Dinis v. Volpe

• Decision Date: 15 February 1967
• Docket Number: Civ. A. No. 66-767-G.
• Parties: Edmund DINIS et al., Plaintiffs, v. John A. VOLPE, as Governor of the Commonwealth of Massachusetts, and Elliot L. RICHARDSON, as Attorney General of the Commonwealth of Massachusetts, and Kevin H. White, as Secretary of the Commonwealth of Massachusetts, Defendants.
• Court: U.S. District Court — District of Massachusetts

264 F. Supp. 425

Edmund DINIS et al., Plaintiffs, v. John A. VOLPE, as Governor of the Commonwealth of Massachusetts, and Elliot L. RICHARDSON, as Attorney General of the Commonwealth of Massachusetts, and Kevin H. White, as Secretary of the Commonwealth of Massachusetts, Defendants.

Civ. A. No. 66-767-G.

United States District Court D. Massachusetts.

February 15, 1967.

Edmund Dinis, New Bedford, Mass., for plaintiffs.

David Berman, Asst. Atty. Gen., Boston, Mass., for defendants.

Before WOODBURY,^* Senior Circuit Judge, and WYZANSKI and GARRITY, District Judges.

OPINION OF THE COURT

WOODBURY, Senior Circuit Judge.

This suit is brought by seven registered voters (one in each of the Third, Fourth, Fifth, Sixth, Ninth, Tenth and Eleventh Congressional Districts of the Commonwealth of Massachusetts), in their own behalf and in behalf of other eligible voters similarly situated, against the Governor, the Secretary of State and the Attorney General of Massachusetts. The prayer is for a declaration that the current Massachusetts Apportionment Act, Chapter 315, Acts of 1962, General Laws Chapter 57 § 1, as amended, is unconstitutional and for an injunction restraining the defendants "from assuming any responsibility or taking any action with respect to the nomination or election of Representatives to the Congress of the United States" from the Congressional Districts as they are now constituted. There being no genuine issue as to any material fact the case comes before this duly constituted district court of three judges on cross motions for summary judgment.

Application of the provisions of § 22 of the Act of June 18, 1929, providing for the apportionment of Representatives in Congress, 46 Stat. 26, 27 as amended 2 U.S.C. § 2a, resulted after the 1960 census in the reduction of the Massachusetts delegation to the National House of Representatives from 14 to 12. Upon notification of this change as federal law requires, the Massachusetts House and Senate by joint order established a joint special committee "for the purpose of recommending a new division of the commonwealth into congressional districts in conformity with existing law." The committee split strictly along party lines and filed majority and minority reports. The Massachusetts Legislature did not adopt either report but enacted an apportionment of its own. The population discrepancies among the congressional districts as established by the legislature and among the districts as they would have been had either the majority or minority report of the joint special committee been adopted are shown by the following table, in which the "Deviation" figures denote the variations from an ideal or average size district and the "%" figures denote the percentages of such deviations:

                               LEGISLATURE'S                        COMMITTEE                   COMMITTEE MINORITY
                DISTRICTS           PLAN                          MAJORITY PLAN                        PLAN
                ---------------------------------------------------------------------------------------------------------
                           POPULATION   DEVIATION     %      POPULATION   DEVIATION     %     POPULATION   DEVIATION    %
                     1       376,336     -52,712    -12.4      404,541     -24,611    -5.7      404,727     -24,425    -5.7
                     2       388,578     -40,470    - 9.3      406,675     -22,477    -5.2      408,278     -20,874    -4.9
                     3       441,558     +12,510    + 3.       405,036     -24,116    -5.6      407,028     -22,124    -5.2
                     4       444,069     +15,021    + 3.5      406,311     -22,841    -5.3      415,611     -13,541    -3.2
                     5       450,716     +21,668    + 5.1      445,593     +16,441    +3.7      448,721     +19,569    +4.6
                     6       452,956     +23,908    + 5.6      449,429     +20,277    +4.8      452,956     +23,804    +5.6
                     7       392,350     -36,698    - 8.6      408,088     -21,064    -3.9      408,692     -20,460    -4.8
                     8       420,596     - 8,452    - 1.9      449,120     +19,968    +4.7      450,129     +20,977    +4.9
                     9       478,962     +49,914    +11.7      450,438     +21,286    +5.       407,839     -21,313    -5
                    10       456,308     +27,260    + 6.3      445,396     +16,244    +3.6      445,200     +16,048    +3.7
                    11       441,180     +12,132    + 2.8      426,830     - 2,322    - .5      453,527     +24,375    +5.7
                    12       404,969     -24,079    - 5.6      452,438     +23,276    +5.5      447,187     +18,135    +4.2
                -----------------------------------------------------------------------------------------------------------
                Total      5,148,578                         5,149,895                        5,149,895
                Ideal (1/12)             429,048                           429,152                          429,152
                Variation between
                  smallest and largest   102,626                            47,887                           48,790
                                        (1st-9th)                         (1st-12th)                       (1st-11th)
                Ratio smallest to
                  largest               1 to 1.27                          1 to 1.12                       1 to 1.12
                

It is apparent that under the plan adopted by the legislature the difference in population between the largest and smallest districts, viz., the 1st and 9th, is 102,626, or approximately ¼ the size of an ideal district. Under the plans proposed in the majority and minority reports the differences between the largest and smallest districts were slightly less than 50,000, or approximately 1/10; the size of an ideal district.

In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), decided some two years after the legislative apportionment here under consideration, the Supreme Court laid down the constitutional principles to be applied by state legislatures in establishing congressional districts. It said, pages 7 and 8, 84 S.Ct. page 530: "We hold that, construed in its historical context, the command of Art. I, § 2, 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." That is to say, the Court in Wesberry applied under Art. I § 2 the "one person, one vote" principle, see Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), to congressional districting which it had applied earlier in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962), under the Equal Protection Clause of the Fourteenth Amendment to districting for the election of representatives to the lower houses of state legislatures.¹

Although seats in both houses of bicameral state legislatures and seats in the United States House of Representatives must be apportioned on the basis of population, mathematical precision is not constitutionally required. The Court in Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), recognized that arithmetical equality of districts is a practically unattainable ideal. Moreover, even if arithmetical equality of districts based upon the latest census (reapportionment more frequently than after each decennial census is not constitutionally necessary, Reynolds v. Sims, supra, 583, 84 S.Ct. 1393), could be achieved by disregarding locally established voting precincts, which we do not understand to be a constitutional requirement, numerical equality would not obtain for long because of inevitable shifts in population from one area of a state to another. Recognizing these facts the Supreme Court has not set mathematical bounds to the scope of constitutionally permissible deviation from the ideal quotient.² On the contrary the Court has specifically warned that apportionment cases are not to be decided by solving an exercise in grade school arithmetic. In Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964), the Court was careful to point out that in affirming the decision below it did not mean to indicate any approval of the district court's attempt to state in mathematical language the constitutionally permissible bounds of discretion in deviating from apportionment according to population. It said:

"In our view the problem does not lend itself to any such uniform formula, and it is neither practicable nor desirable to establish rigid mathematical standards for evaluating the constitutional validity of a state legislative apportionment scheme under the Equal Protection Clause. Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination."

This language applies specifically to the apportionment of Representatives to state legislatures. Nevertheless, we think it clear that the language also applies to the apportionment of Representatives to the United States Congress. Of course figures are essential to show that population disparity of districts is de minimis, or, on the other hand, to show that population disparity is so gross as to suggest, if not clearly to establish, legislative disregard for the "one person, one vote" principle. The actual test, however, is not mathematical but is what is "practicable" under the particular circumstances of the state involved. Measured by this test the Massachusetts Congressional Apportionment Act does not pass constitutional muster. The reason for this is that there is nothing whatsoever before us to show that it would not have been entirely "practicable" for the legislature to have districted the Commonwealth not as it did, but as recommended by either the majority or minority of its joint special committee which, had it done so, would have provided districts more nearly equal...