Calkins v. Hare

• Decision Date: 26 March 1964
• Docket Number: Civ. A. No. 22720.
• Citation: 228 F. Supp. 824
• Parties: Donald A. CALKINS and Karl J. Jacobs, Plaintiffs, v. James M. HARE, Secretary of State for the State of Michigan, Defendant, Alvin M. Bentley, Intervenor.
• Court: U.S. District Court — Western District of Michigan

228 F. Supp. 824

Donald A. CALKINS and Karl J. Jacobs, Plaintiffs, v. James M. HARE, Secretary of State for the State of Michigan, Defendant, Alvin M. Bentley, Intervenor.

Civ. A. No. 22720.

United States District Court E. D. Michigan, S. D.

March 26, 1964.

Theodore Sachs, Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, Mich. (Harold Norris, Detroit, Mich., of counsel), for plaintiffs.

Frank J. Kelley and Robert A. Derengoski, Lansing, Mich., for James M. Hare, Secretary of State for State of Michigan.

William B. Cudlip, William Gerald Warren, and Richard C. Van Dusen, Philip Weiss, Detroit, Mich., Norman L. Des Jardins, Owosso, Mich., for Alvin Bentley.

Before O'SULLIVAN, Circuit Judge, and SMITH and ROTH, District Judges.

TALBOT SMITH, District Judge.

The plaintiffs have challenged the constitutionality of the congressional districting in this state.

The action had been started on June 29, 1962, plaintiffs alleging in their original bill of complaint that the congressional districts then established (by Act 20, P.A.1931, as amended by Act 64, P.A. 1951) were unconstitutional. A preliminary injunction was denied by this court on July 10, 1962. In June, 1963, effective September 6, 1963, the Michigan Legislature enacted the congressional districting bill now under challenge, Act 249, P. A.1963. Following the decision in the case of Wesberry v. Sanders, (1964), 84 S.Ct. 526, plaintiffs, upon leave granted, amended their complaint, now attacking the constitutionality of the most recent act, No. 249, P.A.1963, in the light of Wesberry.

A hearing was had on March 2, 1964, upon the motion for preliminary injunction. Plaintiffs based their case upon the population figures, from the 1960 census, for the various districts, pointing out the various discrepancies thus disclosed, and asserting, upon the authority of Wesberry, that constitutional requirements had not been met. The Attorney General, appearing for defendant Secretary of State, conceded that the criterion of "one man, one vote" had been, prima facie, violated and could offer no explanation of the reasons for the population variances shown "without an examination of the legislative history" of the Act. The intervening defendant was represented by counsel whose relationship to the Act under consideration was of substantial aid to the Court, he having (in 1962) "entered full time public service, when one of my objectives was to achieve the redistricting of Michigan on a basis as nearly to population as practicable". (Tr. 64) His explanation of the criterion employed by the Legislature in drawing the district lines was illuminating:

"* * * But so far as the Legislature was aware when it took action in 1963 — and it was one of the most difficult accomplishments of that Legislative Session, the objective of equal population was satisfied if it hit a 15 per cent standard, and with the exception of the Fifteenth District and the Upper Peninsula District and ignoring some fractional deviations — there are some that go a fraction over 15 per cent — they came within that standard for all but two of the districts of the state, and they hit an average deviation of less than 10 per cent. * * *"

It was also suggested to the Court that a proper element of "practicability" was consideration of the legislative problem of just what kind of districting the Legislature would accept, in short, what bill the votes could be obtained for.

At this juncture it was the opinion of a majority of the Court that a prima facie showing of unconstitutionality had been made, that the motion for preliminary injunction should be denied, and that the matter be set down for hearing on the merits on March 23rd. The parties were cautioned by the Court to consider the matters of proof upon the merits — "it will be for them to decide whether they wish to make any factual showing of the considerations that went into the apportionment as it was made for the purpose of asserting that the apportionment was done within reasonable and practicable limits obedient to the Constitution of the United States." (Tr. 92)

We have now held the hearing on the merits. No testimony was tendered by any party. The Attorney General stated to the Court that no legislative history of the challenged Act was available. The intervening defendant argued the contents of his brief. The plaintiffs did likewise. Upon the showing thus made the Court considered the matter as submitted.

The Plaintiffs, then, have challenged the constitutionality of the congressional districting in this state.¹ They point out that certain districts in the Detroit area alone differ in population by over a hundred thousand,² that there is a variation from the smallest to the largest district in the State of almost two hundred thousand,³ and that the Wayne County (Detroit area) districts average 444,000 persons, whereas the out-state average is approximately 397,000. Even if apportionment were based upon some factor other than population it would be impossible, in our judgment, to justify such variations in the Wayne County area alone. Thus, geographically, there are no intervening mountain ranges between districts, as in Colorado, no rivers or plains. Yet some districts in the County of Wayne (Thirteenth and Fifteenth) have the greatest debasement of vote values found anywhere in the state, while another district in the County, a suburban area adjacent to the Thirteenth, namely, the Fourteenth, has the third-greatest enhancement of voting power in the state. Thus the fact of residence in the Fifteenth District means that one's vote is diluted more than in any other district in the state, while a few miles away, in the Fourteenth District, one's vote is weighted higher than in any of other areas in the state, save two.⁴

That a constitutional right is involved is clear. Art. I, § 2 of the United States Constitution, "that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."⁵ The intervening defendant professes to find in Wesberry a "strange inconsistency". If the clause above quoted, we are told, "means what it says, then raw population statistics are irrelevant" and "voting population" becomes relevant. (All emphasis in original). To make his point, intervening defendant cites the vote for Secretary of State in Wayne County in 1962. Just why this official's vote was selected, among the host of others running, including a Governor, does not appear. Or why registered voters were not used, or persons over 21 eligible to vote. Each of such latter categories might find theoretical justification. But we are a District Court. We take Wesberry as our precedent. It is apparent from the majority opinion that this issue had consideration in the Supreme Court in Wesberry, since Justice Harlan's dissenting opinion (n. 4) raises this precise question — "Is the number of voters or the number of inhabitants controlling?" The answer, in our judgment, is found again and again in the Wesberry opinion, from the opening paragraph, referring to the 1960 census by districts and averages and referring to "this inequality of population", to the closing paragraph which speaks of "equal representation for equal numbers of people." We find no inconsistency in the opinion.

In our consideration of this case, we start with the principle that the right of franchise is "a fundamental political right, because preservative of all rights".⁶ This being the case we do not equate the presumption of constitutionality in this situation to that employed in the general police power cases, involving the regulation of health or morals, or the fixing of guide lines for a state's experimentations in matters of social welfare or economic controls. In these cases the states are properly given a wide latitude.⁷ But where we are concerned with a basic constitutional right our requirements are infinitely more rigorous. Here the cloak of constitutionality is not loosely worn. There is little elbow room for freedom of movement. The fit must be precise. We do not experiment with freedom of speech, freedom of worship or freedom to vote. These are among the basic civil rights of man. Cf. Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

Plaintiff here has established that gross population inequities exist in the congressional districting of this state. To us it is inexplicable, for example, that there should be a difference of almost a hundred thousand people between the adjacent Thirteenth and Fourteenth Districts in Detroit. At this point the burden is upon the State to come forward with some rational explanation for what has been done.⁸ In reply we are told by the Attorney General that he "has been unable to find any committee reports or legislative debates which reveal the specific causes or reasons which led to the formation of the congressional districts provided in Act 249 and must forego any factual presentation as to this aspect of the matter."

The intervening defendant is but little more helpful. He argues principally the questions raised in footnote 4 to the dissenting opinion of Mr. Justice Harlan in Wesberry. However persuasive these considerations may have been in conference in the Supreme Court prior to the Court's vote on the case, they are of little help to a District Court that is attempting to apply the Wesberry decision, not to rehear it.

Two arguments are suggested by intervening defendant in addition to Mr. Justice Harlan's questions. He states, without documentation or proof of any kind, that the Legislature took into account population trends in creating certain districts, and asks if the Legislature were not "entitled to anticipate a further drop" in the population of some districts and further growth in others. The difficulty with the argument made is that it is totally devoid of any tie to the...