Apportionment Law Senate Joint Resolution No. 1305, 1972 Regular Session, In re

• Citation: 263 So.2d 797
• Decision Date: 12 May 1972
• Docket Number: No. 42253,42253
• Parties: In re APPORTIONMENT LAW Appearing as SENATE JOINT RESOLUTION NUMBER 1305, 1972 REGULAR SESSION, Constitutionality Vel Non Of
• Court: United States State Supreme Court of Florida

Page 797

263 So.2d 797

In re APPORTIONMENT LAW Appearing as SENATE JOINT RESOLUTION NUMBER 1305, 1972 REGULAR SESSION, Constitutionality Vel Non Of.

No. 42253.

Supreme Court of Florida,

May 12, 1972.

Opinion Clarified and Rehearings Denied May 26, 1972.

Robert L. Shevin, Atty. Gen., Jerry E. Oxner, Asst. Atty. Gen., for petitioner.

Robert M. Ervin, Wilfred C. Varn, Joseph C. Jacobs and Thomas M. Ervin, Jr., of Ervin, Varn, Jacobs & Odom, Tallahassee, William D. Barrow, Crestview, Don Dansby, Perry, Ed Duffee, Jr., Tallahassee, and William H. Shields, of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for objectors.

ADKINS, Justice.

In original proceeding we have for consideration the petition of the Attorney General seeking a declaratory judgment determining the validity of Joint Resolution No. 1305 apportioning the Legislature of the State of Florida. Fla.Const.1968, art. III, § 16(c), F.S.A. Adversary interests have filed briefs presenting their views and the matter has been orally argued before the Court.

At the outset, we emphasize that legislative reapportionment is primarily a matter for legislative consideration and determination. Judicial relief becomes appropriate only when a legislature fails to reapportion according to federal and state constitutional requisites. If these requisites are met, we must refrain, at this time, from injecting our personal views into the proposed reapportionment plan. Even though we may disagree with the legislative policy in certain areas, the fundamental doctrine of separation of powers and the constitutional provisions relating to reapportionment require that we act with judicial restraint so as not to usurp the primary responsibility for reapportionment, which rests with the Legislature.

Fla.Const., art. III, § 16, F.S.A., contains the following:

'(a) Senatorial and representative districts. The legislature at its regular session in the second year following each decennial census, by joint resolution, shall apportion the state In accordance with the constitution of the state and of the United States into not less than thirty nor more than forty consecutively numbered senatorial Districts of either contiguous, overlapping or identical territory, and into not less than eighty nor more than one hundred twenty consecutively numbered representative Districts of either contiguous, overlapping or identical territory. Should that session adjourn without adopting such joint resolution, the governor by proclamation shall reconvene the legislature within thirty days in special apportionment session which shall not exceed thirty consecutive days, during which no other business shall be transacted, and it shall be the mandatory duty of the legislature to adopt a joint resolution of apportionment.

'(b) Failure of legislature to apportion; judicial reapportionment. In the event a special apportionment session of the legislature finally adjourns without adopting a joint resolution of apportionment, the attorney general shall, within five days, petition the supreme court of the state to make such apportionment. No later than the sixtieth day after the filing of such petition, the supreme court shall file with the secretary of state an order making such apportionment.

'(c) Judicial review of apportionment. Within fifteen days after the passage of the joint resolution of apportionment, the attorney general shall petition the supreme court of the state For a declaratory judgment determining the validity of the apportionment. The supreme court, in accordance with its rules, shall permit adversary interests to present their views and, within thirty days from the filing of the petition, shall enter its judgment.

'(d) Effect of judgment in apportionment; extraordinary apportionment session. A judgment of the supreme court of the state determining the apportionment to be valid shall be binding upon all the citizens of the state. Should the supreme court determine that the apportionment made by the legislature is invalid, the governor by proclamation shall reconvene the legislature within five days thereafter in extraordinary apportionment session which shall not exceed fifteen days, during which the legislature shall adopt a joint resolution of apportionment conforming to the judgment of the supreme court.' (Emphasis supplied).

Senate Joint Resolution No. 1305, apportioning the Florida legislature was passed at its regular session in the second year following the 1970 decennial census. The United States Department of Commerce, Bureau of Census, prepared a Master Enumeration District List Coordinate Tape (MEDList Tape) which was purchased by the Florida legislature. Information from the Bureau of Census was computerized and made available in written and map form to the legislators, in which the units of population were broken down into counties and divisions of counties called Census County Divisions (CCD's). Smaller units of information were provided in the form of Enumerated Districts (ED's), Place Codes (PC's), Census Tracts (Tracts) and Block Groups (BG's). These units of information represent geographical boundaries as used in the Bureau of Census reports of the 1970 census. The geographical boundaries for these units of information, smaller than the county unit of information, generally followed boundaries which were recognizable on the ground. They did not necessarily respect precinct lines and are not identical with precinct lines except where they coincided by accident.

Because the districts represented by Resolution No. 1305 geographically follow the lines used by the census bureau, the present county precinct lines are often split. For this reason, it was impossible for the legislators to consider the number of inhabitants in each election precinct. This information could have been secured by the legislature, so as to avoid the confusion resulting from the splitting of precincts by district lines. It was not secured, and the delay in securing such information at this late date would only result in more confusion.

Under the present apportionment plan, it will be necessary, in some instances, to move a polling place or establish a new one. In other instances, it will be necessary to have each voter sign an affidavit as to his place of residence and to vote in a separate voting booth or to vote in a machine capable of locking in only the voter's respective candidates. Registration officials, at the present time, are making the necessary adjustments so that an election may be held in an orderly fashion. Although this may be confusing, there is no requirement that district lines follow precinct or county lines, for the constitutional mandate (Fla.Const., art. III, § 16(a), F.S.A.) is that the state be apportioned into 'districts of either contiguous, overlapping or identical territory.'

Joint Resolution No. 1305 apportions the state into 120 House Districts and 40 Senate Districts. Of the House Districts, 21 are single member, 10 are two member, 9 are three number, 20 are four member, 30 are five member, and 30 are six member. Of the Senate Districts, 5 are single member, 14 are two member, and 21 are three member.

The apportionment policy followed by the legislature in Resolution No. 1305 is stated as follows:

'In the adoption of the House of Representatives districts contained in this resolution and in its deliberations preceding such adoption and culminating therein, this legislature is following in good faith the following rational state policy of:

'(1) Recognizing the continuous and dynamic population growth in this state by establishing a House of Representatives of one hundred and twenty (120) members, and in doing so guaranteeing better access between the inhabitants of this state and their representatives.

'(2) Providing multi-member districts for densely populated counties to guarantee effective representation and operation of government at the state level.

'(3) Providing single-member districts for the rural counties which achieves the state policy of guaranteeing effective representation and operation of government at the state level.

'(4) Establishing the following formula to achieve the above objectives:

'Multi-member districts in densely populated counties of the state are based on the county's representational ratio, however no multi-member district exceeds six (6) representatives; singlemember districts are based on the same policy and are provided in the counties not covered above.

'However, the Legislature's overriding consideration to this policy is its good faith effort to achieve mathematical preciseness.' (Senate Joint Resolution No. 1305, Section 2)

In Reynolds v. Sims, 377 U.S. 533, 567, 84 S.Ct. 1362, 1384, 12 L.Ed.2d 506, 530--531 (1964), the United States Supreme Court said:

'Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.'

The Constitutions of Florida and the United States require that one man's vote in a district be worth as much as another. Mathematical exactness is not an absolute requirement in state apportionment plans; however, deviations, when unavoidable, must be de minimis. Whether a deviation is de minimis must be determined on the facts of each case. The United States Supreme Court in Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), invalidated a Florida plan of apportionment with maximum percentage deviations from 15.09% Over representation to 10.56% Under representation in the Senate and from 18.28% Over representation to 15.27% Under representation in the House of Representatives.

The plan of apportionment contained in Joint Resolution No. 1305 has maximum percentage deviations in the House of Representatives from 0.10% Over representation to 0.20% Under representation, or a total deviation of 0.30%. This plan of apportionment has maximum percentage deviations in the Senate from 0.53% Over...