Black Political Task Force v. Connolly

• Decision Date: 02 February 1988
• Docket Number: 87-1953-WD.,Civ. A. No. 87-1886-WD
• Citation: 679 F. Supp. 109
• Parties: BLACK POLITICAL TASK FORCE, et al., Plaintiffs, v. Michael Joseph CONNOLLY, et al., Defendants. MASSACHUSETTS REPUBLICAN STATE COMMITTEE, et al., Plaintiffs, v. Michael Joseph CONNOLLY, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

679 F. Supp. 109

BLACK POLITICAL TASK FORCE, et al., Plaintiffs, v. Michael Joseph CONNOLLY, et al., Defendants.

MASSACHUSETTS REPUBLICAN STATE COMMITTEE, et al., Plaintiffs, v. Michael Joseph CONNOLLY, et al., Defendants.

Civ. A. Nos. 87-1886-WD, 87-1953-WD.

United States District Court, D. Massachusetts.

February 2, 1988.

COPYRIGHT MATERIAL OMITTED

Joseph L. Kociubes, John R. Snyder, Bingham, Dana & Gould, Robert J. Muldoon, Jr., Daniel B. Winslow, Sherin and Lodgen, Boston, Mass., for plaintiffs.

Steven P. Perlmutter, Harrison & McGuire, Boston, Mass., for all defendants but Connolly.

Stephen H. Oleskey, Paul A. Lazour, Office of Atty. Gen., Elections Div., Boston, Mass., for Michael J. Connolly.

Steven P. Perlmutter, Harrison & Maguire, Boston, Mass., for City of Boston, Raymond L. Flynn, Boston Election Committee by Benjamin Thompson.

Before COFFIN, Circuit Judge, and KEETON and WOODLOCK, District Judges.

MEMORANDUM

WOODLOCK, District Judge.

Two sets of plaintiffs in these consolidated actions claim that the City of Boston and the Commonwealth of Massachusetts, in the 1987 reapportionment of their elected deliberative bodies, violated the federal constitutional mandate of electoral equality expressed by the shorthand phrase "one person one vote."¹

With the cooperation of the parties, the issues were framed to be presented to this three judge court on an expedited schedule and in phases. The threshold issue presented — as Phase IA — is to resolve the validity of the underlying population figures which provide the basis for the reapportionment of districts. The remaining issues in the case necessarily turn upon resolution of the population validity issue. After trial of Phase IA, we have determined that the underlying population figures used by the defendants for apportioning districts withstand the challenges the plaintiffs have mounted.

During the trial of Phase IA, we also took evidence on a contingent basis concerning a corollary issue as Phase IB: the compliance of the 1987 reapportionment of the Massachusetts House of Representatives with constitutional requirements. Our evaluation of the 1987 House Redistricting Plan leads us to the conclusions that the state cannot justify the substantial divergences in population among its reapportioned districts and, accordingly, that the 1987 reapportionment of the Massachusetts House of Representatives is unconstitutional.

We set forth herein, pursuant to Fed.R. Civ.P. 52, our findings of fact and conclusions of law as to the trial of Phases IA and IB.

I

Under the Massachusetts Constitution, as amended in 1975, a census of the inhabitants of the Commonwealth of Massachusetts was required to be undertaken in 1975 and once every ten years thereafter.² Mass. Const.Amend. Art. CI.³ The purpose of the census, according to the Constitution, is to provide "the basis for determining the representative, senatorial and councillor districts." Id.⁴

During the first seven months of 1985, all Massachusetts cities and towns undertook a census to measure their populations as of January 1, 1985. On February 11, 1986, the Mayor of Boston reported a Boston population figure of 620,889 to the Secretary of the Commonwealth. On April 16, the Secretary rejected the City's figure for two reasons: first, because there was a "substantial discrepancy" between that figure and the 1984 Boston population estimate of 570,719 made by the United States Bureau of the Census, and second, because the results of the Secretary's own field audit found "statistically significant errors" in the City's figures.

The Secretary ordered Boston to resubmit a corrected census count within two weeks. After several months of wrangling between the City and the Secretary, Boston proposed on August 18, 1986, to conduct a new census to begin immediately. This census was never undertaken.

On February 9, 1987, the Governor, acting pursuant to Mass.Gen.L. ch. 9, § 7, newly amended, appointed a five member Decennial Census Commission ("DCC") to study the Boston census. The duties of the DCC are concisely stated in the statute: "The commission shall determine and verify the census for any city or town whose census has been refused by the Secretary because it `contains significant errors' which then shall be accepted by the secretary."

Between February 17 and May 19, 1987, the DCC received written submissions from both Boston and the Secretary, heard testimony from witnesses, received advice from experts and counsel, and produced its final report.

In its report, the DCC found serious methodological errors in the Boston census figures. The DCC rejected the Boston census, calculated the January 1, 1985 Boston population to be 601,095,⁵ and reallocated population figures for all Boston wards and precincts. DCC Report at 61-62, 78-81.

The DCC submitted its report to the Secretary on May 19, 1987, and the Secretary, in turn, forwarded the DCC Report to the General Court on the same day.

On June 18, 1987, acting pursuant to redistricting legislation specifically governing it, Chapter 343 of the Acts of 1986, § 1, the City of Boston reallocated its precincts into city electoral districts in accordance with the DCC Report.

Meanwhile, special joint committees of the Senate and the House, charged with recommending apportionment of the General Court and the Executive Council, reviewed the recommendations of the DCC, reporting their findings in separate documents respectively on July 8 for the Senate and the Executive Council⁶ and on July 9 for the House of Representatives.⁷ With modest changes not relevant here, the General Court thereupon reallocated the House, Senate, and Executive Councillor districts in accordance with the figures supplied by the DCC.

Immediately after adoption of the new apportionment plan, the Political Task Force plaintiffs⁸ began the litigation of Civil Action No. 87-1886 and the Republican plaintiffs⁹ began litigation in Civil Action No. 87-1953. The plaintiffs in both actions seek review of aspects of these 1987 reapportionment decisions prior to the 1988 state elections.¹⁰

II

At the outset, we confront the question of what standard of review should apply in evaluating the reapportionment efforts of the defendants. Despite over a quarter century of litigation in this area, uncertainty remains concerning the proper standard of review for reapportionment plans. In the most recent edition of his treatise, Professor Tribe notes that this uncertainty was manifest in the initial reapportionment case, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), which opened the doors to federal courts for resolution of reapportionment disputes. L. Tribe, American Constitutional Law (2d ed. 1988) 1063. See also, The Supreme Court, 1982 Term, 97 Harv.L.Rev. 135, 139-40 (1983); Casper, Apportionment and the Right to Vote: Standards of Judicial Scrutiny, 1973 Sup.Ct.Rev. 1.

It is tempting to propose an answer to this question by constructing a pigeonhole for reapportionment cases using one of the several articulated standards of review offered in the various forms of equal protection litigation. But such an answer is not easily available. The Supreme Court's first state legislative reapportionment decision itself variously sounded in both the "rational relation" and "strict scrutiny" standards of Equal Protection Clause analysis. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), speaks alternatively of the need to defer to "effectuation of a rational state policy," id. at 579, 84 S.Ct. at 1391 (emphasis supplied), and the proposition that any alleged infringement of the right to vote "must be carefully and meticulously scrutinized," id. at 562, 84 S.Ct. at 1381 (emphasis supplied). No clear sanction for the use of particular traditional equal protection standards appears in the case law since Reynolds.

Nor does this case require us to choose among traditional standards. That is because, as will be developed more fully below, we conclude after careful and meticulous scrutiny that the state's choice of underlying population figures is justified. And, by contrast, we conclude that the divergences in House districts fail rationally to effectuate identified state policy. Having found that the state meets the highest standard with respect to population validity and fails to meet the lowest standard with respect to House plan proportionality, we need delineate no further the role standard of review plays in this reapportionment litigation.

In outlining our reasons for reaching these conclusions, we are instructed by the quarter century of reapportionment litigation, which — while not formally articulating a particular standard of review — has developed a more discriminating approach to the relevant interests by a balancing of the practical factors called into play during the reapportionment process.

The Equal Protection Clause requirement in the context of state reapportionment is broadly stated: "that a State make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable." Id. at 577, 84 S.Ct. at 1390. Federal courts are prepared to tolerate modest deviations from statistically ideal electoral districts. In this connection a ten percent total deviation, computed by adding the individual deviations of the largest and the smallest districts from the ideal district has been developed to mark the upper limit of the de minimis acceptable range for divergence from population equality. See Brown v. Thomson, 462 U.S. 835, 842-43, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214 (1983). Justification, however, will be required to uphold deviations of more than ten percent because "a State's policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality." Mahan v. Howell, 410 U.S. 315, 326, 93 S.Ct. 979, 986, 35 L.Ed.2d 320 (1973)....