Gong v. Kirk

278 F. Supp. 133, 1967 U.S. Dist. LEXIS 7403
CourtDistrict Court, S.D. Florida
DecidedAugust 2, 1967
DocketCiv. No. 64-143
StatusPublished
Cited by7 cases

This text of 278 F. Supp. 133 (Gong v. Kirk) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gong v. Kirk, 278 F. Supp. 133, 1967 U.S. Dist. LEXIS 7403 (S.D. Fla. 1967).

Opinion

OPINION

PER CURIAM.

On March 3, 1964, plaintiffs, each a citizen of the United States and of Florida, and each a qualified voter in the county of his residence and' in the congressional district in which he resides, brought an action against the Governor, the Secretary of State, the members of the Boards of County Commissioners of Dade and Broward counties, and the [134]*134members of the Board of State Canvassers of the State of Florida. The plaintiffs seek a declaration that Fla.Stat. § 8.01, F.S.A., is unconstitutional,' an injunction against the enforcement of that statute, and further equitable relief. Plaintiffs allege that the division of the State of Florida into twelve congressional districts made by Fla.Stat. § 8.01, F.S. A., was not determined on the basis of equal population of these districts, and is in violation of Article I and the fourteenth amendment of the United States Constitution.

On May 11, 1964, plaintiff’s request for a preliminary injunction was denied, and further decision was reserved until after the 1965 session of the Florida Legislature. That Legislature enacted Ch. 65-2441, Fla.Laws of 1965, 2nd Ex. Sess., which amended Fla.Stat. §§ 8.01 and 8.04, F.S.A. On March 1, 1966, the court found that the 1965 act met the contitutional standard of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), “on a temporary basis.” 1

An appeal to the United States Court of Appeals for the Fifth Circuit from the March 1, 1966, order resulted in a ruling that the district judge and the appellate court were without jurisdiction, since a three-judge court was required under 28 U.S.C. § 2281. Gong v. Kirk, 375 F.2d 728 (5th Cir. 1967).

Pursuant to the mandate of the Fifth Circuit a three-judge district court was convened. A pre-trial hearing was held on June 30, 1967. At the hearing the parties submitted all issues and evidentiary matters and stipulated that no testimony need be taken and that no further hearing need be held.2

Florida’s total 1960 population according to the official decennial federal census is 4,951,560. The use of the federal decennial census is provided as a basis for constitutional apportionments by Section 5, Article VII, of the Florida Constitution, F.S.A. The federal decennial census meets the minimal requirements of the equal protection clause, and no other census or population computation has been shown to be accurate. Swann v. Adams, 263 F.Supp. 225, U.S.Dist.Ct., So.Dist. of Fla., Findings of Fact and Conclusions of Law, Feb. 13, 1967; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

As a result of the 1960 decennial census, and in accordance with 2 U.S.C. § 2a, Florida is entitled to twelve members of the House of Representatives. Dividing Florida into twelve congressional districts, each should ideally consist of 412,-630 persons.

The present twelve congressional districts are established by Fla.Stat. § 8.01, F.S.A., Ch. 65-2441, Laws of Florida, 1965, 2nd Ex.Sess. The district with the largest population contains 465,160 (+12.73%); the district with the [135]*135smallest population contains 374,665 ( — 9.21%). The maximum total variance is 21.94%. The present congressional districts are unconstitutional as in violation of Article I, section 2 of the Constitution of the United States, and the equal protection clause of the fourteenth amendment. Duddleston v. Grills, 385 U.S. 455, 87 S.Ct. 611, 17 L.Ed.2d 508 (1967) vacating, Grills v. Branigin, 255 F.Supp. 155 (S.D.Ind.1966); Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); cf., the order of March 1, 1966, entered in the instant cause.

The court has considered the redistrieting plans proposed by the parties and by Dr. Manning J. Dauer,3 amicus curiae, together with the maps, population charts, and briefs in support of the plans. One plan offered by plaintiffs calls for six at-large districts and six area districts. The court has previously considered requiring congressional elections to be held at-large See Order of May 13, 1964, filed in this cause. At-large elections, though clearly meeting the one-man one-vote mandate, are not in the best interest of the' citi2iens of this state. The cost of campaigning state-wide every two years for a congressional office would be prohibitive for many qualified candidates. At-large representation is also objectionable in that it would remove congressmen from that more immediate contact with their constituents which has been traditional in district representation. This plan is therefore rejected.

The other four proposals4 are rejected in favor of a plan largely based on House Bill 3088.5 In the plan adopted by the court, the district with the largest population contains 415,704 persons (+.74%); the district with the smallest population contains 407,677 persons ( — 1.20%). The total maximum deviation from mathematical equality is 1.-94%.

Since federal census figures are not available by presently established precincts, a calculation of the population of each relevant voting precinct was made by determining the ratio, based on the most recent voter registration figures, of the registered voters in each voting precinct to the total registered voters of the particular county and applying that ratio to the county population as shown by the 1960 decennial census: i. e., county registration is to county population as precinct registration is to precinct population. This formula was suggested by both plaintiffs and defendants.6

[136]*136The congressional districting for the State of Florida, shall contain twelve districts as follows:

DISTRICT POPULATION % DEVIATION FROM EQUALITY

1 415,496 + .69

2 407,677 —1.20

3 411,683 — .23

4 409,716 — .71

5 409,532 — .75

6 415,704 + .74

7 414,474 + .44

8 411,450 — .29

9 409,952 — .64

10 414,998 + .57

11 414,759 + .51

12 414,691 + .49

Smallest - -1.20% (2nd Dist.)

Largest - + .74% (6th Dist.)

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Bluebook (online)
278 F. Supp. 133, 1967 U.S. Dist. LEXIS 7403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gong-v-kirk-flsd-1967.