Connor v. Waller, Civ. A. No. 3830(A).

• Decision Date: 19 May 1975
• Docket Number: Civ. A. No. 3830(A).
• Citation: 396 F. Supp. 1308
• Parties: Peggy J. CONNOR et al., Plaintiffs, v. William L. WALLER et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

396 F. Supp. 1308

Peggy J. CONNOR et al., Plaintiffs, v. William L. WALLER et al., Defendants.

Civ. A. No. 3830(A).

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

May 19, 1975.

Frank R. Parker, Jackson, Miss., for plaintiffs.

A. F. Summers, Atty. Gen., Jackson, Miss., for defendants.

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

COLEMAN, Circuit Judge.

The sole issue in this case is whether House Bill 1290 and Senate Bill 2976¹ of the Acts of the Mississippi Legislature, Regular Session of 1975, approved by the Governor on April 7 and April 8, have reapportioned the State Legislature in conformity with the Constitution of the United States.

The attack on the validity of these Acts is divided into two parts:

(1) The apportionment does not comply with the one person-one vote rule;

(2) The apportionment resulted in an unconstitutional dilution of the black vote for selection of the Legislature.

Since the qualifying deadline for candidates for the Legislature is June 5, 1975, the Court has proceeded to hear and determine the matter as expeditiously as possible, considering the intervention of the Judicial Conference of the Fifth Circuit, April 28-May 1, 1975, which the members of this Court were required by law to attend.

A hearing was held in Jackson on May 7. Briefs have been received and considered. We now decide the case.

Except for the election of Representatives from Harrison County, to be hereinafter discussed, we find no constitutional infirmity. Other than as to Harrison County, the complaint will be dismissed.

The History of this Litigation

This three-judge District Court, composed of the same Judges, has been occupied with the reapportionment of the Mississippi Legislature since October 19, 1965, Connor v. Johnson, 256 F.Supp. 962 (S.D.Miss., 1966). On July 22, 1966, we invalidated the apportionment of the Mississippi Legislature as it then existed, Connor v. Johnson, supra.

The regular quadrennial primary elections were scheduled for August, 1967. We delayed court ordered redistricting so as to give the Mississippi Legislature until December 1, 1966 in which to enact a reapportionment plan of its own. The Legislature was unable to agree on reapportionment in any form.

On March 3, 1967, we found it necessary to enter a decree reapportioning the Senate and the House of Representatives of the State of Mississippi in accordance with the one person-one vote rule, 265 F.Supp. 492 (S.D.Miss., 1967). There was no appeal. These proceedings were grounded on the United States Census of 1960.

There was no further action until the 1971 Legislature (elected in 1967) set about the enactment of a reapportionment based on the 1970 Census. On May 18, 1971, we held that the 1971 legislative reapportionment did not comply with the one person-one vote rule. The 1971 quadrennial elections being imminent, we formulated a court ordered plan of reapportionment, Connor v. Johnson, 330 F.Supp. 506. The population figures, norms and variances, are there set forth in detail.

On June 3, 1971 (Mr. Chief Justice Burger, Mr. Justice Black, and Mr. Justice Harlan dissenting), the Supreme Court stayed our decree until June 14. We were instructed, absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County and to extend the filing date for legislative candidates from that county to an appropriate date. In addition to the stay, the Supreme Court held that a decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act. The decision on this point was unanimous, Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268.

On June 16, D.C.Miss., 330 F.Supp. 521, we found that there were insurmountable difficulties to the division of Hinds County into single-member districts. The Supreme Court declined to interfere with this finding.

The 1971 legislative elections were held on schedule in accordance with the decree of May 14, 1971. On January 24, 1972, the Supreme Court declined to invalidate that election, Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704. However, the Court vacated our prior decree in order that a special master could be appointed to devise single-member districts for Hinds, Harrison, and Jackson Counties, saying "If we are to consider the applicability of Preisler and Wells to state legislative districts, it would be preferable to have before us a final judgment with respect to the entire State. To accomplish this result and to preserve the right to appeal from such a judgment, the judgment of the District Court is vacated . . . and the case is remanded to the District Court for further proceedings consistent with this opinion".

Significantly, however, the Supreme Court noted, 92 S.Ct. 658, fn. 4, the possibility "That the state legislature will adopt a plan of its own". It further said, "This Court has frequently emphasized that `legislative reapportionment is primarily a matter for legislative consideration and determination, and . . . judicial relief becomes appropriate only when the Legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so'".

The outcome of all this was that the 1973 session of the Legislature enacted Chapters 456 and 457 of the Laws of 1973, approved April 6, 1973 House Bill 1389; Senate Bill 2452, reapportioning the Legislature in anticipation of the 1975 elections.

On April 19, 1973, plaintiffs, being dissatisfied with the 1973 Acts, filed their objections in this Court.

In the midst of the well known burdens imposed upon and shouldered by three-judge Courts in numerous such cases filed in Mississippi, having waited also for the completion of a judicial reapportionment of Hinds County then in progress, we reconvened on February 7, 1975, to consider the constitutionality of the 1973 legislation.

The Mississippi Legislature was then in session and several of its members attended the hearing. They heard the various objections raised. Some of them testified. They heard the discussion of what the Supreme Court, two weeks previously, had decided in Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975).

Among other things, some of which will be mentioned later in this opinion, the Supreme Court said:

"We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its Legislature or other body, rather than of a federal court (citations omitted). Hopefully, the 1975 North Dakota Legislative Assembly will perform that duty and enact a constitutionally acceptable plan. If it fails in that task, the responsibility falls on the District Court and it should proceed with dispatch to resolve this seemingly interminable problem."

Immediately after the hearing of February 7, it became public knowledge that the Legislature had initiated another effort to reapportion its membership. Heeding the teachings of Meier, we delayed a decision on the 1973 Acts to see if they were to be replaced by a 1975 enactment.

The Legislature did enact Senate Bill 2976 of the Acts of the Regular Session of 1975, reapportioning the State Senate, and House Bill 1290 of the same Session, reapportioning the House of Representatives. These bills were approved by the Governor on April 7 and 8.

As we saw it, this mooted prior proceedings before this Court. On April 10, 1975, we dismissed finally all prior proceedings without prejudice. We directed the plaintiffs to file, within five days, an amended complaint, directed to the 1975 Reapportionment Acts. The defendants were required to answer within five days thereafter.

We thus began with a fresh record, shorn of the papers accumulated during the previous ten years,² facilitating a resolution of the issues pertinent to the 1975 enactments, and likewise facilitating Supreme Court review, which was sure to follow.

The Law

(1)

One Person-One Vote

The appropriate standards of the one person-one vote rule applicable to state legislative reapportionment are no longer open to speculation or substantial doubt. In this connection, the 1973 Spring Term of the Supreme Court began a new era for the courts and for state legislators. See, Albany Law Review, Volume 38, Page 798 (1974).

On February 21, 1973, the Court handed down Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320. It held that a reapportionment statute maintaining the integrity of traditional county and city boundaries in Virginia while reapportioning legislative districts in a manner resulting in a percentage variation of 16.4 percent from the ideal district, with an average percentage variation of ± 3.89 percent, and providing for a combination of 52 single-member, multimember and floater delegate districts from which 100 delegates would be elected did not violate the Equal Protection Clause of the Fourteenth Amendment. It let stand multimember districts in Fairfax County, each for the election of five legislators.

In Mahan, the Supreme Court taught us that the constitutional validity of the reapportionment and redistricting of state legislative bodies (when done by the Legislature) is to be determined by the application of an "as nearly as practicable" equal protection test, not by a stringent population test. It was further held that the policy of preserving political boundaries is rational, that a rational state policy may justify deviations from the population requirements otherwise required by the Equal Protection Clause, and that a 16.4 percent maximum deviation from population equality may have approached but did not exceed tolerable limits.

The Court warned, of course, that the goal of substantial population equality may not be emasculated.

Then, on June 18, 1973, the Supreme Court decided Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37...