Brenner v. School District of Kansas City, Missouri

• Decision Date: 14 August 1970
• Docket Number: 17688-1.,No. 17660-1,17660-1
• Citation: 315 F. Supp. 627
• Parties: Alvin C. BRENNER et al., Plaintiffs, v. The SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Defendants. John A. MORGAN et al., Plaintiffs, v. The SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

315 F. Supp. 627

Alvin C. BRENNER et al., Plaintiffs, v. The SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Defendants.

John A. MORGAN et al., Plaintiffs, v. The SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Defendants.

Nos. 17660-1, 17688-1.

United States District Court, W. D. Missouri, W. D.

August 14, 1970.

Irving Achtenberg, Kansas City, Mo., for plaintiffs Alvin C. Brenner and others.

David R. Hardy, Lane D. Bauer, and Robert E. Northrip, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, Mo., for plaintiffs John A. Morgan and others.

Edward T. Matheny, Jr., Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for defendants.

John C. Danforth, Atty. Gen. of Missouri, Jefferson City, Mo., intervenor defendant.

Before GIBSON, Circuit Judge, and BECKER and OLIVER, District Judges.

MEMORANDUM OPINION AND ORDER

JOHN W. OLIVER, District Judge:

I

Plaintiffs, qualified voters in the School District of Kansas City, Missouri, seek a declaratory judgment which would determine that the provisions of the Constitution and statutes of Missouri which require the approval by a two-thirds majority of the votes cast at school bond and school levy elections violate plaintiffs' rights as guaranteed by the Constitution of the United States. The Attorney General of Missouri has been added as an intervenor-defendant.

Plaintiffs contend that the question presented is "whether a State requirement of an affirmative vote of more than a simple majority, in a popular vote on school tax levies and bond issues violates the Equal Protection Clause of the Fourteenth Amendment."¹ Section 26(b) of Article 6 and Sections 11(b) and 11(c) of Article 10 of the Missouri Constitution of 1945, V.A.M.S., and the implementing Missouri statutes require that the school bonds and the increase of the tax levies here involved to be approved "by vote of two-thirds of the qualified electors voting thereon."

It is undisputed that at a tax levy election held May 20, 1969 more than a simple majority but less than a two-thirds majority of the School District of Kansas City, Missouri electors voted in favor of an increase in the tax levy. The same thing is true in regard to a School District election held July 1, 1969 to authorize the issuance of 12 million dollars of school bonds. Plaintiffs seek to have this Court declare Missouri's constitutional and statutory two thirds majority requirement to be unconstitutional and to declare that the school tax levy and the school bonds here involved, having received a simple majority vote, were duly passed.

All parties concede that the precise question presented has not yet been ruled by the Supreme Court of the United States. Plaintiffs' basic contention is that "the prior rulings of the Court in `one-man, one-vote' cases establish the doctrines and guidelines which bring the instant case within the ambit of that doctrine." Plaintiffs concede, however, that the validity of their argument rests upon the notion that the "one-man, one-vote" principle enunciated by the Supreme Court in the apportionment cases carries with it an implicit command that all school bond and school tax levy elections conducted in the various States must be decided by a simple majority vote and that all State requirements which require more than a simple majority are constitutionally void.

Plaintiffs agree that "the people have no inherent right to vote on any tax levy or any bond issue proposal." They contend, however, that once "the decision has been placed in the hands of the voters * * * a majority of the people must be allowed to prevail." They argue that "the first corollary of democratic government requires that all persons' votes be counted equally." They then argue that "the second, and necessary, corollary is that when the votes are counted, the majority of voters, on any particular issue, shall determine the result."

Plaintiffs contend that "under any requirement of more than a simple majority, the will of the people is frustrated and a minority of voters determine the result, if they vote for inaction." They argue that "whether one thinks of this as a denial of the equal protection of the laws, under the Fourteenth Amendment, or a denial of the republican form of government guaranteed under Article IV, Section 4, the constitutional deficiency is the same, a frustration of the will of the people — the supreme law of the land."

In spite of the amount of rhetoric in the briefs devoted to "one-man, one-vote," the questions presented are whether the Constitution or any of its Amendments commands that all issues submitted in a State school election referendum for approval of bonds or levies must be determined only by majority vote of the eligible voters voting at such an election and whether State school election procedures which do not so provide must be held to violate the Constitution. We decide those questions in the negative for the reasons we shall state:

II

Plaintiffs contend that what Alexander Hamilton said in The Federalist, No. 22, establishes that "it is a fundamental maxim of republican government that the sense of the majority should prevail." Plaintiffs not only quote Hamilton out of context, they ignore a major premise of Hamilton's political philosophy which was in large part shared by Madison and most of the Founders. What Hamilton thought about an absolute rule by the majority is explicitly stated in The Federalist, No. 51, which contains his famous phrase: "If men were angels, no government would be necessary."

Madison, in perhaps the most famous of all The Federalist Papers, The Federalist, No. 10, spoke of the need to provide a system of checks and balances against "the superior force of an interested and overbearing majority." Madison recognized that "the apportionment of taxes on the various descriptions of property is an act in which no greater opportunity and temptation are given to a predominant party to trample on the rules of justice."

Madison was as explicit as Hamilton in his statement of the reasons for establishing a system of checks and balances to control what he viewed could be the tyranny of a majority. He recognized that a temporary majority could exercise power "adverse to the rights of other citizens." He said: "To secure the public good and private rights against the danger of such a faction, i. e., a temporary majority united as a faction and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."

It is unnecessary to quote further from the writings of any of the Founders to demonstrate the plaintiffs' reliance upon what Hamilton said in The Federalist No. 22 is misplaced. The whole elaborate scheme of checks and balances in American government, including, but certainly not limited to, the utilization of a two-thirds majority vote on questions considered to be of particular difficulty and importance, establishes that the Founders never for a moment considered, as plaintiffs argue, that "the sense of the majority should prevail" in all cases or that they accepted the notion that rule by a simple majority was an inflexible "fundamental maxim of a republican government."

III

The Constitution says surprisingly little about the fundamental right of suffrage. Art. I, § 2 of the Constitution protects the right to vote in a federal election. The same thing is true of the Fifteenth, Seventeenth, and Nineteenth Amendments. Art. I, § 2 and those Amendments relate to voting but they obviously do not grant any federal right to have a State school election decided by majority vote.

In Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370, decided June 15, 1970, but not yet reported, the Court unanimously stated that "This Court has, of course, recognized that the States `have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.' Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959)." Lassiter v. Northampton County Board of Elections, also decided by a unanimous Court, made clear that "while § 2 of the Fourteenth Amendment * * * speaks of the `right to vote,' the right protected `refers to the right to vote as established by the laws and constitution of the State.' McPherson v. Blacker, 146 U.S. 1, 39, 13 S.Ct. 3, 36 L.Ed. 869" (360 U.S. at 51, 79 S.Ct. at 989).² And in Sailors v. Board of Education, 387 U.S. 105, 109, 87 S.Ct. 1549, 1552, 18 L.Ed.2d 650 (1967), the Court reiterated that "Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs" (387 U.S. at 109, 87 S.Ct. at 1552).

McPherson v. Blacker presented the question of whether Michigan could provide for the election of presidential electors from districts rather than from the State at large. It was obvious that under the political circumstances then existing in that State the districts could be gerrymandered in a manner which could actually give Michigan's electoral college votes to the candidate other than the one who received a majority of Michigan's popular vote, if that vote were counted on a state wide basis. The question was whether Michigan, under the Constitution, had power to provide a system of elections by districts which could actually thwart the political principle of majority rule. The Court concluded that there was nothing in the Constitution which prevented Michigan from doing what she wanted to do in regard to the manner in which her electors were elected.³

Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965) and Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967) are more recent examples which confirm that there are many facets of State election procedures which are within the exclusive control of the States. Fortson involved a reapportionment...