Brown v. Thomson

• Citation: 536 F. Supp. 780
• Decision Date: 21 April 1982
• Docket Number: No. C81-292.,C81-292.
• Parties: Margaret R. BROWN, Judy Knight, Jane Maxwell, Marry Shenefield, Miriam S. Straughan, Sandra H. Shuptrine, Olive J. White, Plaintiffs, v. Thyra THOMSON, as Secretary of State of the State of Wyoming, Ed Herschler, Thyra Thomson, Shirley Wittler and James B. Griffith, as members of the State Canvassing Board, and Ed Herschler, as Governor of the State of Wyoming, Defendants, James L. Thompson, Gerald D. Bardo, Russell Thompson, Kenneth A. Gropp, Richard G. Pfister, Peter M. Hansen, Gertrude Chamberlain, Betty Percival, Mary L. Burke, Board of County Commissioners of the County of Niobrara, Kenneth R. Freeman, as a County Commissioner of the County of Niobrara and in his individual capacity, and Louis L. Landkamer as a County Commissioner of the County of Niobrara and in his individual capacity, Intervening Defendants.
• Court: U.S. District Court — District of Wyoming

536 F. Supp. 780

Margaret R. BROWN, Judy Knight, Jane Maxwell, Marry Shenefield, Miriam S. Straughan, Sandra H. Shuptrine, Olive J. White, Plaintiffs, v. Thyra THOMSON, as Secretary of State of the State of Wyoming, Ed Herschler, Thyra Thomson, Shirley Wittler and James B. Griffith, as members of the State Canvassing Board, and Ed Herschler, as Governor of the State of Wyoming, Defendants, James L. Thompson, Gerald D. Bardo, Russell Thompson, Kenneth A. Gropp, Richard G. Pfister, Peter M. Hansen, Gertrude Chamberlain, Betty Percival, Mary L. Burke, Board of County Commissioners of the County of Niobrara, Kenneth R. Freeman, as a County Commissioner of the County of Niobrara and in his individual capacity, and Louis L. Landkamer as a County Commissioner of the County of Niobrara and in his individual capacity, Intervening Defendants.

No. C81-292.

United States District Court, D. Wyoming.

April 21, 1982.

Sue Davidson and Edwin H. Whitehead of Urbigkit & Whitehead, Cheyenne, Wyo., for plaintiffs.

Steven F. Freudenthal, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Randall T. Cox, Asst. Atty. Gen., all for the State of Wyo., for defendants.

Richard J. Barrett of Hathaway, Speight & Kunz, Cheyenne, Wyo., for intervening defendants.

Before DOYLE, Circuit Judge, and KERR and BRIMMER, District Judges.

MEMORANDUM OPINION

KERR, District Judge.

Plaintiffs have filed this action challenging the constitutionality of the 1981 Reapportionment Law allocating a representative to Niobrara County and Section 3 of Article 3 of the Wyoming State Constitution. Section 3 provides that "each county shall constitute a ... representative district ... each county shall have at least ... one representative." Jurisdiction is based upon 28 U.S.C. § 1343(3) and (4). A three-judge court was convened pursuant to 28 U.S.C. § 2281 to hear this action.

The issue here involved is a narrow one and the action can hardly be described as one of first impression for this Court. For the fourth time, this Court is considering the question of the constitutionality of a reapportionment law enacted by the State legislature. Schaefer v. Thomson, 240 F.Supp. 247 (D.Wyo.1964); Schaefer v. Thomson, 251 F.Supp. 450 (D.Wyo.1965); Thompson v. Thomson, 344 F.Supp. 1378 (D.Wyo.1972).

At issue before the Court is the relatively simple question of whether or not the allocation of a representative to Niobrara County constitutes invidious discrimination and, as such, is unconstitutional.

The relevant facts are simple and not in dispute. The parties have agreed to some of the facts in the form of a stipulation and the evidence presented by both parties to the Court was, for the most part, uncontroverted.

Niobrara County is the least populous of Wyoming's 23 counties with a population of 2,924 people in a state containing 469,557 people. Under the 1981 Reapportionment Act, Niobrara County was allocated its own representative in the State House of Representatives. Niobrara County has had its own representative since its creation in 1913, some 69 years.

Plaintiffs urge that this Court should find that such an allocation is unconstitutional and that Niobrara and neighboring Goshen County should be combined to form one representative district. Defendants and Intervenors take the opposite position and claim that the statistical difference in allocating a representative to Niobrara County is insignificant and that any statistical discrepancies are more than outweighed by a rational State interest in the current reapportionment.

In Schaefer v. Thomson, 251 F.Supp. 450 (D.Wyo.1965), this Court was called upon to analyze the reapportionment, or lack thereof, of the State legislature. We found it necessary to reapportion the State Senate, but held that the reapportionment of the State House of Representatives was not invidiously discriminatory:

We reiterate our previous opinion that the Wyoming Reapportionment Act of 1963 (Chapter 22, Session Laws of Wyoming, 1963) is not an invidious discrimination insofar as it provides for representation in the State House of Representatives and in that respect it does not violate the Fourteenth Amendment to the United States Constitution.

The Schaefer case was affirmed by the Supreme Court in 1966. Harrison, et al. v. Schaefer, et al., 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966). Under the 1963 Reapportionment Act, the House of Representatives had 61 representatives. The State of Wyoming had a total population of 329,646. Niobrara County had one representative with a population of 3,750. The "official divisor" was 5400 people. Four counties fell below the 5400 level, Crook, Niobrara, Sublette and Teton, but each still had its own representative.

In 1972, this Court was again called upon to evaluate another legislative reapportionment scheme. In upholding the constitutionality of the 1971 Reapportionment Law, this Court stated:

It seems best at this point to dispose of the issue concerning the alleged unconstitutionality of the reapportionment of the House of Representatives. The Act made only five minimal adjustments to the 1963 Reapportionment of the House, which had previously been found constitutional by this Court and affirmed by the United States Supreme Court. The changes increased by one the number of representatives in two districts. These changes all reflected population variations.

We are of the opinion that the reapportionment of the House by the 1971 Act does not constitute invidious discrimination for the reason that the 1963 reapportionment of the House was not substantially altered and, therefore, the 1971 Act does not abridge the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.

At the time of the 1971 Act, the population of the State was 332,416. The number of representatives was increased to 62 and the official divisor was 5300. There were some shifts in population and representatives were changed to reflect said shifts. Five counties, Crook, Hot Springs, Niobrara, Sublette and Teton, were all below the official divisor in population and yet each received a representative in the House under the 1971 Act. Niobrara County had a population of 2,924 at that time.

Under the 1981 Reapportionment Act now before the Court, the population of the State is 469,557 and the official divisor is 7300. Once again, five counties, Crook, Hot Springs, Niobrara, Sublette and Teton, fall below the population level of the official divisor. Each was given a representative under the 1981 Law. Changes were made to reflect shifting population figures in some of the impacted counties. The number of representatives was increased to 64. None of the changes in the 1981 Law are challenged herein with the exception of the allocation by the legislature of a representative to Niobrara County.

One of the factors to be considered in reapportionment cases involves statistical analysis of the relevant figures. In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the Supreme Court held that a deviation of more than 10 per cent requires that a rational state policy be established to justify the reapportionment. See also Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973).

Initially, the 89 per cent relative range figure would appear to conclusively establish a prima facie case and possibly invidious discrimination in the 1981 Reapportionment Law. A close examination of the other relevant statistics, however, soon reveals the fallacy of relying upon only one statistic. Utilizing only the overall relative range figure distorts the picture.

The population differential in Niobrara County between the 1965 court-ordered reapportionment, as affirmed by the Supreme Court, and the 1981 Reapportionment Law is the difference between 3,750 and 2,924, or 826 people.

Statistically, the "dilution" of the plaintiffs' votes is de minimis when Niobrara County has its own representative. The improvement overall with the representative deleted ranges from 0.0003 in Teton County to 0.0023 in Laramie County. Such minor improvement hardly reaches the level of significance.

In this action, we do not have a small percentage of the population electing a large number of representatives as was the case in the Senate in Schaefer v. Thomson, 251 F.Supp. 450 (D.Wyo.1965). If Niobrara County continues to have its own representative, 46.65 per cent of the population would elect 33 of 64 representatives. Thus, 46.65 per cent is the minimum population which could elect a majority of House members. This figure is comparable to the minimum population percentage of 47.52 per cent electing 53.33 per cent of the Senate seats in the 1965 Schaefer v. Thomson decision.

Alternatively, when considering the counties in which the plaintiffs reside, the Court finds that these seven counties elect 28 out of 64 representatives or 43.75 per cent. The seven counties contain 46.3 per cent of the total state population utilizing the 1980 census figures. Comparatively, if plaintiffs' plan is adopted and Niobrara County does not have its own representative, the seven counties in which plaintiffs reside would elect 28 representatives out of 63 or 44.4 per cent of the House of Representatives. Statistically, a .65 per cent change is trivial but, more importantly, such a percentage is insufficient to constitute invidious discrimination. Rather, the effect on plaintiffs is best described as de minimis.

The overall changes that have been made since this Court last considered this issue have not been of sufficient magnitude to constitute invidious discrimination.

The statistician who appeared before the Court was clear and emphatic when he stated that there was no statistically significant change in the relevant figures when the plan allocating a representative to Niobrara County was compared with a plan which combined Niobrara County w...