Connor v. Johnson, Civ. A. No. 3830.
| Decision Date | 27 March 1967 |
| Docket Number | Civ. A. No. 3830. |
| Parties | Peggy J. CONNOR et al., Plaintiffs, v. Paul B. JOHNSON et al., Defendants. |
| Court | U.S. District Court — Southern District of Mississippi |
Alvin J. Bronstein, Jackson, Miss., and Peter Marcuse, Waterbury, Conn., for plaintiffs.
Joe T. Patterson, Atty. Gen. of Mississippi, and Martin R. McLendon, Asst. Atty. Gen., Jackson, Miss., for defendants.
Before COLEMAN, Circuit Judge, and COX and RUSSELL, District Judges.
Judgment Affirmed March 27, 1967. See 87 S.Ct. 1174.
This Court in this cause has heretofore found it necessary to hold unconstitutional the reapportionment of both the House of Representatives and the Senate in the Mississippi Legislature as it was attempted in 1962, see 256 F.Supp. 962, July 22, 1966. By reference, we now incorporate that opinion into (and make it a part of) what is now about to be written and done.
Under the 1962 Reapportionment, as declared unconstitutional, the membership in the House of Representatives varied, either over or under, in excess of ten per cent of the norm in sixty-five of the eighty-two counties. In thirty-eight instances the variation was more than twenty-five per cent. In the forty-nine senatorial districts there were thirty-five which varied in excess of ten per cent. Obviously, under the one man one vote rule, this could not stand.
Rather than undertaking the exercise of equity powers and ourselves reapportioning the House and Senate, we expressly requested the Legislature to do so, 256 F.Supp., at 968.
The Governor called the Legislature into special session on November 9, 1966. Senate Bill No. 1504 was passed by both houses of the Legislature and approved by the Governor on December 1, 1966.
Tables showing in detail the apportionment of the 52 Senate seats and the 122 House seats as attempted by Senate Bill No. 1504 will be attached to and made a part of this opinion as Appendix 1.
An examination of Appendix 1 will show that under this statute twenty-five of the forty-one senatorial districts, established for the election of 52 senators, varied from the norm (41,887) by more than ten per cent, either over or under. There were such glaring variations as 32.55% and 30.02%, as well as ten others in excess of fifteen per cent.
A similar examination as to the House of Representatives reveals that of the seventy-two districts set up for the election of 122 representatives, thirty varied from the norm (17,854) by more than ten per cent, either over or under. There were such widespread margins as 41.60%, 34.87%, 33.81%, and 30.46%.
After requiring briefs of the parties, this Court convened on January 9, 1967, to consider the validity of these plans. On that very day the Supreme Court of the United States decided Swann v. Adams, No. 136, October Term, 1966, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501.
To obtain and study a copy of that decision before proceeding further, the Court adjourned until the next day. An examination of the decision made it crystal clear that Senate Bill No. 1504 was fatally defective unless the variations above described could be explained on the basis of rational state policy, such as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts, or the recognition of natural or historical boundary lines.
We then entered a formal order giving the State an opportunity to offer such explanations. Since the Mississippi Legislature keeps no stenographic report of its debates and requires no formal committee reports other than recommendations as to passage or rejection, it was impossible for the Attorney General to file such an explanation.
Therefore, under the standards required by Swann v. Adams, supra, we hereby find Senate Bill 1504 to be unconstitutional on its face, null and void.
The primaries for the nomination of candidates for the House and Senate for the 1968-1972 term are scheduled by law for August 8, 1967, with the general election to follow on November 7. There is no alternative now to doing that which we have tried so hard to avoid. The equity powers of this Court must be exercised and we must proceed to order a reapportionment which will meet constitutional standards. To do otherwise could leave the Government of the State of Mississippi in what could be, or could become, chaos.
We expressly point out that the exercise of this unavoidable judicial duty cannot, does not, and will not in any way tie the hands of the Legislature at any time to adopt and enact any plan of its own for the reapportionment of its membership so long as it complies with Constitutional requirements.
We have dismissed as utterly impractical any idea of requiring the election to be held state-at-large. Any effort to reapportion by Congressional Districts would suffer the same disadvantages or difficulties, even if on a less acute scale.
After exhaustive deliberation, including the consideration of all reasonable alternatives which have occurred to us, we now proceed to lay out districts for the election of Senators and Representatives in the Mississippi Legislature so that the 2,178,141 inhabitants will as nearly as possible be equally represented in compliance with the one man one vote rule as enunciated by Swann v. Adams, supra.
In doing this we simply consider the State of Mississippi as a "big house" which must, in one instance be divided into 52 rooms containing substantially the same number of occupants and, in the other must be divided into 122 rooms. This has to be done, of course, within immovable exterior boundaries and within permissible tolerances.
This can be done only through the use of county boundaries and county population figures. Being predominantly a rural state, Mississippi has no other useful population measuring stick. We recognize also that counties are frequently divided from each other by natural boundaries, such as the considerable number of rivers and other large streams within our borders, as the map will verify. We have also taken into consideration the location and courses of state highways as means of communication between the people of one county and the people of other counties placed in the same district. We have consulted county groupings as to judicial districts as giving some evidence of the convenience of the public in the effective exercise of the elective process.
The overpowering consideration, however, has been to make the elective districts as nearly equal as possible in population, without discrimination or favoritism of any kind. We hereby find and adjudicate as a fact that this has been accomplished, considering that it primarily had to be done within the context of county boundaries and county population figures.
Pursuant to this approach it is hereby determined that the Districts for the election of the 52 Senators and the 122 Representatives in the Mississippi Legislature shall be and they are established as follows:
For the Election of Senators
District No. of
No. Counties Senators
1 DeSoto and Tate 1
2 Lafayette and Marshall 1
3 Benton, Pontotoc, and Union 1
4 Alcorn and Tippah 1
5 Itawamba, Prentiss, and Tishomingo 1
6 Lee 1
7 Quitman and Tunica 1
8 Coahoma 1
9 Panola and Yalobusha 1
10 Grenada and Tallahatchie 1
11 Calhoun, Chickasaw, Clay, and Monroe 2
12 Lowndes 1
13 Noxubee and Oktibbeha 1
14 Choctaw, Webster, and Winston 1
15 Attala, Carroll, and Montgomery 1
16 Bolivar and Washington 3
17 Sunflower 1
18 Leflore 1
19 Holmes and Humphreys 1
20 Issaquena, Sharkey, and Yazoo 1
21 Warren 1
22 Madison, Rankin, and Scott 2
23 Leake and Neshoba 1
24 Clarke, Kemper, Lauderdale, and Newton 3
25 Covington, Jasper, and Smith 1
26 Jefferson Davis, Lawrence, and Simpson 1
27 Hinds 5
28 Claiborne and Copiah 1
29 Franklin, Jefferson, and Lincoln 1
30 Adams 1
31 Amite, Pike, Walthall, and Wilkinson 2
32 Forrest, Lamar, and Marion 2
33 Jones and Wayne 2
34 Hancock, Pearl River, and Stone 1
35 Harrison 3
36 George, Greene, Jackson, and Perry 2
As previously noted, allocating 52 Senators to a total population of 2,178,141 fixes the population norm per Senator at 41,887. We hereto attach and make a part of this opinion as Appendix 2 a detailed table of population by counties and districts as affected by this apportionment. It is noted that only six districts vary from the norm in excess of ten percent. These are as follows:
District 5, 12.011% over the norm. District 8, 10.325% over the norm. District 12, 11.345% over the norm. District 18, 12.546% over the norm. District 19, 10.270% over the norm. District 29, 10.266% over the norm.
From 1890 to 1962, District 5 stood as we now constitute...
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...table argument, defendants direct particular attention to the decision of the Mississippi three-judge court in Connor v. Johnson, S.D.Miss. No.3830, 265 F.Supp. 492, decided September 30, 1966, affirmed by the Supreme Court per curiam, 386 U.S. 483, 87 S.Ct. 1174, 18 L.Ed. 2d 224 Defendants......
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