Opinion of the Justices

230 A.2d 807

Opinion

SENATE ORDER PROPOUNDING QUESTION

STATE OF MAINE

In Senate, June 14, 1967

Whereas, “A Resolve to Establish Thirty-two Districts for the Election of Senators in the State of Maine,” (Senate Paper 226, Legislative Document 551) is pending before the 103rd Legislature ; and

Whereas, it is important that the Legislature be informed as to the legality of the proposed Resolve as it is the first time that the Legislature has been required to apportion Senators under Article IV, Part Second, of the Constitution of Maine, as amended by Chapter 87 of the Resolves of Maine, 1965; and

Whereas, the Senate has determined, for the purpose of this Order, that the last Federal Census (1960) shows the population of the respective cities, towns, plantations, townships, gores, wards and precincts, or other designated areas of this State to be as set forth in the Report of the Senatorial Apportionment Commission to the 103rd Legislature, pages 10 to 25 thereof, appended to Senate Paper 226, Legislative Document 551; and

Whereas, the Senate has caused the provisions of Senate Paper 226, Legislative Document 551, to be graphically illustrated upon a map of the State of Maine, which is attached to page 11 of the aforementioned report, and incorporated herein and marked Exhibit A, for the assistance of the Justices of the Supreme Judicial Court; and

Whereas, it appears to the Members of the Senate of the 103rd Legislature that the constitutionality of the proposed Resolve presents an important question of law and the occasion is a solemn one; now, therefore, be it

Ordered, that in accordance with the provisions of the Constitution of the State, the Justices of the Supreme Judicial Court are hereby respectfully requested to give this Legislature their opinion on the following question:

Is the method of creating Senatorial Districts, set forth in Legislative Document 551, constitutional?

Name:

(Harding)

County: Aroostook

Apportionment of Senators to the Legislature. Resolved: That for the 104th and 105th Legislatures the following districts are established' and shall each elect one Senator:

District Number One, consisting of the municipalities of Berwick, Eliot, Kittery, North Berwick, South Berwick, Wells and York;

District Number Two, consisting of the municipalities of Arundel, Kennebunk, Kennebunkport, Sanford and wards numbered 6 and 7 of the City of Biddeford as the ward lines of that city existed on the first day of January, 1967;

District Number Three, consisting of the municipalities of Old Orchard Beach, Saco and wards numbered one, 2, 3, 4 and 5 of the City of Biddeford as the ward lines of that city existed on the first day of January, 1967;

District Number Four, consisting of the municipalities of Acton, Alfred, Brownfield, Buxton, Cornish, Dayton, Denmark Fryeburg Hebron Hiram, Hollis, Lebanon, Limerick, Limington, Lovell, Lyman, New-field, Norway, Oxford, Paris, Parsonsfield, Porter, Shapleigh, Stoneham, Stow, Sweden, Waterhoro and Waterford;

District Number Five, consisting of the municipalities and unorganized territories of Adamstown, Albany Twp., Andover, Andover North Surplus, Andover West Surplus, Batchelders Grant, Bethel, Bow-mantown, Buckfield, Byron, Canton, C Surplus Twp., Dixfield, Gilead, Grafton, Greenwood, Hanover, Hartford, Lincoln Pit., Lower Cupsuptic, Lynchtown, Magalloway Pit., Mason Twp., Mexico, Milton Twp., Newry, Oxbow, Parkertown, Paramachenee Twp., Peru, Richardstown, Riley, Roxbury, Rumford, Sumner, Township C, Upper Cupsuptic, Upton, West Paris and Woodstock ;

District Number Six, consisting of the municipalities of Baldwin, Bridgton, Casco, Falmouth, Gorham, Gray, Harrison, Naples, New Gloucester, Otis field, Raymond, Sebago, Standish and Windham;

District Number Seven, consisting of the-municipalities of Scarborough and West-brook and precincts numbered 5-2 and 6-2 of the City of Portland as the precinct lines of that city existed on the first day of January, 1967;

District Number Bight, consisting of the municipalities of Cape Elizabeth and South Portland;

District Number Nine, consisting of the precincts numbered 3-2, 4-1, 4-2, 5-1 and 6-1 of the City of Portland as the precinct lines of that city existed on the first day of January, 1967;

District Number Ten, consisting of the precincts numbered 1-1, 1-2, 1-3, 1-4, 1-5,

2-1, 2-2, and 3-1 of the City of Portland as the precinct lines of that city existed on the first day of January, 1967;

District Number Eleven, consisting of the municipalities of Brunswick, Cumberland, Freeport, Harpswell, North Yar-mouth, Pownal and Yarmouth;

District Number Twelve, consisting of the municipalities of Auburn, Mechanic Falls, Minot and Poland;

District Number Thirteen, consisting of the precincts numbered 1-1, 1-2, 2-1, 2-2, 3-1, 3-2,4 — 1, 5 and 6-1 of the City of Lewis-ton as thé precinct lines of that city existed on the first day of January, 1967;

District Number Fourteen, .consisting of the municipalities of Durham, Greene, Leeds, Lisbon, Livermore, Livermore Falls, Turner, Wales and Webster and the precincts numbered 4-2, 6-2, 7-1 and 7-2 of the City of Lewiston as the precinct lines of that city existed on the first day of January, 1967;

District Number Fifteen, consisting of the municipalities of Belgrade, Chelsea, Farmingdale, Fayette, Gardiner, Hallowell, Litchfield, Manchester, Monmouth, Mount Vernon, Pittston, Randolph, Readfield, Rome, Vienna, Wayne, West Gardiner and Winthrop ;

District Number Sixteen, consisting of the municipalities and unorganized territory of Benton, Clinton, Oakland, Unity Township, Waterville and Winslow;

District Number Seventeen, consisting of the municipalities of Albion, Augusta, China, Sidney, Vassalboro and Windsor;

District Number Eighteen, consisting of the municipalities and unorganized territory of Aina, Arrowsic, Bath, Boothbay, Boothbay Harbor, Bowdoin, Bowdoinham, Dresden, Edgecomb, Georgetown, Newcastle, Perkins Twp., Phippsberg, Richmond, Southport, Topsham, West Bath, Westport, Wiscasset aind Woolwich;

District Number Nineteen, consisting of all municipalities and unorganized territory of Belfast, Belmont, Bremen, Bristol, Brooks, Burnham, Damariscotta, Frankfort, Freedom, Hibberts Gore, Islesboro, Jackson, Jefferson, Knox, Liberty, Lincoln-ville, Monhegan Pit., Monroe, Montville, Morrill, Nobleboro, Northport, Palermo, Prospect, Searsmont, Searsport, Somer-ville Pit., South Bristol, Stockton Springs, Swanville, Thorndike, Troy, Unity, Waldo, Waldoboro, Whitefield and Winterport;

District Number Twenty, consisting of all municipalities and unorganized territory of Appleton, Camden, Cushing, Friendship, Hope, Isle-au-Haut, Matinicus Isle Pit., North Haven, Owl’s Head, Rockland, Rock-port, Saint George, South Thomaston, Thomaston, Union, Vinalhaven, Warren and Washington;

District Number Twenty-one, consisting of all municipalities and unorganized territory of Alder Brook, Alder Stream, An-son, Appleton, Athens, Attean Pond, Avon, Bald Mountain T2R3, Bald Mountain T4R3, Beattie, Bigelow, Big W, Bingham, Blake Gore, Bowtown, Brassua, Brighton Pit., Caratunk Pit, Carrying Place Town, Carthage, Chain of Ponds, Chase Stream, Chest-erville, Coburn Gore, Comstock, Concord Twp., Coplin Pit., Dallas Pit., Davis, Dead River, Dennistown Pit., Dole Brook, East Moxie, Elm Stream, Embden, Eustis, Farm-ington, Flagstaff, Forsyth, Freeman Twp., Gorham Gore, Hammond, Highland Pit., Hobbstown, Holeb, Indian Stream, Industry, Jackman, Jay, Jerusalem, Jim Pond, Johnson Mountain, Kibby, King and Bartlett, Kingfield, Lang, Lexington Litle W, Log Pond, Lowelltown, Lower Enchanted, Madrid, Massachusetts Gore, Mayfield, Mercer, Merrill Strip, Misery, Misery Gore, Moose River, Moscow, Mount Abraham, Moxie Gore, New Portland, New Sharon, New Vineyard, Parlin Pond, Perkins Twp., Phillips, Pierce Pond, Pittston Academy Grant, Pleasant Ridge Pit., Plymouth, Prentiss, Rangeley, Rangeley Pit., Reding-ton, Rockwood Strip, Salem Twp., Sandwich, Academy Grant, Sandy Bay, Sandy River Pit., Sapling, Seboomook, Seven Ponds, Skinner, Soldiertown, Solon, Squaretown, Starks, Stetsontown, Strong, Sugarloaf, Tauton and Raynham Grant, Temple, The Forks Pit., Thorndike, Tim Pond, Tomhegan, Twp. D, Twp. E, Twp. 6, Upper Enchanted, Washington Twp., Weld, West Forks Pit., West Middlesex Canal Grant, Wilton, Wyman, T1R6 10,000 Acre Tract, T1R3, T4R5, NBKP, T3R4, 3R5, 4R7, SR6, 5R7, BKPWKR, T2R7, T4R17, SR16, 5R17, SR18, 5R19, 5R20, 6R16, 6R17, 6R18, 6R19, 7R16, 7R17, 7R18, 7R19, 8R16, 8R17, 8R18, 8R19, 9R16, 9R17, 9R18, 10R16 and 10R17 WELS;

District Number Twenty-Two-, consisting of- the municipalities of Cambridge, Canaan, Cornville, Detroit, Fairfield, Harmony, Hartland, Madison, Norridgewock, Palmyra, Pittsfield, Ripley, Skowhegan, Smithfield and St. Albans;

District Number Twenty-three, consisting of all municipalities and unorganized territory of Abbot, Allagash Pit., Atkinson, Barnard Pit., Big Squaw Twp., Blanchard Pit., Bowdoin College Grant East, West, Bowerbank, Brownville, Chesuncook, Days Academy Grant, Dover-Foxcroft, Eagle Lake, East Middlesex Canal Grant, Elliotts-ville Pit., Fort Kent, Frenchtown, French-ville, Greenville, Guilford, Katahdin Iron Works, Kineo Twp., Kingsbury Pit., Lakeview Pit., Lilly Bay, Little Squaw Twp., Medford Twp., Milo, Monson, New Canada Pit., Orneville Twp., Parkman, Sandbar Tract, Sangerville, Shirley, St. Agatha, St. Francis Pit., St. John Pit., Sebee, Wallagrass Pit., Wellington, Williamsburg, Willimantic, Win-terville Pit., TAR10, TAR11, TAR12, TBR10, TBR11, TA2R13, TA2R14, TXR14, T4R9, 5R9, 7R9, NWP, 1R9, 1R10, 1R11, 1R12, 1R13, 1R14, 2R9, 2R10, 2R11, 2R12, 2R13, 3R9, 3R10, 3R11, 3R12, 3R13, 3R14, 3R15, 4R9, 4R10, 4R11, 4R12, 4R13, 4R14, 4R15, SR9, 5R10, 5R11, SR12, 5R14, 5R15, 6R9, 6R10, 6R11, 6R12, 6R13, 6R14, 6R15, 7R9, 7R10, 7R11, 7R12, 7R13, 7R14, 7R15, 8R9, 8R10, 8R11, 8R12, 8R13, 8R14, 8R1S, 9R7, 9R8, 9R9, 9R10, 9R11, 9R12, 9R13, 9R14, 9R15, 10R7, 10R8,10R9,10R10,10RU, 10R12, 10R13, 10R14, 10R15, 11R7, 11R8, 11R9, 11R10, 11R11, 11R12, 11R13, 11R14, 11R15, 11R16, 11R17, 12R7, 12R8, 12R9, 12R10, 12R11, 12R12, 12R13, 12R14, 12R15, 12R16, 12R17, 13R7, 13R8, 13R9, 13R10, 13R11, 13R12, 13R13, 13R14, 13R15, 13R16, 14RS, 14R6, 14R7, 14R8, 14R9, 14R10, 14R11, 14R12, 14R13, 14R14, 14R15, 14R16, 15R5, 15R6, 1SR8, 15R9, 15R10, 15R11, 1SR12, 15R13, 15R14, 15R1S, 16R4, 16RS, 16R6, 16R8, 16R9, 16R12, 16R13, 16R14, 17R4, 17R5, 17R12, 17R13, 17R14, 18R10, 18R11, 18R12, 18R13, 19R11, 19R12, 20R11 and 20R12 WELS;

District Number Twenty-four, consisting of the municipalities and unorganized territory of Caswell Pit., Connor Twp., Cyr Pit., Grand Isle, Hamlin Pit., Limestone, Madawaska, New Sweden, Perham, Stockholm, Van Burén, Washburn, Westmanland Pit., Woodland and T17R3 WELS;

District Number Twenty-five, consisting of the municipalities of Caribou, Fort Fairfield and Presque Isle;

District Number Twenty-six, consisting of the municipalities and unorganized territory of Amity, Ashland, Bancroft, Bene-dicta, Blaine, Bridgewater, Cary Plantation, Castle Hill, Chapman, Cox Patent, Crystal, Dudley, Dyer Brook, E Pit., Eastern, Forks-town, Garfield Pit., Glenwood Pit., Hammond Pit., Haynesville, Hersey, Hodgdon, Houlton, Island Falls, Linneus, Littleton, Ludlow, Macwahoc Pit., Mapleton, Mars Hill, Masardis, Merrill, Molunkus, Monticello, Moro Pit., Nashville Pit., New Limerick, North Yarmouth Academy Grant, Oakfield, Orient, Oxbow Pit., Portage Lake, Reed Pit., Sherman, Silver Ridge Twp., Smyrna, Squapan, St. Croix, Upper Molunkus, Wade, Webbertown, Westfield, Weston, T1R5, 3R3, 3R4, 4R3, 7R5, 8R3, 8R5, 9R3, 9R4, 9RS, 10R3, 10R6, 11R4, 13RS, WELS, T2R4, TAR2, TCR2 and TDR2;

District Number Twenty-seven, consisting of the municipalities and unorganized territory of Alton, Argyle Twp., Bradford, Burlington, Carroll Pit., Charleston, Chester, Drew Pit., East Millinocket, Edinburg, Enfield, Grand Falls Pit., Greenbush, Greenfield, Grindstone, Herseytown, Hopkins Academy Grant, Howland, Hudson, Indian Purchase T4 and T3, Kingman Twp., Lagrange, Lakeville Pit., Lee, Lincoln, Lowell, Mattamiscontis, Mattawamkeag, Maxfield, Medway, Milford, Millinocket, Mount Chase Pit., Passadumkeag, Patten, Penob-scot Indian Res., Prentiss Pit., Seboeis Pit., Soldiertown T2R7, Springfield, Stacyville, Summit Twp., Veazie Gore, Webster Pit., Winn, Woodville, TIRÓ, 1R8, 2R8, 3R7, 3R8, 4R7, 4R8, SR7, 5R8, 6R6, 6R7, 6R8, 7R6, 7R7, 7R8, 8R6, 8R7, 8R8 WELS, 3R9 NWP, 2R8, 2R9, 3R1, 5R1 NBPP, TAR7, R8 and R9;

District Number Twenty weight, consisting of the municipalities of Carmel, Corin-na, Corinth, Dexter, Dixmont, Etna, Exeter, Garland, Glenburn, Hampden, Hermon, Kenduskeag, Levant, Newburgh, Newport, Old Town, Plymouth and Stetson;

District Number Twenty-nine, consisting of the wards numbered one, 2, 3, 4, 5 and 6 of the City of Bangor as the ward lines of that city existed on the first day of January, 1967;

District Number Thirty, consisting of the municipalities of Bradley, Brewer, Clifton, Eddington, Holden, Orono, Orrington and Veazie and the ward numbered 7 of the City of Bangor as the ward lines of that city existed on the first day of January, 1967;

District Number Thirty-ofie, consisting of all municipalities and unorganized territory of Amherst, Aurora, Bar Harbor, Blue Hill, Brooklin, Brooksville, Bucksport, Castine, Cranberry Isles, Dedham, Deer Isle, Eastbrook, Ellsworth, Franklin, Gouldsboro, Hancock, Lamoine, Long Island Pit., Mariaville, Mount Desert, No. 33 Pit., Orland, Osborn Pit., Otis, Penobscot, Sedgwick, Sorento, Southwest Harbor, Stonington, Sullivan, Surry, Swans Island, Tremont, Trenton, Verona, Waltham, Winter Harbor, T7, T8, T9, TIO So. Div., T3, T4, No. Niv., T16, T22, T28, T32, T34, T35, T39, T40 and T41 Middle Div.;

District Number Thirty-two, consisting of all municipalities and unorganized territory of Addison, Alexander, Baileyville, Baring Pit., Beals, Beddington, Brookton Twp., Calais, Centerville, Charlotte, Cherryfield, Codyville Pit., Columbia, Columbia Falls, Cooper, Crawford, Cutler, Danforth, Deblois, Dennysville, Devereaux, Dyer, East Machias, Eastport, Edmunds Twp., Forest City, Fowler Twp., Grand Lake Stream Pit., Harrington, Indian Twp.> Jonesboro, Jonesport, Kossuth Twp., Lambert Lake, Lubec, Machias, Machiasport, Marion Twp., Marshfield, Meddybemps, Milbridg.e, .Northfield, No. 14 Pit., No. 21 Pit., Passamaquoddy Indian Res., Pembroke, Perry, Princeton, Robbinston, Roque Bluffs, Steuben, Talmadge, Topsfield, Trescott Twp., Vanceboro, Waite, Wesley, Whiting, Whitneyville, T9R4, T10R3, T18, T19, T24, T2S, T30, T31, T36, T37, T42, T43 Middle Div., T5, T6, No. Div., T18, T19, T26, T27 East Div., 6R1, 8R3, 8R4 and 11R3 NBPP; and be it further

Residents of unorganized territory. Resolved: That if all other legal requirements are complied with, residents of unorganized territory shall be allowed to register and vote in the nearest accessible organized municipality with the same Senate District and within the same county.

ANSWER OF THE JUSTICES

To the Honorable Senate of the State of Maine:

In compliance with the provisions of Section 3 of Article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following answers to the question propounded on June 14, 1967.

QUESTION: Is the method of ere-ating Senatorial Districts, set forth in Legislative Document SSI, constitutional?

ANSWER: We answer in the affirmative.

The question requires the application of our constitutional provision affecting the apportionment of the Senate to L.D. 551 with the facts submitted to us relating to population and geographical limits of the proposed 32 senatorial districts to determine whether L.D. 551 meets the requirements of our constitution and the equal protection clause of the Federal Constitution. Maine Constitution Article IV, Part Second, Sections 1 and 2, (as amended by Article CIII effective November 28, 1966); U. S. Constitution, 14th Amendment.

In 1966 the Justices gave their opinion that our Constitution satisfies the equal protection clause of the 14th Amendment. We now express the opinion that the proposed apportionment plan is within the constitutional standards. The Justices (of whom four are presently members of the Court) unanimously said:

“In our opinion the permitted deviation of 10% from the median number of inhabitants for each senatorial district is within constitutional standards.

“Constitutional requirements will be met if the Legislature makes a fair and honest effort to establish districts in such manner that it can reasonably be anticipated that a majority of the Senators will be so elected as to represent at least 50% of the population. If in practical operation a majority is so elected as to be representative of a lesser percentage of the population, no violation of constitutional requirements will occur if such controlling percentage is only slightly below 50%, but any substantial deviation below 50% may exceed tolerable and permissible limits.” Opinion of the Justices, Me., 216 A.2d 651, 654 (1966).

We apply several “measuring rods” of inequality using approximate figures to test the validity of our conclusion.

1. The population variance between the most under-represented district and the most over-represented district, or between 32,908 and 27,121 is 1.21 to 1, or in terms of deviation from the median number within the 10% limitation of the Maine Constitution.

2. The maximum detrimental variation in population from the average among the districts is 8.6% based on the most underrepresented district of 32,908 and the average district of 30,289.

3. The 17 districts of the 32 proposed with the smallest population, thus including the most over-represented districts, contain 51.19% of the population. The control of the Senate will thus necessarily come from districts having over 50% of the population of the State.

4. Other factors bearing on the validity of the apportionment are that 17 of the proposed districts are above the average and 15 below; that 27 districts are wholly within a county, and that Biddeford is the only municipality, other than our three largest cities, not contained within a district.

In testing the constitutionality of L.D. 551, we have not sought for mathematical precision or geographical nicety. It is sufficient for our purposes that with the deviations from exact equality, the plan comes fairly within the spirit of one man-one vote. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Note on Reapportionment, 79 Harvard Law Review 1228, 1250.

Dated at Augusta, Maine, this nineteenth day of June, 1967.

Respectfully submitted:

ROBERT B. WILLIAMSON, DONALD W. WEBBER WALTER M. TAPLEY, Jr. HAROLD C. MARDEN ARMAND A. DUFRESNE, Jr. RANDOLPH A. WEATHERBEE,