Chapman v. Meier

372 F. Supp. 371

• Court: District Court, D. North Dakota
• Decided: April 29, 1974
• Docket: Civ. 4664
• Status: Published

Opinions

MEMORANDUM OPINION AND ORDER

BENSON, Chief District Judge.

On May 18, 1972, this three judge district court panel heard evidence and oral argument on the constitutionality of the North Dakota legislative apportionment plan then in effect. On May 22, 1972, we entered an order requiring reapportionment of the state legislative districts to conform to the “one man, one vote” requirement of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Thereafter, on June 30, 1972, this Court filed its Memorandum Opinion and Order, Judge Benson dissenting in part, adopting an interim apportionment plan effective only for the impending 1972 general election. The plan provided for thirty-nine senatorial districts, five of which were multi-member. It increased the size of the state senate by two and increased the state house of representatives by four. It decreased the number of legislative districts from thirty-nine to thirty-eight. The plan recognized that the interests of those persons residing on the air bases at Grand Forks and Minot were more closely aligned with urban than with rural interests, and included those populations within the nearby urban districts. The multi-member districts retained are located in the cities of Fargo, Grand Forks, Minot, Bismarck and Jamestown.

The Court retained jurisdiction over the cause, and directed its commission of three special masters to study and report upon a more permanent plan. Subsequently, on motion by Defendant Meier, the Court, on November 8, 1972, ordered that further action be deferred pending the possible adoption of a new apportionment plan by the 43rd Legislative Assembly of the State of North Dakota, in its 1973 session.

Over the veto of the Governor, the Legislature adopted an apportionment plan which continued the multi-member districts substantially as provided in the Court’s plan, and as had existed in the state since 1965. The Governor’s principal objection to the Legislature’s plan centered on the multi-member senate districts.¹

The operation of the plan adopted by the Legislature was suspended by referendum petition. By initiative petition, an amendment to the Constitution of North Dakota was proposed which would create a commission to reapportion the state and which would mandate the creation of single member senatorial districts. A statewide special election on the referred plan of the Legislature and the initiated constitutional amendment was held on December 4, 1973. Both measures were defeated. Therefore, the obligation to make a final determination on a reapportionment plan for the legislative districts of the State of North Dakota remains with this Court.

The plaintiffs urge the Court to proceed in accordance with its Memorandum Opinion and Order of June 29, 1972, wherein the majority suggested that if a new, more permanent, plan had to be fashioned by the Court, it would probably establish single member districts in light of Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971):

“When district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general rule.” at 692, 91 S.Ct. at 1762.

On the other hand, the Defendant argues that this Court is not compelled by the Connor decision to create single member districts and urges us, in light of the apportionment decisions of the United States Supreme Court that have been rendered since June 29, 1972, to adopt the June 29, 1972 Court plan (The Dobson Plan) ² as the permanent plan for the State of North Dakota.

Evidence before this Court indicates that North Dakota is a sparsely settled, agricultural state with declining populations in most localities outside the urban areas. The state has fifty three counties. Most minor civil divisions in rural areas have very small populations that are becoming smaller. The 1970 Federal Census for North Dakota showed an overall state population of 617,761 persons, and a population density of 8.9 persons per square mile. The overall loss in population to North Dakota between 1960 and 1970 on a statewide basis was 2.3%. In 1960, the urban-rural population was divided 35.2% urban and 64.8% rural. In 1970, it was 55.7% urban and 44.3% rural. A total of 183 census county divisions are composed of mainly open country. Ten of these had more than 2,500 inhabitants in 1970, and thirty-nine (21.3%) had fewer than 1,000. The two smallest divisions had less than 500 inhabitants. The two largest census county divisions in this group had 1970 populations of 12,608 and 12,927, and contained the Grand Forks and Minot Air Force Bases.³

In hearings before the Joint Committee on Reapportionment held on January 3, 1973, State Representative Earl C. Rundle indicated that in Billings County there are 72 sections of land with no people residing on them. The total population of that county is 1,198. The population of the four largest cities in North Dakota in descending order are: Fargo, 53,365; Grand Forks, 39,008; Bismarck, 34,703; Minot, 32,290.⁴

Special Master Dobson, in presenting his plan, which with some minor amendments, was adopted by the Court on June 29, 1972, as an “interim” plan commented :

“The plan observes natural geographical barriers, such as the Missouri River . . and . -. . every district is connected with good arterial roads. It should not be necessary to travel outside of one’s district in going from one part of it to another.”

“In the formation of districts, parts of 10 counties are attached to an adjoining county or counties. However, in three instances (Burleigh, Ward and Williams), no real violence is done to county lines because an urban district is sealed off and the rural portion of the county is attached to a neighboring rural county. Three other counties which are divided (Barnes, Richland and Walsh) have traditionally been split into two districts. Thus, only four counties (McHenry, Cass, Morton and Stark) suffer any damage in the districting.

In this connection, it should be noted that the greatest complaints about the existing apportionment were voiced over the breaking of county lines, particularly in smaller rural counties. Counties with very small populations should not be split because they are thereby rendered politically powerless. It is a form of de facto disenfranchisement.”

In its Order of June 29, 1972, this Court found that reapportionment was required because of the general population shift from rural to urban centers in North Dakota which “created constitutionally impermissible variations in population among the existing legislative districts of North Dakota”.

The following is a chart of the plan adopted by this Court and is inserted in this Opinion to illustrate that it cures the “constitutionally impermissible variations”, which were the basis for the court ordered reapportionment.

North Dakota Population — 1970 Census 617,761

Number of Senators Provided for In Court Plan 51

Population per senator (absolute equality) 12,112

The majority of this Court has concluded that the interim plan should be adopted as the permanent plan. Judge Bright, in dissenting, is concerned with the fact that Districts 5, 18, 21, 29 and 32 are multi-member districts, and with the fact that the 11.43% overrepresentation in District 11, coupled with the 8.71% underrepresentation in District 4, creates what he feels to be an impermissible variation of 20.14%.

I. MULTI-MEMBER DISTRICTS

There has been no showing before this Court that multi-member districts, which have existed in North Dakota since 1965, have resulted in discrimination of any kind against any groups. Plaintiff’s counsel, in his brief filed with the Court on May 5, 1972, said': “Plaintiffs do not assume the burden of establishing that multi-member senate and house districts are violative of the United States Constitution”. Relying on Connor, the thrust of the contention appears to be that multi-member districts cannot be allowed to continue because they were initially fashioned by the Court.

The situation in Mississippi, faced by the court in Connor, is obviously quite different from that which exists in North Dakota. According to the 1970 census, the State of Mississippi has a population of 2,216,912, and a population density of 49.6 persons per square mile. The white population is 1,393,293; the black population is 815,770.⁵ In North Dakota, except for the Indian Reservations, none of which are included in the multi-member senate districts, there are no identifiable minorities.

Four days after its decision in Connor, the Supreme Court handed down Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), wherein it reviewed the decision of a three judge court convened to consider whether two Indiana statutes had the effect of diluting the vote of Negroes and poor people living in Marion County (City of Indianapolis). The district court panel concluded that the existing multi-member district must be separated because of strong differences in minority groups, housing, income and educational levels. With respect to Marion County, the three judge panel drafted and adopted a plan said to protect the “legally cognizable racial minority group against dilution of its voting strength”, 307 F.Supp. 1362, at 1365 (S.D.Ind.1969). On appeal, the Supreme Court, in passing on the redistrieting of Marion County into single member districts, reversed, saying that while Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), recognizes the right of every citizen to full and effective participation in the political processes of his state’s legislative bodies, that decision did not render multi-member districts impermissible.

“In our view, however, experience and insight have not yet demonstrated that multi-member districts are inherently invidious and violative of the Fourteenth Amendment. Surely the findings of the District Court do not demonstrate it. Moreover, if the problems of multi-member districts are unbearable or even unconstitutional it is not at all clear that the remedy is a single-member district system with its lines carefully drawn to ensure representation to sizable racial, ethnic, economic, or religious groups and with its own capacity for overrepresenting parties and interests and even for permitting a minority of the voters to control the legislature and government of a State. The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them. As presently advised we hold that the District Court misconceived the Equal Protection Clause in applying it to invalidate the Marion County multi-member district.” 403 U.S. at 159-160, 91 S.Ct. at 1877-1888.

Citing particular problems which might render a multi-member plan ineffective, Whitcomb announced that the circumstances of each ease must be considered.

In Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), the Supreme Court specifically held that multi-member districts were not per se illegal under the Equal Protection Clause.

In the 1973 case of Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), the court noted that considerations of substantial malapportionment with respect to military personnel and combinations of other unique factors must be considered in preferring single-member over multi-member districts or vice versa.

In the case of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the Supreme Court was called upon to consider a Texas reapportionment plan. Again the Court stated that multi-member districts are not unconstitutional per se, (citing Whitcomb, Mahan and Sims) but where the claim is that such districts are being used invidiously to cancel out or minimize the voting strength of racial groups, they must be questioned.

The Texas multi-member districts, it was found, did operate to exclude the black community from the electoral process. This case points up one of the basic foundations common to all eases finding multi-member districts unconstitutional; that is, invidious discrimination against some visible minority group. See also Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), involving Mexican-Americans.

The group must be identifiable and must be effectively removed from the electoral process by reason of the districting scheme. As the Court in White notes, not every racial or political group has a constitutional right to be represented in the state legislature, 412 U.S. at 769, 93 S.Ct. at 2341, 37 L.Ed.2d at 326. Earlier in Whitcomb, the court commented that were every group entitled to representation, the result would be inane for within every district there are workers, university communities, religious and ethnic groups occupying identifiable areas.

A court, in considering various reapportionment options before it, should go only as far as is necessary in order to meet the constitutional requirements of “one man, one-vote”. Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1 (1972).

The tenor of the Supreme Court decisions with respect to reapportionment, clearly does not compel institution of single-member districts in North Dakota. The circumstances existing in this state contrast with those existing in states where apportionment plans were found constitutionally deficient. The complexion of the state and of individual cities within the state does not present any showing of unrepresented minorities or unresponsive representatives.

The issue of multi-member districts or single-member districts is clearly a political issue to be resolved by the electorate and the legislature. In devising a plan, this Court will go no further than is required to formulate a constitutionally sufficient apportionment plan for the State of North Dakota, and will not intrude on the political realm.

II. VARIANCE

While we are satisfied that the Court plan adopted June 29, 1972, is not constitutionally deficient by reason of the multi-member districts, consideration must be given to the realm of permissible variance. This Court, by its order filed May 22, 1972, appointed three special masters to serve as a commission to formulate an apportionment plan. The following guidelines to the commission were offered by the Court:

“a. The Commission shall try to conform new legislative districts to the existing districts.

b. The Commission shall not substantially change the size of the Legislature.

c. Natural geographic barriers shall be observed.

d. Existing political subdivision lines should be observed, in so far as possible.

e. In the event the Commission should find that it is unnecessary to substantially alter any one or more of the legislative districts presently defined, then it must consider and make recommendations relative to whether or not the incumbent senator or senators, whose term does not expire at the end of this year, must nevertheless stand for election in 1972.”

One of the unique features existing in North Dakota is the Missouri River, which separates the state into two parts —two-thirds to the east and one-third to the west. The river traversing the state is crossed by only six highway bridges, four of them located in the area of Williston and Bismarck. This geographical reality, coupled with the difficulty of achieving the goals of observing geographical boundaries and existing political subdivisions, adds to the difficulty of minimizing the variance. That it was substantially accomplished, as illustrated by the chart made a part of this opinion, attests to the validity and soundness of the plan. The population variance between the districts in most cases is only a few hundred people. As a general rule, deviations from the average population decreases if many county lines are violated, and increases if few are split. The effort to preserve urban-rural identities and county lines intact produce the variations which look large percentage wise, but when applied to a sparsely populated state do not result in significant population variances.

In Mahan, the court considered the validity of a Virginia apportionment plan allowing for a 16% deviation. The Court stated that neither courts nor legislatures, can extract with accuracy from the Fourteenth Amendment, the mathematical formula that establishes what range of percentage deviation is permissible and what is not. While the 16% deviation of the Virginia plan may have approached the limits, it did not exceed them, said the Court.

The key, it seems, as to whether a certain deviation will be allowable is whether or not the deviation causes a sacrifice of substantial equality. A percentage of variance can only have validity when measured against the actual number of electors, communities of interest, transportation, and size of the base from which the representation is drawn.

Virginia is a heavily populated state, and a 16% deviation there results in population discrepancies of thousands. That same percentage applied to a sparsely populated state like North Da-kota, would result in actual deviations of only a few hundred persons.

The issue presented to the court in Mahan .was whether or not the equal protection clause permits only limited population variances which are unavoidable, despite a good faith effort to achieve absolute equality. The court said that some variation from the one man, one vote rule is unavoidable, because blind application of “absolute equality” in state redistricting might well impair the normal functioning of state and local governments.

In Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), the Supreme Court disapproved a Florida reapportionment plan having a 26% deviation. The Court, noting that no evidence in support of the deviation had been offered, said the allowable variation for one state has little bearing on the validity of a similar variation in another state.

In 1972, a three judge district court in Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972), declared unconstitutional a Texas reapportionment plan having a total variation between the largest and smallest district of 9.9%. On appeal, the Supreme Court in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), said that a 9.9% deviation does not establish a prima facie equal protection violation. Citing Mahan, the Court said that relatively minor population deviations among state legislative districts do not substantially dilute the weight of individual votes in the larger districts.

Similarly, Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), decided at the same time as White, held that a state’s redistricting plan is not to be judged by the more stringent standards applicable to Congressional reapportionment. In Gaffney, the Court said that while fair and equal representation is the goal, its attainment does not depend on elimination of insignificant population variations.

“Fair and effective representation may be destroyed by gross population variations among districts, but it is apparent that such representation does not depend solely on mathematical equality among district populations. There are other relevant factors to be taken into account and other important interests that states may be legitimately mindful of. An unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in a day-to-day operation are important to an acceptable representation and apportionment arrangement.”

“That the Court was not deterred by the hazards of the political thicket when it undertook to adjudicate the reapportionment cases does not mean that it should become bogged down in a vast, intractable apportionment slough, particularly when there is little, if anything, to be accomplished by doing so.

“This very case represents what should not happen in the federal courts. The official state functionaries proposed a plan with a maximum variation among the districts of 7.-89% in the House and 1.8% in the Senate, and with respective average variations of 1.9% and .45%. Appellees then proposed four alternative plans for the House, three of which involved slightly larger variations among districts but cut fewer town lines. The fourth cut more lines, but had a maximum variation between its largest and smallest district of only 2.6%. The District Court thought the state plan involved acceptably large variations between districts, although in the House, with districts of about 20,000 people, the average variation involved only 399 people, and the largest variations involved only 1,573 people. But neither did the District Court adopt any of the plans submitted by appellees. Instead, it appointed its own master to come up with still another scheme. That plan, we are told, involves a total maximum deviation in the House of only 1.16%. Was the master compelled, as a federal constitutional matter, to come up with a plan with smaller variations than were contained in appellees’ plans ? And what is to happen to the master’s plan if a resourceful mind hits upon a plan better than the master’s by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally ‘better’ when measured against a rigid and unyielding population equality standard.” 412 U.S. at 748-751, 93 S.Ct. at 2329-2330, 37 L.Ed.2d at 309-311. (citations omitted).

Once a plan has been formulated which, in consideration of all the attendant circumstances, fairly meets the constitutional requirements, a court should not continue to sift and shuffle abstract figures solely to arrive at a mathematically perfect plan.

Where there are identifiable minorities or political groups being forced out of the election process and, their voting strength is invidiously weakened, a plan proper in other respects may require a further examination. As we view the cases, deviations of 16%, 8%, and 10% have recently been allowed in heavily populated states having significant minority populations.

Even greater deviations are permissible in a sparsely settled state barren of electorally victimized minorities.

We adopt the Court Plan of reapportionment previously adopted as an interim plan on June 29, 1972, as set forth in Appendix A of that Order, (published at 372 F.Supp. 363) as the permanent plan for reapportionment for the State of North Dakota.

It is ordered that judgment be entered accordingly.

1 . Governor’s veto message, Defendant’s Report of the Court, filed March 30, 1973.

2 . Richard R. Dobson, one of the Special Masters appointed by the Court.

3 . Stanley W. Voelker and Thomas K. Ostenson, Population Changes within Census County Divisions of North Dakota, 1950-1970, March, 1971.

4 . 1970 Censns of Population, U. S. Dept. of Commerce, Bureau of the Census, 1970.

5 . 1973 World Almanac, Newspaper Enterprise Association.