Fonfara v. Reapportionment Commission

610 A.2d 153, 222 Conn. 166, 1992 Conn. LEXIS 171

• Court: Supreme Court of Connecticut
• Decided: May 26, 1992
• Docket: 14421
• Status: Published

Opinions

Peters, C. J.

The principal issue in this case is whether this court should overturn a plan for reapportionment of the state house of representatives without a prima facie showing that the plan manifests an improper reconciliation of the federal constitutional principle of one person, one vote, with the state constitutional principle of town integrity. The petitioners, who are citizens and electors of the state, have invoked the original jurisdiction conferred upon this court by article third, § 6 (d) of the Connecticut constitution, as amended, “to correct any error made in [the commission’s] plan of districting.” The petitioners allege that the plan’s redistricting for the house of representatives, adopted by the Reapportionment Commission on November 29, 1991, excessively and unnecessarily divides towns so as to violate the town integrity principle contained in article third, § 4 of the Connecticut constitution. On January 23, 1992, after an oral argument on the merits of the petitioners’ allegations, this court announced its judgment denying the petitioners the relief they sought, with our opinion or opinions to follow thereafter. We publish these opinions herewith.

A decennial reapportionment of General Assembly and Congressional districts is required by article third, § 6 of the constitution, as amended by articles XII, XVI, and XXVI of the amendments to the constitution.¹ Pursuant to this requirement, the General Assembly appointed a committee to devise a reapportionment plan in accordance with the 1990 census data. Although the committee held a number of public hearings and did a substantial amount of work, it was unable to produce a final plan before its deadline of September 15, 1991. Therefore, pursuant to article third, § 6, as amended, it was superseded by a Reapportionment Commission. Seven members of the eight member General Assembly committee became members of the nine .member commission, which also inherited the committee’s records and computer data bases. The commission arrived at a reapportionment plan for the House of Representatives consisting of 151 districts with a maximum population deviation of 8.779 percent. The petition challenging the validity of the plan was then brought to this court.

The petitioners claim, first, that article third, § 6 (d) of the Connecticut constitution requires this court to act, not as a court, but as a superlegislature in reviewing the commission’s plan. Second, the petitioners claim that, however this court views its jurisdiction, the commission’s plan must be set aside because it unnecessarily violates the town integrity principle contained in article third, § 4 of the Connecticut constitution. We will consider these claims in turn.

I

The petitioners’ contention that the constitution confers legislative powers upon this court to correct and to implement a plan for redistricting has four overlapping bases. They ask us to note that: (1) article third is the legislative and not the judicial article of the constitution; (2) article third, § 6 (d) would require this court to establish a plan of districting, and thus necessarily to undertake a legislative role, had the commission produced no plan at all; (3) article third provides no avenue for judicial review of the commission’s response to a mandate from this court for revision of a reapportionment plan; and (4) the constitution singles out a reapportionment plan promulgated by a commission, as distinguished from such plans devised by the General Assembly, for special judicial scrutiny under article third, § 6 (d). Although these textual arguments require serious consideration, we are unpersuaded.

Analysis of the governmental structure created by our constitution must begin with the central role that the constitution assigns to the principle of separation of powers. “Prior to the adoption of our first constitution in 1818, legislative, executive and judicial powers had been centered in, and exercised by, the General Assembly and its predecessor, the General Court. One of the great achievements, if not the greatest achievement, of the constitution of 1818 was the division of the powers of government into three distinct departments, legislative, executive and judicial, each confided to a separate magistracy. . . . This separation was accomplished by article 2 of the constitution of 1818 entitled ‘Of the Distribution of Powers’, which read as follows: ‘The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy—to wit—those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.’ This provision, unchanged except for insignificant variations in punctuation, was carried into the constitutions of 1955 (article 2) and 1965 (article 2).” (Citations omitted.) Adams v. Rubinow, 157 Conn. 150, 153-54, 251 A.2d 49 (1968).

“[T]he separation of powers provision of our constitution forbids the imposition upon a judge ... of clearly nonjudicial powers or duties.” Id., 175. Thus we have held unconstitutional an act conferring on the Probate Court administrator the power to fix fees; id.; and a statute giving courts the power of regulating the location, construction, and operation of street railways. Appeal of Norwalk Street Ry. Co., 69 Conn. 576, 37 A. 1080 (1897).

Even a principle that is rooted in the constitution can, of course, be abrogated by constitutional amendment. See In re Interrogatories Propounded by Senate, 536 P.2d 308, 318 (Colo. 1975). We will not, however, presume an intent to make a radical revision of a long established constitutional principle. Without a clear showing that the provisions of article third were intended to override those contained in article second, this court will not undertake functions that fall outside our judicial role.

The text of article third, § 6 (d) does not unambiguously demonstrate an intent to confer legislative rather than judicial powers upon this court. Significantly, § 6 (d) uses judicial terms to describe this court’s responsibilities. “Original jurisdiction” is “vested” in this court. We may act only in response to a “petition.” We have the power “to correct any error,” or to compel the commission to perform its duty by “mandamus.” Not later than forty-five days from the filing of the petition, this court “shall render its decision.” This terminology is not normally associated with the assignment of legislative power. Furthermore, nothing in the legislative history of the adoption of § 6 (d) demonstrates any intent to enlarge the powers of this court to have us act as a superlegislature.

A construction of article third, § 6 (d) that ordinarily confínes courts to an exercise of judicial powers makes sense when the constitutional provisions governing reapportionment are examined as a whole. Our constitution envisages three different reapportionment scenarios. When the General Assembly promulgates a reapportionment plan, a state court challenge to the validity of that plan must be mounted by filing a declaratory judgment action invoking the equity powers of the Superior Court. See Miller v. Schaffer, 164 Conn. 8, 19, 320 A.2d 1 (1972); see also Logan v. O’Neill, 187 Conn. 721, 448 A.2d 1306 (1982). When a reapportionment commission promulgates a reapportionment plan, article third, § 6 (d) confers expedited direct jurisdiction on this court to consider the validity of such a challenge. Only when a reapportionment commission fails to promulgate a reapportionment plan at all is this court given direct, legislative authority to fill the constitutional vacuum.

We reject the petitioners’ contention that a residual provision for an extraordinary remedy to deal with dual failure by the legislature and the commission to promulgate a timely reapportionment plan enlarges the scope of our responsibility when the legislature or the commission has acted in timely fashion. The provisions of article third themselves rebut such an argument. Once a duly appointed reapportionment commission publishes a redistricting plan, article third, § 6 (c) prescribes that “such plan of districting shall have the full force of law.” Thereafter, this court’s review of the validity of the plan, like any other judicial review, is impliedly limited to an inquiry into the plan’s compliance with applicable state and federal constitutional mandates. Such a review invokes this court’s judicial authority and does not warrant our exercise of legislative power.

The practical consequences of a different construction of article third, § 6 also counsel against acceptance of the petitioners’ claim that this court should act as a superlegislature. As a superlegislature, we would presumably not be bound by the decisions reached by the commission, rendering its work essentially for nought. If that were the case, it would be pointless to have detailed constitutional attention paid to the composition of a commission, or to burden the commission with the heavy task of devising a plan within two and one-half months, when its judgments could so readily be overridden.

We recognize that article third, § 6 imposes upon this court the duty to undertake a review of a commission-generated reapportionment plan that extends beyond our normal appellate jurisdiction. We must act upon a limited record in a limited time frame. Furthermore, there is no provision for the ordinary process of fact-finding by another body, such as a trial court or administrative agency. We conclude, however, that even in these exigent circumstances, we do not sit as a super-legislature charged with fashioning a reapportionment plan de novo when the commission has submitted a redistricting plan that we are obliged to review for a claimed error. The scope of our review is governed by our judicial power and is therefore limited to a determination of whether the plan promulgated by the commission with “the full force of law” conforms to applicable state and federal constitutional mandates.

II

The petitioners next claim that even if we disagree with their contention about the enlarged scope of our jurisdiction, the commission’s plan must be rejected, within the ordinary exercise of judicial review, because the plan’s districting for the House of Representatives excessively and unnecessarily violates the town integrity principle contained in article third, § 4 of the Connecticut constitution. In evaluating this constitutional challenge, we need to consider two issues. We must first decide what standard of review governs our review of the commission’s plan. We must then determine whether the petitioners have met their burden of proving unconstitutionality by relying solely on the undisputed fact that the reapportionment plan establishes house districts that cross town lines.

A

The constitutional provision on which the petitioners base their challenge to the validity of the reapportionment plan is the town integrity principle. Although article third, § 4, as amended, provides, in relevant part, that “[flor the purpose of forming assembly districts no town shall be divided except for the purpose of forming assembly districts wholly within the town,” the following section goes on to mandate that “[t]he establishment of . . . districts in the general assembly shall be consistent with federal constitutional standards.” Conn. Const., art. III, § 5, as amended. “As a practical matter, the federal one-person, one-vote principle; see Reynolds v. Sims, 377 U.S. 533, 577, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); makes it impossible for a reapportionment plan to comply fully with the town integrity principle.” Logan v. O’Neill, supra, 727; Miller v. Schaffer, supra, 24.

In our review of a reapportionment plan that concededly draws district lines so as to violate the principle of town integrity, we must first determine what a petitioner must show in order to establish a prima facie case of invalidity that we must “correct” under article third, § 6 (d). In the case of a reapportionment plan promulgated by the General Assembly, we have held that the mere crossing of town lines was insufficient to establish a prima facie case of the plan’s invalidity or to shift the burden of proving its validity to the state. “Although . . . the legislative action being challenged [was] not a statute and thus [was] not subject to the approval of the governor, it [was] entitled to at least the same judicial respect as a statute. The burden on one attacking the constitutionality of a statute is great. There is a presumption of constitutionality which attaches to a statutory enactment; the burden which rests upon a party asserting its invalidity is to establish that it is unconstitutional beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Logan v. O’Neill, supra, 729.

The petitioners contend, however, that a reapportionment plan that does not fully respect the principle of town integrity warrants less judicial deference when the plan is devised by a reapportionment commission than when it is devised by the General Assembly. They maintain that the special supervisory powers conferred upon this court by article third, § 6 (d) distinguish this case from Logan v. O’Neill. We are unpersuaded.

Logan v. O’Neill, supra, relied substantially on Miller v. Schaffer, supra, 12, in which this court upheld a similarly vulnerable plan that had been adopted by a public board, when, as in this case, the General Assembly had been unable to agree on a redistricting plan. Since we have, in part I of this opinion, construed article third, § 6 (d) as designed primarily to afford a judicial, albeit expedited, hearing for a challenged reapportionment plan, we conclude that Logan v. O’Neill and Miller v. Schaffer furnish proper guides for the scope of our review. These cases exemplify well established judicial principles that regularly attach a presumption of validity to decisions of authorized public agencies. “Because public officers, acting in their official capacities, are presumed, until the contrary appears, to have acted legally and properly; Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 568, 345 A.2d 520 (1973); Hills v. Zoning Commission, 139 Conn. 603, 608, 96 A.2d 212 (1953); the burden on such a claim rests upon the person asserting it.” Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 537, 525 A.2d 940 (1987). Indeed, in our review of the legislative actions of local zoning commissions, we have regularly searched the record for evidence to sustain such decision making. See, e.g., Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 607-608, 569 A.2d 1094 (1990), and cases therein cited. We can discern no principled reason why the actions of a reapportionment commission should not warrant similar deference.

When our original jurisdiction over commission-generated reapportionment plans was created by constitutional amendment in 1976, the constitution of 1965 already recognized the inherent conflict between federal constitutional requirements for fair voting standards and the principle of town integrity. Miller v. Schaffer, supra, decided in 1972, had already validated a reapportionment plan that manifested such a conflict. In light of this history, we are persuaded that a petitioner cannot meet his burden of establishing a prima facie case of constitutional invalidity merely by demonstrating that a reapportionment plan crosses town lines. We reaffirm that a person challenging a reapportionment plan for violations of the town integrity principle must demonstrate “that towns were cut in the adopted plan for reasons other than to meet the federal equal population requirement or that the challenged plan was not the legislature’s best judgment in harmonizing the conflicting constitutional requirements.” Logan v. O’Neill, supra, 740.

It is true, as the amicus city of Hartford notes, that the truncated time frame established for judicial review of reapportionment plans under article third, § 6 (d) makes it difficult for a challenger to create a plenary record to document an unreasonable disregard of town lines. That difficulty may result from the constitutional drafters’ perceived need to balance the risk of time-consuming intrusions into electoral processes against the benefit of correcting fundamental errors in reapportionment plans. Even without a plenary record, this court could entertain a challenge on the grounds that the one person, one vote principle is violated by the gross numerical overrepresentation of some districts and underrepresentation of others. Cf. Matter of Sherrill v. O’Brien, 188 N.Y. 185, 198, 81 N.E. 124 (1907) (invalidating apportionment which “is beyond all reasonable controversy, a gross and deliberate violation of the plain intent of the Constitution and a disregard of its spirit and the purpose for which express limitations are included therein”); State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 484, 51 N.W. 724 (1892) (“[i]f, as in this case, there is such a wide and bold' departure from this constitutional rule that it cannot possibly be justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the legislature to utterly ignore and disregard the rule of the constitution in order to promote some other object than a constitutional apportionment, then the conclusion is inevitable that the legislature did not use any judgment or discretion whatever”). If a challenger requires the benefit of discovery and testimony in order to establish his claim, he presumably may seek plenary relief to test the plan’s invalidity in a suit in Superior Court.²

B

The petitioners assert that there is evidence, in this case, that the reapportionment plan violated the town integrity principle for reasons other than compliance with federal constitutional requirements. They assert that the commission voluntarily undertook to devise special minority districts in accordance with what the commission believed to be the requirements of the federal Voting Rights Act, 42 U.S.C. § 1973 et seq.³ The petitioners do not dispute that, under the supremacy clause of the United States constitution, the Voting Rights Act is binding on Connecticut. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976). They claim, however, that the commission should have to prove the applicability of the Voting Rights Act and that the commission has not done so. See Kenai Peninsula Borough v. State, 743 P.2d 1352, 1361 (Alaska 1987).

The petitioners’ argument is flawed in two ways. First, the argument is premised factually on a questionable inference from one statement by one commission member, without any evidence of the extent to which his opinion reflected the understanding of the commission as a whole. Second, there has been no showing of a causal connection between the commission’s concerns about the Voting Rights Act and its departures from the town integrity principle.

The only evidence that the petitioners offer to support their claim that the Voting Rights Act concerns caused the commission to override the town integrity principle is a statement by Representative Robert F. Frankel, one of the commission’s members, at the final meeting of the commission. Frankel stated that “[t]he State of Connecticut experienced a significant increase in minority population during the 1980s and we sought to insure that this increase would be reflected in representation in the State House. . . . Every attempt was made to create ‘effective minority districts’ and black and Latino influence districts where possible. We understood that the Federal Courts have not required ‘influence districts’ but believe [that] it is in the best interests of the minority community of Connecticut to develop a plan that would maximize the ability of the minority community to elect candidates of their choice. We feel confident that the redistricting plan satisfies all federal and state legal requirements.” Reapportionment Commission, November 29, 1991 Minutes. The petitioners place great weight on Frankel’s failure to mention the town integrity requirement expressly, and contrast his vague and passing reference to “state legal requirements” with his extensive discussion of the Voting Rights Act.

Frankel’s statement does not, however, purport to be an exhaustive or definitive enumeration of the considerations taken into account in drafting the commission’s plan. The relevant record also includes the hearings conducted by the General Assembly committee, during which there was extensive discussion of the town integrity principle. See Gagnon v. Inland Wetlands & Watercourses Commission, supra, 607-608. In the context of these earlier hearings, it is clear to us that Frankel’s remarks were particularly directed to minority organizations that had threatened to challenge the plan under the Voting Rights Act if the voting strength of their constituents were diluted. Nothing in Frankel’s remarks suggests that the creation of “influence districts” required the crossing of town lines that would not otherwise have had to be crossed, that any such district itself crossed town lines, or that the commission ignored or underestimated its duty to follow the town integrity requirement to the extent possible.

c

Finally, the amicus city of Hartford contends that to place the burden of proof on the petitioners to establish an unjustified invasion of the town integrity principle would effectively nullify the relief intended to be made available by § 6 (d). The amicus contends that “any Reapportionment Commission, no matter how nefarious its purposes, would only have to ensure that its public record bespoke of no wrongdoing in order for its efforts to be upheld.” We disagree that this will be the necessary result of our decision. Today’s petitioners have not established, on this record, that this reapportionment commission entertained any nefarious purpose or produced an unconstitutional plan. We will not consider such an extreme argument until we are presented with a record that reasonably suggests it.

Judicial reluctance to become too deeply involved in reapportionment disputes is not confined to prudential concerns about entering the “political thicket.” Colegrove v. Green, 328 U.S. 549, 556, 66 S. Ct. 1198, 90 L. Ed. 1432 (1946) (plurality opinion of Frankfurter, J.). It also stems from the inherent unsuitability of such disputes to the ordinary and traditional principles of adjudication.

As the United States Supreme Court has observed, “districting inevitably has and is intended to have substantial political consequences.” Gaffney v. Cummings, 412 U.S. 735, 753, 93 S. Ct. 2321, 37 L. Ed. 2d 298 (1973). Thus, for example, it is legitimate to draw district lines “with the conscious intent to create a districting plan that would achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties, the only two parties in the State large enough to elect legislators from discernible geographic areas.” Id., 752. As Alexander Bickel has observed, “apportionment is necessarily a very high percentage of politics with a very small admixture of definable principle.” A. Bickel, The Least Dangerous Branch (1962) p. 193. This is why it is better for reapportionment to be done by a politically accountable and accessible legislature or commission than in the cloistered chambers of a court. One rationale for the constitutional scheme assigning this task to us only as a last resort is to be found in an assessment of comparative political expertise. Agreement by politically sophisticated decisionmakers in the first instance may be made more likely by the in terrorem effect of the knowledge that otherwise a court untutored in political realities would undertake so politically sensitive an assignment.⁴

Courts are justifiably reluctant to rule on political questions that they lack the competence to adjudicate judiciously. “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Professor Tribe observes that this statement of the doctrine draws upon three different theories of the role of the court. The first consideration enumerated in Baker reflects a “classical” view, which would deem a case nonjusticiable only if the court finds, “purely as a matter of constitutional interpretation, that the Constitution itself has committed the determination of the issue to the autonomous decision of another agency of government.” L. Tribe, American Constitutional Law (2d Ed. 1988) § 3-13, p. 96 and see id., pp. 96-97. The last three considerations reflect a “prudential” view, which would avoid adjudication “when reaching the merits would force the Court to compromise an important principle or would undermine the Court’s authority.” Id. Finally, the second and third considerations incorporate a “functional” view, which would have the court “consider such factors as the difficulties in gaining judicial access to relevant information, the need for uniformity of decision, and the wider responsibilities of the other branches of government, when determining whether or not to decide a certain issue or case.” Id. Tribe observes that these three theories are, to some extent, in tension. They can also, however, be mutually reinforcing.

Prudential and functional considerations are relevant to the classical enterprise of constitutional interpretation, especially where, as here, the constitutional provisions at issue are so remarkably open-textured. See Department of Commerce v. Montana, U.S. , 112 S. Ct. 1415, 1426-30, 118 L. Ed. 2d 87 (1992). The question of whether the town integrity principle was adequately taken into account is difficult to adjudicate, precisely because of “a lack of judicially discoverable and manageable standards for resolving it.” It is impossible to decide with specificity how to balance the town integrity principle against the relevant principles of federal law “without an initial policy determination of a kind clearly for nonjudicial discretion.” For this court to discard the commission’s plan and start anew, absent any showing that the commission failed to perform its duty properly, would express “lack of the respect due coordinate branches of government.” Baker v. Carr, supra, 217.

The amicus city of Hartford complains that the commission has placed only five house districts entirely within the city’s borders, while another four are shared by the city and the towns of Bloomfield, Windsor, Wethersfield, Rocky Hill and West Hartford.⁵ By contrast, under the existing plan adopted after the 1980 census, six house districts are wholly within the city’s borders, while one additional district is comprised of voters from both Hartford and Bloomfield. This decrease in districts wholly within Hartford has occurred even though the city’s population has increased relative to that of the neighboring towns. The commission correctly responds, however, that two of the districts that cross town lines each have a clear majority of Hartford residents, so that the number of districts in or controlled by Hartford residents remains at seven. Furthermore, the commission has claimed, without contradiction, that there are several municipalities that share fewer intertown districts than they did under the previous plan.⁶

Similarly, the amicus city of New Haven points out that its city code, § 3.4, requires that new ward boundaries be drawn “so that each ward under the new districting plan shall lie completely within a single assembly district for the state house of representatives.” Because the new 88th house district, most of which is in North Haven and Hamden, incorporates 3334 New Haven citizens, and because the one person, one vote principle applies to city wards, ward size will have to be decreased from the current average of 4203 to parallel this segment. This, the city projects, will require an increase of approximately 30 percent in the number of wards and aldermen, creating a board of unwieldy size. This result could have been avoided, the city argues, if its lines had not been crossed. Although New Haven’s predicament is required by the city’s own charter, which it is free to alter, we recognize that it would be better for New Haven if its borders had not been crossed in redistricting.

The constitution, however, recognizes, and requires the Reapportionment Commission to recognize, that it would be better for every town not to have its lines crossed. The town integrity principle does not apply to some towns more than others. It is true that if the commission had begun with Hartford (or with any other single city), it could have devised a plan with, at most, one district crossing the lines of that city. This would, however, have created ripple effects across the state and could possibly have resulted in the crossing of more town lines, in total, than would have been necessary had that city not been singled out for special treatment. Such special treatment of any particular town may thus itself violate the town integrity principle, which requires the commission to cross as few town lines as possible. No town is entitled to be the center that all others must accommodate.

In Logan v. O’Neill, supra, we rejected a claim that the town integrity principle had been violated because fewer town lines could have been cut if a higher population deviation had been tolerated. This contention “ amount[ed] to a claim that the town integrity principie requires the General Assembly to adopt as high a maximum population deviation as possible so as to achieve the resulting decrease in town segmentation.” Id., 735. This claim, we observed, was “based on a misunderstanding of the nature of the federal one person, one vote principle and its impact on legislative districts in Connecticut.” Id. Even if a higher population deviation would have been tolerated by the courts, “the point of the one person, one vote principle is to achieve equality in voting districts to the nearest extent practicable,” and not “to achieve the greatest inequality that can survive a court challenge.” Id., 736. The town integrity principle and the one person, one vote principle conflict with one another, but both are binding on the decisionmaker, which therefore must be afforded some discretion in striking a balance between them. Faced by a multiplicity of rational solutions, none of which perfectly satisfies all of the applicable criteria, courts in other jurisdictions have also upheld the validity of challenged reapportionment plans. See Kenai Peninsula Borough v. State, 743 P.2d 1352, 1357 (Alaska 1987); Preisler v. Doherty, 365 Mo. 460, 465, 284 S.W.2d 427 (1955); Matter of Schneider v. Rockefeller, 31 N.Y.2d 420, 427, 293 N.E.2d 67, 340 N.Y.S.2d 889 (1972); Matter of Sherrill v. O’Brien, 188 N.Y. 185, 198, 81 N.E. 124 (1907); Ater v. Keisling, 312 Or. 207, 214, 819 P.2d 296 (1991); In re Reapportionment Plan for Pennsylvania General Assembly, 497 Pa. 525, 537, 442 A.2d 661 (1981).

While the petitioners would place on the commission the burden of proving the validity of any reapportionment plan that, on its face, departs from the town integrity principle, they have not explained how they would expect this burden to be met. As a matter of first impression, it appears to us that the burden must be either trivial or impossible. If, as Logan v. O’Neill implies, the commission’s burden is merely to articulate a plausible reason for drawing the lines it did, the commission will invariably meet its burden, and the only likely effect of a further inquiry will be to delay a reapportionment process that the constitution clearly intends to be completed as speedily as possible. If, on the other hand, the commission must justify every line it has drawn, and show that it has devised the one unique solution to the conflicting imperatives to which it is subject, then it could never meet this burden, because there is and can be no such unique solution.⁷ The constitutional provision authorizing a commission to undertake to promulgate a reapportionment plan would be rendered meaningless.

We do not need to decide today under what circumstances a petitioner challenging a reapportionment plan would produce sufficient evidence of a constitutional violation to require the plan’s sponsors to prove its validity. Courts in other jurisdictions have uniformly required a petitioner to make a prima facie showing of some evidence inconsistent with the state’s faithful discharge of its constitutional responsibilities before they have countenanced such a shifting of the burden of proof.⁸ See Kenai Peninsula Borough v. State, supra, 1358 (placing burden on the state to justify undisputed population deviation of 14.8 percent); Hellar v. Cenarrusa, 104 Idaho 858, 861, 664 P.2d 765 (1983) (“After reviewing five reapportionment plans submitted by the plaintiffs, the district court concluded that a redistricting plan could be adopted with only minor variation in population, but which would follow county boundary lines, and thus accommodate both state and federal constitutional requirements.”); Schrage v. State Board of Elections, 88 Ill. 2d 87, 98, 430 N.E.2d 483 (1981) (assessing compliance with compactness requirement by “rely[ing] on a visual examination of the questioned district,” and finding “a tortured, extremely elongated form which is not compact in any sense”); In re Legislative Districting of General Assembly, 193 N.W.2d 784, 788 (Iowa 1972) (“[t]he legislator-witnesses frankly acknowledge the effect of [measures taken to protect incumbents] on the numerical equality goal was not considered”); id., 790 (alternative plan demonstrates “that plans more equal in population can be developed”); id., 791 (noting “strange shapes” in shifting burden of proving compliance with compactness requirement); Preisler v. Doherty, supra, 468 (“[I]t appears from the Board’s own estimate that the most extreme violations of the standard of compactness . . . were not made for the purpose of obtaining equality of population but instead created the greatest inequality.”); In re Livingston, 160 N.Y. Sup. 462, 469-70, 96 Misc. 341 (1916) (challenged district “is not capable of being described by any language that would convey a true idea of its appearance. It is most irregular in shape. In fact it is really grotesque. . . . If the constitutional provision relating to compactness means anything, this district, as laid out, manifestly does not conform to it.”); State ex rel. Lockert v. Crowell, 656 S.W.2d 836, 838 (Tenn. 1983) (“the drafters of the House plan admitted that no effort was made to hold county divisions to a minimum”); Clements v. Valles, 620 S.W.2d 112, 115 (Tex. 1981) (“appellees presented evidence of a number of alternate redistricting plans which maintain more of the surplus populations within county lines” without violating federal requirements).⁹

Our decision that the present petitioners have not made the requisite prima facie showing of unconstitutionality “in no way alters the fact that the town integrity principle is an operative part of our constitution and is a significant constraint on the [commission’s] reapportionment authority.” Logan v. O’Neill, supra, 740. It does not trivialize a state constitutional requirement to recognize that its operational scope must be reconciled with the superior commands of the United States constitution or to recognize that the primary responsibility for such a reconciliation of competing constitutional principles rests with legislative agents rather than with the judiciary. Constitutional requirements are binding on all branches of government and do not depend exclusively on judicial enforcement. See generally L. Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms,” 91 Harv. L. (1978). On the present record, we will not presume that the commission has ignored its constitutional duty.

The petition is denied.

In this opinion Callahan, Glass, Covello and Borden, Js., concurred.

1 Article third, § 6 of the Connecticut constitution, as amended, provides: “a. The assembly and senatorial districts and congressional districts as now established by law shall continue until the regular session of the general assembly next after the completion of the taking of the next census of the United States. On or before the fifteenth day of February next following the year in which the decennial census of the United States is taken, the general assembly shall appoint a reapportionment committee consisting of four members of the senate, two who shall be designated by the president pro tempore of the senate and two who shall be designated by the minority leader of the senate, and four members of the house of representatives, two who shall be designated by the speaker of the house of representatives and two who shall be designated by the minority leader of the house of representatives, provided there are members of no more than two political parties in either the senate or the house of representatives. In the event that there are members of more than two political parties in a house of the general assembly, all members of that house belonging to the parties other than that of the president pro tempore of the senate or the speaker of the house of representatives, as the case may be, shall select one of their number, who shall designate two members of the committee in lieu of the designation by the minority leader of that house. Such committee shall advise the general assembly on matters of apportionment. Upon the filing of a report of such committee with the clerk of the house of representatives and the clerk of the senate, the speaker of the house of representatives and the president pro tempore of the senate shall, if the general assembly is not in regular session, convene the general assembly in special session for the sole purpose of adopting a plan of districting. Upon the request of the speaker of the house of representatives and the president pro tempore of the senate, the secretary of the state shall give notice of such special session by mailing a true copy of the call of such special session, by registered or certified mail, return receipt requested, to each member of the house of representatives and of the senate at his or her address as it appears upon the records of said secretary not less than ten nor more than fifteen days prior to the date of convening of such special session or by causing a true copy of the call to be delivered to each member by a sheriff, deputy sheriff, constable, state policeman or indifferent person at least twenty-four hours prior to the time of convening of such special session. Such general assembly shall, upon roll call, by a yea vote of at least two-thirds of the membership of each house, adopt such plan of districting as is necessary to preserve a proper apportionment of representation in accordance with the principles recited in this article. Thereafter the general assembly shall decennially at its next regular session or special session called for the purpose of adopting a plan of districting following the completion of the taking of the census of the United States, upon roll call, by a yea vote of at least two-thirds of the membership of each house, adopt such plan of districting as is necessary in accordance with the provisions of this article.

“b. If the general assembly fails to adopt a plan of districting by the fifteenth day of the September next following the year in which the decennial census of the United States is taken, the governor shall forthwith appoint a commission designated by the president pro tempore of the senate, the speaker of the house of representatives, the minority leader of the senate and the minority leader of the house of representatives, each of whom shall designate two members of the commission, provided that there are members of no more than two political parties in either the senate or the house of representatives. In the event that there are members of more than two political parties in a house of the general assembly, all members of that house belonging to the parties other than that of the president pro tempore of the senate or the speaker of the house of. representatives, as the case may be, shall select one of their number, who shall designate two members of the commission in lieu of the designation by the minority leader of that house. The eight members of the commission so designated shall within thirty days select an elector of the state as a ninth member.

“e. The commission shall proceed to consider the alteration of districts in accordance with the principles recited in this article and it shall submit a plan of districting to the secretary of the state by the thirtieth day of the November next succeeding the appointment of its members. No plan shall be submitted to the secretary unless it is certified by at least five members of the commission. Upon receiving such plan the secretary shall publish the same forthwith, and, upon publication, such plan of districting shall have the full force of law. If the commission shall fail to submit such a plan by the thirtieth day of November, the secretary of the state shall forthwith so notify the chief justice of the supreme court.

“d. Original jurisdiction is vested in the supreme court to be exercised on the petition of any registered voter whereby said court may compel the commission, by mandamus or otherwise, to perform its duty or to correct any error made in its plan of districting, or said court may take such other action to effectuate the purposes of this article, including the establishing of a plan of districting if the commission fails to file its plan of districting by the thirtieth day of November as said court may deem appropriate. Any such petition shall be filed within thirty days of the date specified for any duty or within thirty days after the filing of a plan of districting. The supreme court shall render its decision not later than forty-five days following the filing of such petition or shall file its plan with the secretary of the state not later than the fifteenth day of February next following the time for submission of a plan of districting by the commission. Upon receiving such plan the secretary shall publish the same forthwith, and, upon publication, such plan of districting shall have the full force of law.”

2 The parties have not briefed or argued the issue of whether this alternate remedy has been foreclosed by article third, § 6 (d).

3 The Voting Rights Act, as amended, provides in pertinent part: “(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f) (2) of this title, as provided in subsection (b) of this section.

“(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 42 U.S.C.A. § 1973 (Sup. 1991).

This “totality of the circumstances” test evidently leaves a great deal to the judgment of the trier of fact in a suit brought under the act. The Senate Judiciary Committee majority report accompanying the bill that amended § 2 elaborates on the circumstances that might be probative of a violation, and notes the following “typical factors”: “ ‘1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction.’ ” Thornburg v. Gingles, 478 U.S. 30, 36-37, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986). Other factors “ ‘that in some cases have had probative value’ ” include “ ‘whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group’ ” and “ ‘whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.’ ” Id., 37. Moreover, “this list of typical factors is neither comprehensive nor exclusive,” “other factors may also be relevant and may be considered,” and “the Senate Committee observed that ‘there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.’ ” Id., 45.

“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Id., 47. The failure to create districts in which minorities are present in sufficiently large numbers to elect a representative of their choice may, under some circumstances, violate the act. “Dilution of racial minority group voting strength may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority.” Id., 46 n.11; see Ewing v. Monroe County, 740 F. Sup. 417 (N.D. Miss. 1990) (dilution of a cohesive, contiguous black population violated act); Gunn v. Chickasaw County, 705 F. Sup. 315 (N.D. Miss. 1989) (same); Rybicki v. State Board of Elections, 574 F. Sup. 1147 (N.D. Ill. 1983) (excessive concentration of black voters violated act).

At the public hearings on the reapportionment plan, a number of persons warned the committee that unless minority concerns were accommodated by the plan, litigation would likely ensue. As Logan v. O’Neill, 187 Conn. 721, 448 A.2d 1306 (1982), establishes, however, we need not decide today whether an alternative plan would in fact either have violated the Voting Rights Act or have crossed fewer town lines The petitioners have offered no evidence linking minority concerns or the creation of “influence districts” with a greater intrusion into the town integrity principle than was required by the principle of one person, one vote.

4 But see Wilson v. Eu, 54 Cal. 3d 471, 816 P.2d 1306, 286 Cal. Rptr. 280 (1991) (en banc) (appointing special master to hold public hearings after legislature and governor could not agree on reapportionment plan).

5 The dissent states that “the spanning of the 29th assembly district across the borders of three towns, Hartford, Wethersfield, and Rocky Hill, appears to be particularly egregious.” It appears clear that Rocky Hill’s district must include other towns, because Rocky Hill’s population is too small for that town to have its own district. The fact that the deficit was supplied by more than one town does not, in itself, seem particularly egregious. It is far from clear that the town integrity principle required the drafters to take a bigger bite out of a single town.

6 The parties have not provided this court with a map detailing the specific changes in district lines between the current plan and that enacted in 1981.

7 As Representative Richard Foley, Jr., explained at one of the Reapportionment Commission’s hearings, “there’s a child’s toy I can recall from when my daughter was young where you would push in on one side, it would pop out on the other. And when you push in, in redistricting on the map on one side, and adjusted it, it pops out some place else. ... So what happens in Greenwich can affect New London .... [W]hen this is finished, it will be effectively, the map will look like a jigsaw puzzle. The difference is all the pieces must fit. We can’t have a little bit left over when we’re done.” Reapportionment Commission, April 2, 1991 Public Hearing.

8 Instead of requiring a prima facie showing of a constitutional violation, the dissent would shift the burden of proof if the petitioner “comes forward with some substantial evidence that the violation of the town integrity rule was not required because of federal law or other state constitutional law.” Because none of the facts cited by the dissent are inconsistent with the state’s faithful discharge of its responsibilities, it is not clear that even this relaxed standard has been satisfied by the petitioners.

9 Some of these cases are cited by the dissent to support the proposition that, notwithstanding the federal one person, one vote requirement, “violations of state constitutional mandates in the reapportionment of the legislature require the drafters of the plan to justify the same.” These cases, however, rely on far stronger evidence of constitutional violations than that proffered by the petitioners here. It is true that a single case cited by the dissent does hold that, once a facial violation of a state constitutional mandate is shown, the presumption of the reapportionment plan’s validity is extinguished and the state has the burden of proving the plan’s validity. Smith v. Craddick, 471 S.W.2d 375, 378 (Tex. 1971). This, however, like Justice Kauffman’s dissent in In re Reapportionment Plan for Pennsylvania General Assembly, 497 Pa. 525, 547-50, 442 A.2d 661 (1981), implies what the dissent expressly rejects, the “extreme of shifting the burden of proof to the commission to justify the plan merely on proof that the town integrity principle was violated . . . .” Moreover, in the later case of Clements v. Valles, 620 S.W.2d 112, 115 (Tex. 1981), the Supreme Court of Texas relied on substantive evidence that alternate redistricting plans were possible that would better have harmonized state and federal constitutional requirements.