Connor v. Johnson, Civ. A. No. 3830.

• Decision Date: 16 June 1971
• Docket Number: Civ. A. No. 3830.
• Citation: 330 F. Supp. 521
• Parties: Peggy J. CONNOR et al., Plaintiffs, v. Paul B. JOHNSON et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

330 F. Supp. 521

Peggy J. CONNOR et al., Plaintiffs, v. Paul B. JOHNSON et al., Defendants.

Civ. A. No. 3830.

United States District Court, S. D. Mississippi, Jackson Division.

June 16, 1971.

John Maxey, George Peach Taylor, and Fred Banks, Jr., Jackson, Miss., for plaintiffs.

A. F. Summer, State Atty. Gen., William Allain, and James E. Rankin, Spec. Asst. Attys. Gen., Jackson, Miss., for defendants.

Before COLEMAN, Circuit Judge, and COX and RUSSELL, District Judges.

OPINION OF COURT ON REMAND FROM SUPREME COURT STAYING ORDER DATED JUNE 3, 1971

PER CURIAM.

Hinds County, Mississippi is entitled to twelve Representatives and five Senators in the Mississippi Legislature.

In our decision of May 18, 1971, 330 F.Supp. 506 we held: "There is no evading the fact that with the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly divide these counties (including Hinds) into districts for the election of single members of the Senate or the House in time for the elections of 1971" (page 519).

On June 3, 1971, in a Stay Order, the Supreme Court, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268, instructed this Court, "absent insurmountable difficulties," to devise and put into effect a single member district plan for Hinds County by June 14, 1971.

Within less than forty-eight hours, with the consent of the litigants, this Court on June 5, 1971 held an evidentiary hearing for the purpose of complying with that order of the Supreme Court.

FINDING OF FACTS, CONCLUSIONS OF LAW AND REPORT TO THE SUPREME COURT

Pursuant to the foregoing, this Court now makes the following finding of facts, conclusions of law and report to the Supreme Court.

1. Like every county in Mississippi, as required by the State Constitution, Hinds County is divided into five beats (supervisor districts) which are designated numerically from one to five.

2. Likewise, as required by state law, these beats are divided into voting precincts with specifically defined boundaries for holding of elections. All citizens residing within the boundaries of a precinct register with the County Registrar for that precinct, and vote at a polling place opened at a designated location within the precinct. Ballots are printed, or voting machines are programmed for the individual precinct.

3. Mississippi uses permanent registration of voters; that is, once a voter registers to vote in a particular precinct, he remains so registered until he moves away, dies, or a new registration is compelled by redistricting the county, or such similar event.

4. In 1969, under Federal Court order, the five beats in Hinds County were reapportioned under the one man, one vote rule. This, of course, required radical changes in the beat lines theretofore existing, and also in precinct lines. For some reason, unrevealed by evidence in this case, the U.S. Census of 1970 was taken according to old beats, and not according to the new. In the meantime, a new registration to conform to the changed beat lines is proceeding in Hinds County, but the deadline for registration to vote in the next Legislative election does not occur until July 2, 1971 (four months prior to the general election and thirty days prior to the primary). So the registration process is not yet complete and the number of voters who will participate is not yet known.

5. At the evidentiary hearing, plaintiffs readily conceded that the plan originally submitted to this Court by plaintiffs, and later filed with the Supreme Court, was based on an erroneous precinct map.

6. Since existing census maps did not and do not tally with precinct lines, the population of the various precincts cannot be established, except by estimate.

7. At the evidentiary hearing, the plaintiffs declined to agree to the use of the new beats as a basis of subdividing the county because these reconstituted beats are not of substantially equal population, as vigorously asserted by the plaintiffs.

8. Confronted with this impossible situation and after due deliberation, this Court on June 8, 1971 appointed William D. Neal, a particularly well qualified person, as Special Master with directions that he explore every possibility under the record before the Court of dividing the county into single member districts for the election of twelve Representatives and five Senators from Hinds County, and report to this Court. The order appointing the Special Master is hereto appended as Exhibit "A."

9. The Special Master submitted and filed his report to this Court on June 14, 1971. His report is hereto appended as Exhibit "B." Upon filing said report, the Court gave reasonable notice under the circumstances to the parties of the filing of said report, and invited exceptions thereto within a given time. Exceptions to said report have been filed by the plaintiffs, and have been duly examined and considered by the Court; and the Court being of the opinion that such exceptions and the amendment thereto are without merit and should be denied. The Special Master was not vested with any power to receive any further evidence, or testimony, but was employed by the Court out of an abundance of precaution as a recognized expert in this field to point out to this Court, if he could in the record before the Court, how this Court could comply with the order of the Supreme Court in creating single member districts in Hinds County for the election of Senators and Representatives for the State Legislature in the 1971 primaries. Those exceptions in the main are couched in conclusions and contentions which are lacking in this record in factual support. The plaintiffs virtually admit the impossibility of such task and seek to deviate from the record before the Court by suggesting the creation of multimember districts for the election of such officials in Hinds County, contrary to the orders and directions of the Supreme Court.

10. The Special Master, for the reasons enumerated in his report, concluded that no accurate or reliable population totals are available by new supervisors district lines, or new precinct lines. There appears to be no way, except by a new enumeration of population, to accurately determine the number of people within existing precinct boundaries.

Under these facts and circumstances, this Court finds as an irrefragable fact that it is confronted with insurmountable difficulties against the division of Hinds County, Mississippi into separate single member districts for the election of five Senators and twelve Representatives.

After having thus exhausted every resource at its command to comply with the order of the Supreme Court, and finding it even now to be impossible to do so, this Court is of the opinion that Senators and Representatives from Hinds County to the Mississippi Legislature must be elected from the county at large in the 1971 elections, unless otherwise subsequently ordered by the Supreme Court. The objections and exceptions to the report of the Special Master are without merit and should be denied. The motion of the defendants to modify the former finding of facts and conclusions of law of this Court in this case is without merit and will be denied. The defendants misconceive the function of the Special Master, and the scope and range of the duties assigned to him. Neither party has any vested right to a hearing on exceptions to such a report, and this Court finds such exceptions to be without merit and to have no possible effect upon the ultimate disposition of this case. There is simply nothing in the evidence in this case, or even in the argumentive exceptions of the plaintiffs to show anybody in search of the truth that single member districts for these legislative offices in Hinds County can be created with any reliable and dependable evidence in this record as support therefor. The time for Senators and Representatives to qualify as candidates for said offices in Hinds County, Mississippi is extended until noon on Saturday, June 19, 1971, and candidates for said offices should be permitted to qualify as candidates therefor on or before said time and date.

This Court is further of the opinion that twenty-five copies of the judgment of this Court on remand, accompanied by twenty-five copies of these findings and conclusions, should be immediately transmitted by air mail to the Clerk of the Supreme Court of the United States for their further information and immediate use in this case. These findings and conclusions constitute the unanimous opinion of this Court and shall be certified with and as a part of the record and judgment of this Court.

EXHIBIT A

Before COLEMAN, Circuit Judge, and COX and RUSSELL, District Judges.

ORDER APPOINTING SPECIAL MASTER

On June 3, 1971, the Supreme Court of the United States entered an order staying the judgment of this Court dated May 18, 1971 in the above styled and numbered cause, with directions that Hinds County, Mississippi, absent insurmountable difficulties, be divided into five districts for the election of State Senators and twelve districts for the election of Representatives in the Mississippi Legislature;

On June 5, 1971, with the consent of the parties, this Court held a plenary hearing to determine if such could be accomplished from data now available or obtainable, as a result of which this Court now finds it impossible on the present record to accomplish such a division of Hinds County into single member districts for the election of representatives and senators in the Mississippi Legislature.

Now, therefore, in a further effort to comply with the Order of the Supreme Court dated June 3, 1971, it is by this Court

Ordered

That William D. Neal, a citizen of Hinds County, Mississippi, former State Auditor, with adequate computer facilities immediately available to him, and a person highly competent to serve as such, be and he is hereby appointed Special Master in this case...