Mann v. Davis
| Citation | 213 F. Supp. 577 |
| Decision Date | 28 November 1962 |
| Docket Number | Civ. A. No. 2604. |
| Parties | Harrison MANN et al., Plaintiffs, v. Levin Nock DAVIS et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Edmund D. Campbell, Arlington, Va., and E. A. Prichard, Fairfax, Va., for plaintiffs.
Henry E. Howell, Jr., Sidney H. Kelsey, and Leonard B. Sachs, Norfolk, Va., for plaintiff-intervenors.
Robert Y. Button, Atty. Gen. of Virginia, R. D. McIlwaine, III, Asst. Atty. Gen. of Virginia, David J. Mays, and
Henry T. Wickham, Richmond, Va., for defendants.
Before BRYAN, Circuit Judge, and HOFFMAN and LEWIS, District Judges.
Virginia's legislative apportionment statutes1 of 1962 are here assailed as violative of the Equal Protection Clause of the Federal Constitution's Fourteenth Amendment. Plaintiffs (including intervenors) are registered and otherwise qualified voters of the State of Virginia residing, respectively, in Arlington County, Fairfax County and the City of Norfolk. Their complaint is that the apportionment reduces the value of a vote in these districts far below that of a vote in many other Senatorial and House districts of Virginia. The charge, we hold, has been proved.
The civil rights statutes, 42 U.S.C. §§ 1983 and 1988, are pleaded as authorizing the action; jurisdiction is rested on 28 U.S.C. § 1343(3). Alleging they sue on behalf of all other voters similarly situated in the Commonwealth of Virginia, as well as for themselves, plaintiffs name as defendants the members of the State Board of Elections and local election officials, together with the Governor and the Attorney General of Virginia.
The relief sought is (1) a judgment voiding the apportionment acts, (2) injunctive restraint of the defendants from conducting elections under these laws, and (3) an apportionment by the Court if the General Assembly fail, after the decree of injunction, to reapportion the State in conformity with legal standards.
I. Defendants move on several grounds to dismiss the complaint. However, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) unequivocally declares, contrary to the first assertion of the motion, that allegations comparable to those now before us state a claim upon which the relief here prayed may be granted. Nor is dismissal justified on the further ground that the plaintiffs have an appropriate remedy in the Virginia courts, for the "exceptional circumstances" are not here for the State remedy to oust Federal jurisdiction. Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); United States v. Bureau of Revenue, 291 F.2d 677, 679 (10 Cir., 1961); Carson v. Warlick, 238 F.2d 724, 729 (4 Cir., 1956), cert. denied, 353 U.S. 910, 77 S.Ct. 665, 1 L.Ed.2d 664 (1957). Nor is this a suit against a State barred by the Eleventh Amendment, as defendants contend. It is a suit against State officials acting pursuant to State laws, a type of action universally held appropriate to vindicate a Federally protected right. Ex parte Young, 209 U.S. 123, 155-156, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Duckworth v. James, 267 F.2d 224, 230-231 (4 Cir.), cert. denied, 361 U.S. 835, 80 S.Ct. 88, 4 L.Ed.2d 76 (1959); Kansas City So. Ry. v. Daniel, 180 F.2d 910, 914 (5 Cir., 1950). Likewise contrary to the motion, we find the complaint pleads a class action; it pleads, too, an actual controversy within the Declaratory Judgment Act, 28 U.S.C. § 2201. We sustain, however, the motion to dismiss the Governor and the Attorney General of Virginia as defendants, for they have no "special relation" to the elections in suit. Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
The remaining ground of the motion asks us to stay the case until the plaintiffs procure the State courts' views upon the validity of the apportionment. But in our understanding of it abstention is not appropriate here. To begin with, there is no ambiguity in the statutes; they are not in need of interpretation, for they exactly fix and announce the representation of the General Assembly districts. Nor are the Virginia Constitution's provisions, which sired the acts and are quoted in a moment, lacking in clarity. These provisions, argue the defendants, purposely do not outline the criteria by which the apportionment is to be made and advisedly leave the standards to the judgment of the General Assembly. This suggests, defense counsel urge, that Virginia's own courts should first pass upon the composition of the districts, for they are presumably more intimately acquainted with the local conditions doubtlessly weighed by the General Assembly in the passage of the acts. The answer is that there is nothing in the State Constitution referring the General Assembly to any specific local considerations peculiarly within its knowledge. Whether the acts of the Assembly are within the aim and purpose of the Constitution can, therefore, be gained only from the bare words of its clauses, fair inferences from the acts themselves and commentary evidence. This determination is thus as well within the competence of a Federal court sitting in Virginia.
Furthermore, the strong implication of Baker v. Carr, if not its command, is that the Federal three-judge court should retain and resolve the litigation. The decision was so read by the Court in Toombs v. Fortson, 205 F.Supp. 248 (N.D.Ga.1962). Nothing different can be spelled from Scholle v. Hare, 369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1 (1962). That case was sent back to the State court because it had its origin there, not because the Supreme Court preferred the State court. We find no precedent for abstention in the circumstances of our case.
II. The sections of the Virginia Constitution in suit are these:
The 1962 acts of the General Assembly established 36 senatorial districts, assigning them 40 Senators, and 70 districts for the House of Delegates, distributing 100 members among them. The only ground-rule in the State Constitution for the placement of Senators and Delegates is contained, as we have seen, in its section 43's references to "apportionment of the Commonwealth into senatorial and house districts" and subsequent "reapportionment". These, obviously, are broad dimensions. Brown v. Saunders, 159 Va. 28, 166 S.E. 105, 107 (1932).
Nevertheless, the Equal Protection Clause of the Fourteenth Amendment, as the plaintiffs rightly stress, demands that this apportionment accord the citizens of the State substantially equal representation. Plaintiffs charge that the 1962 statutes so far transgress this mandate of the Federal Constitution as to inflict "invidious discrimination" upon the plaintiffs. The injury is suffered, they aver, through their under-representation in the General Assembly occasioned by the misapportionment of Senators and Delegates—their votes have been diluted because the ratio of their population to the number of their representatives is far greater than in the other districts delineated by the acts
The disparities in the Senate found in the 1962 apportionment acts are pointed up by the plaintiffs' evidence as follows:
A citizen of Arlington, Fairfax, or Norfolk has representation or voting power in the Senate of less than ½ of that possessed by a citizen of any of 6 of the 33 remaining districts in the State. Putting it conversely, his voting power is more than 2-times the voting power of any of the plaintiffs. Further, in 5 more of the districts the power of each vote is almost twice that of any plaintiff on an average. Thus 1/3 of the other 33 senatorial districts are nearly 100% richer in each vote's worth than are the plaintiffs' districts.
In substantiation of this summary the plaintiffs offered in evidence these figures:
Virginia's 1960 population is 3,966,949. Dividing this total by the number of Senators—40—gives an ideal representation of one Senator for each 99,174 persons.
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