341 F.Supp. 1158 (1972)
Paul W. PREISLER et al., Plaintiffs,
v.
SECRETARY OF STATE OF MISSOURI et al., Defendants.
Civ. A. No. 1716.
United States District Court, W. D. Missouri, C. D.
February 22, 1972.
As Amended February 23, 1972 and June 6, 1972.
Paul W. Preisler, St. Louis, Mo., and Irving Achtenberg, Achtenberg, Sandler & Balkin, for plaintiffs.
Gene E. Voights, and Charles B. Blackmar, Ass't Att'y Gens., for the State of Missouri, for defendants.
J. Anthony Dill, St. Louis, Mo., Harold L. Volkmer, Hannibal, Missouri, for amici curiae.
James Millan, Bowling Green, Mo., for The Honorable William L. Hungate, U. S. Representative and Hon. Bill D. Burlison, U. S. Representative.
Edward Welch, Welch and Wheadon, East St. Louis, Ill., for The Hon. William L. Clay, U. S. Representative.
Before GIBSON, Circuit Judge, BECKER, Chief District Judge, and WANGELIN, District Judge.
FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT ADOPTING JUDICIAL PLAN FOR CONGRESSIONAL DISTRICTS
PER CURIAM:
This is an equitable action filed on July 6, 1971, by nine citizens[1] of the United States and of the State of Missouri against the Governor, the Secretary of State and the Attorney General of Missouri, in their official capacities.
The plaintiffs seek (1) a judgment declaring the 1969 Missouri statutes dividing the State of Missouri into ten Congressional districts to be unconstitutional, (2) an injunction restraining the defendant Secretary of State from authorizing and permitting electoral processes including future primary and general elections for Congress of the United States from the districts established by the 1969 Act and (3) a judicial redistricting of the State of Missouri into ten constitutional Congressional districts for the preliminary election processes and for the primary and general elections beginning in 1972. (The injunction sought presumably would continue until the General Assembly of Missouri enacts a constitutionally permissible plan of Congressional redistricting.)
The District Judge before whom the action was pending determined the necessity for convening a Three-Judge Court as required by § 2281, Title 28, United States Code, and requested that the Chief Judge of the United States Court of Appeals for the Eighth Circuit convene this court pursuant to § 2284, Title 28, U.S.C. On August 12, 1971, in response to this request the Honorable M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit convened this Three-Judge Court.
Venue and jurisdiction to hear and determine this action on the merits exists under § 1391(b), § 1343(3), § 2201, Title 28, U.S.C., and under § 1983 and § 1988, Title 42, U.S.C.
In April 1969, the Supreme Court of the United States affirmed a district court decision holding the 1967 Missouri Congressional Redistricting Act unconstitutional. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519. Following this decision the Missouri General Assembly in 1969 enacted the Congressional Redistricting Act under attack in this action. Section 128.204 to Section 128.306, inclusive, Chapter 128 RSMo. In 1970 Congressional elections were held under this 1969 Act.
When the results of the 1970 decennial census became available it was readily apparent that the districts created by the 1969 Act had become constitutionally impermissible in 1971. See Congressional District Data, Districts of the 92d Congress, Missouri, CDD-92-93, June 1971 (a United States Department of Commerce Publication). The facts underlying this conclusion have been verified as a result of the pretrial and trial proceedings herein. Because of population growth and shifts between 1960 and 1970 the disparities between Congressional districts in Missouri, and the variations from the ideal are illustrated by the following uncontroverted tabulation from the currently available 1970 census figures:
Number of Congressional Seats: 10
Total Population: 4,677,399
Ideal Population for Each
Congressional District: 467,740
Actual Population for Each
District Created by 1969 Act:
Actual Population
Per Variation
District 1970 Census from Ideal
First 377,097 -90,643
Second 508,745 +41,005
Third 376,211 -91,529
Fourth 527,990 +60,250
Fifth 379,619 -88,121
Sixth 462,024 - 5,716
Seventh 481,313 +13,573
Eighth 604,525 +136,785
Ninth 551,132 +83,392
Tenth 408,743 -58,997
None of the minor corrections in the preliminary 1970 census data substantially affects these figures.
On the basis of these 1970 census population figures, we conclude, without disagreement by any formal party, amicus curiae or any other interested person, that the 1969 Missouri Congressional Redistricting Act, supra, is unconstitutional and that no present or future Congressional preliminary election processes or primary or general elections may be held thereunder.
In early recognition of this inevitable conclusion the 76th General Assembly of Missouri at its regular session in 1971 considered legislation calculated to create in time for the 1972 elections ten new constitutionally permissible Congressional districts. Until November 22, 1971, we refrained from further judicial action with the hope that the Missouri General Assembly would be called into special session and would cause to be enacted into law, in time for the 1972 election processes a constitutionally permissible Congressional redistricting plan.
On November 22, 1971, we held a plenary evidentiary hearing to secure a basic record for action on the merits of this case when a decision was required. To give the Missouri General Assembly further time to act, action herein was stayed until January 31, 1972, when final hearings herein were held and the cause submitted. Unfortunately, no new Missouri Congressional Redistricting Act has been enacted into law as of mid-February 1972, the latest practicable time for legislative action. Now most formal and interested parties agree that we must render a decision in this case on the basis of the pretrial and trial.
So left with no alternative, reluctantly we proceed to establish by judicial action a constitutionally permissible Congressional redistricting plan for Missouri under which future primary and general elections for Congressional seats must be held until there is enacted into law by the General Assembly of Missouri a constitutionally permissible Congressional redistricting act. In doing so we will give effect as far as is practicable and legal to what we believe to be the will of the majority of the people of Missouri, as far as it can be discerned.
The federal law requires, and we willingly follow the federal standard that Article I, § 2 of the Constitution of the United States requires that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's". This rule was enunciated in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and further defined in Kirkpatrick v. Preisler, supra.
In addition to this federal standard, Section 45 of Article III of the Missouri Constitution, V.A.M.S., requires that the Congressional districts "... be composed of contiguous territory as compact and as nearly equal in population as may be." In devising a judicial plan of Congressional redistricting we respect and follow this state standard, as a matter of law and comity.
Some evidence of the will of the people of Missouri in some respects is found in the alignment of Congressional districts in the now obsolete 1969 Missouri Congressional Redistricting Act. To the extent practicable we give consideration to the salvageable portions of that Act.
Imperfect and to some extent inconsistent indicia of the will of the people of Missouri and their elected representatives are found in the two 1971 Congressional redistricting bills, each of which was passed by one branch of the Missouri General Assembly. Neither bill passed both branches of the Missouri General Assembly. The Missouri House of Representatives passed House Committee Substitute for Senate Committee Substitute for Senate Bill No. 370 containing a plan of Congressional redistricting. The Missouri Senate passed Senate Committee Substitute for Senate Bill No. 370 containing a substantially different plan. Neither bill passed both branches of the Missouri General Assembly, which remain in disagreement up to the present time.
Giving consideration to all factors and arguments advanced by the parties and amici curiae we have decided to establish the attached judicially devised constitutionally permissible plan for creating ten new Congressional districts from which the ten members of the United States House of Representatives from Missouri shall be elected in 1972 and in subsequent years unless and until there shall be timely enacted a new constitutionally permissible Missouri Congressional Redistricting Act. The judicial plan is appended hereto marked "Exhibit A" and made a part as if fully set out herein in words and figures.
In this plan an effort has been made to avoid splitting counties except where necessary. Furthermore an effort has been given to retaining counties in present districts as far as practicable and legally permissible. Compactness of districts, in the degree required by state law, has been achieved.
According to figures certified at our request by the System's Specialist, Andrew S. Loebl of the Administrative Services, Division of Budget and Comptroller of the State of Missouri, the 1970 census population figures of the judicially approved Congressional districts are as follows:
Number of Congressional Seats: 10
Total Population: 4,677,399
Ideal Population for Each
Congressional District: 467,740
Actual Population for Each
District Created by 1972
Judicial Plan:
Percent
Actual Population Variation Variation
District Per 1970 Census from Ideal from Ideal
First 468,056 + 316 + .0675%
Second 468,808 + 1,068 + .2283%
Third 467,544 - 196 - .0419%
Fourth 466,940 - 800 - .1711%
Fifth 467,457 - 283 - .0605%
Sixth 469,642 + 1,902 + .4066%
Seventh 466,699 - 1,041 - .2225%
Eighth 467,532 - 208 - .0444%
Ninth 467,990 + 250 + .0534%
Tenth 466,731 - 1,009 - .2157%
Population deviation from highest
to lowest populated district is 2943.
Percent deviation from highest
to lowest populated district is .6291%.
Most populated district is District Number 6.
Least populated district is District Number 7.
The minor variations from the ideal are constitutionally permissible under the Constitution of the United States.
We express our gratitude to the State of Missouri, and in particular to the Division of Budget and Comptroller, and the members of the Missouri General Assembly and others who assisted as amici curiae. In this connection we note that the plan established hereby was devised solely by us, and we accept full responsibility therefor.
For the foregoing reasons, it is hereby
Ordered and adjudged and declared that the 1969 Missouri Congressional Redistricting Act, Section 128.203 to and including Section 128.306 of Chapter 128, RSMo., is unconstitutional. It is further
Ordered and adjudged that the defendant Secretary of State of Missouri be, and he is hereby, permanently enjoined and restrained from holding or permitting any primary or general election or administering any preliminary election processes thereunder. It is further
Ordered and adjudged that Congressional election processes and Congressional primary and general elections in 1972 and thereafter be conducted in and from the Congressional districts established in this judgment and by Exhibit A appended hereto and made a part hereof unless and until the State of Missouri enacts a timely and constitutionally permissible new Congressional Redistricting Act and such new act is timely submitted to and approved by this Court. It is further
Ordered and adjudged that this Court retain jurisdiction to implement, enforce and amend this judgment and to make such other orders and judgments as in the premises shall be meet and just.
EXHIBIT A
The 1972 Judicial Congressional Redistricting Plan
for Missouri is set forth in words and figures.
CONGRESSIONAL DISTRICT NUMBER 1
St. Louis County (Part)
Normandy Township 35,800
Washington Township 18,427
Hadley Township 23,025
Lincoln Township 21,850
Jefferson Township 31,970
Clayton Township (Part) Census tracts or
portions of census tracts within Clayton
Township as listed:
Census Tract 2164 6,544
Census Tract 2189 7,266
Gravois Township (Part) Census tracts or
portions of census tracts within Gravois
Township as listed:
Census Tract 2196 2,034
Creve Coeur Township (Part) Census tracts
or portions of census tracts within
Creve Coeur Township as listed:
Census Tract 2159 6,458
Census Tract 2162 6,745
St. Louis City (Part) Census tracts or portions
of census tracts within St. Louis
City as listed:
Census Tract 1051 4,538
Census Tract 1052 6,731
Census Tract 1053 6,730
Census Tract 1054 5,358
Census Tract 1055 7,850
Census Tract 1061 9,939
Census Tract 1062 7,210
Census Tract 1063 8,325
Census Tract 1064 6,436
Census Tract 1065 7,337
Census Tract 1066 7,162
Census Tract 1067 7,589
Census Tract 1071 1,385
Census Tract 1072 2,553
Census Tract 1073 6,640
Census Tract 1074 5,891
Census Tract 1075 5,480
Census Tract 1076 4,168
Census Tract 1077 6,727
Census Tract 1081 3,952
Census Tract 1082 2,876
Census Tract 1083 2,814
Census Tract 1084 1,078
Census Tract 1085 1,778
Census Tract 1091 6,918
Census Tract 1092 401
Census Tract 1093 3,910
Census Tract 1094 2,613
Census Tract 1095 3,073
Census Tract 1101 7,446
Census Tract 1102 7,103
Census Tract 1103 7,324
Census Tract 1104 6,923
Census Tract 1105 6,209
Census Tract 1111 9,109
Census Tract 1112 7,878
Census Tract 1113 6,674
Census Tract 1114 7,357
Census Tract 1115 5,914
Census Tract 1121 7,128
Census Tract 1122 6,085
Census Tract 1123 6,166
Census Tract 1124 5,261
Census Tract 1192 5,533
Census Tract 1201 4,576
Census Tract 1202 3,908
Census Tract 1203 7,509
Census Tract 1212 6,752
Census Tract 1213 11,124
Census Tract 1214 984
Census Tract 1252 6,080
Census Tract 1254 1,350
Census Tract 1261 5,707
Census Tract 1262 1,347
Census Tract 1263 3,897
Census Tract 1264 2,280
Census Tract 1265 2,851
468,056
CONGRESSIONAL DISTRICT NUMBER 2
St. Louis County (Part)
St. Ferdinand Township 72,022
Airport Township 108,477
Midland Township 55,790
Creve Coeur Township (Part) Except for 47,097
census tracts or portions of census
tracts within Creve Coeur Township as
listed:
Except (-)
Census Tract 2159 -6,458
Census Tract 2162 -6,745
Clayton Township (Part) Except for census 43,792
tracts or portions of census tracts
within Clayton Township as listed:
Except (-)
Census Tract 2164 -6,544
Census Tract 2189 -7,266
Gravois Township (Part) Except for census 26,391
tracts or portions of census tracts
within Gravois Township as listed:
Except (-)
Census Tract 2196 -2,034
Census Tract 2197 -6,878
Census Tract 2198 -9,052
Census Tract 2208.01 -7,031
Census Tract 2208.02 -5,265
Census Tract 2208.03 -5,670
Census Tract 2212.01 - 214
Ferguson Township (Part) Census tracts or 24,402
portions of census tracts within Ferguson
Township as listed:
Census Tract 2127 8,555
Census Tract 2124 2,986
Census Tract 2125 5,945
Census Tract 2126 6,720
Census Tract 2128 (Part) 196
Census Tract 2137 (Part) 0
Bonhomme Township (Part) Except for
census tracts or portions of census
tracts within Bonhomme Township as
listed:
Except (-)
Census Tract 2216 -1,190
Census Tract 2178.01 -2,032
Census Tract 2178.02 -7,797
Census Tract 2178.03 -11,224
468,808
CONGRESSIONAL DISTRICT NUMBER 3
St. Louis County (Part)
Concord Township 58,576
Lemay Township 60,559
Gravois Township (Part) Census tracts
or portions of census tracts within
Gravois Township as listed:
Census Tract 2197 6,878
Census Tract 2198 9,052
Census Tract 2208.01 7,031
Census Tract 2208.02 5,265
Census Tract 2208.03 5,670
Census Tract 2212.01 214
St. Louis City (Part) Census tracts or portions
of census tracts within St. Louis
City as listed:
Census Tract 1011 4,166
Census Tract 1012 4,436
Census Tract 1013 5,836
Census Tract 1014 4,138
Census Tract 1015 4,516
Census Tract 1016 1,345
Census Tract 1017 4,441
Census Tract 1017.99 36
Census Tract 1021 3,564
Census Tract 1022 8,274
Census Tract 1023 2,771
Census Tract 1024 3,174
Census Tract 1025 2,514
Census Tract 1031 4,419
Census Tract 1032 4,857
Census Tract 1033 1,209
Census Tract 1034 2,967
Census Tract 1035 1,049
Census Tract 1036 2,145
Census Tract 1037 3,743
Census Tract 1041 4,439
Census Tract 1042 5,716
Census Tract 1043 2,829
Census Tract 1044 668
Census Tract 1131 6,256
Census Tract 1132 3,079
Census Tract 1133 1,178
Census Tract 1134 1,420
Census Tract 1141 11,028
Census Tract 1142 6,534
Census Tract 1143 7,620
Census Tract 1151 4,612
Census Tract 1152 3,804
Census Tract 1153 7,177
Census Tract 1154 3,999
Census Tract 1155 7,447
Census Tract 1156 6,368
Census Tract 1157 5,021
Census Tract 1161 4,083
Census Tract 1162 7,011
Census Tract 1163 8,597
Census Tract 1164 6,519
Census Tract 1165 6,230
Census Tract 1171 3,052
Census Tract 1172 10,877
Census Tract 1173 7,283
Census Tract 1174 7,554
Census Tract 1181 3,815
Census Tract 1182 4,757
Census Tract 1183 591
Census Tract 1184 1,703
Census Tract 1185 3,623
Census Tract 1191 7,937
Census Tract 1193 6,164
Census Tract 1221 2,737
Census Tract 1222 270
Census Tract 1224 7,043
Census Tract 1231 8,097
Census Tract 1232 4,430
Census Tract 1233 6,289
Census Tract 1234 5,576
Census Tract 1235 50
Census Tract 1241 7,528
Census Tract 1242 5,715
Census Tract 1243 7,522
Census Tract 1244 637
Census Tract 1245 2,595
Census Tract 1251 2,397
Census Tract 1253 587
Census Tract 1211 4,235
467,544
DISTRICT FOUR
Barton County 10,431
Cass County 39,448
Bates County 15,468
Vernon County 19,065
St. Clair County 7,667
Henry County 18,451
Johnson County 34,172
Lafayette County 26,626
Saline County 24,837
Pettis County 34,137
Benton County 9,695
Hickory County 4,481
Morgan County 10,068
Cooper County 14,732
Howard County 10,561
Jackson County (Part):
Blue Township 186,188
Less Kansas City -64,596
121,592
Fort Osage Township 4,193
Prairie Township 18,369
SniABar Township 15,244
Van Buren Township 3,602
Blue Township (Part) Census tracts or
portions of census tracts within Blue
Township as listed:
Census Tract 107.01 1,517
Brooking Township (Part) Census tracts or
portions of census tracts within Brooking
Township as listed:
Census Tract 142 156
143 2,780
144 824
145 41
125.01 4,192
125.02 3,316
125.03 1,480
127.01 6,559
127.02 594
128.02 2,642
466,940
CONGRESSIONAL DISTRICT NUMBER 5
Jackson County (Part)
Kaw Township 276,992
Blue Township (Part)
Kansas City City (Part) Except for census 63,079
tracts or portions of census tracts
within Kansas City City as listed:
Except (-)
Census Tract 107.01 -1,517
Washington Township 85,713
Brooking Township (Part) Except for census 41,673
tracts or portions of census tracts
within Brooking Township as listed:
Except (-)
Census Tract 142 - 156
Census Tract 143 -2,780
Census Tract 144 - 824
Census Tract 145 - 41
Census Tract 125.01 -4,192
Census Tract 125.02 -3,316
Census Tract 125.03 -1,480
Census Tract 127.01 -6,559
Census Tract 127.02 - 594
Census Tract 128.02 -2,642
467,457
DISTRICT SIX
Adair 22,472
Atchison County 9,240
Nodaway County 22,467
Worth County 3,359
Harrison County 10,257
Mercer County 4,910
Holt County 6,654
Andrew County 11,913
Gentry County 8,060
Daviess 8,420
Grundy County 11,819
Sullivan County 7,572
Buchanan County 86,915
Clinton County 12,462
Caldwell County 8,351
Livingston County 15,368
Linn County 15,125
Platte County 32,081
Clay County 123,644
Ray County 17,599
Carroll County 12,565
Chariton County 11,084
DeKalb County 7,305
469,642
DISTRICT SEVEN
Jasper County 79,852
Newton County 32,901
McDonald County 12,357
Dade County 6,850
Lawrence County 24,585
Barry County 19,597
Polk County 15,415
Dallas County 10,054
Laclede County 19,944
Greene County 152,929
Webster County 15,562
Wright County 13,667
Christian County 15,124
Douglas County 9,268
Stone County 9,921
Taney County 13,023
Ozark County 6,226
Cedar County 9,424
466,699
DISTRICT EIGHT
Howell County 23,521
Oregon County 9,180
Texas County 18,320
Shannon County 7,196
Dent County 11,457
Pulaski County 53,967
Crawford County 14,828
Washington County 15,086
Franklin County 55,116
Gasconade County 11,878
Maries County 6,851
Miller County 15,026
Cole County 46,228
Osage County 10,994
Boone County 80,911
Camden County 13,315
Moniteau County 10,742
Phelps County 29,567
St. Louis County (Part):
Meramec Township 11,106
Bonhomme Township (Part) Census tracts
or portions of census tracts within
Bonhomme Township as listed:
Census Tract 2216 1,190
Census Tract 2178.01 2,032
Census Tract 2178.02 7,797
Census Tract 2178.03 11,224
467,532
DISTRICT NINE
Callaway County 25,950
Putnam County 5,916
Macon County 15,432
Schuyler County 4,665
Scotland County 5,499
Clark County 8,260
Knox County 5,692
Lewis County 10,993
Shelby County 7,906
Marion County 28,121
Randolph County 22,434
Monroe County 9,542
Ralls County 7,764
Audrain County 25,362
Pike County 16,928
Montgomery County 11,000
Lincoln County 18,041
St. Charles County 92,954
St. Louis County (Part):
Spanish Lake Township 40,905
Florissant Township 78,551
Ferguson Township (Part) Except for census 16,376
tracts or portions of census tracts
within Ferguson Township as listed:
Except (-)
Census Tract 2127 -8,555
Census Tract 2124 -2,986
Census Tract 2125 -5,945
Census Tract 2126 -6,720
Census Tract 2128 (Part) - 196
Census Tract 2137 (Part) - 0
Warren County 9,699
467,990
DISTRICT TEN
Dunklin County 33,742
Pemiscot County 26,373
New Madrid County 23,420
Mississippi County 16,647
Butler County 33,529
Ripley County 9,803
Stoddard County 25,771
Scott County 33,250
Carter County 3,878
Reynolds County 6,106
Wayne County 8,546
Bollinger County 8,820
Cape Girardeau County 49,350
Iron County 9,259
St. Francois County 36,818
St. Genevieve County 12,867
Jefferson County 105,248
Perry County 14,393
Madison County 8,641
466,731
WILLIAM H. BECKER, Chief District Judge (specially concurring):
The plan approved by the per curiam opinion and judgment is constitutionally sound and permissible. It also has many meritorious features from a high level political standpoint, even though it obviously will not please everyone. Indeed it is impossible to devise a plan which will please everyone.
My initial proposal was to adopt with minor improvements the plan contained in the House Committee Substitute for Senate Bill No. 370. It was statistically the better of the two plans of the Missouri House and Senate. As a matter of principle this initial proposal would have given life to the best of the two proposals of the Missouri General Assembly. Thereby the representatives of the people of Missouri would have participated in the formulation of the judicial plan to the fullest extent possible under the circumstances. And the inclusion of this permissible judicial technique would in the future provide a motive for healthy competition between the branches of state legislatures in approaching the ideal in case agreement between the two branches again becomes impossible.
NOTES
[1] One of whom, Paul W. Preisler, Esquire, has since died.