Colegrove v. Green, 46 C 46.
| Decision Date | 29 January 1946 |
| Docket Number | No. 46 C 46.,46 C 46. |
| Citation | 64 F. Supp. 632 |
| Parties | COLEGROVE et al. v. GREEN et al. |
| Court | U.S. District Court — Northern District of Illinois |
Urban A. Lavery, of Chicago, Ill., for plaintiffs.
George F. Barrett, Atty. Gen. of Illinois, and William C. Wines, Asst. Atty. Gen. for defendants.
Before EVANS, Circuit Judge, and IGOE and LABUY, District Judges.
Plaintiffs bring this suit as citizens of the State of Illinois to secure a declaratory decree, and relief incident thereto, against the defendants who, as officials of the State of Illinois, are charged with the responsibility of preparing ballots and conducting elections in said state, including the election of Congressmen to represent the electors of said State of Illinois in the lower house of the Congress of the United States. Such election will occur in November, 1946, and petitioners are specifically concerned with the printing of ballots which are to contain the names of the candidates to be thus voted for at said election, and yet who must win the right to appear as candidates at said November election by first winning in a primary election which is soon to be held. It is through control of the printing of ballots to be used at the primary that plaintiffs hope to secure their legal rights.
Specifically the plaintiffs' grievance lies in the failure of the State of Illinois to so apportion the congressional districts as to give equality of voting power to the citizens of said state. It is alleged, and if not admitted, not denied, for example, that in one district a voter has the voting strength of eight voters in another district. Petitioners base their argument on the sound and elementary proposition that all the electors should have an equal voice and that none should be disfranchised. A failure to redistrict the State of Illinois after each census results in either disfranchisement or inequality of franchise strength. In short, the voice of one citizen carries more weight than that of another in another district, solely because the State of Illinois has refused and continues to refuse to reapportion the state in accordance with the population facts showing of the last census. Not only has the State of Illinois failed to redistrict the state according to population after the last census, but it has failed to do so for over forty years. Its action is apparently deliberate and defiant of both Federal and State Government and the principles upon which they are founded.
Defendants do not defend this action. Their defense is that this gross misrepresentation of Illinois citizens is due to certain legislators who, to retain political strength greater than they are entitled to, or would be entitled to, if equality in representation occurred, refuse to act or to grant relief to this existing disgraceful situation in Illinois.
Defendants rely chiefly on their alleged unusual and unique immunity from legal process, both state and Federal. The citizens have sought relief in both tribunals. As representative of the legislative branch, the legislature of Illinois has taken a defiant and arbitrary position quite at variance with the theory of a representative democracy.
Their refusal to grant relief is as obstinate as it is unpatriotic. It violates the spirit of citizen obligation to state and Federal Government which is as surprising as it is happily unusual. It is apparently modeled after the action of South Carolina in the days of President Jackson. Its continuance provokes, if it does not invite the resort to arms if appeals to reason or the patriotism of the individuals are too long ignored.
There can be no doubt that an elector, such as any one of the plaintiffs, has a right to vote for Federal representatives in the Illinois primary. His right to so do stems from the Federal Constitution. United States v. Classic, 313 U.S. 299, 61 Ct. 1031, 85 L.Ed. 1368.
The citizen's right in this respect is similar to other civil liberty rights expressly guaranteed by the Constitution. Quite as clearly, though by necessary implication instead of by express provision, is the right of the citizen to be equally represented in Congress. United States v. Classic, supra. In fact, equality of representation is such an essential of representative government that attempt to justify its violation has not been seriously attempted. Donovan v. Suffolk County, Apportionment Com'rs, 225 Mass. 55, 113 N.E. 740, 2 A. L. R. 1337.
It follows therefore that a denial or impairment of a citizen's right to choose a representative on terms of equality with other qualified voters in other districts is prohibited by the Constitution. It is violative of the basis of this Government. It is contrary to the theory of the Constitution and its provision for a Congress which is to legislate for the people of the United States on Federal questions.
Plaintiffs' contention, not seriously disputed by the defendants, is that the Illinois Reapportionment Act is unconstitutional. It abridges plaintiffs' privileges and rights within the meaning of the Fourteenth Amendment. It denies to plaintiffs their right to liberty and property without due process of law.
Defendants' answer is expressed briefly and tersely. "Granted — What of it?"
Defendants' dispute of Federal Court jurisdiction is predicated upon their contention (a) that there is no Federal statute in existence now which requires approximate equality in population of Congressional districts. (b) A Federal court of equity is without jurisdiction to interfere by injunction or otherwise with an election or other purely political question. (c) The Federal Court is without jurisdiction to proceed against the State of Illinois because prohibited by the doctrine of sovereign immunity. (d) Defendants are immune from...
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