 377 U.S. Legis- majority of of the members (1964).4 1362, S.Ct. 12 L.Ed.2d 506 by consid- lature were motivated other objective Adams, 440, than 87 erations the constitutional Swann U.S. v. 385 specific “practicable equality.” 569, (1967), Our also of S.Ct. 17 L.Ed.2d 501 regard findings January 9, 1967, although to the 1967 factual in decided a state regard rejection reapportionment ease, bet- es- in to the of and nevertheless by Legisla- proof ap- plans principles ter of 1967 tablished burden fully Appendix plicable reapportionment A eases. ture are stated to all by dissent, part opinion ref- Mr. made a of this Harlan stated in his Justice legislative history joined by Stewart, and The erence. changes Mr. Justice prior by proof Act in the 1967 burden rule there established

made constitutionally rule acts held be void “stand governing on its head usual [s] * * * together leg- detail, validity there also stated concerning enactments, facts how shifts the particular islative state as well as fed- political eral, they is, course, one subdivisions from come regu- adjoining strong presumption district Act district to an to us with a larity constitutionality” (supra, more would made both and nearly 447, population. Har- Mr. 87 S.Ct. Justice strongly “the lan’s held conviction that necessary restate the con It is showing unconstitutionality burden principles applied in Preisler stitutional here, cases, on should other left as in be That case affirmed the Su II. was attacking party” course, was, ex- January 9, preme Court on rejected by plicitly majority day is the law this case. same Supreme Court.5 affirmed, Supreme II Preisler Grills, Kilgarlin Hill, 120, U.S. Duddleston v. Court 455, v. 386 U.S. (1967), L.Ed.2d 508 S.Ct. S.Ct. 17 L.Ed.2d 771 decided Febru ary judgment 20, 1967, rendered Grills Mr. vacated Justice Mr. Harlan and legislative ment Act is a reasonable case. The cases in “the 1967 addition to Grills Branigin compromise expressly best that could v. fact the this court re practical matter.” In re- fused obtained to follow II be Preisler were Bush pondered moments, II, S.D.Tex.1966, F.Supp. what v. flective we have Martin given response Moore, S.D.Ala.1965, members Moore v. would Assembly F.Supp. 578; Kirby an effort the General v. Elec Illinois State justify attempt Board, N.D.Ill.1965, refusal toral legislative 908, People Kerner, a law rel. enacted ex Scott v. enforce 33 Ill. politically ground body (1965); on the 2d 211 N.E.2d 736 practical poli- inexpedient, Maynard, a matter of Levitt N.H. v. 202 A.2d complied tics, (1964). to have the offender a law. with such significance consistently 5. Mr. full Harlan Justice unsuccessfully Preisler II advocated Court’s affirmance of and va- the view formerly applicable Branigin’s judgment judicial rules of Grills re- cation apportionment assayed light IPs view of Preisler cases should still must be good example express A the law. of how the refusal to follow rationale applied Branigin old that of still earlier rules illustrated Grills State, judicial given cases, at- treatment Missouri’s both federal tempted apply constitutional command that Missouri’s standards other composed I, 2§ Art. districts “shall be set forth in those *9 Wesberry territory compact by contiguous and of as as construed Constitution reapportion- nearly equal may Sanders, congressional be.” to dissenting, Supreme by the The basic Justice Stewart contentions made defend- three-judge accepted by' Court reversed a court ants in Texas case were this the three-judge reason Texas that: court to be re- jected by Supreme Court. Adams Under that case [Swann III], impact quite it is clear that unless sat- The of III Swann v. and Adams Kilgarlin isfactorily justified by the court or v. Hill was con immediate and record, population three-judge the evidence of sistent. All federal courts significance deciding congressional and variances of the size and state courts apportionment cases, evident here are sufficient to invali- of benefit apportionment plan. cases, an either date or Without both of those have been able, justification, appellants’ analysis exception, such unanimously with one every of H.B. made out a case determine sufficient such case that has been year. under the Fourteenth Amendment decided Volpe, this See Dinis v. (supra, 122, D .Mass.1967, F.Supp. 425;5a 87 S.Ct. Wells ginia 45, provi- Art. Section held reason Consti- of this Virginia. Constitution, they sion in tution. Phillips, delegate thing were bound When Mr. from St. because Con- gress Louis, proposed provi that constitutional had enacted no law on the sub- ject. sion Missouri Constitutional to the 1945 Now, Convention, shining he stated: Missouri has been a ex- ample gerrymander representative of of (of City): MR. PHILLIPS St. Louis years years * * * jyjr. districts for President, if this Section is put thing we will like this in our of also Section 55 the Constitution Constitution, protect people it loill Virginia. It State Virginia has been against thing our state such a until Constitution for over one Congress passes (Em- oicn its act. years great many hundred our phasis ours). [Debates 1945 Mo.Const. redistricting copies statutes are exact pp. 5559-5565] Conv. Now, language. under the Consti- The 1945 Missouri Constitutional Conven States, Congress tution United thought pro tion included it what power has the to fix the times people State; tect the of this but it is holding places repre- elections for Supreme clear that the Court of Missouri sentatives, Legislature that is the State agree. Supreme did not Court of power Congress has that and but can pre-Wesberry Missouri in its v. Sanders regulations. these In alter gress representative 1911 Con- opinion Hearnes, Mo.Sup.Ct. in Preisler v. passed prescribing an act how the 552, approved en banc S.W.2d made, shall be districts Renpportionmcnt eventually the 1961 expired passage but that act on the held to bo unconstitutional this Court IS, leaves the Act of June 1929. which rejected theory I, in Preisler on the now prescribing man- no federal statute ner in which state may that “courts not interfere with the lay legislatures shall Legislature wide discretion which the has congressional out the districts. * * * making apportionments Illinois, Legislature of Illi- State Legislative when discretion been ex gerrymander. made a horrible I nois (1. 555), longer ercised” c. and for the no facts, forgotten exact I but political “any compro valid reason that had times think one district two or three mise, for which there is reasonable and the of the others basis, legislative discre exercise Supreme said that Court of Illinois respect” (1. tion that the courts must c. they they regretted the fact that while 557). Compare Footnote infra. The it, they anything did do about could not Supreme refusal of the Court of Missouri redistricting say that it was a terrible Saunders, to follow Brown v. Va. they only they power that if had the (1932), 166 S.E. case to which aside, it but under the Act would set reference, Delegate Phillips made obvious why Legislature, Congress, mean I was sort of rule that Mr. Justice the Constitution of United under many Harlan dis has advocated of his why Legislature States, free to apportionment cases. This sents fit. do as saw course, Court, duty is under to follow hand, thing Now, on the other same majority dissenting opin the ions of the Virginia. happened in the State Supreme Court. Virginia a hor- made gerrymander appeal 5a. rible Law Week that an 3243 states Volpe, of Vir- and the filed Dinis v. December *10 962 S.D.N.Y., F.Supp. ‘practical- Rockefeller, 984 273 the effect “an element of

v. yet ity’ 1967, implicit concept ‘practi- re 10, May and not is (decided Ellington, cability’ applied ;5b N.D. v. to in a ported) Baker term is be as 174; districting implicitly rejected F.Supp. 1967, 273 Civ.No. case” was Tenn. Kirk, S.D.Fla.1967, Supreme No. 3945; Gong it reversed Court when v. (de 133; per Civ.E.C., F.Supp. that case in one sentence curiam 278 its 64-143 Reagan, opinion only Wesberry 1967); August 2, cited v. which cided Silver v. 1967; 26, 424, Cal., Cal.Rptr. Sanders.6 432 P.2d 62 Tiemann, decided D.Nebr. and Exon v. firmly principle The is settled 22, 1967, The 279 603. November redistricting proponents of a v. split in Lucas decision was justify plan must sustain the burden of 10, May Rhodes, (decided 1967 N.D.Ohio ing any equal practicable deviation from by the reversed That case 1967, 4, ity Adams, Supreme population. December v. on Court Swann 416, 445, 569, supra, 212, 19 L.Ed.2d 17 88 385 U.S. 87 S.Ct. 389 U.S. S.Ct. major 501; Reynolds Sims, supra, expressed The in L.Ed.2d 423. notion v. 1362; 577-580, ity to opinion case in reversed Ohio 377 U.S. at 87 S.Ct. ap- (1966), Tawes, 315, the order and Alton v. U.S. We are advised 384 1967. 1590, pealed (1966), the Mas- 86 in entered S.Ct. 16 L.Ed.2d from one 586 three-judge October a court on similar manner. sachusetts Congres- 3, approved a 1967 1967 which Dictionary 6. The Oxford PRAC- defines Redistricting Massachu- sional “capable being as TICABLE carried under smallest which setts action; in out feasible.” Webster’s defini- by minus ideal from the deviated district may practiced per- tion is “that or largest district 4.524 put formed; capable being prac- into plus the ideal deviated tice; feasible; accomplished; done or population. indicates Week Law practicable method; practicable a aim; a Supreme re- question presented Court for practicable good.” car- Webster malappor- “competency of is the view “Practicable, practical ries a note that legislature con- establish tioned state That Prac- are sometimes confused. is conformity gressional distr'cts (opposed impracticable) is ticable Amendment.” Fourteenth accomplished; capable being is (opposed Supreme theoretical and the v. Practical affirmed Wells 5b. like) actually (affirmed ac- which can turned to nom. Rockefel sub Rockefeller 578, Wells, 421, 19 count. See POSSIBLE.” 389 88 S.Ct. ler v. U.S. Term, 651, 691, The Oxford definition for PRACTICAL October L.Ed.2d No. summary relating prac- Of, pertaining, 18, 1967, by 1967) “1. or December tice; practice Opp. Supreme per exhibited in or action. Court’s curiam order. speculative, theoretical, summary or ideal. 1617. and reversals affirmance use cases, Applicable practice; practically apportionment Congressional use- b. expressed practice; prac- Engaged 2. closely ful. 1642. rationale with the read tising, provided pat working. courts, 1604. 3. to ac- Inclined has the lower also, (as opp. speculation, etc.); guid tion of substantial tern that having ability Congressional 4. That for action. 1667. to the lower courts ance apportionment effect, practice; is such in that is Rocke such Wells v. cases. so; though nominally professedly per example, feller, or stated Crafty, scheming, [Kirkpatrick virtual. 1642. 5. art- v. curiam affirmance * * * politics II, 450, do 87 ful Foxe P. U.S. Preisler 385 Preisler] you ought. per can, you (1967), and not 613, what what 511 L.Ed.2d 17 S.Ct. Grills, v. 1897.” Duddleston curiam reversal 611, 455, definition for PRAC- L.Ed.2d Webster’s states S.Ct. 87 77 U.S. 385 consisting pert, to, Of, per “1. (1967), TICAL: or Swann curiam action;-— in, 569, practice III, or or manifested S.Ct. U.S. Adams specula- opposed theoretical, ideal (1967), or Janu all decided L.Ed.2d 501 * * * practical tive; question ary 9, “determinative Available, usable, prac- II, or valuable another Preisler here.” issues action, capable being turned tice example, or read this Court account; useful; practical dispositions summary as a ac- in Martin v. or use Court’s practical language; quaintance with a Bush, S.Ct. U.S. Seawell, economy.” (1964), Drum L.Ed.2d 656 16 L.Ed.2d S.Ct. U.S. *11 Hare, E.D.Mich.1964, F.Supp. Maryland kins v. 824, Citizens Committee for Fair explaining Cong. Tawes, F.Supp. phrase and Redistr. used v. why pre- 731, emphasizing (D.Md.1966), the “mathematical aff’d nom. sub Wesberry Tawes, v. Alton v. cision” caveat in Sanders 384 U.S. 86 S.Ct. escape (1966). “an hatch for could not used 16 L.Ed.2d 586 This be as 829). (Id. apply Kilgar This Court the reluctant.” at must also follow and Court, express II, ex- requirement lin similar Hill’s Preisler made v. be planatory particular plan may doc- approved fore of the “de minimis a use be as constitutional must trine.” stated that “use such the District Court We able, ‘practicable’ ain be words from the evidence as ‘feasible’ adduced defendant, legally the ceptable the fundamental to articulate ac careful statement of specific principle a constitutes but

reasons for varia constitutional recognition tions in familiar doctrine between districts that the designed applicable that have “as de been shown to exceed minimis is legislature nearly practicable” a as is standard of Art. to make clear that State entirely expected create would not I, be 2. § political lines in order new subdivision Both v. Swann Adams III and precise mathemati- to have absolute Kilgarlin Hill teach that v. courts can equality cal dis- its adjudicate not refuse to bona fide con 973). (257 F.Supp. at tricts” abridg concerning alleged troversies federal court case to right third lower ments equal constitutional minimis”, however, attempt- “de judicial mention infrequent vote. use give phrase a phrase ed to definitive apportion “de minimis” in meaning. conceptual fixed That case properly ment decisions cannot be con Hill, S.D.Tex., Kilgarlin generalized F. v. verted was into a rationalization opinion shown, Supp. majority in that pre 404. The variances attempted presented particular case, to create burden cise facts case (1) proof “de greater under which to have been formula both avoidable and placed minimis” to be those variations were variances that would have produced by pole constitu- been plication one and considered to be ap at more faithful “per tionally (2) varia- I, permissible, se” of Art. 2’s of “as standard § opposite nearly placed practicable.” to be at as is tions were void, constitutionally pole and held argu- Defendants’ basic de minimis (3) middle area all cases ment phrase is not tenable. The “de held to would be the mathematical scale minimis” was apportion- first used in an permissible unless constitutionally ment case in 186, Carr, Baker v. 369 U.S. “negate plaintiff able to was (1962). S.Ct. 7 L.Ed.2d 663 which of facts existence of state Mr. Justice suggested Harlan there constitutionality of sustain the the variances in the 1901 Tennessee state 414). legislation” (252 at apportionment only “de minimis” apportionment from an formula estab- by the Su- case reversed That was lished the Tennessee Constitution. reversing preme In Court. 335-336, U.S. 82 S.Ct. 773-774. simply burden of held that Mr. Justice by stating Clark countered v. proof rule established Swann that Mr. jus- Justice Harlan’s efforts to III, been decided had not Adams tify generalities those variances on “such three-judge court at- when Texas legislative as ‘classic judgment,’ sig- ‘no tempted different burden to establish a discrepancy,’ nificant and ‘de minimis’ controlling. rule, The Su- proof ‘departures’ by] shown [are even a casu- necessary preme not deem it Court did glance al present apportionment court the elaborate lower even discuss * * * entirely to be (369 fanciful” a as formula that “de minimis” included U.S. at 82 S.Ct. at legal part conceptual involved its Only three theory justifi- lower percentage federal courts and ratio made reference to fact, “de minimis.” Cal- mention cation. other Carr; concurring opinion v. in Baker phrase de minimis Su- his generalities among such Court,

preme than' discarded other that noted and “no concurring legislative judgment” dissenting opinions “classic discrepancy.” Carr, significant in Baker Swann Adams III, supra, 385 U.S. at S.Ct. representing long State counsel So Mr. Justice use of “de minimis” White’s *12 get attempt to con- legislatures to courts precisely pattern in the same as the was. explanatory judicial of the infrequent use vert the by phrase of use made that of phrase into some sort minimis” “de Hare, II. v. and Preisler He Calkins ratios under which formulae numerical simply that stated “mathematical exact- in one fixed percentage deviations or required” precision ness or is because not pur- rule in another case become “de minimis are deviations unavoidable” of poses attempted measurement of an (385 444, U.S. at 87 S.Ct. The get expect we can “how much variance by v. lower federal court reversed Swann away with,” of Su- thrust the whole Adams III had not even mentioned the preme is apportionment cases Court’s opinion. “de in It minimis” its words Indeed, thrust the whole misconceived. question that no is therefore obvious cases, many de- Supreme earlier Court concerning phrase presented was apportionment cases cided before Supreme placed Court in focus for de- or ignored. decided, were is by appeal from that low- termination Gray Sanders, at v. 379- 372 U.S. er court decision. 821, 801, 808, 9 L.Ed.2d 83 S.Ct. at Supreme that the Court’s We believe long Reynolds held either v. Sims before Kilgarlin Hill is at least an reversal in v. Wesberry on the Sanders rejection any implicit notion that the books, concept that “the Peo- ‘we judicial phrase “de use accorded ple’ under the visualizes Constitution either into minimis” can be converted * ** equality” “the idea and that proof exception rule to the burden of every every that other voter is by Supreme recently so established * * * in voter his State underlies apportionment in- cases as an Court or many of our decisions.” may, dependent defense that without great- justify proof, Supreme ap variances be All said Court’s portionment Carr, er than that would have those cases from Baker v. presented by plans in fact created better 369 U.S. S.Ct. L.Ed.2d 663 legislature rejected by (1962) present or those a to the to but time teach a that may pre- particular plans apportionment created similar case must be ap- present justiciable in the trial of an a sented to a court held to bona fide court, portionment controversy ap case. of no a We know federal, exception portionment plan approved by or the sole cannot be state with court, three-judge court reversed Texas a lower as constitutional unless the contrary expressed a idea has ever above those variances which result mathematically concerning very place application “de from the occupies nearly practicable” “as as phrase minimis” in the consti- stand apportion- applicable jus from tutional law ard did in fact result and are minimis,” suggest, application legally be- tified “De we a ac ments. longs put principle ceptable pol- rational where Mr. Justice Clark State judgment” prohibits legislative generality note Mr. Justice 7. It of interest plan any difficulty approval var had avoidable Harlan would subjective iances, by judicial vague affirming all Adams III. Swann v. unsupported by any classifications, in that evi variances involved avoidable rejected dence, firmly theory plan apportionment on the looked to Mr. Florida eye nevertheless as such variances “rela Justice Harlan’s tolerant significant being tively “no dis treated variations minor “ depar crepancy” among ‘de minimis’ or U.S. at some of the districts” 385 very purpose tures.” Such 87 S.Ct. proof rejection rule. v. Adams’ burden “classic Swann consistent Court’s proof devoted detailed to so establish to which icy. The burden attention in Preisler II. Table upon IV the defendant. rests page reflects com- of 257 apparent, it becomes When changes parison proposed therefore, presented the facts rejected plan finally en- with those case, apportioning particular Legislature. by the 1965 The 1967 acted particular body districted the could have Legislature’s enacting action its 1967 substantially nearly equal in a more state express taken the face of doing manner, without violence to II caveat stated Preisler that our dis- legally acceptable pol articulated state rejected by plan cussion of better icy, of de minimis is at an consideration the 1965 was not be con- particular end case.8 in that strued a future Missouri As- General Kilgarlin Hill its based reversal on rejected sembly approval as an *13 ground the dual that lower court had plan but to that the 1965 Act show proper applied proof not burden of comply did not in fact with the constitu- upon rule failure to “articulate its tional standard. grounds any satisfactory rejecting for at Legislature The fact that the 1965 plans presented least two other adopted practicable could have a more court, respected county which lines but plan nearly equal in with districts more substantially produced which de- smaller rejected it had not Senate (386 supra, 124, at viations” U.S. S. 87 Committee Substitute for Senate Bill No. Ct. at by 320 was demonstrated our discussion unexplained undisputed The facts in Preisler II. The 1967 fact that (a) Legislature the 74th Mis- this case show that could have done the same Assembly thing souri did not in its General demonstrates its Act was that provide districts plan represented 1967 Act in fact which not a that the most nearly practicable “as nearly as is one man’s application faithful of the “as * * congressional equal practicable” vote for a election is as standard. another’s;” (b) rejected obviously worth as much as that plan would Legislature fact produced departed 1967 Missouri variances that less rejected plans that came much closer by from the ideal than created those doing; (c) any so rejected that number 1967 Act. discussion of the Our including political shifts of plan by subdivisions future is not to be taken a counties, say nothing townships, Legislature any Missouri intimation precincts, pro- rejected plan, adopted, wards and would have that such if congressional districting plan duced a pass constitutional muster. Determina- compli- that would have been in closer upon question tion of that would turn by ance sufficiency constitutional command adduced evidence I,Art. 2. explain justify § defendants quite obvious and substantial variances II Preisler we took detailed notice plan. contained practicable plans of more that had been reject- proposed rejected by Legislature The 1967 Missouri Assembly. presented plan a Missouri ed better than General Legislature. Assembly 74th enacted 1965' session of General bill malapportioned proposed re- in man- Bill to and this State House No. jected proposed by plan ner more extreme than the Missouri As- General Legislature sembly, provided to the districts varied as Senate Com- substantially mittee ideal than Substitute for Senate Bill No. less congres- recognition 8. the fact that What has been said text not to is in suggesting be “possible that we cannot be so drawn and read believe sional districts congressional plan drawn is not neces- to draw districts that a sarily not so pass precision” Wesberry constitu- with mathematical that would one judged Sanders, supra at Each case must be 376 U.S. at 84 S.Ct. tional muster. Indeed, L.Ed.2d 481. what is on its own facts. said any appointment the commit- proposed ever to Mis- fication bill before attempted unsuccessfully Legislature. apparent It is also tees souri which have containing popu- to have particular work seems do the actual upon believ- ideal those who insist much closer to the than limited to lations something per- eventually by ing Act than full created less those proposed earlier mandates versions formance of the dual is all pro- Bill No. as that bill and federal Constitutions Senate gressed Missouri passage, required. toward final and rejected still that is bills, other all of which were Wesberry explicitly It held in Legislature. the 1967 Missouri no leaves Constitution Sanders that “Our people in room classification findings concerning Our detailed abridges” way unnecessarily their Bill No. House other better congressional right in a to an vote plans rejected by the 1967 (376 84 S.Ct. election U.S. that demonstrate how could have been divided into ten districts practicably equal population more Legislation implementing the provided I, those in the 1967 are made divide the of Art. 2 must command § Appendix incorporated B which is “as into districts opinion this reference. findWe nearly practicable man’s one vote as is produced by variances those to worth in a election is plans substantially better are in fact less *14 U.S, 7-8, (376 at as much as another’s” by than those the 1967 Act. created Our been have Those who at S.Ct. solely plans discussion of those better is responsible drafting of Mis for demonstrating purpose for that redistricting congressional souri’s three plans in fact the most was not recog adamantly to refused have practicable plan that could have been principles constitutional nize these judgment enacted. We intimate no legislatures binding on all State as question whether House No. Bill upon as all State States United any plans or of the other discussed federal courts. pass would or would not constitutional The facts established the three cases muster for the reasons been that have by decided this Court demonstrate that sufficiently stated. legislative in all three the leader- efforts ship political parties in the both Sen- prime difficulty with all given nothing ate and the House were past reapportionment three of the efforts better work with than a makeshift respective Legislatures Missouri produced by candidly bill what has been years 1961, 1965, in the has recognized to that deem- be no more than ap not been task compro- expedient political ed to an that, proached understanding with an mise. And even that not furnished Wesberry Sanders, leg since no State closing until hours of the session islature necessarily abridge the United can un States nothing done when could have been right one’s or correct even obvious either discover congressional any vote in election errors. deny may constitutionally than it more repeats right by right jury, third This Court one his to trial his not speech, right time does leave Constitution of free religion, his freedom 85%, or right peaceful even intentional his assem room for 95% mandate; any many compliance blage, with its or one of his other 98% popu I, equality rights guaranteed Art. 2 commands the Constitution of § discharge Indeed, congressional “as near lation in United States. any ly practicable;” enact quite as fundamental delicate of this comply plan with duty has been treated ed that fails constitutional legislatures standard, otherwise unless Missouri constitutional three successive apparently justified by ac- legislative qual- evidence step-child; substantial law, applicable Legislature. is constitu- cordance Missouri We tionally so find and void. determine. pending Defendants’ motion should be obviously This Court has no al and will therefore be denied. Because deny ternative other than to defendants’ public this, interest involved in pending (1) motion for the reasons that in all apportion- State we must find 1967 Act does cases, Appendix ment we have attached as in fact divide the of Missouri ourC discussion of all the contentions nearly equal prac into districts as as is presented by either the defendants or ticable; (2) obviously because the by the intervenors that have not been avoidable in the variances explicitly body answered in the of this justi satisfactorily 1967 Act can not be opinion. any acceptable legally ground sup fied on II. ported by any evidence in this record. It question There totally impossible remains the remedy. therefore for this Significant developments Court, any on the substantial basis occurred evidence, since any justifi Preisler II was to relate “declared decided that could require any among near future specific inequalities cation to that our order August 5, appropriately 1966 be to “articulate sat mod- districts” or ** * order, isfactory grounds ified. rejecting That consistent with the applicable congressional plans presented other statute then in to the court [both] required congres- effect Assembly Missouri’s [and 74th General delegation large. sional produced substantially be elected at Missouri] smaller deviations” created those specific Preisler II we directed at- Kilgarlin Hill, supra, the 1967 Act. tention fact that a “failure of the page 124, U.S. S.Ct. Assembly properly General simply carry Defendants have failed to redistrict after the 1930 forced the census proof imposed the burden of on them congression- election of entire Missouri’s III, Swann v. Adams a case decided delegation large al to be held 1932” *15 before Bill No. 182 introduced Senate was (257 F.Supp. 955).9 at We also noted in Almost all of the witnesses Preisler out serve their terms. James Butler expressed grave hearing III's concern Bowlin, large elected at from Missouri prospect electing about of Missouri’s posi- ticket, on the Democratic took the delegation large. Congressional It at Congress right tion that had no or probably to historical interest power of to tell she Missouri that could point at in note that history one Missouri’s Congressional delegation not elect her fighting sug one if words he used large. Congressman, at That Missouri gested congress that Missouri elect her page Appendix of 189 to Con- by any by men other method than elec gressional Globe, Cong. Sess., 28 1st said: large. Every Repre at tions Missouri Congress “Concede for a moment that Congress large sentative to was elected at can district the States for the election Congress, by until 1847. The its Act members, you of its own surrender June, 1842, provided enable, of that all members enough perpetuate pow- it to its Representatives of the House of “be Stephens er forever.” Alexander of by composed elected districts of con Georgia, later Vice President of the Con- * * tiguous territory *; one dis no America, federate at States of elected electing Repre trict more than one large Georgia, posi- from took a similar (5 (1842)). sentative” 491 Mis Stat. tion. souri, Congressional in the face of that Congressman vehemently- Bowlin command, repre protested continued to elect its against Congressional abolition (5 (1842)). Mis sentative Stat. 491 large (under ap- of elections at which Hampshire. sissippi, and The Twen plication New prin- of the one-man—one-vote ty-eighth Congress was faced ciple therefore automatic) against creation problem dealing with this with by Congress of election districts where body recalcitrance. could command that “St. Louis- controversy Violent gress, Congressmen arose in the Con- representative, should elect one and the upshot of which that the was whole south and southwest of the State large per- at another, elected making should elect one vote majority mitted ihe Democratic in St. Louis to four or five in the Representatives fully crease number of Missouri had advised State, years ago apportioned Represent- thirty that a Missouri “over Genera] Assembly’s appor- elected re atives of such State “shall be failure to 2a(c) large” (Section congressional at accordance from the State tion districts Code). (5), 2, required until ‘unless and United States Title law created, Representa- all new districts 2a(e) require elec- Section did not elect- the state must be tives allocated to large tion at failed event a State ” (257 F.Supp. large’ at ed the state reapportion in cases in which the State Holm, Smiley 981), quoting v. from at gained stayed either or same 374-375, 397, Representatives apportioned number at S.Ct. U.S. Becker, (1932). to it after v. a decennial census. It was Carroll 76 L.Ed. 795 State, 380, three-judge Secretary for 285 U.S. S.Ct. these reason that federal Maryland Tennessee,

402, 807, compelled Mis- courts in 76 L.Ed. congressional examples, prevented by at con- elections were not souri’s 1932 redistricting authority gressional large, on the mandate decided application particular Smiley court order. and made those states Holm at effect statute Court’s reversal time in effect time and still three-judge Grills, Indiana court Preisler decided. II was II the affirmance of Preisler last Janu- Congressional ary, course, made, at- August focused 5, Our order of 1966was tention the Act of June on the fact that II, pursuant in Preisler stated to the Congressional Congressional com- 2a(c) was indeed a “command Section three-judge court mand Code, to the federal of Title United enacted States order pursuant Indiana and I, Art. 4 of the Constitu § Legis- elections-at-large the event the (257 tion of the United States” 981). latures Indiana Missouri should That section of the United redistricting pass fail constitutional part States enacted Code elections. (46 act time for Act of As June Stat. course, Court, expressly order of this II, we Bloom, also noted in Preisler Wood provides. so L.Ed. 287 U.S. 53 S.Ct. Congress (1932), failed held had Congressional developments Recent re- any legislation requiring the to reenact long standing veal that to re- efforts Representatives from election requirement enact the 1842 district provisions when it refused to include Congress present elections in seemed August 8, (37 of the Act of Stat. doomed to same failure suffered *16 14) 18, 1929. Act of June its Congress every at similar efforts over years.10 But, past Act, fifteen most Indeed, least the latter inconsistent recently, Repre- requirement required suc- legislation the 1842 with that had cessfully private rider to a attached as a from districts sentatives to be elected immigration 491), Dr. relief of one (5 bill ex- for Act of Stat. since Vallejo Samala, pressly provided Ricardo Stat. in the event a State that Sess.) 2275, Cong., (H.R. 1st a de- 90th properly failed redistrict after to Message January 9, country; gross because would be a 10. In that his of proposed that palpable President Truman franchise and invasion requirement be re finally from districts to com- election decided itself.” Missouri 36, by Congress. years June, H.R. Doc. ply enacted Act of 1842 four with election, Cong., Tru and, except 1st President Sess. the 1932 82nd later for consistently proposal incor Representatives man’s Con- all of Missouri’s porated by introduced gress in a of bills from series been elected districts have by Judiciary pro- Emanuel Chairman House have heard no date. We 1840 to malap- Celler, against possibility enacted. none of which have test Congress Nation portioning and 1945-1964. See in favor its urban Missouri Congressional Quarterly published by at that But should 1844. since page judicial day come, will be available relief right interest to an It is of more historical constitutional whose those Congressman Celler, writing in equal abridged. note that is vote redistricting plan on permissible rests language rider, precise Act in the Although 1842, Missouri. June, provides “there shall fraught may difficul- with the ties, certainly be number of dis task law a be established impossible Representa not an it is to the number tricts entitled, conscien- that a convinced one. We are which such is so tives to State effort, a desire Representatives motivated be elected tious shall federal satisfy requirements established, no district districts so constitutions, result Representative will one more than and State to elect * * * congressional dis- bill, private with its the formulation ”. That comport de- rider, passed No the House on will tricts which attached the Unit- 1967, on 28, passed the Senate mands of the Constitution vember of Mis- 30, 1967, on law the Constitution ed November became States signed F.Supp. 14, (supra, it was 1967 when souri December Congressional by the President. See That statement continues to reflect the H15901 November Record: hope- view of this We would be Court. S17458. and November appropriate steps will ful that be all responsible persons taken all legislation became When that constitutionally redis- end that a valid law, prior this relieved of the Court was tricting plan presented to this Court existing Congressional command order required take not order that it succeeding congres the 1968 and case. Should further action sional elections be held Missouri apparent further action is become free, large. Court, therefore, This will be must, necessary, shall, as we we plan en in the constitutional event no appro- motion, direct further our own coming Special acted at the Session priate proceedings in this case. Legislature, ap direct stated, proceedings propriate enable it we find that will For the reasons redistrieting appropriate or Missouri Con- to make an determine present- gressional Reapportionment become der. the event it should necessary does pending motion for to exercise this Court defendants’ ed procedures It power similar pass muster. we shall follow constitutional by other followed to those therefore three-judge have courts that federal pending Ordered mo- that defendants’ par drawn hereby tion It should be and is denied. ticular states. is further Judge Matthes, concurring in his judgment decree Ordered that the opinion II, in Priesler stated that: August 5, of this entered hereby emphasized respon- We should ordered to be and are subject,

sibility enacting effect, constitutionally remain in full force and long history apportionment before Baker or that “the Carr Wesberry decided, States, particularly since v. Sanders bad been United problem [congres- for con- stated when standards wore established “the *17 gressional apportionment] districts, conclusive- sional indicates is which in- one ly single principle that has the factor the that one volves fundamental of equality always lacking permeates has been that of en- been our entire Con- 274-275). (op. supra, imperils cit. at stitution so that its denial the forcement” very democracy” (17 more in He therefore heart of our advocated Law. Wesberry 274). v. Sand- a decade before & Cont.Prob. 268 at He also “ju- provide ers, Congress glance for that the stated that “a mere at the con- apportionment congressional acts tours of various dicial review legislatures population in United States the and the wide in of states’ variances the supra (op. compels cit. of district courts” these districts the conclusion Wesberry congressional neces- drawing the obviated that dis- Sanders the sity any congressional in that action tricts cannot for be left whims and the leg- regard. uncontrolled discretion of the states’ (op. supra, 274), adding islatures” cit. however, appropriate 1965 Act to future modifica- held void in Preisler II follow by precisely pattern further the same followed tion. It is Legislature the 1965 in its modification filings any the House that for Ordered of the 1961 Act. Representatives the United States Change Congress may already Appendix been “A” Preisler II's that have County (pop. pursuant the 1967 made A showed that Mercer under 5,750) Congressional Reapportionment by was shifted the 1965 Act Missouri hereby declared The Act should be and District 9 to District 6. filings void, no further counties to be added to that same shift the null and any Act, Grundy (pop. 12,220); (pop. accepted Putnam 8,783) under may 6,999) (pop. in be taken with a and all future action that and Sullivan filings may 28,002. population connection total con- will be made should be and been pop- The rural 1967 shift additional of this sidered a order violation 6 in from District 9 to District ulation It further Court. is commanded still further the 1967 Act 56(c) pursuant to Rule Ordered that population in the of the urban invasion Procedure, opinion exactly Rules Civil metropolitan area St. Louis appendices thereto shall and the attached pattern of established the same by invasion findings conclu- our of fact and serve as Act. the 1965 law. It further sions of of District overvaluation While jurisdiction this cause Ordered that Act, by -9,743 was reduced purposes that have be retained for the Schuyler perfectly that had obvious stated. been 5,052) County (pop. to the added the vari shift from A APPENDIX re have been ance of District 6 would IN REGARD FACTUAL FINDINGS -4,691. The in to a duced variance AND REJECTION TO 1967 ACT County Schuyler the 1967 clusion MORE PRACTICABLE DIS- OF TRICTS, proposed the 74th shift was fact PRACTICA- INCLUDING Assembly Bill No. General Senate POLITI- BILITY OF OF SHIFTS introduced; originally bill was CAL SUBDIVISIONS there in Senate Substitute remained pattern of Preisler II was removed No. We follow Bill Senate findings making specific perfected of fact Committee our from the Senate only Appendix regard A Bill No. to the 1967 Act. for Senate Substitute page Macon 983 of 257 Coun II at of Adair attached to Preisler when the shift changes pro plan proposed. made Had illustrated ties was Legislature held posed 1961 Act Substitute in the the 1965 Senate Committee adopted undisputed Dis facts 182 been void in Preisler I. Bill No. Senate changes III that the have had a variance in Preisler establish trict 6 would Legislature made the 1967 +268. legal population northwestern conse elsewhere trends 1 discuss We quence 1950 and failure to adduce of defendants’ counties between Missouri invading that, except Legislature in fact since shows evidence City, population population consideration. trends into of Kansas took Appendix by putting with- contained C. I of See Part separate city undisputed rea- into three limits facts show in its Fourth, districts, Fifth why Dis- rural son geographical Sixth, area time successive entire for the third trict 6 was Act, Legislature 6 under the 1967 a Missouri in District included overvalued geographical e., area outside i. all of the could not have been City, city net actually had contained that district limits of Kansas *18 believed growth rapid population population and 1960. since 1950 between “areas with loss in growth county lost population Every 6 in District was included and such 1960 Ray Clay except Platte, consideration,” population defendants taken into County’s gain Ray 143. attempt argue. was of An examination Counties.

971 * * * Change County “B” townships illustrated in Preisler among the Appendix First, Second, II Third, 's A stated that the 1965 and Ninth Dis- City Act several shifted wards The Kansas tricts.” same sort of shuffle was Act; only from District 4 to The District 5. 1967 made in the more 1967 so. City wards, quite County Act’s shuffle of Kansas Under the 1967 Act Louis St. was by accident, brought fragmented of Dis five, variance into' rather than four congressional separate trict 5 to within -803 of an ideal district The districts. 431,981. variance, why frag- of if it could Such a reason further invasion and considered, separately apparent population mentation of of the St. range. ly metropolitan necessary be within But constitutional Louis area was plans apportionment can obvious. piecemeal; they must be viewed improve In order to the 1965 Act’s shifting viewed a whole. The 1967 of 4, the treatment of District 25,398 City population of Kansas ward formerly population shifted District pop required District additional depletion of District 8’s 1965 Similar ulation be added to District which was population rendered allocation necessary was 29,168 already deficient before shift. bring the rural order to Dis- Accordingly, populous more Saline Coun population allocation of trict 10’s 1967 ty 25,148) (pop. Dis was shifted from closer to the ideal. architect 8,421) (pop. trict 8 and St. Clair attempt frankly 1967 Act stated that 8,737) (pop. Benton Counties were shift popula- to use total ed from the deficient District 7; under the —a tion to District 8 allocated only 42,306. The 1967 shift addition popula- the deficient 1965 Act bolster in a reduction of the minus vari resulted adjoining the 1967 tion districts under District 4 to ance in the 1967 Act’s “just sponge” squeezing like Act was -12,260. (Dep. concerned so far as District 8 was But, again, perfectly once it is obvious p. 10,859) County (pop. that had Howard Although it at he did not know been included the shifts made time, No. 182 Bill the author Senate 1967 Act the variation actually in District had more water would have been further reduced thought he he had. Because he -1,401. County The inclusion of Howard figures un- population from a still used specifically proposed to in District 4 was source, the Chairman identified along Assembly the 1967 General errone- under the was Senate Committee Bill Saline and other counties Senate being was impression that District ous originally intro- No. 182 as that bill was 8,003 only population un- excess allocated rejected plan not been duced. Had fig- census Act. The 1960 der the 1967 practica- proper, unquestionably and had 13,542 excess of that an ures establish concerning ble, allocation been made actually placed District population was City, of Kansas Districts wards both appar- is therefore Act. It the 1967 variances of and 5 would have had practicable nor neither was ent that -640, respectively. -639 and necessary Act to the 1967 for even Change Appendix 8 to on Preisler II's of District “C” boundaries extended the shuffle, if A Act’s But even city illustrated the 1965 Louis. limits St. metropolitan Louis “several Louis wards and St. St. Louis St. invasion Very parts Clay population and Platte loss substantial a net there was its 28,424 city limits of in District inside the Counties are area included City. support hardly reason loss 6; The net Kansas facts District 6 brief for assigned for all counties included in in their defendants 40,467. Clay Platte, gain drawing We lines. was net District’s of that Ray Kansas between 1950 and Counties Act robbed the 1967 find only ap- city 50,773. gain, limits City But of that was within its proximately produced like in areas reasons obvious the same City attempted robbery limits. It outside the Kansas in the 1961 popula- apparent excluding thus Acts. City city lim- within its tion of Kansas

population justified, entirely practicable get could be which is other makes it to impossible presented, exceedingly equal populations on the facts it is close to for County adjoining obvious a shift Howard districts as was demonstrated (pop. 10,859) overpopulated Clay County appor- in from the Jackson and adjoining to8 either of the and under- tionments which to attention was directed populated (257 4 or would in Preisler II Districts have foot- substantially City most reduced the variations note The De- Kansas for Star reports transferor and transferee dis- cember those the new boundary City tricts. for the lines Kansas School population Board divided within that specific regard further to the 1967 school district “into six subdistricts each Act’s shuffle of St. Louis wards and St. 71,500 population.” with about Local County Louis townships we find that the government public judi- officials in this Assembly, Missouri General like consistently cial district have demonstrat- 1961 and 1965 Missouri Assem- General ed the one man-one vote constitu- blies, attempted disregard ignore principle applied tional can without population basic go data that will not difficulty given the desire so to do. away. figures The 1960 census make it particular townships The St. Louis City obvious that the of St. Louis with solely mentioned for il- have been used population its 750,026 needed to however, purposes. use, lustrative supports That only 113,936 have added popu- additional finding it our factual that was lation to population entitle that total entirely practicable in fact for the 1967 congressional two ideal districts. It can- Legislature compact to have created two validly argued not be was not contiguous congressional practicable for the 1967 metropolitan in ac- Louis area St. have extremely created two districts with Mis- cordance the command of with small tegrity violating variations without the in- souri that would have Constitution political large subdivisions as exceedingly except small fact avoided all townships, say as nothing violating congressional variations two practiced ward lines as in the 1967 Act. population districts which that example, only For example, entitled. law populations addition of the ships of the town- finding regard We make the (pop. 66,420), same St. Ferdinand (pop. Hadley, 24,720), how a (pop. third and Lincoln district could 22,380) have been County popula- formed popu- Louis from St. tion City remaining portion lation situated of St. Louis would have provided County. of gressional Louis St. sufficient Such a third con- for two congressional districts, district could not each of have includ- remaining townships ed all of only would have varied in the -208 from the drawing county charter ideal. The line State that divide unassigned congres- would have been left into two example just regard nearly stated in prac- sional districts as to how practicable two congressional extremely easy metropolitan ticable St. Louis fact task an Assembly districts could because the have 74th General estab- policy prevented created; lished northerly no townships its use of the most existing precinct lines, least County necessarily of St. Louis metropolitan geographical areas Mis- assigned have to have been to still a dividing souri for use in the two districts. congressional district, fourth some of part which would have included of “out- precincts, regulated generally Urban state” Missouri. they capacity the number and voting assigned them, practicable machines neces- district third sarily relatively populations. adjoin small could have been made to the area ability precincts practicable to shift described for the first one two given dividing districts, side of line to the full a district observance *20 cities, the foi- included have against would tan cut- policy established assumed County: townships Louis lowing of St. metrópoli- ling township outside of lines DISTRICT PRACTICABLE A THIRD HOW TABLE SHOWING USING BEEN CREATED HAVE COULD POPULATION COUNTY LOUIS ST. County Louis St. Population

Township of: 40,095 Lemay 36,273 Concord 52,205 Gravois 35,649 Jefferson 51,092 Clayton 48,681 Coeur Creve 50,417 Midland Washington 19,304 37,673 Normandy 53,779 Homme Bon 9,528 Meramac 434,696 Population Total Ideal District +2,715 Variance nearly application as is 2,715 proper of the “as plus variance Whether legisla- would, principle practicable” unless table in the above indicated plan in fact observe prac- does facts, nearly equal ture’s enacted as is “as entirely course, apply an articulated State would, such ticable” any policy. upon proof dependent adduced might be such variance case challenged. The evidence in this case establishes Weintraub Justice As Chief township lines of Louis St. Falcey, noted Jones N-J- County were in fact broken the 1967 teach- valid one of the 101 at A.2d Act; precinct in fact used to lines were D.C., Avery, ings Meeksv. particular define the boundaries of con- pattern dis- is “a that where gressional by the districts created political integrity of closed which necessary to Act. It is therefore not ignored, then the subdivisions Falcey, principle apply the of Jones v. population substan- formed with could be supra, presented situation factual them; when tially equal in each in Preisler III the avoidable vari- because * * * disregard- completely lines [are] by the Act’s Districts ances created * * * many the court instances ed in +4,467, 1, 2, +7,765, and 3 of holding pattern that a justified in [is] +4,118, respectively, are far above integrity of developed in which had created variances that ignored.” political subdivisions Legislature in fact estab- had the 1967 stringent lished and the less followed merely principle That sound recognizing townships policy and ward says legislature prac that a must State lines. legisla preaches. tice A what State Change Appendix A to Preisler “D” in anticipate ture should therefore Legislature observing the 1965 purported policy par II illustrated how State changed made political the allocation lines can not ticular subdivisions there to District 7. We upon justify in its 1961 Act be relied variances above the 1965 noted that have been created those which would County had shifted (pop. Barton quite sparsely populated additional and 11,113) from District 7 to District 4. 7,087), (pop. counties of Shannon Carter above, As noted the 1967 shuffle (pop. of Kan- 3,973), Reynolds 5,161), (pop. Iron City’s sas necessary wards made it (pop. 8,041), (pop. 9,366) and Madison shift St. Clair and Benton Counties from to form the 1967 Act’s District 10. The *21 to7 District 4. Defendants’ 1967 Act’s shift additional reduced the hearing A, map by Exhibit greatest used minus variation of the 1965 majority House, leader of the shows that 8,113. Act to a minus variation of particular counties, along those with undisputable The had facts establish that other counties involved in other shifts County (pop. 10,445) Dent been added to by apparently made Act 1967 shift, the 1967 the variance of Dis- new subject special of some sort of dis- trict 10 would have been reduced to cussion because those +2,332. counties were shad- That shift would have also had pencil. ed with a lead reducing the effect of the variance adjoining +3,105. new District 8 to problem We by created the shift of further find that House Committee Sub- required St. Clair and Benton Counties stitute for Legislature Senate Committee Substitute that the 1967 shift addition- proposed for Bill population Senate No. 182 was again al into District 7. Once rejected by to and Missouri population 1967 allocated to District 8 Assembly. plan proposed General That “squeezed under the 1965 Act had County the inclusion Dent the 1967 sponge.” (pop. 9,116) like a Camden (together every shift with other one of (pop. 18,991) (both Laclede Counties other five that were fact pencil counties which were shaded on the House by Act). Acceptance of majority shifted the 1967 map) leader’s were shifted proposed rejected plan would from old District with 8 a resultant total +1,064 produced gain 10,949 a variance population net for District new District 10. produced +4,788 7. That shift a variance under the 1967 Act. Legislature was Missouri 1967 But this Court must face the required squeeze undis- put old Dis- putable Hickory fact that the addition of provide 10 the trict 8 to new District County (pop. 4,516) to population assigned by the 1967 shift Act. the 1967 4, from old District 7 to new District rural The 1967 of additional Act’s shift would have reduced new District 7’s to new Dis- 8 counties old District have, variance to siphon- a compensated +278 trict 10 was time, the same ing reduced variance population from the St. more still Leg- -12,260 new District 4 from metropolitan to a The 1967 area. Louis -7,754. pop- County Louis islature invaded St. by extending ulation the boundaries Hickory County proposed inwas fact in- district fifth still a for inclusion in District 7 several ver- County. The 1967 part of clude No. sions Senate Bill 182 as that bill town- Meramac Act added Concord progressed through the Missouri 1967 Bon particular precincts in ships and Legislature. Indeed, the Senate Substi- County new Louis Homme in St. pro- tute for Bill Senate No. 182 made District 8. vision for a District 7 that included Hickory County in which the variation portion of The addition of that St. -1,292, from the ideal district was County by caused Louis smaller, substantially variation than that city from the new 8 to stretch District eventually created Act. to within less limits St. Louis Change Ap- “E” noted in Preisler II’s city Kansas 75 miles of the limits of pendix A reflected the 1965 Act’s disregard shift City. Thus, in total Wayne County from the contiguous 1961 Act’s duty compact to draw District 8 to that Act’s District 10. placed on it Following pattern Assembly the same established in Constitution, the 74th General the 1967 shifted the Louis urban St. added pattern County essentially district rural Act “both have the same over- to an overweight out the valuation and order to balance votes geographical areas, from in shifted the rural as con- five rural counties trasted met- old 8 to new District votes the two (257 applicable ropolitan Mis- F. For the areas of the Act. State” Supp. ex gerrymander, find- see State make the same souri law on We Hitchcock, 1912, ing regard Act, particu- Mo. rel. 433, to the 1967 Barrett v. larly applies met- Preisler as it to the St. Louis 146 S.W. ropolitan Doherty, 284 S.W.2d Mo. area and the area of Kansas Lightfoot, City Compare of the Missouri River. north Gomillion 5 L.Ed.2d U.S. S.Ct. In Preisler II found and held we (1960), under for circumstances Seventy-third As- “all that the sembly General gerrymandering federal can become regard did its [in Act] *22 question. constitutionally im- to the 1961 Act held permissible in Preisler I to move In Preisler II we found as a fact that from one three small counties district against “the discrimination the St. Louis wards from another and to shift a few metropolitan area, by evidenced the 1961 metropol- one district to another in both Act, was continued under the 1965 Act” 980). (257 F.Supp. itan at We areas” (257 4). F.Supp. at fn. We find find hold in Preisler III that all the that the 1967 Act continues the same Assembly regard to 74th General did in Preisler II discrimination. found in We constitutionally in 1965 Act held void the the under both 1961 Act and the coun- Preisler II was to add a few more City City was 1965 Act “the of Kansas of rural counties and to ties to the shifts Congress- split separate between three grossly than the invade more ever before districts,” ional under and that both population in met- concentrated the two City “population the the Kan- acts * * * ropolitan areas of this State. City sas uti- continued to be lized to increase the deficient Preisler II we popula- found that the over- essentially particular tion of two rural valuation of in votes dis- districts” (257 F.Supp. 960). by make the at We tricts created the 1965 Act had been finding regard by undisputed same in the use established “the and unex- County plained City’s Clay presented Platte and facts” Kansas in that case. population regard crea- noted to District 6 We in Preisler II that did “counsel attempt suggest any II we why In Preisler not ted 1967 Act. reason it practicable the 1965 was found that the 1961 Act and not to avoid variances speaking Hitchcock illustrates case arrived relation Supreme outrageous practice year 1912, gerrymandering,. Court of holding difficulty common, no which has become Missouri had so and has so long indulged “quite firmly doc wedded it was without rebuke that * * * requirements permanency must it threatens trine that constitutional * * mandatory, rather our free institutions *. be considered directory” (146 There is 50) schoolboy S.W. at but knows what is jurisdiction legislative apportion- to entertain motives of ments; these “courts appor validity action, pass on the acts is idle for the courts to excuse districts, upon tioning grounds, keep the action state into senatorial other or to * * infringe invalid for silent as to and to declare them the real reason * * (146 57). upon the S.W. at ment Constitution 53). People complain (146 today the merits who at On S.W. about how city giving malapportion- Louis of St. federal courts held that describe case practicable ing legislatures divi when a action six senators of State should be- required population, seven come more familiar sion of the with what state flagrant say subject limited violation courts had fifty a “most on that same years ago. granted Constitution Present discretion the difficulties 54). arose, (146 course, Re Legislature” at S.W. state because courts (Giddings Michigan upon provisions lying express case ceased to enforce the Blacker, 16 L. N.W. of state supra. Mich. constitutions. See Footnote Supreme 402), of Mis Court R.A. plain time for “the souri stated * *” * 969). Kilgarlin F.Supp. (257 page We Hill. ex- On of 257

pressly rejected argument presented F.Supp. II, of Preisler we italicized precise language for the III counsel intervenors that from Tawes that the represented Supreme proper quoted 1965 Act “the that could best as the bur- gotten practical political proof under the den of rule in III. Swann v. Adams 969). And, rejected (257 F.Supp. finally, expressly circumstances” we arguments Preisler II defendants’ emphasized again again We attempted to establish considerations of the “substantial deviations arguments “political stability” their (257 “unexplained” and variances” were “economic,” concerning “political,” “his- 974). F.Supp. at We attention directed torical,” “traditional” factors as le- significant to what we called the most gitimate upon disparities grounds regard language in Drum I in we to what from based districts could be proof to be burden believed justified (257 F.Supp. at apportionment cases. We italicized language Judge legal principles Sobeloff in Tawes I that underlie those page findings course, are, of 257 the law of that antici pated holding Supreme Court’s case as Court. later affirmed B

APPENDIX Parts) (In Two *23 I. House Bill Discussion No. 870 regard specific findings proposed to Our to House Bill No. 870 rejected by and by preliminary understood 1967 can best be following examination of table: Originally House No. 870 as Introduced Bill Rejected by and the 1967 Missouri Assembly

General 870 B. Act

H. 1967 Population District 1960 Census 1960 District Population No. No. Variance - 1 851 (D 431.896 — 1 851 (2) 431.896 — (3) 431.896 - 430,361 1,6202 (5) 435,066 3,0852 + (6) - (9) 431,418 - (7) 427,972 4,0092 - 428,678 3,3032 (8) - (9) 431.897 438,733 6,7522 + (10) 4,319,813 population 1, 2, produced adjoining 2. 1. for Districts variances in the The total evenly produced 4th and in this table Districts 9 is distributed 5th those County Townships adjoining 7th, 8th, Louis were and 10th St. Dis- because substantially split precincts tricts and accurate census could be further re- into townships precincts precincts duced those is not in evi shifts of or data However, obviously practic adjoining it is from one district to another. dence. entirely “practicable” al the area Such shifts are un- able divide involved into policy equal populations the divi der that seeks to maintain most because state shifting integrity political precincts of a subdivision sion involves precinct. relatively populations. larger line no than a above small population proposed Bill Every divide total allocated House district by rejected nearly proposed the four districts more No. 870 was in House Bill districts population enacted No. or for all ten than that ideal Missouri, require excepting 5. the use does Act the 1967 computer Proper or an electronic brain. application constitutional require It did and to have principles practicability, use does one dividing figures, population City precinct to use accurate as the lines Kansas subtract, and, ability line, permitted division to add and would have important, willingness population the most desire excess arm comply explicit commands with the defined two Na- Bill Constitutions of his State and No. Districts 5 and 6 in House Any plan finding tion. (roughly comparable Districts 4 that a better Act) adopted could not have neces- almost been would 5 in the 1967 to be divided sarily clearly proposed dis- equally be held erroneous because two between those Thus, finding contrary such a would to the view- tricts. from a theoretical rejected undisputed concerning point, evidence could assigned House Bill No. 734 to one district and apparent that even other. It is therefore The witnesses called defendants accidentally re- the -803 variance testified “there probably in the 1967 sulted for District 5 * * * changes that could be made improved. could have been county the shift of a here there that] [or Defendants’ failure to obtain greatly improve this as to the 1960 census introduce in evidence the perhaps lowering extent of the difference precincts Louis data for 1967 in St. between the maximum and minimum County relieve does not St. Louis 15,000” (Tr. 36); as much as that “there making duty its isn’t a man in this room couldn’t finding popula- total fact divide the state on the 1960 assigned tion and 3 and Districts *24 up contiguous and compact, come only required is 341 in that excess of equal districts that come within close congressional for districts and four ideal population” (Tr. 58); and that the population been that such could have Legislature rejected had in fact “a better among practicably equally divided almost bill, stronger (Tr. 64). bill” Even reason, the in those districts for the as the three-time Chairman of the Senate City, precinct lines case of Kansas use of Reapportionment testified Committee those dis- boundaries of each of for the * * * mighty easy that “it’s to divide tricts, application the and constitu- state, and either could one of us tionally practica- required principle of very do it much better than this [the bility, permitted the shift would have (Dep. 14). is done” Act] congres- precincts of a from one side until, boundary the to other sional line And when argued, Preisler II the was language command in the Attorney Assistant General of Missouri nearly Wesberry is Sanders, as “as regard stated to this Court in to the congres- practicable vote in a one man’s you looking 1965 Act “if that were be worth in fact] sional election [would being factor, as sole as much as another’s.” only considered, factor that could be * * * immediately ex- I Defendants’ intervenors’ would have to * * * pressed hostility computers you prob- to confess would totally misplaced. ably get percent is electronic brains have within one drawing congressional say you The bound- variation in task of order to have ary practicable nearly your is met factor, lines as as if that is policy on an assumed some are calculated evidence that variances there such a is recog- county Missouri, policy necessary lines are a matter not Missouri. There our nized in outstate determination in this case. (first F.Supp. population may be,’ III, quoted Section Art. sole factor” as II Preisler 45.” decision in This Court’s opinion portions was cited and quite apparent It all the evi quoted. all dence that real work Act, exactly pattern July 13, Representatives followed On regard Act, Meyer Mulvaney, (27th), was left Schlef Walsh, days objection always closing hectic constitutional session. filed a parties leadership objection followed elected of both Their the House. substantially in the as House were the same form Senator Senate objection Young’s long was, except consulted after it until the House practical again matter, members late them fact all too reflected the Assembly labored correct the mistakes of committees the 74th General impression into whose of the under hands control delicate the erroneous congres- problem high reapportionment had “the been variance between placed. Compare description “more of the sional low” was district legis 25,802, similar action 16,000,” of the North Dakota instead of Meier, pending lature in Paulson N.D. discovered after defendants’ 42. Attention 36 at motion filed. that case was directed undisputed show facts Adams, Swann v. 385 U.S. high dis- actual variance between the 440 at 17 L.Ed.2d S.Ct. district, trict, every other District 501. actually excepting only ex- pattern Legis erroneously The factual maximum ceeds assumed against repeated figure only 16,000 lature was in the 1967 session variance protests of the Missouri when which the Senator constitutional Young objections filed constitutional and House. filed both the Senate Senate, help speculate 1967 Act the 28, on June One but what cannot objection happened His constitutional had the members time, Assembly, stated that “the 74th accurately at the districts General * * * regard extent created quirements do not meet re advised actually their created the Missouri Constitution variances nearly that such ‘as Act. Showing II. Additional Data the 1967 Did That Population Into Not Fact Divide Missouri’s *25 Practicably Equal Most Districts point Map Legislature 1 text illustrates that a nearly popu- equal could have created districts are more every practicable permit still lation 1967 Act and present present run from his residence. incumbent to Map particular acceptance proposed 2 districts illustrates how Assembly, presented had 1967 74th General

various bills produced combined, they have of less than variances been would practi- 2,000 population State, district in the a more for each adopted plan Act. than that 1967 cable Map practicably more that would have 3 illustrates squeezed of old to the all water out District 8 end that populations more and rural urban State realistically distributed. adopt again publica- emphasize tion for that the the Missouri We any plan is stated maps recommenda- illustrated. The data of these not a

tion nearly equal 1967 Act the fact that fact most establish practicable. did not establish districts that were that was Map 1—Practicable Districts That Would Not Disturb Congressional Representatives

Incumbent Population Variance - 431.735 - 431.735 - 431.735 431,386 - - - *26 431,851 6 130 434,250 +2,269* 7 429,688 -2,293* - 8 431.735 434,313 +2,332** 4,319,813 * particular townships Transfer in Dallas or Laclede Counties 7th bring District 8th District would both within a variation of for both districts. ** particular townships Genevieve, Francois, Transfer in either Ste. St.

Iron metropolitan or Dent from the 10th District Counties to the St. Louis (1, 2, 9) Districts or reduce variation the 10th District to 724. Composite

Map Map Redistricting from Various Plans 2— Rejected by Assembly Missouri General Population Variance Source - Simple addition 431.091 - 890 ” ”

431.091 - 890 ” ” 431.091 + 392 1967 H.B. 399 minus 432.373 Hickory

Cedar & + + plus Carroll 432.373 432,249 1967 Perf. C. S. S.

S.B. 182 430,689 -1,292 Sub.) (Sen. 1967 S.B. 182 433,821 +1,840 Simple addition — 431,090 ” ” +1,964 S.B. S.C.S. *27 1965 G.A. Howell minus

plus Texas Map Realistically 3—Practicable Districts That Would More

Distribute Urban and Rural Populations_ Population Variance - 431.819 - 431.819 - 431.818 + 973 432.954 + 432.955

433,977 +1,996 433,004 +1,023 -2,601 - 431.818 430,269 -1,712 *28 Population”

I. Defendants’ “Growth Argument APPENDIX C attempt the be- to make Defendants Fourth “the lated contention (In Parts) Four ** * * * * both Districts Sixth growth rapid population areas contain OF DISCUSSION AND REJECTION growth population such since ADDITIONAL CONTENTIONS Apart into consideration.” was taken MADE BY AND DEFENDANTS evi- no substantial from the fact upon such which introduced dence was finding INTERVENORS based, a contention such could be addition to the made contentions following by table which exploded is support of the Act have been December Missouri’s how illustrates body answered what was said by the population, as estimated opinion, of the we now various answer Health, is distrib- Division Missouri Congressional additional contentions made the de- Dis- under the uted tricting fendants and Act: intervenors. Showing Table Population As of Missouri Distribution of Health Missouri Division Estimated For Under December Variation Population 1966 Ideal Dec. b +30,531 481.377 b +30,531 481.377 b +30,531 481.377 433,071« -16,775 ° -16,775 433,071 - 7,401 442,445 —30,305 b +30,531 481.377 b +30,531 481.377 370,844 —79,002 4,498,456 December Missouri on the State of The total estimated 449,846 per figures projected 4,498,456. Thus, is for the the “ideal district” district. projected population

b figures exactly presume distribution These Projected among respective 1, 2, 3, those districts. within Districts precincts City St. Louis data was not available for wards townships County split Districts are between or for the St. Louis 2, 3, 8 and 9. exactly c Projected population 4th 5th between Districts. distributed years 1967, 1975, College University popula- and 1990. Missouri’s Agriculture, projections its tion Division in furtherance of University cooperative those of the authorized Health and extension work 30, 1914, May some in de- Missouri reflect differences Acts of 8 and June cooperation are not tail. But differences United those with the greater Agriculture, expected. Popula- Department to be States necessarily projections population projections published tion based for the

983 rates, concerning geographical and death lar data birth areas of Missouri and in migration rates, regard population trends, past population to where that is situ- usually straight pro- compared are line ated it trend to where jections that call for the exercise of sub- was situated when 1960 census was jective expert judgment depend and also taken. varying dependability of on the data where, following table illustrates particular

a time. according University to the of Missouri’s comparison population projected figures, popu- A two 1967 and projections, however, a re- establishes lations would be under distributed general regard agreement Congressional Reappor- markable 1967 Missouri growth particu- trends of and decline tionment Acts: Showing

Table Population Distribution of Missouri Projected University As of Missouri

For Under Projected Projected a Population Population Variance Variance b b + + 62,081 +27,330 486.207 596.530 b b +27,330 62,081 486.207 596.530 b b + 62,081 +27,330 486.207 596.530 —c c 46,353 —12,063 446.814 488.096 —c c 46,352 -12,063 488.097 446.814 49,031 583,480 444,444 -14,433 + 429,060 -29,817 433,840 -100,609 b b 62,082 +27,331 + 596.531 486.208 b b 62,082 +27,331 + 486.208 596.531 390,599 -166,120 -68,278 368,329 5,344,494 4,588,768 figures respec- projected 534,449, for the The “ideal districts” tively, for and 1975. b Page (b) table on See footnote 982. on “ “ “ “ “ “ o (c) regard projection policy such a The shortest answer de- selected alleged districts, popu- contention rather on fendants’ about a state-wide basis, growth 4 and 6 is that is so Districts irrational lation could not designed legally post argument acceptable. ex it is facto attempt justify an successive Hare, supra, Calkins Legislatures’ ef- continued adamant and correctly we believe observed that malapportion of rural fort in favor “Any districting, disparate however geographical is no evidence areas. There respect population, may conceivably Court could whatsoever on which this justified by saying the ex- finding the 1967 74th base factual pected the either area to shrink or Assembly any policy adopted General grow.” correctly That case stated that devising projection population Dis- suggestion, more, “If such a without suf- district, any other or justify gross tricts fices to dispari- ties, enacting adopt easy And Act. then answer a constitu- * * * City found.” which has has indeed been Jefferson tional denial finger many employees Judge put retain a his state who vot- Talbot Smith ing in other of the state inherent residence areas difficulties one of the allegedly] He said of which [all considered “trends.” use of *30 legislature.” difficulty respect their in that ‘‘the right a constitutional is basic use that complete The final and answer to all event, may speculative a future be lost to post attempted of ex defendants’ facto a worst unequal and at trade at best they been rationalizations is that expressly Hare cynical v. deprivation.” Calkins rejected by Supreme Court proofs “no whatever” found that Mann, United States. Davis Michigan legislature had offered that 1441, 1448, 691, 377 U.S. 678 at 84 S.Ct. any popu- rationally fact considered in 12 L.Ed.2d 609 held: justification of a lation trend as reject argument appellants’ We congressional by its variances created underrepresentation Arlington, of districting find- the same make act. We constitutionally and Fairfax Norfolk is Legis- ing regard Missouri in to the justifiable allegedly in since it resulted lature. part from the fact those areas large military our de since of and Further reflection contain numbers question military-related personnel. of II Discrimi- in Preisler on cision against individuals, of nation a of use class continued figures obviously merely rural favor because of the nature of their must year being employment, populations more over urban in without shown, constitutionally impermis- the obvious that it was is has convinced us showing I, Additionally, Constitution no of Art. 2 of the sible. intent § congressional Virginia made that the in United to tie States congressional dis reapportionment took such a into account in and fact factor legislative required allocating representation. tricting to census decennial (See Appendix policy, forD And state as evidenced Vir- that same Section ginia’s actually laws, our full of the reasons election favors statement voting by military question). Arti and of this fosters and considered view military-related 3, personnel, (emphasis 1945 Missouri cle 45 of the Section requires, ours). with Constitution consistent I, policy 2 of established Art. § Attorney Missouri, in General of States, of the United the Constitution “Military Opinion 251, No. has ruled that new Missouri draw personnel at Fort Leonard Wood who contiguous territory as com “of register qualified may and vote nearly equal population as pact and county located, where reservation is may We each census. be” after national they if have established residence Legis Missouri hold therefore Missouri, non-payment state and reapportion attempts this lature that may disqualify (V.A. taxes M.S., them” figures are 1970 census State before the 10). Supp. 111.060, note See § disregard may and estimates available Op.Atty.Gen. 93, (V.A.M.S., also No. § projections if it de of the 1960 census 10). 111.060, af note Davis v. Mann to do. so termines Virginia three-judge firmed the court “put explanation connec- we have said in the burden of What growth defendants, they with found that had tion defendants’ regard (377 683, argument 4 and failed to meet it” Districts U.S. at argument 1444). equally applicable S.Ct. at Actual introduction their * * * showing eighth in- district evidence “various exhibits that “the military military- has a numbers of cludes Fort Leonard Wood personnel great transitory popula- City proportion related Norfolk Arlington tion, University Fairfax Missouri Counties” non-voting (377 1443) great U.S. at students S.Ct. at number tical”, history evidence in Davis but held to insufficient much hard proof. experience carry recent, Mann burden Nation. but A promptly judicial example reversed, rare All that in this defendants introduced thinking majority opin- of such was the hearsay testimony party case was Rhodes, ion’s N. statement in Lucas v. duty best leaders whose they it was do the May Ohio, but not D. decided apportionment act with an could yet reported, ‘prac- “an element Judge had, fact, to borrow Wil- ticality’ ‘prac- implicit concept “designed Doyle’s language, liam E. * * * ticability’ applied as that is to term by political ex- dictated districting in a case.” (from Love, pediency” Lisco v. D.C.Colo. 5,1967 in sin- reversed December Any 922 at gle per opinion. See curiam sentence finding Legisla- that the 1967 L.Ed.2d 389 U.S. 88 S.Ct. military, *31 ture fact took the actual 423. student, employee population in- or state drawing to account District 8 or In Preisler II didwe not deem it neces- sary other district in its 1967 Act would obvi- do to more than to call to attention ously clearly language be set aside as erroneous. of Mr. Justice Black’s dis- Colegrove Green, 549, How could Missouri sent 1967 v. 328 U.S. segment particular 1198, have considered that 90 L.Ed. S.Ct. he where syn- of when not it did used the words far as “so feasible” actually population onymously nearly practi- even know the total with “as as is language of Wesberry re- Missouri? Further discussion is cable” Sanders. v. page dundant. On of Preisler II, we stated: II. Defendants’ Contention That ofUse such words as and “feasible” I,Art. Nearly Standard of § “As “practicable” in a careful statement of Equal As Is Practicable” A Is Not prin- the fundamental constitutional Precise Constitutional Standard ciple recognition a constitutes but Historically speaking, legislative the familiar is doctrine de minimis branches both the State federal applicable designed make and is to governments participated long period in a legislature that a not clear State would disregard I, of bold and blatant of Art. expected po- entirely be to new create 2§ of the Constitution unrestrained to have litical subdivision lines in order judicial alleged traditional review con- precise absolute and mathematical infringement. stitutional fact has That congressional equality in its districts. tended to obscure the further fact Defendants’ insistence I, near constitutional “as as standard of Art. § practicable” expressed by something nearly to do with “as is words as group political practicable,” what a leaders is a choose standard well estab- practical politi- to a call “reasonable lished in law and not one but recent- together compromise,” cal ly language political with certain introduced into the language apportionment country by Supreme some of the of our eases, suggests Wesberry that we add to San- what United States said in Preisler II. ders. Many Should persons, including accept a court sophistic infre ar- gument quently judge, attempt erroneously nearly a to words “as as is practicable” Wesberry precise

convince are themselves that when not words of truly meaning, historic step Sanders used the lan it is ancient but a short guage saying nearly practicable,” of “as those is words have mean- little ing talking at all. step Court was somehow Should that be taken it something apparent about attainable as matter that a rationale could be de- ignore practical veloped politics. The uninformed under of a which the decision particular apportionment not ing difference between the mean case “prac- turn, “practicable” question not on of the words whether Congress plan apportionment particular does in act those first use course, congressional Congress, “as districts words. contain continued fact nearly practi- population] as is use those exact words in each suc- of its [in gen- up subjective apportionment cable,” upon acts in- cessive cluding to and but August whether, 8, 1911, judgment as a mat- the Act of eralized particular appeared practical politics, as Section 3 Stat. of' ter Code, printed legislature still could have Title States could or United state long history (For complying of con- consti- with the closer U.S.C.A. come nearly practic- I, gressional of “as use of Art. § command tutional Broom, able,” finally rejected idea see Wood v. U.S. “the Preisler II we (1923)). ‘slight- L.Ed. apportionment plan can S.Ct. that an That determina- ly unconstitutional’.” And when President tried to Truman of this case. is the law tion get Eighty-sec6rid‘~Congfess do something about failure judge major- The rationale of two congressional malapportion- deal with ity three-judge the recent Ohio case ment he used language same well-understood example an of what we believe that Con- when he recommended primrose path invitation to follow a gress provided pass a bill that would through courts, both the thicket contiguous composed of “be federal, required now State *32 territory as compact contain and and nearly, Supreme opinion, the That before enter. practicable, same number the as attempted reversal, most recent Court’s Message the from of individuals.” See the say Supreme use of that nearly Court’s the H.R. Dec. 1951). States President of United practicable” standard “as isas 9, (Jan. Cong. 1st 82d Sess. Wesberry pre- v. Sanders “established no (xiii). ‘practicability’” cise of definition Congression- A review of much earlier Having assumption, made that erroneous apportionment history al cir- reveals unsupported by any Supreme Court deci- “as cumstances under which words sion, judges felt two Ohio federal pre- nearly practicable” acquired as their “all free add that the law and the meaning. cise Interest- and established expect re- courts obtainable best [is] ingly early enough, his- reference to that ** ; result, practical the most will sult by tory to be found in decisions written is any (xvii). suffice” Without have to Supreme of Missouri. support Supreme decision of the traditionally Missouri has been one of Court, judges attempted those two to many attempts states made valiant application avoid of the constitutional apportionment problems, not to leave nearly practicable” standard of as is “as Congressman words, use Celler’s “to the to the facts established in the Ohio case whims and uncontrolled discretion of the by assuming erroneously that “an element legislature” (see above). footnote Sec- ‘practicality’ implicit concept of tion 6 of Article 4 of 1875 Missouri ‘practicability’ as of applied that term is to be required, example, Constitution (xxiii). districting case” We senatorial districts be elected state Supreme Court’s reversal believe that contig- compact from “districts of must read as an im- Ohio case be territory, near- uous ly equal as upon rejection plicit of the rationale may Bar- ex rel. be.” State as approval court based its the lower which rett Hitchcock, supra, illustrates the districting plan congressional of the Ohio why fifty years reason ago a Missouri court state. shall reasons we difficulty nearly had no with the “as equal may language long as be” in the 1875 time use of The introduction nearly practicable” Constitution. That court was as as words “as part familiar with cir- where and under what as lan- a term of art incorpo- apportionment cumstances those had guage words language apportionment. Apportionment rated into the much older (1872)); (17 The Missouri Court in February 2,1872 Stat. degree always following language There adopted from must exist some State, inequality. Report, 22d Parker [Senate earlier case still 567, Sess., Congress, No. 119 836, 18 L.R.A. 1st. Doc. N.E. Ind. original). (1832)] p. (Emphasis question somewhat “A noted that discussion now under one Congress similar recognized problem, both The obvious the United arose by every court that Webster to the year relative States I, diffi- was not since looked at Art. § upon placed section to be construction prin- apply wished to cult to solve if one ciple, the United Constitution art. distinguished from whim. Web- as S.W.) (page of64 States” Wesberry recognized, did v. San- ster ders, that: question had then noted that It committee on which

been referred to a constitution, therefore, be must as chairman. Daniel Webster served enjoining understood not an absolute court, writing quite cor- Indiana equality relative —because Congress finally rectly did in stated what demanding impossibility as—but nearly as the “as 1872 when wrote requiring Congress ap- to make the practicable” the federal into standard portionment representatives among code. It stated: according States, the several to their numbers, respective may as near as be. The rule recommended com- perfectly, That done which cannot be subsequently adopted mittee was per- Congress, must be done in manner as near Representatives so that cannot, apportioned among If fection as can be. exactness now the several attained, things, the nature states of the Union under it as a fixed practicable approach greatest binding obligation, (supra, p. then the 4) (id. ought p. to be made to exactness original). (Emphasis in We make a more detailed examination Congress report Webster made clear that made Daniel Web- *33 I, ster was bound Art. 2 of the because the Constitu- nearly § words “as as practicable” “Congress tion because acquired is not absolved their well estab- rule, merely meaning from all lished because the of from rule what Daniel Web- perfect justice applied.” specific ster I, cannot In said be in his discussion Art. typical language added: 2 of Webster spent § Constitution which he defending. a lifetime case, In approximation such a be- rule; year In the comes a place it 1832 Daniel takes the Webster said of that following regard other language preferable, rule which would to be I, but inapplicable, Art. 2: which is found § and becomes, itself, obligation an of bind- There would seem to be little diffi- ing approximation force. The nearest culty in understanding provi- these right, to exact truth or exact when that sions. designed, The terms used are truth, right exact that exact or cannot doubtless to be peculiar received in no reached, prevails itself be in other eas- or sense, technical according but to es, discretion, not as matter of as but their popular common acceptation. and intelligible rule, an and definite dictat- apportion, To by right is to distribute by justice, conforming ed and to the measure; just parts; to set off in to mankind; common sense rule assign proper in due proportion and * * binding no to less force cases which Representation founded on applicable, be it is and no more to de- members, must limit, have some and parted or ob- from than other rule being, nature, thing from its not ligation. capable subdivision, of indefinite it * precisely cannot be made *. The committee understands the con- quite therefore, they It is obvious that the stitution as would have under- apportionment representative it, power stood said, many it had if in so precise perfect. words, representatives can never be should be apportioned among House, accord- number that number States ing members, respective apportioned their as shall be to each State may right near as meaning, be. If this be not its true comes which nearest to its exact * * given, according people. it then either has number of its important requires, this most delicate and sub- What the constitution is ject, always imprac- practicable approach precise is a rule which nearest justice. given ticable, approximation; or it has no rule at else The rule is all; ought therefore, because, repre- approach, if the rule be that and we apportioned approach sentatives actly ex- should be on which ever side we can numbers, Webster’s) according (Emphasis it is im- nearest. Daniel practicable case; every if, (P- for rule, this reason cannot be the that have been forced to answer Courts whatever, is no rule unless then there present day arguments been which have they appor- the rule shall upon based erroneous idea that the may as near as tioned be. language nearly practicable” as “as vague indeed, Wesberry construction, somehow This v. Sanders difficulty not, adopt, imprecise their or more committee have had no knowledge, argument denied; they pro- than the Indiana with that years fifty ago. question ceed in court In Jones the discussion of the had over granted Falcey, taking Senate, 48 N.J. 222 A.2d before Attorney example, (1966), Gener- such is the true and undeniable nearly meaning (Italics argued Jersey “as al of New constitution. Webster’s), (p. 5). practicable” mean Daniel as is could be taken represented the best that which is to be regard lay As to where the burden political compromise the ambit within sustaining apportionment, to anticipated Webster legislative poli- practical what is called III one Swann v. Adams Weintraub, tics. Chief Justice thirty-five years. hundred Webster correctly Jersey, Supreme Court of New said 1832 that: Constitution, con- “The stated that disturbing proposed Without Wesberry Reynolds, does strued House, number of mere range contemplate that there is changing of three members these may which a State deviation within respectively, six States maneuver, reason.” or without bring representation of each nearly practicable” regard to the “as six, whole nearer to their due Sanders, Wesberry language *34 according respec- proportion, their stated: numbers, bill, pres- tive than the in its popula The command is to achieve form, ent In makes it. the face nearly practicable” equality “as tion as indisputable truth, how said can it be nearly equality and if would be more apportions that bill members the these municipali by shifting whole achieved according among those to their States contiguous district, the drafts ties to a respective may numbers, as near as equality “as man achieved has not bel nearly practicable,” oth unless some as principle proposed The the on which (if constitutionally reason tenable er * * * founded is lit- amendment is any) justify there is can be shown transcript tle than a of the words other political disparity. If the the lines constitution, and its results the are ignored, no is there subdivisions mathematical!y The certain. constitu- achieving apparent not reason for it, tion, the committee understand as subject equality, mathematical appor- representatives says, shall be de minimis varia course to inevitable according among States tioned the 107-108). (222 tions. A.2d people, respective numbers of as their by adopted may The near be. rule III defendants as Swann Adams the case, says, committee, contended, out the whole in this as do defendants “plan as as close obvious variances were either unavoid- that Florida comes accept- equal- justified legally ‘practical’ complete population able or some 573) ground. ity” (385 at at able U.S. S.Ct. ours). Supreme (emphasis Court prohibited Until in 1932 Wood v. argument curtly that rather answered the Broom, supra, exercising jurisdic- may “practicable” mean taken sixty year tion to enforce old the then holding “practical” “it seems Congressional requirement con- quite have could obvious that State gressional contigu- compact, districts be providing districts much closer to come nearly practi- and contain ous “as (385 population equal U.S. it did” than equal inhabitants, cable” an number of noting 573). at at After 87 S.Ct. difficulty the federal courts what- had no plaintiffs “placed had before understanding either lan- soever in plan ,o\yn much which revealed court their guage applying or in it the standard es- districts” smaller between the variations by par- presented tablished to facts “appellants suggested and that cases. ticular specific District Court amendments Wood, S.D.Miss.1932, In Broom v. legislative they plan, which, if had been F.Supp 134, example, a lower measurably three- accepted, reduced judge leg- many Mississippi court held between differences complied had districts,” islature the con- held gressional command had been on the a closer facts “demonstrate that that such books since 1872. held equally That court approximation populated dis- congressional mandatory (385 undertaking” “act is tricts was feasible fixing 573.) (em- must be followed 445-446, the states at U.S. at S.Ct. congressional (1 F.Supp. districts” at phasis added). 135). apparent It is that even state Mississippi It held that there variances admittedly apportionment cases, where “clearly involved were of the violative permissible play there more is ** * illegal Congress act of districting, joints congressional than in (Ibid). void.” “practicability” rather the rule one of “practicality.” prin political Mahan, E.D.Ken.1932, In Hume F. ciple apportionment applicable cas to all Kentucky Supp. a federal court es, they regardless involve of whether Kentucky congressional ruled the 1932 districting, or State apportionment to be in violation practicable or, to use whether nearly practicable” “as es- standard ap synonymous word “feasible” Congress. tablished That court body portioning clos much to “have come Congres- Kentucky concluded that equal providing districts of er to districting sional act framed in de- “was “spe population than it did” and whether disregard federal statute” liberate * * which, if cific amendments setting (1 F.Supp. * out After * ** measurably accepted, would have concerning pop- situation the factual be differences reduced the Kentucky, ulation of counties of *35 (385 many U.S. of the districts” tween this situa- court held that: “In view of 573). at at S.Ct. tion, with the confronted was dividing difficulty particu- these no whatever facts, in a if established Such counties into held one hundred and nineteen case, the lar eight congressional substan- approximation of districts that a closer “demonstrate tially equal population, without feasi- and this a populated was districts equally county; 445-446, necessity dividing any and of undertaking” (385 the at U.S. ble course, presents topography no of 573). means, the the state of This at S.Ct. carving out of districts obstacle to these plan held must be apportionment that the territory” (id. contiguous compact particular a State unless unconstitutional 150) p. showing the of burden carries the any anticipation reapportionment the rule of decision enact act In of follow- census, ing v. Adams III settled Swann the 1920 had also intention- now thirty Kilgarlin Hill, ally that court stated failed to include the 1872 standard v. years ago nearly practicable” in its bill that: of “as as applicable reapportionment to be to the example with which of the ease As federal under 1930 census. two the coun- these one hundred and nineteen just were, course, of decided cases cited eight congres- can into ties be erected theory prac- nearly as “as the the composed contiguous districts, of sional a effect as ticable” standard was still in congressional territory compact with sub- the Act of command under equal population, court stantially August 8, courts said 1911. What those argument upon during coun- called regard should how that standard be plaintiff map show- sel a file good today applied is as law as was ing if done. and how this could be Such thirty years ago. The when written over map prepared ex- as an filed Wesberry made the fact Sanders map hibit in the case. This shows nearly practicable” “as as a constitution- off these counties could been laid have validity of al standard does not afect the eight congressional into districts applied the rationale those cases. greater be- no difference approximately tween them than nearly as standard “as doing people, and this violence without today practicable” it meant means what requirement has meant to Daniel Webster and composed compact and con- must history. throughout our Within the con (Id. tiguous territory. p. plans congressional districting, if text of real clear that “no That court made legislature or in be before the evidence difficulty Legislature in confronted equal dis fore court establish that more substantially complying federal with the tricting was that which obtainable than law.” court that “Instead That added obviously adopted, plan then en however, doing Legislature, so, with- acted, facts, now on the does not meet the far I can reason whatever as so out district constitutional command ing exigencies of other than the discover nearly practicable.” isas “as redistricting practical politics, gross inequality in out state worked apparent It that efforts to should be respective dis- between “practical substitute considerations analysis After tricts.” further legislative politics” and ideas of “best population Ken- actual distribution compromise” meaning the historic again anticipating tucky, held, the court the now command “as constitutional apportionment decision rules of current nearly practicable” were foreclosed by thirty-five years, that: Compromise, Great embodied these with which view of the ease I, 2, interpreted Wes- Article and as § avoid- discriminations could have been ed, berry ap- also be v. Sanders. It should forced to the conclusion we are parent to all want to understand who them, attempt no was made to avoid legislative no the longer bodies of this Nation but that other considerations plain license to violate securing equality population dic- explicit commands of Constitu- laying out of districts. tated the these States, tion that those who United (Ibid) required make laws to follow the course, was, This case reversed on all Constitution in the same manner as authority supra. Brown, persons, of Wood v. do See other and that all failures Secretary Hume, Mahan, subject 287 U.S. traditional so are same *36 223, continuing re- judicial 77 L.Ed. But such ex- S.Ct. remedies that our solely ground periment versal of was based on from time evolved having Congress, that the after failed John Marshall. “Comparative bearing Table” one State has III. Defendants’ little on valid- ity Argument of a similar variation in another (385 445, 572). State” U.S. at 87 S.Ct. at pages forth set on Defendants Reynolds Sims, See also 377 U.S. 533 on which 20 of brief a table 19 and their 578, 1390, holding: at 84 S.Ct. 1362 at ac ranked have been the various States marginally permissible “What is in one cording to have labeled what defendants may unsatisfactory another, State in Mis column.13 “Total Deviation” % depending upon particular circum- eighth De is ranked on that table. souri stances of the case.” argue that “an examination fendants dramatically Supreme demonstrates the table Those three dis- Court cases Congressional pose all comparative the Missouri Districts of defendants’ ar- table gument. minimis well within variations.” fall de Tabulations the sort de- presented fendants have to this Court in Mann, supra, defend In Davis v. all three of Preisler an cases reflect (as in distin ants introduced evidence exceedingly chapter long short of the his- simply putting unsupported guished from tory malapportionment in the United brief) their in and inaccurate data complete history A States. more of con- study comparative state of a “results gressional reapportionment establishes legislative apportionments which show present may that whatever rank be as- eighth among Virginia ranking the States signed particular State, ranking a such legislative represent population-based ju- has not been attained without recent (377 682, 84 S.Ct. ativeness” U.S. encouragement, and, dicial in some in- rejected de stances, actual order. court attempted justification based fendants’ meaningful history comparative A more that sort of data. Swann is on obtained explicit Appendix in its when the data III more set forth in I v. Adams is even * * * opinion holding attached fact that “the Mr. Justice Colegrove approved Green, Frankfurter from the norm variation purportedly percentage based reflect the table is accurate 13. Defendants’ of devi- published Congressional largest ation between districts; in the and on data smallest Report September Quarterly Weekly simple addition those figures 1966, August, always produce of the will 1967 issue a smaller League, percentage figure Municipal produced by and U.S. National Cong. Report 1st accurate 90th mathematical calculation. No. Senate 1, 1967, together Sess., The “Total with letters of Deviation” column on June '% Attorney Defendants’ Generals of various Table therefore smaller from percentage are than what the actual de- states. highest comparable viations to defendants’ between the and lowest No such data accurately appears column districts calculated accord- of Deviation” “Total '% Congres- proper principle. any ance with mathematical sources. The those Sep- Weekly Report Quarterly This fact of mathematical life is illus- sional page con- trated does examination of the Table tember on Representa- purporting to set forth introduced the House tain a table “% April 25, by Representa- tives last from the various Variations” Maximum Conyers Michigan appears figures table on tive None of the states. agree Congressional Cong. figures Record, any defend- on 90th with page 1st Sess. That sets have not been favored H4620. table table. We ants’ (1) copies from three letters received forth columns: deviation % lowest; highest (2) Attorney between de- Generals. the various % figures largest ideal; percentage particular used viation between The. (3) table, event, deviation between smallest on defendants’ necessarily '% An The maximum deviation between examination ideal. inaccurate. always larg- largest percentage figures Table and smallest is of other shows gether percentage figure merely er than the total of added to- that defendants percentages two other columns. Defendants’ noted, attempts Table, largest we smallest game play purportedly particular another deviated form numbers State larger figures look to make that State. order district for ideal percentages their smaller on table. does The. sum those *37 992 every States; history of 1198, that set “better” 557, 66 S.Ct.

U.S. at picture presents country Mr. State Appendix attached in the forth degree from her sister Wesberry v. different dissent Harlan’s Justice 49, page States. at S.Ct. Sanders, 376 U.S. single performs following table. We table cumulated function: number present a limited data for Showing Malapportionment Congressional (1964)

Pre-Wesberry Variances Maximum v. Sanders Largest Districts of and Smallest Between Defendants’ 1967 Chart Ranked on States Compiled Appendix Frankfurter’s to Mr. Justice I attached Data Additional 557-559, Colegrove Green, dissenting opinion 66 S.Ct. U.S. 32S dissenting opinion Appendix in 'Wes Mr. Justice Harlan’s L.Ed. 526,11 49-50, berry Sanders, L.Ed.2d 481. S.Ct. U.S. State 415,704 600,345 237,235 439,S95 202,792

Florida 315.292 186,831 187,474 188,630 407.077 S,027 423,110 253,004 14,162 127.S1S 575,385 423,152 220,261 453.507 Arkansas 330.292 180,348 177,470 332,844 443.892 147.800 72,455 242,541 245,070 149,044 9.675 393,210 711,045 Maryland 534.508 208.165 311.413 194,508 195,427 3S3.237 243.570 153.912 9,973 339,141 467,475 116,845 54,253 572,054 229,907 Rep. 451.804 438,703 293.922 Utah 317,973 250,38S (At 219.489 Large) 13,101 254,081 37,534 10,418 417,020 S02,994 419,007 191,841 Michigan 533.74S 177,431 200,205 14S,626 403.203 19S.679 13,703 218,742 335,009 43,215 025.503 yet 325,080 189,472 416,863 390.101 Not Oklahoma 552.503 227,692 380,734 189,547 Admitted 15,427 325,171 227,310

130,208 404,90S 027,019 3SS,938 199,972 290,396 Tennessee 145,403 223,3S7 225,918 153,773 3S8.240 16,728 403,632 163,020 46,199 150,993 491,461 423,750 358,573 239,040 408,139 202,760 204,6S6 North 406,474 277,861 160.288 Carolina 17,276 213,600 205,379 119,533 44,398 347,701 333,476 323,597 Rep. 400.573 1 (At Montana 327,019 274,194 235,859 215.413 Large) 20,082 87,738 126,379 writing April, view, 1966 issue his- data reflects cumulated accurately publication, summa- malappor- of that pattern of toric Wesberry post-Wesberry con- v. Sanders rized (when before tionment history gressional when apportionment decided) dramatic and the v. Sanders “Comparatively fan- little D. he stated that: J. William impact decision. of that accompanied wholesale Re- Civic fare National Boyd, of- the editor *38 congressional change made Senator Howard Baker of Ten- place February, has taken since nessee to the United States Senate on (Cong. when United States November 1967. Rec. 90th they substantially equal Cong., Sess., ordered 1st S He there population.” reported He that within decision, Wesberry stated that “since the years Wesberry first two v. after reshaped district lines have been in 33 completed Sanders that 25 States had “many States.” He added States redistricting, adding “Al- their voluntarily; redistricted with some though redistricting process order; encouragement of a court’s disputes, pace caused several con- and, legisla- in a few States where the gressional change rapid has been more agree, tures could not courts them- legisla- and less controversial than state selves the lines.” redrew reapportionment; tive therefore Press has taken far less notice of the why bones statement of The bare changes taking place.” how the on the came States table above Wesberry post- The most recent Sanders statement to redistrict after v. Wesberry progress decided, v. Sanders was was is as follows: Subsequent

Action Taken Wesberry State v. Sanders plan supra, Gong Kirk, after Florida Court ordered v. repeated legislative failures following Legislature adopted present plan

Arkansas Park v. Faubus, E.D.Ark., 1965, F.Supp. 62. Comm,

Maryland plan Maryland Court ordered Citizens repeated Cong. Tawes, supra, Fair Red. v. after legislative failures Voluntary Wesberry

Utah .legislative subsequent action Sanders;

v. neces- no additional court action was sary.

Michigan adopted present plan following Calkins Hare, E.D.Mich., 1964, F.Supp.

v. Voluntary subsequent Wesberry legislative Oklahoma action Sanders; v. action neces- no additional court was sary.

Tennessee plan Ellington, supra, Court ordered in Baker v. repeated

after legislative failures. North Carolina Legislature adopted present plan earlier after two

failures; held to be Drum not unconstitutional in Seawell, supra. Legislature adopted present plan Montana following Roberts Babcock, D.Mont., 1965, being deter- totally Davis v. Mann’s States” Consistent irrelevant to the study question fact that a mination whether the 1967 Missouri eighth ranking “Virginia has in fact law showed divided the immaterial, we State of among Missouri into the States” dis- argument nearly III Preisler tricts as reject defendants’ as is eighth among practicable “ranks that Missouri accordance with the com- D94 constitutionally and United Act held void of both the Missouri mand Act, II. Preisler today which we Constitutions. States unconstitutional, only hold to be argue table also their Defendants highest cut the variance between the that, “by comparison, recent shows 25,792. fail lowest *39 district We Missouri efforts comparison understand infinitely with the how redistricting truly congressional com are increasingly large job an better Apart that from fact mendable.” pro- number done to other States have proper un comparison not a criterion is rights tect of their constitutional cases, hard Supreme Court der argu- support can said to an citizens be reapportfcn concerning Missouri’s facts progress be ment that Missouri’s should fairly be to said ment cannot be efforts “truly prog- called commendable.” The history “truly commendable.” The including Missouri, State, can ress of no reapportionment in Mis fairly until be said to be commendable states, souri, like all her that of Sister fairly fully and unless such a State But progress made. has been shows complies with command of both State say thing progress has is one to and federal constitutional law. made; thing quite another it is say progress can be described fairly progress Missouri’s be cannot unless, course, commendable, described as commendable viewed when comply progress has been sufficient light legislatures of the fact that the with the Constitution. adjoining of both Utah and Oklahoma voluntarily complied Wesberry regard with Missouri’s facts shortly necessity progress 1928, Sanders without the fur- that in establish congres- court ther action. Those most States enacted before Missouri’s recent large, apparently substantially what are better sional the variation election 521,- plans highest (pop. than those which has been between its district Missouri 587) (pop. 138,807) able to was enact after at- three abortive its lowest legislatures tempts. Michigan,

'382,708. ex- fear The converse Montana, adjoining by Congressman pressed needed Bowlin Arkansas Missouri only by to be told judge three- Louis once federal in 1844 vote in that “One St. legislatures court for the of those be to four or five [would made] apparently country” pass; three States job do an better had in fact come ratio, however, nearly than do Missouri has been same. able separate attempts. in three representa- From when 1928 to Indeed, being mal- the unvarnished truth is that were tives elected from those fifty only districts, majority Missouri one of .apportioned Mis- four of the in States Union that had to time souri’s the first told more began Constitu- history, twice areas. to live urban her tion of the throughout States will United three must But all time Supreme be enforced representatives as the of the elec- Law of Missouri’s Land in people order that Kansas from from ted Louis St. one United City; remaining States who in Missouri then reside 12 of the with the government by by delegation law Mis- rather than 16 member outstate men. souri. quite reapportion by apparent It a loss Forced to that a broader census, congres- representation progress review under Missouri’s apportionment presents its sional quite Missouri cut the variation between by picture highest quality different lowest district legislatures. consti- efforts That Act held recent its 1961 Act. tutionally Following We cannot find in Preisler I. are void those efforts Act, Missouri, decision, commendablebecause we its find that cannot highest yet complied and Missouri has com- cut the between the variance 84,655. I, The 1965 mand of Art. 2 of the lowest districts Constitution. § Attempted quires “questions presented” IV. Defendants’ On that the Reliance appellant Mississippi separately Recent Not Case Tenable set forth in appellant’s Jurisdictional Statement and compara As a facet of their untenable question that while “the statement of a argument, tive table defendants direct presented every will be deemed to include particular attention to the decision of subsidiary question fairly comprised three-judge Mississippi court in Con therein,” appellants put on notice that Johnson, No.3830, nor v. S.D.Miss. “only questions juris- set forth in the September 30, decided fairly comprised dictional or statement per affirmed curi therein will be considered” and that “the am, L.Ed. 386 U.S. S.Ct. jurisdictional may statement not raise (1967). 2d questions change additional or the sub- *40 Defendants insist that the Su questions already present- the stance of preme Court’s affirmance of that case in ed.” approved fact the variances contained in Wesberry Sanders, supra, v. in order Mississippi plan, the 1966 any possible to foreclose future claim of and therefore contend that “the constitu confusion, expressly stated that tionality the deci- of the Redistrict sion in that ques- case was limited to ing amply by Act is demonstrated this presented tion I, under Art. 2. Mississippi The Su- § decision.”14 We do not preme Court stated: “We do agree. not reach arguments Georgia that statute implicit 15, Considerations in Rule Process, Equal violates the Due Protec- 1(c) Supreme subd. of Court of the . tion, Privileges and and Immunities principle appel- United States and of Clauses of the Fourteenth Amendment” repeatedly late review announced and (376 8, 10, U.S. footnote 84 S.Ct. at specifically applied by Supreme Court 530). apportionment cases, prohibits this holding Supreme that Court The fact that a Fourteenth Amend- any way intended, by Court in affirmance apportionment challenge ment can not be Johnson, approve of Connor v. ipso said be included in a case facto variances contained in the 1966 Missis- presents only I, which an Art. 2 in- § sippi plan or to overrule what it had so equality population question un- was recently III stated in v. Adams Swann very day Wesberry derlined the v. Sand- Kilgarlin and v. Hill. Wright ers was decided. v. Rockefel- ler, 15, 1(c) of the Rule subd. of the Rules 376 U.S. 52 at 84 S.Ct. Supreme Supreme re- Court of the United States L.Ed.2d 512 at 606 the Court argue power Intervenors similar vein dicial on this Court conferred “Supreme affirmance of Court’s the Constitution and laws of the United apportionment Mississippi an which States. In Preisler II we welcomed an nearly perfect compels appeal question is less ours in order that the obvious with- the conclusion our Act is conflict between rationale acceptable constitutional limits” II Preisler Martin v. Bush D.C., II, that “under these circumstances it would judicial power squarely presented, Supreme an abuse of to strike to the Court product legislative (257 F.Supp. down the hard final its resolution process.” commenting way We refrain from footnote We feel the same appeal on intervenors’ claim of Act as III the 1967 about an Preisler even that, any though present “our 1967 Act” other than to state no conflict with other shows, presented. courts, so far as the record in case All court both State required properly Federal, we to consider the 1967 followed and have Assembly Kilgarlin applied as the act of the 74th General Adams Swann v. III Missouri; two-judge majority except not of the intervenors. v. Hill compelled Lucas, supra. opinion feel We state further That in Rhodes v. right any proper potential is our view that conflict eliminated party appeal Supreme Supreme to a direct to the reversal recent Court ample pro- United States is Rhodes. against any ju- alleged tection abuse of carefully pass ques- on emphasized do we have reviewed the “We not presented Appel- appellants Jurisdictional Statement filed tion which appor- Appellees’ here, is, Motion to the state lants and Dismiss whether Congressional Supreme or Affirm Court. York filed New [the tionment constitutionally invalid District Act] questions presented The objective may fail in its because it Court for the sissippi District Mis- Southern nearly practi- as as create districts based opinion. in its were detailed Specific equal population.” at- cable plaintiffs set six contentions of Wesberry directed tention was there page no contain mention forth on Sanders, inequality of an they I, 2 of Art. nor do make whatever § I, population question under Art. § alleged abridgment any any reference day. presented decided same one-man, one-vote denial Every principle. there stated contention Wright made it Rockefeller Amendment chal- involved a Fourteenth Supreme Court’s affirm clear that the gerrymander lenge or discrim- of racial rejec three-judge court’s ance of a lower ination. chal tion Amendment Fourteenth “Question Presented” to the Unit- circumstances, lenge may not, under ed States Court as set forth on lower a future court be considered page Appellant’s 2 of Jurisdictional approval variances *41 1966 Statement was whether the Missis- challenged congres may appear in the sippi congressional districting plan vio- Supreme apportionment. The sional lated “the Fourteenth and Fifteenth holding Four its on a Court stated that Amendments U.S. Constitution.” the question no “has teenth Amendment wholly separate ques bearing on [the] responded Appellees appropriately by presented an be tion” that would question appellants’ of statement the challenge I, “no such 2 because Art. § page supporting presented on of3 their challenge urged here, is the been has by stating I, “Art. * Sec. 2 of brief that: ** bring it formulated to sues have not been not the was U.S. Constitution focus, has not been evidence into and the court and in the lower has invoked 15 The appraised it.” or to decide offered sought to here.” be invoked governing scope principle the same Our pleadings examination of the and and Supreme stated Court review was Supreme briefs in filed Court in applied Assem in Colorado Gen. Lucas v. appeal of Connor v. Johnson estab- 730, (1964), 726, 84 bly, at 713 U.S. 377 that, Wright Rockefeller, lishes as in v. 632, 1459, Fortson L.Ed.2d S.Ct. I, inequality no question Art. of § Dorsey, (1965) v. U.S. 433 presented Supreme was to the 498, 13 401. L.Ed.2d S.Ct. Court in connection with the recent Mis- sissippi case; concerning In order there could be doubt issues no wholly separate question questions pre- about what were not fact bring challenge Mississippi formulated to focus; such a sented both the three- judge Supreme and that court to the no evidence was offered Court by appraised requested copies or lower court to decide United we States question” “wholly separate 15. 11 L.Ed.2d The re The S.Ct. 656. Congressional opinion cent New York three- whether New Yoi’k’s 1961 judge Rockefeller, supra, apportionment court Wells v. act could withstand I, presented F.Supp. 986, disposed challenge page Art. de § argument by holding that: “It case v. Rocke fendants’ the most recent of Wells beyond feller, supra. argued a that neither in that thus clear doubt Defendants Wright “ap Honeywood popu Supreme dealt nor with case Court had proved” disparities. they be its lation Nor can made variances argument tliroe-judge basis for an the New York sound affirmance of Congres constitutionality present Rockefeller, Wright v. court districting been sus sional statute has similar Amendment case Fourteenth Honey Rockefeller, these tained decisions.” wood 376 U.S. v. sequently fully made that it under- question. clear It is therefore clear such Supreme stands that the announc- Supreme Court affirmance Court’s controlling principles appli- three-judge Mississippi cannot ed additional court litiga- apportionment respect all an cable to future to constitute said III in tion when it decided Swann v. Adams contained approval of variances Kilgarlin districting congressional Mississippi Hill. See Connor v. S.D.Miss.1967, Johnson, plan. so hold. We relevancy Mis- impact collateral The of those litigation is the sissippi litigation to this ease apportionment has on future cases litigation Mississippi clear Mis- fact demonstrated in sissippi is made legislature much three-judge can act with court it held when State apportionment promptitude greater that: March last past acted in the it ever matters than An examination the decision prompt up mind that makes its once crystal Adams made it [Swann III] necessary. action Bill No. 1504 was clear that Senate fatally unless the defective variations litigation Our review of that shows explained on above could described that it was on October 1965 that policy, state such the basis rational Party Mississippi Freedom Democratic integrity political subdivi- as sions, challenge in federal filed court its first compactness the maintenance obviously malapportioned to the Missis- districts, legislative contiguity in sippi districting. ini- That recognition histori- natural or or the challenge I, challenge. tial an Art. § (265 boundary F.Supp. at lines. cal Mississippi Legislature, The 1966 faced 493-494). prospect almost certain of an large, spite apportion- election' at consequence legisla- aof State ment difficulties in its 1932 de- session keep ture’s refusal make accurate *42 “long as a and acrimonious bat- scribed tle”), legislative records of its deliberations (described in 1952 session as re- apparent by Mississippi was made the flecting inability to “reluctance apportionment in court its recent most agree”), (de- and in its 1962 session case. The court that en- stated it had having “kept the scribed giving a formal the tered order State uproar major portion of in an its opportunity explanations to offer [the] term”), pass able to was in fact a new required by Con- now v. Adams. Swann congressional truly speed. in act record every con- with what court has sistent Mississippi legislature passed Indeed the impact Adams sidered the of Swann v. redistricting a new act a three- three-judge before be, Mississippi III the judge federal court could be assembled that had no alternative ex- court held challenge. I, 2 to hear the Art. § cept No. “find Senate Bill 1504 to be face, null and on its unconstitutional unusually in It was face of that the Legisla- Mississippi “the void” because legislative prompt plaintiffs action that keeps stenographic report no of its ture complaint in order to chal- amended their requires no formal commit- debates and newly lenge constitutionality of the reports recommendations other than tee Mississippi as a viola- enacted 1966 rejection, impossi- passage it was or as to rights guaranteed the Four- of tion [any] Attorney to file for the General ble explanation” It Amendments. and Fifteenth teenth (265 F.Supp. 492 at that under circumstances those challenge inequality I, population Legislatures Art. § and the Missouri Future effect, was, from consider- eliminated Attorney be Missouri would of General Mississippi three-judge court teaching ation of this to heed advised well Mississippi case. of declaration latest act three-judge new should court some significant the same three- that It Assembly General future of a judge Mississippi court that decided the motion some new of made basis Mississippi sub- be case has changes anticipated apportion- approval new of some seek to occur the future. plan.16 bound ment Acceptance of the idea of a constitu- clearly tionally required census carried APPENDIX D rejection qualifications it the of Significance except popula- or other factor Discussion Constitutional wealth Constitutionally I, of quired Art. Inclusion of Re- tion as established its § original I, Census in Art. form. Decennial It Relates to Use Data As oí § Study of the debates and other Federal Census in Draw- Other Than suggests except historical data ing Congressional Districts the establishment of the constitutional protection of the census which contem- purpose Appendix is of this principle plated constitutional perspective place in historical the consti- equal representation according to num- significance inclusion of tutional by periodic maintained re- bers would be apportionments, I, decennial census Art. § quite unlikely it is integral part of as an the Constitution Compromise the adopted. would have been Great Compromise. the Gréat review the A equal represen- future proceedings of the Con- Constitutional itself; tation was not left take care pa- the Federalist vention of and of clearly by the Founders it was intended principle pers fac- reveals one require that the Constitution itself would Founding Fathers tors enabled principle representation that the agreement proposal was the to reach changes applied all future would be acceptance there of the idea that they periodically population as would be it- Constitution would be included .the constitutionally re- ascertained quired distinguished sharply self, census. decennial leaving matter to the discretion Wesberry Sanders, supra, Congress, a device under which representation principle U.S. at S.Ct. 11 L.Ed. fundamental guaranteed 2d point Mr. Black took Justice as his based beginning proposition requirement that the constitutional history Constitution, particu- pe- “The representatives would be numbers of relating larly part adop- clearly of it riodically adjusted to meet *43 “approved in from the norm well estab variation our now Consistent bearing every discussing practice one va- case State lias little on the of lished upon lidity rely of a similar variation in another these in the defendants which (385 572), cases, apportionment fur congressional U.S. at 87 S.Ct. at a State” appropriate regard it add defend- to to in be added ther should word apparently part Avery, supra. even the ants did not read As a of v. Meeks they justification-by-compari That attempted cited it. Kansas case before their argument, census court hold that State Kansas defend son-with-other-states accuracy figures used; three-judge could be the the Kansas assert ants questioned those'figures pop plan of was not approved in “the a which court anyone; apparent 459,063 largest federal the district ulation real; 41,666 variation census of was district population the smallest of the the under State the variance 394,056” to act was found that “this variance; population and that was the actual compliance census re with the in be justified ra- under the such variance was Consti quirements States the of United II, Avery.” of Martin a case that tionale v. Bush de “Thus.” in Meeks tution expressly to in argue, we refused follow Preisler attempt “the United to . fendants * * * II. the has We hold that Kansas case in Kansas District Court States bearing in on our in no more decision approved popula III it our decision Preisler had on have which of Kansas State the II, we in all the Preisler reasons of the dis in excess well variations tion generally regard Congressional de- to stated in the 1967 tricts argument. comparative fendants’ table Redistricting Act.” Appendix principle D. See also always Keeping the in mind a III Adams Swann stated I, Randolph expressed Mr. tion of Art. those reveals his § dislike of that, report. apprehensive framed the Constitution meant the “He that, who was matter of an as the changed no tion, what the mechanics elec- number was not to be till by districts, legislature the please, or national whether statewide should a pretext wanting which to be post- it was was the would never be to pone Representatives.” alterations, keep power basis the House the possessed (289). the hands of those of it” signifi- page on it most And 13 was Randolph introduced idea the of a cen- cantly that: added July 10, report sus on 1787. The debates Edmund Constitution embodied that: Randolph’s proposal periodic cen- Mr. RANDOLPH “it [stated that] representation ‘fair sus ensure first, contemplation, was in his make people,’ an idea endorsed Mason duty, leaving instead it to the assuring as that ‘numbers inhabit- discretion, legislature, regu- always the measure should ants’ representation by periodical late the -a ” Rep- representation House * * * census; (291). 13-14, U.S. [376 resentatives. Randolph’s idea constitutionally of a 533], S.Ct. required census did not meet with imme- acceptance. Arguments diate constitu- appendix and dis- This will detail agreement centered history compressed that short on total size tional summary contemplated House; some it relates to the decennial wanted members; motion the 1787 the debate double the Most of census. failed; I, number 2 was concen- still another Art. member on Convention § July, wanted to cut 65 to 1787. Our 55. After a consider- month trated unproductive able amount of discussion, III Elli- to Volume page citations debates, page on (Jonathan ed. Elliot show that: ot’s Debates moved, Mr. RANDOLPH as -an question of Con- whether basic report amendment to the of the com- going Congress or the stitution “that, mittee of five in order to ascer- representa- apportionment of control tain the alterations in the brought first time for the tives states, and wealth of the several July 9, when the Convention legislature required should be to cause presented commit- Morris Gouverneur a census and estimate to be taken with- House at report fixed tee year meeting; in one after its first present that “as and stated members thereafter; every years - may probably al- states situation legislature arrange and that point of ter, 'wealth as well representation accordingly.” inhabitants, their number Morris, having say Gouverneur last time legislature authorized complained day, for that repre- that the Ran- augment number time ours). dolph proposal “fettering Mr. emphasis (288, would be sentatives” *44 the typical of Con- Gorham, legislature (293). point- candor with too He much.” Congress the vention, that unless stated danger ed to what to “the him was apportion- regulate power own its had throwing preponderance a such into may States, have * * who * “the Western ment that, time, the western scale *** interest, might a different people the western would out number the (288). He degrees the Atlantic” outvote Atlantic States.” Gouverneur Morris apportion power be left that advocated freely entirely pos- that it conceded Congress Atlantic “the so that the legislature “if the are left sible government having in their States, the liberty, they adjust repre- will never may of their own' hands, care take own. (294). sentation” rep- right dealing interest, out the (cid:127) Wednesday, July 11, On proportions debate to the in- safe resentation Randolph’s was resumed on Mr. (288). motion States” Western support (em- peri- (294) legislature nor in his state. “requiring a it take redressing ours). phasis purpose census, odic representation.” inequalities in the Mor- Mason the Gouverneur answered proposal at- Randolph’s focused census “danger the Atlantic interests ris’ problem and when of how on the tention argument new Western States” fairly so people counted to be were question: “Ought with a we to sacrifice repre- equally they fact be could right itself, we be lest what know to delegates began sented. The to realize prove to states which it should favorable many that all their talk about how votes (295). yet in ?” not existence original and all states to have The debates show that Williamson expressions their fear sort of of what joined by stating Mason that he was representatives unknown untested and making duty “for legislature it a of the popula- portions present future right leaving to do what was and not it at might had obscured the neces- tions sity elect liberty (295). to do or not to do it” establishing finding a basic Randolph’s response to Williamson’s principle would and fundamental quotation statement almost like sounds a guarantee, generation can one as best appor- from a current next, guarantee that their for the ever tionment case: govern- representative experiment with equality great If between small given to endure. a fair chance ment be inadmissible, states be because immediately after The debates show unequal case numbers constituents Sherman, joined by Morris, Gouverneur represented numbers “shackling legis- protested had lature,” about votes, equally was it not inadmissi- following occurred: larger ble, populous a and more greater Mr. MASON. The diffi- district of America should hereafter culty fixing proper we find in a rule representation have less than a smaller representation, unwilling the more populous a fair and less If district? ought we to be to throw the task from people representation not se- general legislature. ourselves on cured, injustice government object conjectural did He not it foundations. What will shake to its prevail was to in the ratio which suffrage justly stated, relates to outset; considered a but revision from Montesquieu, fun- as a the celebrated perma- time, according time to to some republican govern- damental article precise standard, nent as essential (295). ments required representation to the fair why pointed Randolph out the reason According to the branch. first and not a be national census must America, present census. He said: state pre- right part had of it northern ponderate, taken under must be census deny it. he not could legislature. general direction preponderate he But wished much interested be too states will longer hereafter, no when reason impartial themselves one for take man, From the nature continued. (295). may who that those we be sure Morris, apparently sensing give it Gouverneur power hands will not in their change again they mood convention it. On up, retain can while placing protested idea of a cen- they contrary, al- will we know reapportionment in the Constitu- can, sus ways, they increase rather when * * * legislature much” tion “fettered the too principle, some it. Unless *45 Sherman, (296). who- had theretofore justice them therefore, will do changed Morris, supported Gouverneur the hereafter, Con- be inserted shall Debates matter. The his view disagreeable declara- the the stitution, explained while that that him, he show Sherman declare he must tion was to leaving here, matter system “he was first the the vote could neither legisla- wholly to Madison the discretion added that: * * * by ture; he been convinced had was, having The truth that all men (Mr. Randolph and the observations of power ought to be distrusted to a cer- Mason), * periods * the Mr. that the degree regard tain *. With ought revising representation rule of States, the Western he was clear and (297). by to be fixed the constitution” opinion firm in that no unfavorable (both emphasis parenthesis from the admissible, distinctions were either Debates). justice point policy (298-9). or The convention’s shift from Gouver- Pinckney said, when debate con- neur Morris’ view after Sherman left day, tinued the next “foresaw he rapid. him was supporters “un- that, if the revision of census was left legislators shackled” and “unfettered” legislature, discretion it following never question: survived the would never be carried into execution” he believed “the rule must be and that Mr. GORHAM. If Convention, fixed, and the execution of enforced comparatively

who are so little biased (302). the Constitution” views, local perplexed, are so much expected how can it be legisla- July 13, on show that The debates hereafter, ture under the full bias of 1787: views, those will be able to settle a RANDOLPH, On the motion of Mr. (297). standard? Monday last, authorizing the vote of legislature adjust, Gorham added from time to convinced, that he “was arguments time, representation upon prin- others and his own reflections, ciples of wealth ought and numbers of inhab- the Convention itants, fix (297). was some reconsidered common standard or other” consent, wealth, in order to strike out fought Gouverneur Morris to the end adjust the resolution to that re- against any constitutional standard. He periodical according quiring revisions continued reflect his fear of the men to the number of whites three- who would come from what he described (Italics (307-8) blacks fifths as “the remote wilderness.” “If Debates.) people get power western into their op- Randolph’s passed motion no hands,” cried, “they he will ruin the At- Delaware, however, posing votes; re- was professed lantic interests.” He to be clearly as divided. That action corded outraged apparent being at the distrust that, of the Convention reflects the view against “fidelity” legis- evidenced having words, Madison’s “all men to use argued legislators’ lators. He if the ought power a certain to be distrusted to “duty, honor, oaths, their and their will degree,” determination and its them, put not bind let us not into their duty reapportion periodically in ac- liberty, great hands our all our other constitutionally required cordance with interests; government let us have no to which situation census (298). all.” applicable. principle was The debates show that James Madison Papers The Federalist show that when immediately took the floor. The debates people it came time to convince report that: adopted, the Constitution should Mr. MADISON was not a little sur- idea insure that the census would prised implicit to hear confidence representation equal population based on urged by who, a member occa- all adjusted periodically em- would be sions, strongly had inculcated so why phasized reason as a fundamental political depravity men, and the ne- adopted. the Constitution should cessity checking one inter- vice and by opposing orig- original est to them another vice number of 65 for (298). Congress and interest. inal was defended Federal- *46 perfectly ground No. the consti- Federalist 60 made clear the ist No. 55 remedy power tutionally required would “an over elec- uncontrollable census not, government an- the could malapportionment to the federal tions future hazard, reapportionments re- the to ticipated periodic be without committed great I, legislatures” in- (373). No. stated: quired With Art. State § pre- foresight, sight No. 60 and accurate years a is to be Within three census represen- particular dicted that a states’ may aug- taken, when the number be Congress would tation the national every thirty thou- mented to one for copy ma- “generally a faithful be every inhabitants; within sand legisla- prevail jorities in the State [that years period cen- of ten the successive taught the History (377). tures]” augmenta- renewed, sus is to be les- hard the people of United States may under continue be made tions legisla- malapportioned State son that a * * * limitation. above inevitably produce a mal- almost ture will apportioned aug- representatives be of will number delegation. Congressional man- time in the from time to mented On provided Constitution. ner history I, The constitutional of Art. § contrary supposition, I admit should apparent seem to it would make great very objection have cen- Founders included decennial Sons, (Putnams weight indeed. sus in that section as a central instru- edition, p. 347). designed specifically to control and ment adjust constitutionally required fu- charge Federalist No. 58 answered a apportionments Rep- of the House of ture that “the of numbers members [of historically It would seem resentatives. incongruous Representatives] not be House will require not to the use of the augmented time, time from in the es- constitutional decennial census progress may demand.” congressional districts tablishment supported if Madison conceded that “well rejection within the States. * * A * * * * objection this federal decennial census as the exclusive weight” great But, (362). Madison guideline congressional districting stated: grave particular signifi- would have urge objection Those who seem congressional reappor- cance future not to have recollected that the federal tionment appropriate We it cases. therefore deem * * * Constitution not will suffer to articulate some con- security provided gradual for a we must siderations that sarily believe neces- augmentation repre- of the number of be into account cases taken sentatives. The number is to which problem precise in more will be prevail in the first instance is declared questions pre- under focus than it is temporary. Its is lim- duration case. sented years. ited the short term three every It is our view that Within term ten successive the constitutional requirement years that a a census inhabitants is to decennial census must unequivocal objects repeated. concept be taken embodies a that is an integral part are, first, readjust, regulations Compromise these Great itself; designed rectify time, apportionment time to and to protect against representatives probability in- foreseen to the number of habitants, injustice exception single future unremedied under malapportionments. repre- that each shall have one Constitution State aug- required least; secondly, therefore that the census be a sentative regular representatives census and that it be a ment the number federal explic- periods, limita- decennial census. The Founders under the sole the same itly recognized were not number shall the States tion that whole upon every thirty to be relied matter in which thousand one exceed ours). respective (emphasis (362) their interests were so ob- inhabitants. *47 year viously period disagreement apparent. The ten ate to indicate our with the period designed Avery a of relative to fix rationale of Meeks and Lucas was during stability all States Rhodes. asserting required to wait before be urged legislatures have that Some representation. And for additional claim courts in the should wait until 1960’s on accurate be based claims were to their attempting after the 1970 census before by the federal population collected data compliance I, of with the command Art. government. Wesberry 2 as construed in v. Sanders. § argument that 1960 census The figures runs apportionment repre- The of of idea hopelessly date to- out of are so among sentatives the States based on if day result would that discrimination the notion federal census that figures current re- are used a those districting for election within States districting that plan. this It seems to us may representatives be based of federal argument must said to be be is an of would seem on sort state census some itself. Constitution foreclosed basically pri- with the inconsistent to be mary Founder’s insistence reason apportion- a idea mid-census constitutionally required decen- may plan discriminatory be because ment self- a census. The be nial census growth federal enu- since the last decennial particular sectors of at least interest of disregards the fact meration manipulate local cen- their own States anticipated that one re- Constitution obviously figures a dras- would sus districting decennial would follow each composition impact on the tic political year period of The ten census. Representatives. House anticipated by stability the Founders destroyed population if data be would course, are,We familiar with the should be census than the decennial other Avery, supra, fact that Meeks v. without ascertain- the standard for as looked to guidance, benefit of if the decennial population. For ment legislature that the Kansas com- found disregarded pur- can census be for the fault” it mitted “no constitutional when justifying pose depart variances figures rather state census used nearly equal practica- “as from the recently case reversed federal. I, popula- of Art. ble” standard § Rhodes, supra, its indicated Lucas v. census than the decennial tion other data Both agreement cases notion. with that logically an attack be available Richardson, U.S. Burns v. cited which, initially plan but be- a valid (1966), L.Ed.2d 86 S.Ct. shifts, developed population sub- cause We opportionment case. state Hawaii next decen- before the variances stantial very Supreme Court’s believe taken. nial census use that case statement careful registration figures satisfies of voter Those who wish to wait until only be- Clause Equal Protection are, “the effect, after census to have found record was questioning relevancy cause on the constitutional legislators not produced a distribution sup of the 1960 decennial census. But pose substantially Assembly different from that which 1971 the General congressional passes use would have resulted from the permissible of Missouri re basis,” signif- population districting fact is then in bill that icantly nearly equal practicable”; apportionments limited to. state law “as indiscriminately suppose and should not that current read further growth principle as the areas continue appli- of a in urban establishment trends congressional apportionment through cable the 1970’s. Is the constitutional eas- precise question relevancy es. We reach to be do 1970 census sub any figures jected challenge every III Preisler of whether con before gressional during other than the federal decennial census election that decade? may support legislature used redistrict Must the districting plan, appropri- but we deem it order to account proper metropolitan counties) as the We trends? for current areas, metropolitan and to the decennial units for those think that think not. We county implicitly in the re- unit tool as the constitutional use as a census requires *48 changes population in- State. mainder the that the mandatory period year ten in its herent If the which variations decennial until the next must be tolerated exist in the resulted from the 1967 Act period of the contemplated to maintain in order census existing preservation political bound- stability political relative plan, I no aries under that have would by the Constitution. quarrel with it. signifi- feel that constitutional We the But the variations in this Act do not must be should and census cance the any attempted preservation result from redistricting maintained largest of boundaries. The variations re- yet Supreme Court as The cases. sult from failure to remove coun- entire directly problem; and the considered not place ties from their old district and them not, not, reach do therefore need we adjoining example, in an district. For question discussed. precise the County if taken from the 8th Dent (+13,542) placed District 10th the COLLINSON, Judge: (-8,113), the 8th would then be appropriate I it add a +2,332. deem word +3,097 and 10th be opinion my joinder majority Hickory in the made of A similar shift be could my light construction that Brother County the 4th from the District to 7th suggests might placed Matthes districts Louis District. three St. opinion adjacent of the Court. 16,000 long, but the are over next short and the 6th 9th is that the or contend No one can believe 9,750 short. it is Supreme “one- that the has said requires that doctrine man one-vote” I do condemn the 1967 Act because exactly equal Congressional districts equal plans there were more defeated majority certainly the population; Legislature; nor do I condemn it be- neither But opinion not so state. does County it cause divides Louis between St. there Court said has the a I number districts. believe inequality formula ais mathematical plan is unconstitutional on its because percentage) which will (within a certain undisputed evidence face and under the practicable” “nearly equal satisfy as attempt is not an to divide State Congressional rule. districts of Missouri nearly equal in as that are as existing voting It seems obvious that reason practicable. this for the And cast, units, which the are within votes counties that entire it is obvious building tallied, counted, are adjoining with can be moved congressional districts blocks which resulting decrease substantial equally It seems obvious are constructed. present population in the considerably vary variances these units since m no evidence there is equal- Act and because population, exact mathematical in ity explain be said to can changing record that this attained without cannot be why not done. justify or building None blocks. size requires that the cases this. All the cases 1967" short, proponents of In adopt legislature require is that State carry burden failed to be policy” to the units as rational “a by law. imposed themon proof will used, then variations existing political use of from the result (dissent- Judge MATTHES, Circuit justifiable. boundaries ing). apparent, although undeclared, respectfully I dissent. existing policy political bound- effectively majority my In view aries in before the the 1967 Act now unwarrantedly knell the death city sounds precincts (in the but Court was use nicety is not re- field matical a constitutional to the “de minimis” doctrine redistricting. Congressional quisite” If : majority opinion and becomes practical survives “We realize that it is a im- redistricting Congressional law, arrange legislative no possibility dis- enacted the Missouri act ricts so that each one has an identical long judicial scrutiny so citizens, can withstand residents, or or number of conceivably body formulate pre- could Mathematical exactness or voters. mathematically plan which would hardly better constitu- cision workable greater equality. the state redistrict requirement.” U.S. at tional rejects short, majority Mis- 84 S.Ct. at *49 relatively despite minor plan the souri Sincock, 695, 710, Cf. Roman v. 377 U.S. populations in variations dis- between 1449, (1964). 84 S.Ct. 12 L.Ed.2d 620 approach tricts it does their because not reaching In the conclusion that the perfection. position Their standards of pass 1967 Act not does constitutional necessarily leads to the conclusion that majority proceeds muster the to discard ultimately only the courts can assume and principle the “de minimis” on the ration- Congres- complete properly the of task legislature any point ale that if the at can redistricting primarily sional function —a reapportion state the on a more legislatures. the state committed basis, doing ar- without violence courts, however, would beset be Even acceptable legally policy, ticulated state formulating in court difficulties applicability. has no that doctrine unduly comply plans strict with the Although Wesberry Reyn neither nor unrealistic standards enunciated and incorporates expressly mini olds the “de majority. by name, applicability mis” doctrine its nearly practicable” The “as as is stand implicit in appropriate situations is Wesberry Sanders, 1, ard of v. 376 U.S. Reynolds plainly holds decisions. both 526, (1964), 84 S.Ct. 11 L.Ed.2d 481 legiti “minor on variations” based equality popula or “the substantial permissible. 377 are mate considerations Reynolds Sims, tion” rule enunciated in v. 1362. at 84 S.Ct. 579, U.S. 1362, U.S. 84 S.Ct. 12 L.Ed.2d Adams, U.S. In Swann v. (1964), require do not the mathe (1967), 17 L.Ed.2d S.Ct. contemplated matical exactness hand, stated Mr. White Justice other majority. Supreme fully Court has majority: for the drawing impossibility realized are unavoid- deviations minimis “De Congressional with “mathemati districts among sen- able, but variations 30% Wesberry Sanders, precision.” su cal v. among dis- house ate 40% pra, 526. Attain at U.S. S.Ct. hardly de minimis be deemed can tricts nearly practicable” ment of the “as as is suggests cases none of our legis relegated to has been standard magnitude be will of this differences judgment lature, an not idealist to the satisfactory explana- approved without problems pressures divorced from the poli- acceptable state grounded on tion legislator. which beset the More recent 572. 444, 87 S.Ct. cy.” U.S. ly Reynolds Sims, supra, a state reapportionment involving quoted lends itself statement me case a far To greater interpretation if the varia- disparity between dis nature present here, minimis” Supreme of a “de tricts than is tions judicially approved.1 No plan Court reiterated its that “mathe- should view plans judicially my these court-created view each of Consideration various philosophy “de Congressional redistricting plans, drafted embodies reap- applicable have which formulated as minimis” doctrine Courts a legislative inaction, portionment instance In each cases. result reveals approved adopted Three-Judge attempting court inherent difficulties equality plan variations included which substantial a achieve attempting norm, creating Congressional to achieve without districts. authority recognition Judge implicit its Oliver Su-

less believe recognized applicability preme of the doc- Court as well as other Three- Judge Speaking approval Preisler II. for the lies in their trine in courts Judge redistricting Oliver stated: acts contained which have degree disparity measurably greater such words ‘feasible’ “Use of between districts than does the Missouri ‘practicable’ in a careful statement Johnson, infra. princi- Act. See Connor v.

the fundamental constitutional recognition that ple but a constitutes opinion my majority view has minimis the familiar doctrine de large part by an errone- been induced designed to make applicable and is concept of the extent ous legislature would a State clear legislation proponents redistricting entirely expected new create proof carry forward the burden must political in order lines subdivision Adams, supra enunciated in Swann v. precise mathemati- absolute and Hill, Kilgarlin 120, 87 S.Ct. U.S. equality dis- in its cal (1967). In Swann 17 L.Ed.2d 771 F.Supp. at 973. tricts.” Court voided v. Adams the Although consisting majority plan reapportionment seems to disavow state *50 among any reliance “de minimis” doctrine variations of and Sen- 40% 30% Supreme on the the failure basis that two Court ate and districts “for House Carr, 258, 186, present or the District [Baker v. 369 82 of U.S. the State 691, (1960) acceptable reasons S.Ct. L.Ed.2d 663 and to articulate 7 Court Adams, supra] among populations of Swann v. and three lower the variations specific legislative ref- court made districts with re- decisions the various ’ pharse minimis”, of erence to the “de I house spect the senate and both greater degree equality 407,677, population dis- between a trict contained 8,027, below tricts. or a difference 1.20% 64-143, 3945, Kirk, Ellington, Gong In v. No. No. Baker Civil v. Civil ideal. July 1967, 13, F.Supp. 2, 1967, M.D.Tonn., D.Fla., August 278 F. S. 174, Supp. redistrictod the State of Court 133. 3,- Tennessee, population Three-Judge a court Mon- had district A disparity 567,089, previous nine Based on a into districts. tana eliminated 120,332 figure population per dis two Con- ideal state’s between Court-adopted 396,343. creating gressional two new trict was The districts 327,019 provided popu plan having population for a difference in a districts 16,728 largest respectively, 347,701, or a lation of and variation between and Congressional district, Babcock, 20,682. 246 F. smallest or stated v. Roberts of Supp. differently, (D.Mont.1965). a of 2.- maximum variation Three-Judge court above ideal federal district a In Illinois 176% below. 2.044% di court the state in consultation Maryland twenty-four In Citizens For Con Committee into state vided the Tawes, plan adopt Cong. gressional Fair Redist. v. The districts. (D.Md.1986), nom., despite hav aff’d sub district the fact that ed Tawes, 16-394.481) (No. population ing Alton v. 1590, 384 U.S. 86 S.Ct. the least 420,048) 6.1%, (1966), 16 L.Ed.2d a Three- the norm deviated from 8-451,527) Judge (No. court, holding largest after un- district district Kerner, Maryland People Con- Scott constitutional gressional ex rel v. 7.5%. Act, Redistricting prescribed (1965). 211 N.E.2d 736 Ill.2d Goddard, redistricting plan Lastly, maxi- F. its own with a in Klahr v. Three-Judge (D.Ariz.1966), Supp. or a mum deviation ratio of a 1.026 537 apportioned 9,973 population Con difference of between the Arizona’s three court largest gressional on the basis smallest district. plan reshuffled Under another court-created redistrict- The court’s 1960 consus. ing plan, the State of one Florida di- district various counties districts, Congressional population equalize dis vided into twelve another to consisting 61,- 412,630 ideally persons. parity, each in a nonetheless but resulted largest popula- population district contained a between 244 variance greater or tion than and Third districts. First .74% district, the ideal while the dis- smallest That, 443-444, how- attack. vive constitutional representatives.” U.S. at Id. 385 majority precisely Hill, ever, Kilgarlin what 572. S.Ct. rejected equally an mal- claims law. Supreme Court that: plan the reason apportioned consistently apply To majority Congressional redistricting rationale to Adams] that case “Under [Swann require legislature schemes would quite clear satisfactor- that unless population sole, consider alone as the ily justified by the court or Congressional determinative redistricting. population standard for record, vari- evidence approach significance Under such evi- an the size ances greater equality popula exactness in dent here are sufficient invalidate necessarily tion properly plan. apportionment Without such required.' Court, Supreme however, analysis justification, appellants’ of H. has not renounced all case considerations other sufficient B. 195 made out a equality Congressional Amendment.” under Fourteenth redistricting. I do intimate that the Id. S.Ct. 386 U.S. at “equal population principle” supplied.) (Emphasis discarded or It weakened. is the essen My interpreted brethren have these element, tial but the Court has foregoing pronouncements of the Su- justifi also averted to other factors as preme light. very narrow pure population able standard, from a variations position appears Their redistricting to be that a “integrity politi such as the containing scheme minor subdivisions, cal the maintenance of com variations between districts pactness contiguity legislative dis satisfy man, cannot the one one vote recognition tricts and the or of natural *51 concept, presentation absent of ac- boundary historical lines.” v. Swann ceptable proof for these variations. This Adams, supra, U.S. S.Ct. clearly theme is manifested in their state- Reynolds Sims, supra, 569 at 572. v. “ * * * ment Constitution 578-579, 1362; U.S. at Wells S.Ct. Cf. 85%, does not leave room intentional Rockefeller, v. 984 95%, compliance or even its 98'% ( mandate; I, 2, equality Art. commands § S Congressional population districts . any nearly practicable’ ‘as as and that D . plan eomply^with enacted that fails Although Mis- various leaders of the standard, that constitutional unless other- justified by Representa- souri wise and House of Senate substantial evidence law, applicable popula- accordance with unequivocally tives testified constitutionally agree I void.” primary tion factor utilized population dis- between variances securing adoption Act, they did magnitude present tricts of the of those legislature attest to the that the did fact Wesberry Sanders, supra, and permissive take into account other con- Adams, supra Swann cannot stand siderations, policy such consid- as those justifiable explanation absent specified Reynolds erations cannot, I reasons for such variations. Swann, drafting This the 1967 Act. every however, subscribe to the view suggest Legis- is not that the Missouri unjustified unexplained, minor deviation justifiably lature articulated its rea- entire from district renders the the ideal exist, sons for the variances that do merely but constitutionally redistricting scheme points out, believe, I some utterly ad- unrealistic void. It seems intangible pressures considerations and variation even a small vocate that the Missouri General confronted largest Assembly legisla- and smallest between the well as other state 2% leg- tures, futility discloses the justification, cannot sur- districts, absent attempt to formulate districts or other islative either Three-Judge s.2 constitutionally court held precise equality population pres- void minimal as those variations analytical comparison An of the vari- Appendix ent in the Act. See legislative redistricting plans ous I, Table, following based infra. subjected judicial scrutiny upon population Missouri as dis- accurately census, aptly will disclose that the variations closed the .1960 truly portrays Mis- Act are under the result achieved of a In no “de minimis” nature. case has souri in the 1967 Act. Centage

Per Population Ideal No. From Variation 439,746 1.8 + One 436,448 Two 1.03 436,099 + Three .95 419,721 Four 2.84 .19 Five 431,178 422,238 Six 2.26 + + 436,769 Seven 1.11 Eight 445,523 3.13 428,223 Nine .87 423,868 Ten 1.88 per 431,981 Ideal district: Average variation Ideal: 1.6% largest to smallest Ratio district: 1.06 to 1 Number above Ideal:

Number of districts below Ideal: of districts within Ideal:

Number 1.88% largest Population between difference smallest districts: *52 in By way comparison, produced Preisler Congressional the 1961 II average districts with an variation of voided in Preisler I created districts with from the ideal district. The 6.54% disparity average from the an variation of 8.47% largest ratio of the to smallest striking In to the 1967 ideal. contrast district population was 1.218 1to or a population Act the in between difference spread 85,015. 128,- largest the and smallest district disparity to 1. of 1.339 practical 355 or a ratio What is the effect of these The unconstitutional 1965 Act declared maximum Simply stated, variations? states, page opinion in sub- 2. the On 5 letters dated October 11th and October stance, 17, (copies Judge learned that that after defendants 1967 to Collinson and population me) in produce actual variances the that he desired to witnesses substantially greater many hearing. Attorney instances the The General motion, appearing letter, in defendants’ those did not in state either or in they desire to my knowledge advised the court of their other communication within evidence, justify attempt attempt the justify to “adduce he would the greater greater in my variations that had fact variations. In view of basic comport position, great This does sig- established.” this matter is of no knowledge understanding my fairness, the however, In nificance. Attorney proceedings. pre-hearing Attorney General, my comprehension The Judge transpired Oliver General of Missouri advised what should be recorded.

1009 Eighth summary Congressman District Court’s affirmance of the dis- from the 25,802 validating (the largest) represent trict court’s decision 1966 Mississippi Redistricting counterpart Act. The fact than his more constituents is, smallest). (the as revealed the district court’s from the Fourth District Congress- Johnson, opinion, No. Considering v. Civil that each Connor fact 3830, 1966, S.D.Miss., September 28, 431,981 persons 256 represent if man would exactly 962, population F.Supp. in on an variance be divided the state could difficulty Congressional basis, among equal population I districts was have jurisdic- comprehending issue the residents before that court. how. context, statement, would, practical considered Eighth tional deprived before purposes, appreciably of sub- that this same issue was discloses though Supreme stantially representation in Even Con- Court.3 squarely appellants gress. Certainly in Connor did not variation 6% 430,- present Supreme cry plan from the the case far before is a issue, I, spread districts population in terms of an Article between Court § approximate- Wesberry, Supreme I or the submit found ly fac- variations concerned with the substance all to 40% 30% Rhodes, Act, Kilgarlin, Mississippi Swann, Civil and would Lucas v. ets N.D.Ohio, 1967, per 65-264, unhesitatingly rev’d vari- reversed if No. L. curiam, populations one violated its U.S. S.Ct. ations large concept (1967); man, varia- one as enunciated Ed.2d 423 vote Rockefeller, supra. prior v. cases. tions Wells popula- difference in as the Inasmuch Mississippi Despite Case. largest and smallest tion between my sweep herculean efforts of brothers to 26,265, Mississippi com- Johnson, Connor 87 S. U.S. Act, pared under the Missouri rug wholly (1967), Ct. 1174 under the 1, I disparity of 1.062 ratio or a us, (see irrelevant to the case before that Connor conclusion am driven Appendix majority opinion) I C authority approval of the impelling strongly my supports believe that Connor Act before us.4 conclusion that Act is con- the Missouri stitutional, the variations view the strictness of their holding majority unwarrantedly therein “de mini- can be considered given propose great emphasis mis” in nature. I do not to the failure of the engage lengthy Assembly in a of words over General to use battle figures underlying accurately reason for the the 1960 reflected adopted legislature’s Fortson, (N.D. 3. “Nor does Toombs plan popula- Georgia, 1965), opinion, standards conform to affirmed without equality compared tion when S.Ct. L.Ed. U.S. *53 (1966), departure available alternatives. The difference 2d 482 teaches that a largest figure permissible. between the and the smallest of is I am mindful 15% plan adopted 28,- reapportionment district under the Toombs involved is 061; figure Georgia Assembly. the the same for the Revised of This General 13,672, strength pro- Plan is less than half. does not dilute the the Delta greatest The deviation from the norm nouncement of the Toombs court. The adopted plan 15,332; Supreme held, by implication in is in the the Court has Plan, 7,572. expressly, The Revised Delta is if not the standards for average testing validity apportion- of all five in the deviation of a state 11,547; plan adopted plan applicable determining in ment the is the Re- in 3,767. Clearly, Congressional redistricting Plan it vised Delta is whether a the to achieve mathematical scheme satisfies the desire mandate the population equality Grills, for was not decisive Constitution. Huddleston v. legislature Mississippi in choice the its U.S. 87 S.Ct. 77 L.Ed.2d 508 jurisdic- (1967); plans.” 8, appellants’ supra, Rockefeller, P. Wells v. aff’d nom., Wells, sub in the Rockefeller v. tional statement filed U.S. (Dec. 88 S.Ct. Court. 19 L.Ed.2d 651 underlying major- The of the not recount in the rationale I need detail census. disturbing spon- Avery, ity very testimony to me. who is Careful of Senator analysis permit opinion Assem- their will Act General sored the 1967 judgment Legislature’s regard if in the bly, mis- one the conclusion —that court, legislature, plan gided tes- That of the not the of information. source repre- reveal, providing greater equality however, timony does legis- formulated, population data inaccurate sentation can be sources Appendices plan part Boards fail. A and Election lative must the various were Louis, City Coun- conclusion. In those St. Louis B attest St. County, engaged ty, appendices in a encom- court has and Jackson “redistricting by City game com- passes I am checkers” area. the Kansas my reading shifting townships pletely from one counties and satisfied sponsors Act of the 1967 to demon- in order record that district to another misguided im- clearly under could have labored deviations strate how smaller reasoning pression of the inaccu- runs sources This been reached. Despite figures conception reliable. my of the law. rate were counter stip- however, parties inaccuracies, both Whether is constitution- determine this Court should ulated that ally permissible by should not be tested validity basis 1967 Act on the by results that could be achieved population. dif- of the 1960 census computer” use of a “mindless or ference, moreover, between the correct group completely efforts of a figures for the entire state incorrect duties, responsibilities detached from the 1,280. negligible to a amounted perplexing problems duly elected legislators. Obviously Seventy- the basis be decided on This case should Assembly Fourth in fact achieved did General not achieve what Assembly light perfection mathematical Missouri General the distribu- me, figures. population population. To tion of Missouri’s correct overall problem question population disparities, is not whether the crucial might adopted however, if solely plan have been reconciled cannot be better figures used, shifting rather but terms of a mechanical test of correct judicial counties the variations until ideal met. whether every apportionment Act, on accu- Act must be based the 1967 created If prin- reviewing figures, cast aside because a court offend the rate equal representa- substantially could scheme devise a more ciple high representation, it is believe time I tion. Supreme Court, that the in no uncertain rigid promulgated Under the formula promulgates language, such standard. majority, I am satisfied that dissenting opinion Mr. See Justice might reapportionment scheme which Wells, supra. Harlan in Rockefeller v. have correct resulted the basis of the population figures, similarly I would hold the 1967 Act con- judicial condemnation. destined forms to of the Constitution. the mandate

1011 I APPENDIX * by Supreme Court Affirmed Held Unconstitutional.

A—Plans Adopted Subsequently **Court Plan

Population Ratio of Difference Largest Largest Between Smallest Districts Smallest CASE STATE 465,274 Klahr v. Goddard ARIZONA D.C., F.Supp. 537 250 242,541 tó 1 1.73 Park v. Faubus ARKANSAS D.C., F.Supp. 62 238 Gong 90,495 v. Kirk FLORIDA D.C., F.Supp. 133 278 MARYLAND* ^[**] Maryland Citizens 113,505 1.34 1

Comm., v. Tawes etc.

D.C., F.Supp. 253 731 102,626 Volpe 1 1.27 Dinis MASSACHUSETTS v. D.C., F.Supp. 425 264 188,084 1to 1.6 Calkins v. Hare MICHIGAN D.C., F.Supp. 228 824

NEW YORK ^[*] Wells v. Rockefeller 120,366

D.C., 984 126,403 to 1 1.312 Exon v. Tiemann NEBRASKA D.C., F.Supp. 603

(1967) Falcey 64,760 Jones NEW JERSEY N.J. A.2d ^[**] 111,830 1.32 Baker v.

TENNESSEE Clement D.C., F.Supp. 886 1.68 Wilkins Davis

VIRGINIA Va. S.E.2d *55 1012 n by Supreme Court *Reversed Constitutional

B—Held by Supreme Court **Affirmed Ratio Population Difference Largest Largest Between Districts Smallest Smallest CASE STATE_ 1 54,505 1.14 Moore Moore v. ALABAMA F.Supp. D.C., 246 578 57,046 ..... Kirby Illinois State v. ILLINOIS Board Electoral F.Supp.

D.C., 908 INDIANA ^[*] Grills D.C., v. Branigin F.Supp. 155 84,545 1.2 to 1 15,060 Avery to 1 1.03521 Meeks v. KANSAS D.C., F.Supp. 26,265 1to 1.062 v. Johnson Connor MISSISSIPPI D.C., F.Supp. 492 Maynard 56,715 to 1 1.2 Levitt v. NEW HAMPSHIRE A.2d N.H. - 17,276 to 1 1.04 Drum Seawell NORTH CAROLINA F.Supp. D.C., 271

[*] OHIO Lucas (Unreported) Rhodes 137,806 1.430 to 1 to 1 1.22 Martin Bush v. TEXAS D.C., provisionally con- [Held

stitutional]