Lisco v. McNichols

• Citation: 208 F. Supp. 471
• Decision Date: 10 August 1962
• Docket Number: 7637.,Civ. A. No. 7501
• Parties: Archie L. LISCO, and all Other Registered Voters of the Denver Metropolitan Area, State of Colorado, Similarly Situated, Petitioners, v. Stephen L. R. McNICHOLS as Governor of the State of Colorado, Tim Armstrong as Treasurer of the State of Colorado, George Baker as Secretary of the State of Colorado, the State of Colorado and the General Assembly Thereof, Respondents. William E. MYRICK, John Christensen, Ed Scott, Gordon Taylor, Henry Allard, Andres Lucas, John L. Kane, William J. Wells, Frank A. Carlson, William Eppinger, Allen L. Williams, Ruth S. Stockton, Kenneth Fenwick, Chester Hoskinson, and Joe B. Lewis, individually and as citizens of the State of Colorado, residents in the Counties of Adams, Arapahoe, and Jefferson, and taxpayers and voters in the State of Colorado, for themselves and for all other persons similarly situate, Plaintiffs and Petitioners, v. The FORTY-THIRD GENERAL ASSEMBLY OF the STATE OF COLORADO; Hon. Stephen L. R. McNichols, as Governor of the State of Colorado; Hon. Tim Armstrong, as Treasurer of the State of Colorado; and Hon. George Baker, as Secretary of State of the State of Colorado, Respondents and Defendants. Federal Plan for Apportionment, Inc., a Colorado corporation not for profit, Edwin C. Johnson, John C. Vivian, Joseph F. Little, Warwick Downing, Wilber M. Alter, as incorporators and directors thereof and individually and as citizens, residents and taxpayers of the State of Colorado, and John Doe, individually and as a citizen of the State of Colorado, a resident and inhabitant of the City and County of Denver, and a taxpayer of the State of Colorado, on behalf of themselves and for all persons similarly situate, Interveners.
• Court: U.S. District Court — District of Colorado

208 F. Supp. 471

Archie L. LISCO, and all Other Registered Voters of the Denver Metropolitan Area, State of Colorado, Similarly Situated, Petitioners, v. Stephen L. R. McNICHOLS as Governor of the State of Colorado, Tim Armstrong as Treasurer of the State of Colorado, George Baker as Secretary of the State of Colorado, the State of Colorado and the General Assembly Thereof, Respondents.

William E. MYRICK, John Christensen, Ed Scott, Gordon Taylor, Henry Allard, Andres Lucas, John L. Kane, William J. Wells, Frank A. Carlson, William Eppinger, Allen L. Williams, Ruth S. Stockton, Kenneth Fenwick, Chester Hoskinson, and Joe B. Lewis, individually and as citizens of the State of Colorado, residents in the Counties of Adams, Arapahoe, and Jefferson, and taxpayers and voters in the State of Colorado, for themselves and for all other persons similarly situate, Plaintiffs and Petitioners, v. The FORTY-THIRD GENERAL ASSEMBLY OF the STATE OF COLORADO; Hon. Stephen L. R. McNichols, as Governor of the State of Colorado; Hon. Tim Armstrong, as Treasurer of the State of Colorado; and Hon. George Baker, as Secretary of State of the State of Colorado, Respondents and Defendants.

Federal Plan for Apportionment, Inc., a Colorado corporation not for profit, Edwin C. Johnson, John C. Vivian, Joseph F. Little, Warwick Downing, Wilber M. Alter, as incorporators and directors thereof and individually and as citizens, residents and taxpayers of the State of Colorado, and John Doe, individually and as a citizen of the State of Colorado, a resident and inhabitant of the City and County of Denver, and a taxpayer of the State of Colorado, on behalf of themselves and for all persons similarly situate, Interveners.

Civ. A. Nos. 7501, 7637.

United States District Court D. Colorado.

August 10, 1962.

Salazar & Delaney, Denver, Colo., for petitioners in Civ. A. No. 7501.

Duke W. Dunbar, Atty. Gen., for the State of Colorado, Frank E. Hickey, Deputy Atty. Gen., and Richard W. Bangert, Asst. Atty. Gen., Denver, Colo., for respondents in Civ. A. No. 7501.

Charles Ginsberg, George Louis Creamer, Denver, Colo., for plaintiffs and petitioners in Civ. A. No. 7637.

Duke W. Dunbar, Atty. Gen., for the State of Colorado, Frank E. Hickey, Deputy Atty. Gen., and Richard W. Bangert, Asst. Atty. Gen., Denver, Colo., for respondents and defendants in Civ. A. No. 7637.

Charles S. Vigil, and Richard S. Kitchen, Sr., Denver, Colo., for interveners.

Philip J. Carosell, Denver, Colo., amicus curiae.

Before BREITENSTEIN, Circuit Judge, ARRAJ, Chief Judge, and DOYLE, District Judge.

PER CURIAM.

The above cases were consolidated for trial and disposition. The actions in each instance are on behalf of the plaintiffs for themselves and others similarly situated as taxpayers and qualified voters of the State of Colorado.

In Civil Action No. 7501 it is alleged that the plaintiff is a property owner and a registered voter who resides in Denver. He seeks to compel certain state officers to take specific affirmative action for the purpose of complying with the Fourteenth Amendment to the Constitution of the United States.

In Civil Action No. 7637 the plaintiffs allege that the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States guarantees equality of franchise and that the present legislative apportionment statutes¹ deprive them of the equality of franchise and vote which the Fourteenth Amendment guarantees, whereby these statutes are in conflict therewith; that the statutes as applied to the 1960 federal census reveal gross inequalities and disparities in voting rights; that in some instances the disparities reach a proportion of eight-to-one.

Defendants, the Governor, State Treasurer, Secretary of State and General Assembly of the State of Colorado, have filed answers in which they challenge the jurisdiction of this Court, assert their own immunity from suit, and deny any unconstitutional discriminations.

Certain proponents of an initiated measure have, with the permission of the Court, intervened. From their complaint it appears that they are sponsoring an amendment to the Colorado Constitution which will appear on the ballot in the general election to be held in November, 1962. This measure, according to the allegations of the petition and the evidence adduced at the hearing, would constitutionally establish the senatorial districts and would at the same time increase the membership of the Senate, giving additional senators to more populous districts and would authorize the districting of the House upon a population basis in the year 1963 and after each federal census thereafter. From the petition it also appears that another amendment² will appear on the November ballot. This would provide for the districting of both houses by a commission on a population basis, subject to review by the Supreme Court of Colorado. The prayer of interveners is that the Court dismiss these actions, or continue the consolidated cause until after the November election, or declare invalid Section 47 of Article V of the Colorado Constitution which, according to interveners, forbids the subdivision (by the Legislature) of legislative districts.³

The Colorado legislature, which is called the General Assembly, is bicameral in character. The Senate has 35 members, elected for four-year staggered terms from 25 senatorial districts which are created by statute.⁴ The House of Representatives has 65 members who are elected for two-year terms from 35 districts which are created by statute.⁵

The apportionment provision in the Colorado Constitution⁶ authorizes the Assembly to create districts and to fix ratios, but requires that this be done with reference to federal or state enumerations. It provides that after each census made as provided by the State, or under the authority of the United States, the General Assembly "shall revise and adjust the apportionment for senators and representatives, on the basis of such enumeration according to ratios to be fixed by law."

In an original proceeding in the Supreme Court of Colorado, In the Matter of Legislative Reapportionment, 374 P. 2d 66, 1962, that court construed the provision of the Constitution of Colorado in respect to the mandate to the Legislature to reapportion following the United States census to not require that apportionment take place in the session immediately following the census. The holding was that the "session next following an enumeration made by the authority of the United States" does not require reapportionment at the session immediately following the census report and as applied to the case before the Court held that "such legislation is not mandatory until the Forty-fourth General Assembly convenes."⁷

The federal constitutional question here presented was not considered, but the Court noticed the fact that the mentioned initiative measures will appear on the ballot in November and in recognition of this and of the possible defeat of both measures,⁸ the court retained jurisdiction until June 1, 1963, granting leave to reopen at that time if no constitutional amendment or legislative apportionment has meanwhile been adopted.

The record discloses that since Colorado first achieved statehood there has been a modicum of apportionment, either real or purported, and also that there have been several abortive attempts. Since 1876 the General Assembly has been reapportioned, or redistricted, five times: in 1881, 1901, 1913, 1932 and 1953. The 1953 statutes⁹ are now in effect. Measures were introduced in the last General Assembly¹⁰ to reapportion with reference to the 1960 federal census report. These measures failed to pass. One initiated reapportionment act has been passed during the period since 1876. This measure was adopted in 1932 but following its adoption the General Assembly passed its own legislative reapportionment act in 1933 which was designed to thwart the operation of the initiated act. This latter act was held by the Colorado Supreme Court to be unconstitutional.¹¹

Factual data presented at the trial reveals the existence of gross and glaring disparity in voting strength as between the several representative and senatorial districts. Colorado's present population, determined by the 1960 federal census, is 1,753,947. During the decade from 1950 to 1960 there was a percentage increase amounting to 32.4. During this period the urban areas increased 55.5 per cent. and there was a decrease in the rural areas amounting to 6.6 per cent. The population in 36 of the 63 counties decreased. Some specific examples of the disproportion are here mentioned: The most exaggerated example is in a district (having a single representative) which was shown to have a population of only 7,867 as compared with another representative district (having two representatives) for a population of 127,520 people. Similar disparity exists in the senatorial districts. A single senator represents a district of 127,520 people while another senator has 17,481 people in his district. A senator from one of the seven most populous districts represents on the average 90,309 constituents; a senator from one of the eighteen least populous districts represents on the average 29,013 persons. A representative from one of the seven most populous districts represents on the average 46,342 while a representative from one of the twenty-eight less populous districts represents an average of 15,993 persons. Also noteworthy is the fact that 29.8 per cent. of the 1960 population is capable of electing a majority of the Senate, and 32.1 per cent. of the population is capable of electing a majority in the House of Representatives. Stated differently, it can be said that 562,741 persons elect 33 representatives, a majority, whereas 1,190,306 persons elect 32 representatives, a minority of the House. Similarly, in the Senate 556,912 voters elect 19 of the 35 senators, whereas 1,207,035 elect the remaining 16...