Boyer v. Gardner

• Decision Date: 04 June 1982
• Docket Number: Civ. No. 82-287-D.
• Parties: Richard E. BOYER v. William GARDNER, Secretary of State for the State of New Hampshire.
• Court: U.S. District Court — District of New Hampshire

540 F. Supp. 624

Richard E. BOYER v. William GARDNER, Secretary of State for the State of New Hampshire.

Civ. No. 82-287-D.

United States District Court, D. New Hampshire.

June 4, 1982.

James Normand, Manchester, N. H., I. Michael Winograd, Concord, N. H., Katherine M. Hanna, Manchester, N. H., Steven M. Gordon, Concord, N. H., for plaintiff.

Deborah J. Cooper, Deputy Atty. Gen., Concord, N. H., for defendant.

Before CAMPBELL, Circuit Judge, DEVINE, Chief Judge, and LOUGHLIN, District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

This action against the Secretary of State of New Hampshire was commenced on May 17, 1982, by New Hampshire citizens and registered voters.¹ Plaintiffs complain that their equal rights to vote for members of the New Hampshire House of Representatives, and to cast votes that are as effective as the votes of every other citizen in the state, are being diluted and effectively denied by the alleged discriminatory apportionment of seats in the House of Representatives in violation of the Equal Protection Clause of the federal Constitution and Pt. 2, Art. 9 of the New Hampshire Constitution.²

The challenged reapportionment plan is embodied in Chapter 29 of the Laws of 1982, amending Chapter 662, Section 6, of the New Hampshire Revised Statutes Annotated. It was enacted into law by the New Hampshire House on April 20, 1982, pursuant to the New Hampshire Constitution's requirement that a reapportionment of legislative seats take place every ten years in accordance with the latest general census (in this case the 1980 Federal Census). Pt. 2, Art. 9, N.H. Constitution. Since representatives to the New Hampshire House are to be elected in the fall of 1982, with candidates to file papers between June 2 and 16, 1982, it was and is a matter of immediate concern whether Chapter 29 constitutes a valid apportionment of legislative seats. Plaintiffs ask, inter alia, for injunctive relief barring acceptance of filings for the office of State Representative on the designated June dates, and for the creation and institution of an alternate apportionment plan in time for the fall elections.

To consider this challenge to the recent New Hampshire reapportionment plan, a three-judge court was promptly convened pursuant to 28 U.S.C. § 2284. A hearing on the merits was held on May 27, 1982, at which time the parties filed with the court a stipulation concerning most of the material facts. The parties also agreed, with some limitations, that the court could receive and consider certain legislative history documents reflecting New Hampshire House debates and the proceedings of its Special Committee on Reapportionment. A single witness, a statistician called by the defendant, was heard. The court then took the case under advisement.

Aware that the candidates' filing date commenced on Tuesday, June 1, following the Memorial Day weekend, this court issued an order on May 28 denying plaintiffs relief, on the basis that Chapter 29 "does not violate any of the rights to vote afforded the citizens of New Hampshire pursuant to the provisions of the Constitution of the United States." We indicated then that a fuller opinion would follow in due course.

We begin by observing that the biennially elected New Hampshire legislature has 400 members. The state Constitution provides that, "founded on principles of equality," representation is to be "as equal as circumstances will admit." Pt. 2, Art. 9. In apportioning seats, "no town, ward or place shall be divided nor the boundaries thereof altered." Pt. 2, Art. 9. When any town, ward, or unincorporated place has fewer than the number of inhabitants necessary to entitle it to one representative, the legislature is to create representative districts with enough inhabitants to entitle the district to one or more representatives. Pt. 2, Art. 11.

After the 1980 census, it appeared that the ideal population for each state representative district was 2,300 persons. This number was determined by dividing the number of seats (400) into the state's population of approximately 920,000.³ Using this ideal as a point of reference, those responsible for apportionment undertook to create districts which would not violate town and county lines, and would take into account various other factors.

House Bill 2, which became Chapter 29, ended up establishing 162 electoral districts, of which 17 were so-called floterial districts.⁴ Plaintiffs' charge of unconstitutionality focuses on these 17 floterial districts.

Plaintiffs acknowledge that floterial districts are not in themselves unconstitutional, apart from inequalities in representation that they may create. See generally Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Reynolds v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964); Kilgarlin v. Hill, 386 U.S. 120, 124, 87 S.Ct. 820, 823, 17 L.Ed.2d 771 (1967). See also Opinion of the Justices, 111 N.H. 146, 276 A.2d 825 (1971). Plaintiffs claim, however, that due to differences in the size of the components of the floterial districts here under consideration, the use of these floterial districts results in significant disparities in representation. Plaintiffs further contend that the state's method of calculation masks and minimizes these inequalities. They argue that if the correct method of calculation were used, it would reveal that the populations within floterial districts deviate to an unconstitutional extent from the appropriate norm, resulting in underrepresentation of voters in some communities and overrepresentation in others. Finally, plaintiffs argue that even under the method of calculation employed by the state, House Bill 2 is unconstitutional since it contains deviations from the ideal distribution which cannot be justified by "legitimate considerations incident to effectuation of a rational state policy." Reynolds v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 1390-91, 12 L.Ed.2d 506 (1964).

We are not persuaded by plaintiffs' arguments that the plan in question is unconstitutional. We begin by discussing the method to be employed in calculating deviations in floterial districts. Plaintiffs argue that the New Hampshire Secretary of State erred in claiming an overall deviation from the "ideal" of no more than 13.74 percent. They contend that this figure, which was arrived at through the use of the so-called "aggregate method," underestimates the disparities in voting power within and between floterial districts. To assess voting strength accurately, plaintiffs argue that the so-called "component method" of calculating deviations should be used. Use of this method would reveal that House Bill 2 contains a maximum deviation in excess of 70 percent.⁵ Plaintiffs contend that whatever can be said of a variation of 13.74 percent, a maximum total variation of 70 percent from the ideal population per representative⁶ is surely unconstitutional.

The Supreme Court has typically applied the aggregate method in examining the tolerable extent of variation in challenged apportionment plans. The parties have, however, brought to our attention two cases where the method of computing deviations within a floterial district by the component method has been raised in appeals to the Supreme Court. In an early reapportionment case, Kilgarlin v. Martin, 252 F.Supp. 404, 422 n.28 (S.D.Tex.1966), reversed in part on other grounds, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), a three-judge panel found unconstitutional a Texas reapportionment plan containing floterial districts. In examining the floterial districts contained within the state plan, the panel applied the component method of calculation. The Supreme Court, in a per curiam decision, reversed the district court's ruling as to the non-floterial districts, without discussing the method of calculation that should be used in examining floterial districts. Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967). While plaintiffs rely heavily on the lower court's decision to apply the component method in Kilgarlin and the Supreme Court's failure to repudiate that method of calculation in its review of the panel's decision, the Court's silence in Kilgarlin, without more, cannot be interpreted as general approval of the component method of calculation.

In a more recent case, Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), the Court declined to enter the debate over which method of computation⁷ should be used in examining deviations within a floterial district. In Mahan, the three-judge panel, while recognizing that other methods of computation could be used, employed the aggregate method in examining Virginia's floterial districts. On appeal, it was argued that the component method of calculation would reveal greater deviations than those found by the district court. In refusing to use figures other than those applied by the district court, the Court stated that it "declined to enter this imbroglio of mathematical manipulation ...." Mahan v. Howell, 410 U.S. at 319 n.6, 93 S.Ct. at 982 n.6.

While the Court's rulings in this area are not conclusive, we believe that its statements in Mahan indicate a reluctance to involve the courts in statistical complexities, at least absent reasons to indicate that a more complicated approach is required in given circumstances. We believe for the reasons stated below that the aggregate method may properly be applied in examining New Hampshire's reapportionment plan.

The Supreme Court has traditionally applied the aggregate formula in examining challenged reapportionment plans. To insert a figure reached by a totally different basis of computation into the percentages discussed by the Court in its previous cases is to compare, as the Attorney General argued, apples with oranges. It cannot be expected that a percentage deviation that might not be considered de minimus or acceptable when arrived at by one method of computation...