Apportionment of Michigan State Legislature, In re, 95

• Decision Date: 10 April 1964
• Docket Number: No. 95,95
• Citation: 127 N.W.2d 862,372 Mich. 418
• Parties: In re APPORTIONMENT OF the MICHIGAN STATE LEGISLATURE.
• Court: Michigan Supreme Court

Page 862

127 N.W.2d 862

372 Mich. 418

In re APPORTIONMENT OF the MICHIGAN STATE LEGISLATURE.

No. 95.

Supreme Court of Michigan.

April 10, 1964.

Supplementing opinion Mich., 126 N.W.2d 731. Hanna plan approved, see 128 N.W.2d 350.

Before the Entire Bench.

SOURIS, Justice.

I.

Whatever the duties we perform as Justices of the Supreme Court, whether authorized by our general grant of judicial authority contained in the sixth article of our Constitution of 1963 or required by the special provisions of Article IV, § 6, paragraph 7, obedience to and support of the Constitution of the United States must be our constant concern. Article VI of the United States Constitution commands our obedience and support:

'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

'The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.'

Each of us, by implementing local command, has sworn support.

Article XI, § 1, Constitution of 1963 ¹ provides:

'All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of ...... according to the best of my ability. No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust.'

I do not suppose that any rational being would suggest that we would be obliged to make the determination of accurate compliance called for from us by paragraph 7 of Article IV, § 6 if the several apportionment plans submitted to us that based upon a racial classification of voters expressly permitted by Article IV in obvious violation of the Fifteenth Amendment to the United States Constitution or that we would be impotent to refuse to participate as public officers in any such action which in our judgment violated the Fifteenth Amendment. Yet, the suggestion has been made that 'it is not open to us in this matter to determine Federal constitutional questions,' by which it is meant that Article IV, § 6, paragraph 7 requires we determine, at least for the present, which of the four apportionment plans submitted complies most accurately with the specific requirements found in Article IV without any regard for the overriding supremacy of the United States Constitution, including the equality clause of its Fourteenth Amendment. The suggestion is manifestly erroneous, the quoted portion of Article VI of the United States Constitution and our oaths considered. We not only may consider the equality clause's effect upon the provisions of Article IV now and whatever the nature of our present services, but we must. Before this Court may stamp its imprimatur upon any apportionment and districting plan submitted to it under Article IV, it must measure such plans and Article IV itself against the standards of the national equality clause for determination of compliance therewith. Failure of such compliance will invalidate any plan so submitted regardless of its compliance with all local requirements. Article VI, United States Constitution, and Blythe v. Hinckley (1899), 173 U.S. 501, 508, 19 S.Ct. 497, 43 L.Ed. 783.

II.

While this Court two years ago, in Scholle v. Secretary of State, 367 Mich. 176, 116 N.W.2d 350, on remand by the United States Supreme Court (1962), Scholle v. Hare, 369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1, for reconsideration in the light of Baker v. Carr (1962), 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, by majority decretal accord declared this State's then current senatorial districts in violation of the Fourteenth Amendment's equality clause, there was substantial difference of opinion among the Court's decretal majority regarding the nature and extent of that equality clause's requirements in the context of legislative representation. No definitive Federal Supreme Court construction of that clause in that context then existed. Nor have subsequent decisions from the supreme authority in such regard provided us with more authoritative standards than four of us undertook to pronounce in July of 1962 in the Scholle case.

Under such circumstances, and in view of the pendency of the Federal Supreme Court's decisions in the cases noted infra, a majority of our members determined last month to delay decision herein to minimize the risk of compounding the confusion which already exists in this transition period from one State Constitution to another. In the view I take of this matter, further delay is not warranted notwithstanding our continuing inability to articulate in precise detail and with positive authority all of the standards of the equality clause as it applies to matters of legislative representation. It is clear to me that none of the plans submitted to this Court meets either of the standards our majority applied in Scholle and, hence, that the executive and legislative officers of the State might better be so advised now so that they can take whatever corrective actions may be necessary.

III.

None of the four plans submitted by the apportionment commissioners conforms to the mathematical limitations found by Justices Kavanagh and Black, in Scholle, to be implicit in the Federal equality clause. Their 'maximal standard' of a population disparity between legislative districts of no greater than 2 to 1 is violated, grossly, by three of the four plans for both houses of the legislature. The fourth plan, the Austin-Kleiner plan, proposes an apportionment of House seats which, likewise, would violate the 2 to 1 maximal standard ² although two alternative Senate apportionment plans are proposed in both of which the population disparities are below 2 for 1, but that which results in the least population disparity still reflects a disparity of as much as 3 to 2.

In Scholle I attempted only to suggest some of the factors judicially cognizable in determining compliance in such matters with constitutionally guaranteed equality and expressly limited my effort to recognition of the outer boundaries of the problem confronting us (367 Mich. at 247, 116 N.W.2d 350). I was quite certain then, as I am now, although it was not necessary to decision in Scholle, that the Federal equality clause requires in this context substantial equality between citizens, not absolute mathematical equality impossible to maintain even in thoery beyond a single point in time, but rather equality which leaves no room for the deliberate weighting of one man's vote and dilution of another's. It means that one man's vote equals that of another, whatever their occupation, or their race, or their religion, or their social standing, wherever in the State they may live. It means that no consideration whatever of favor or of penalty can be permitted to shift the nice balance between one man's vote and every other. Such extraordinary regard for the equality of franchise is required because exercise of the franchise 'is regarded as a foundamental political right, because preservative of all rights.' Yick Wo v. Hopkins (1886), 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220.

Barring deliberate weighting or diluting of votes does not, however, insure mathematically precise equality, nor is such precision a constitutional mandate. While not subscribing to any mathematical rule of thumb, I continue to believe that the equality clause of the Fourteenth Amendment requires that there be no more than the minor practical inequalities which unavoidably may result from a rational, not arbitrary, classification of the State's people into electoral districts. Such minor and unavoidable inequalities can be of infinitesimal magnitude if, for instance, the number of legislators is large enough to permit no greater than proportionate representation of the electoral district with the smallest population; or if county and municipal lines were disregarded, ³ or if multiple representatives for a single district were permitted. Other means by which inequality of representation may be avoided or at least minimized can be devised by anyone whose real objective is equality.

The inequalities which inevitably will occur, so long as they are both minor and practically unavoidable, will not invalidate an apportionment plan devised in good faith to achieve equality of representation. Our former colleague on this Bench, now United States District Judge Talbot Smith, recently had occasion to consider the nature and extent of representative equality required in the allocation of congressional seats within the State, in Calkins v. Hare, decided in the U.S. District Court for the Eastern District of Michigan, 228 F.Supp. 824. His observations are equally apt to the problem we face:

'It is true that the Wesberry court [Wesberry v. Sanders (February 17, 1964), 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481] speaks of one vote being 'as nearly as practicable' worth that of another, but we do not see in these words an escape hatch for the reluctnat. Nor in the caveat that the weight of votes need not be mathematically precise. What is meant here is merely that the ideal district lines enclosing mathematically equal areas of population may make minor departures here and there from such ideal, in...