Burton v. Sheheen, Civ. A. No. 3:91-2983-1
| Decision Date | 01 May 1992 |
| Docket Number | 3:91-3310-1 and 3:91-3635-1.,Civ. A. No. 3:91-2983-1 |
| Court | U.S. District Court — District of South Carolina |
| Parties | Michael G. BURTON, as Executive Director and on Behalf of the REPUBLICAN PARTY, et al., Plaintiffs, Kimberly T. Burch, Plaintiff-Intervenor, v. Robert J. SHEHEEN, in his representative capacity as Speaker of the South Carolina House of Representatives, et al., Defendants, Robin Tallon, Neil A. Vander Linden, Forrest E. Ott, Philip T. Jones, Ann Y. Hart, Peggy A. Dufek, Gwendolyn L. Grooms, the South Carolina Senate, the Democratic Party of South Carolina, Defendants-Intervenors. Katharine I. Butler, Amicus Curiae. STATEWIDE REAPPORTIONMENT ADVISORY COMMITTEE, et al., Plaintiffs, v. Carroll A. CAMPBELL, Jr., et al., Defendants. Katharine I. Butler, Amicus Curiae. Bufort BLANTON, Neil A. Vander Linden, Forrest E. Ott, Ann Y. Hart, Peggy A. Dufek and Vincent Johnson, Plaintiffs, v. Carroll A. CAMPBELL, Jr., et al., Defendants. |
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Thomas R. Gottshall, Steve Allen Matthews, Sinkler And Boyd, Columbia, S.C., for plaintiffs.
Laughlin McDonald, American Civil Liberties Union, Atlanta, Ga., Willie Abrams, Dennis Courtland Hayes, NAACP, Baltimore, Md., John Roy Harper, II, Columbia, S.C., for Statewide Reapportionment Advisory Committee.
Edwin E. Evans, Columbia, S.C., Robert Erving Stepp, Terrell Lyles Glenn, Sr., Elizabeth Howard Simmons, Blaney A. Coskrey, III, Glenn, Irvin, Murphy, Gray & Stepp, John C. Moylan, III, Lieutenant Governor's Office, Columbia, S.C., for defendants Robert J. Sheheen and Nick Theodore.
Frederick Aubrey Crawford, Columbia, S.C., Robert N. Hunter, Jr., Patton, Boggs & Blow, Greensboro, N.C., Clyde Havird Jones, Jr., Joseph Dawson Shine, Columbia, S.C., for defendants Carroll A. Campbell, Jr. and James B. Ellisor.
Katharine I. Butler, pro se.
Vinton Devane Lide, Michael Hart Montgomery, Lide, Montgomery & Potts, P.C., for defendant-intervenor Robin Tallon.
Hans F. Paul, North Charleston, S.C., Gedney M. Howe, III, Charleston, S.C., Wallace K. Lightsey, Frank S. Holleman, III, Wyche, Burgess, Freeman & Parham, P.A., Greenville, S.C., for defendants-intervenors.
Roger E. Henderson, Leppard, Henderson & Spencer, Chesterfield, S.C., for plaintiff-intervenor Kimberly T. Burch.
Before HAMILTON, Circuit Judge, HAWKINS, Chief District Judge, and ANDERSON, District Judge.
In these consolidated cases, the court is called upon to either adopt or create plans for the redistricting1 of South Carolina's Senate, House of Representatives, and Congressional districts. Following tabulation of the 1990 decennial census, it was apparent the existing Senate, House, and Congressional plans could not be continued.2 Although the South Carolina General Assembly passed new Senate and House plans, those plans were vetoed by the Governor, the vetoes were sustained, and no compromise was reached. The General Assembly never passed a Congressional plan. These suits were filed in an effort to break the legislative impasse.
This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 2201; this suit being authorized under 42 U.S.C. § 1973j(f) through 42 U.S.C. § 1973c. The three-judge panel was appointed pursuant to 28 U.S.C. § 2284(a).3
The South Carolina General Assembly (General Assembly) consists of two bodies:4 a Senate with forty-six (46) seats5 and a House of Representatives with 124 seats.6 Senators are elected to serve four-year terms,7 while House members are elected to serve two-year terms.8 According to the Office of the Clerk of the United States House of Representatives, South Carolina is entitled to six Congressional representatives.
It is primarily the responsibility of the General Assembly, subject to the approval of the Governor, to redistrict or reapportion the Senate, House, and Congressional districts. Redistricting is primarily a matter for legislative consideration and determination and judicial relief becomes appropriate only when a legislature fails to redistrict according to federal constitutional and statutory requisites in a timely fashion after having had an opportunity to do so. White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 2354-55, 37 L.Ed.2d 335 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964)); U.S. Const. Art. I, § 2; 2 U.S.C. § 2c; S.C. Const. Art. III, § 3. We do not tread unreservedly into this "political thicket";9 rather, we proceed in the knowledge that judicial intervention in the instant case is wholly unavoidable. In fact, judicial intervention in the South Carolina redistricting process has been frequently unavoidable. In 1984, the General Assembly ultimately fulfilled its constitutional obligation and passed a Senate redistricting plan only after a three-judge panel put an interim plan in place. Graham v. South Carolina, Civil Action No. 3:XX-XXXX-XX (D.S.C. July 31, 1984).10 South Carolina's Congressional districts were last drawn in March of 1982 by a three-judge panel. The General Assembly never passed its own plan; therefore, the court's plan became the state's plan. S.C. State Conference of Branches of the N.A.A.C.P. v. Riley, 533 F.Supp. 1178 (D.S.C. 1982). The House of Representatives was last redistricted in 1981 without judicial intervention.11 This plan was pre-cleared by the Department of Justice and has been used continuously since.12
The results of the 1990 census, issued in March 1991, showed South Carolina's population increased from 3,121,820 to 3,486,703 between 1980 and 1990. In addition to this increase, there were significant shifts in population, primarily from urban and rural areas to suburban and resort areas. Although there was, of course, no way the General Assembly could have foretold the actual results of the 1990 census, it can hardly be argued that the overarching result of the census — unconstitutional apportionment — was a surprise.13 Both the Senate and the House had sophisticated computer software and highly trained operators in place when the census figures were released. In addition, both branches were politically prepared, to the extent subcommittees were appointed, to study issues exclusively related to redistricting and ultimately to fashion plans on behalf of their respective bodies.
Despite this preparation, the General Assembly was unable to pass a redistricting bill before the 1990-91 Legislative Session adjourned.14 The Senate had passed a redistricting plan for itself (S. 1003) as did the House (H. 3834), but neither body was able to consider the plan passed by the other before adjournment sine die. A concurrent resolution was introduced to extend the session, but it did not receive the two-thirds majority vote required by S.C.Code Ann. § 2-1-180 (1976). The Governor could have effectively extended the session by ordering a special session, S.C. Const. Art. IV, § 19, but he did not exercise this authority.
On October 4, 1991, Michael G. Burton, on behalf of the Republican Party and other registered voters of the state, filed suit (the "Burton" case)15 against the Speaker of the House, the Lt. Governor, the Governor, and the Executive Director of the Election Commission16 alleging the present Senate, House, and Congressional plans were unconstitutional based on changes in population and that the plans violated 42 U.S.C. 1973c. The plaintiffs also alleged legislative impasse.
As a remedy for their claims, the plaintiffs requested that this court enjoin any future use of the existing plans and either approve the plans submitted by the plaintiffs or create new Senate, House, and Congressional plans which comport with federal constitutional and statutory requisites. In conjunction with the filing of their complaint, the plaintiffs requested a three-judge court be empaneled pursuant to 28 U.S.C. § 2284(a).
On October 23, 1991, Congressman Robin A. Tallon moved to intervene as a plaintiff and on October 28, 1991, Neil A. Vander Linden, Forrest E. Ott, Philip T. Jones, Ann Y. Hart, Peggy A. Dufek, and Gwendolyn L. Grooms (the "Vander Linden" defendants) moved to intervene as defendants. On October 31, 1991, the South Carolina Senate also moved to intervene as a defendant. These motions were granted by order on November 13, 1991 under the authority of Fed.R.Civ.P. 24 and Newport News Shipbuilding and Drydock Co. v. Peninsula Shipbuilder's Ass'n, 646 F.2d 117 (4th Cir.1981).
On October 31, 1991, the Statewide Reapportionment Advisory Committee and others filed a suit (the "SRAC" case)17 substantially similar to the Burton case and moved, pursuant to Fed.R.Civ.P. 42(a), to consolidate the two cases. Consolidation was ordered November 13, 1991. The subsequent requests to intervene in the Burton/SRAC case by the Democratic Party of South Carolina and Kimberly Burch were also granted.18
On December 12, 1991, Bufort Blanton, Neil A. Vander Linden, Forrest E. Ott, Ann Y. Hart, Peggy A. Dufek, and Vincent Johnson filed suit (the "Blanton" case)19 against the state government officers named in the Burton/SRAC case, as well as various members of the General Assembly, alleging the county legislative delegation system is constitutionally flawed.20 The Blanton plaintiffs moved to consolidate their case with the Burton/SRAC case and consolidation was ordered January 14, 1992. It was agreed before the commencement of the instant trial that the Blanton case would be bifurcated from the Burton/SRAC case insomuch as any claims involving the constitutionality of the state's county legislative delegation system would necessarily depend upon how, if at all, the new Senate and House plans affected county lines. In addition, this court noted the causes of action raised in the Blanton case were not appropriate for consideration by a three-judge panel.21
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