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

• Decision Date: 24 August 1976
• Docket Number: Civ. A. No. 3830(A).
• Citation: 419 F. Supp. 1072
• Parties: Peggy J. CONNOR et al., Plaintiffs, v. Cliff FINCH et al., Defendants, and United States of America, Plaintiff-Intervenor.
• Court: U.S. District Court — Southern District of Mississippi

419 F. Supp. 1072

Peggy J. CONNOR et al., Plaintiffs, v. Cliff FINCH et al., Defendants and United States of America, Plaintiff-Intervenor.

Civ. A. No. 3830(A).

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

August 24, 1976.

Frank R. Parker and John L. Maxey, II, Jackson, Miss., for plaintiffs.

Robert E. Hauberg, U. S. Atty., Jackson, Miss., Gerald W. Jones and Michael D. Johnson, U. S. Dept. of Justice, Washington, D. C., for United States.

A. F. Summer, Atty. Gen. of Miss., William A. Allain and Giles W. Bryant, Jackson, Miss., for defendants.

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

COLEMAN, Circuit Judge.

For the 1979 quadrennial Mississippi legislative elections, our task is to reapportion both Houses of the Mississippi Legislature.¹

I. The Directions of the Supreme Court, May 19, 1976

In an opinion dated May 19, 1976,² the Supreme Court held that this task should be performed agreeably to the teachings of Mahan v. Howell,³ Connor v. Williams,⁴ and Chapman v. Meier.⁵

While a writ of mandamus did not issue, the opinion further held that we should enter

"a final judgment embodying a permanent plan reapportioning the Mississippi Legislature in accordance with law to be applicable to the election of legislators in the 1979 quadrennial elections, and also ordering any necessary special elections to be held to coincide with the November 1976 Presidential and Congressional elections, or in any event at the earliest practicable date hereafter."

A hearing was scheduled for Wednesday, June 2. The Department of Justice was unable to appear on that date, so the hearing was rescheduled for, and held on, Tuesday, June 15, 1976.

In an effort to expedite the matter as much as possible, William D. Neal, who participated as a special master in the Court ordered reapportionments of 1967 and 1971, was appointed special master, with directions to compile the statistical data necessary to a plan for the fifty-two member State Senate.

Hoyt Holland, heretofore appointed a special master in this litigation, was directed to concentrate his efforts on similar data for the 122 member House of Representatives.

II. The Practical Aspects of the Task

The Mississippi Legislature is composed of 122 Representatives and 52 Senators (Sections 254, 255, Mississippi Constitution). In 1970 Mississippi had a population of 2,216,912. The population norm for a Senate Seat is 42,633; for a House Seat it is 18,171.

The State Constitution, Section 254, directs that "in each apportionment each county shall have not less than one Representative".

Thirty eight of Mississippi's eighty two counties have less than 18,171 people. To give every county one Representative would have the result that

"population is submerged as the controlling consideration in the apportionment of seats in this particular legislative body and the right of all the State's citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired if we were to award one Representative to every county", Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 1392, 12 L.Ed.2d 506 (1964).

Within the 122 member limit there is no way by which every county may be assigned one Representative. We are thus forced to abandon this standard.

THE INTEGRITY OF COUNTY BOUNDARIES

Since the admission of Mississippi as the twentieth state in the American Union (1817), the county has been the sole unit of state government. This has been considered to be of such critical importance that Section 260 of the Mississippi Constitution provides that no existing county boundary may be altered without the consent of a majority of the voters in the affected part of each of the counties involved.

Mississippi has a system of local and private legislation almost identical to that of Virginia, Miss.Const., 1890, Sec. 89; Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).

Counties having more than one Representative may provide for the election of such Representative by dividing such county into districts for the election of Representatives, Miss.Const., Sec. 254.

Each county is divided into five supervisors districts, Miss.Const., Sec. 170. These districts are known as "Beats", from the early days when the county governing board was called "The Police Jury", Miss. Code of 1857, p. 414.

The Board exercises executive and judicial functions, including the valuation of property for taxation, the levy of taxes, the expenditure of public funds, the issuance of bonds, and the management of the public roads. The Constitution requires that these officials be elected from the respective Beats, which means that a voting precinct must be located entirely within the same Beat. The voting precincts are of various voting strengths, being erected for the general public convenience, consistently with community patterns.

For about 75 years Mississippi has maintained a system of permanent voter registration. Except in the rare event of a total re-registration, once a person registers to vote within the precinct of his residence he need never register again as long as he continues to reside there. Poll lists for use on election day are maintained accordingly.

From the foregoing it inexorably follows that any single member legislative district has to be constructed primarily from counties, using beats and precincts as necessary to approach or attain the required population norm.

FRACTURING COUNTY BOUNDARIES

From the beginning of statehood the Mississippi State Senate has been elected from districts, generally composed of more than one county.

For 159 years, however, no legislative district has been formed by combining fractions of counties (fracturing county boundaries). For detailed history of this situation in Mississippi, see Connor v. Waller, 396 F.Supp. 1314, 1315.

In deference to this undisputed, well defined state policy, to which the voter is thoroughly accustomed, this Court previously has adhered to the principle that in the reapportionment of legislative seats it would not combine subdivisions of different counties; we would not fracture county boundaries. Indeed, such fractionalization, carried very far, would seriously disrupt (and impair) the basic fabric of Mississippi state government.

There is a practical consideration about fractionalizing counties which, so far, the Supreme Court does not seem to have addressed. If a Beat or a precinct in one county is detached for annexation to another county for the election of a Senator or a Representative, the voter residing in the detached area can certainly vote but the vote from a detached area having a small percentage of the total vote, will have very little weight against the "majority bastion" in the other county, certainly so if the interests of the Balkanized area do not coincide with those of the mass to which it has been attached. Independently of the mathematics demonstrated by mere numbers, dilution of voting strength would, in fact, occur.

The public policy of this State, expressly and repeatedly recognized by state constitutions and statutes, has been to allow multiple member legislative districts, avoiding the fractionalization of counties.

By the use of multiple member districts, without fracturing county boundaries, the Mississippi Legislature could be apportioned in a manner which would comply with one man-one vote principles. We are well aware that the Supreme Court has never yet directed any court to fractionalize counties or to fracture county lines. In Mahan the right to preserve the integrity of county boundaries was recognized. Yet, we have repeatedly been told that in the formulation of a court ordered legislative reapportionment plan single member districts must be used unless multiple member districts can be justified by unusual circumstances, Chapman v. Meier, supra.

There comes a time when stability, the prime requisite of effective government, should be attained. We have decided to divide the State into single member legislative districts in the hope that this long-running controversy may at last be terminated and the stability of the Mississippi Legislature restored.

We do not believe, however, that the Supreme Court intends that we should tear state policies to shreds. Both Mahan and Chapman abound with declarations to the contrary. What we propose to do is to set up single member districts, at the same time preserving as much as possible of the spirit of the rule against breaking counties apart. The policy of having multiple member districts will, of course, have to be ignored.

III. The Means of Accomplishing the Task

Mississippi is divided into 82 counties, 410 Beats, and about 1750 voting precincts. It is not a populous State. A deviation of 1% in the population norm for the election of a Representative involves only 181 persons. In the Senate 1% amounts to only 426 persons. If we were to ignore the special circumstances of the case and if percentages were allowed to serve as the sole criteria, we are not left much breathing room in undertaking the conversion of a 159 year old system into single member districts. We cannot change the county lines ordained by law. We have not the machinery with which to realign Beat boundaries. We cannot undertake the reconstitution of voting precincts. A statewide re-registration of voters on newly begun permanent registration rolls would be a task to stagger the most resolute. In short, we have had to take the Counties, Beats, and precincts as they actually are—not what we should prefer if we had been handling these matters for the past century and a half. The special circumstances are further complicated by the fact that the Beats in many Counties have been reapportioned since the Census of 1970, so the figures for that year no longer accurately reflect the facts. In such instances, we have recomputed population figures, as of 1970, by the most accurate means available.

We have sought...