Dunn v. State of Oklahoma

• Decision Date: 15 June 1972
• Docket Number: Civ. No. 72-7.
• Parties: Vernon DUNN et al., Plaintiffs, Oklahoma State Conference of Branches of the National Association For the Advancement of Colored People, Intervenor-Plaintiff, v. The STATE OF OKLAHOMA, its duly elected or appointed and acting officers and agencies, including David Hall, Governor, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

343 F. Supp. 320

Vernon DUNN et al., Plaintiffs Oklahoma State Conference of Branches of the National Association For the Advancement of Colored People, Intervenor-Plaintiff, v. The STATE OF OKLAHOMA, its duly elected or appointed and acting officers and agencies, including David Hall, Governor, et al., Defendants.

Civ. No. 72-7.

United States District Court, W. D. Oklahoma.

June 15, 1972.

David L. Russell and Donald E. Herrold, of Jopling, Blankenship Herrold, Russell & Leonard, Oklahoma City, Okl., and William C. Doty, Jr., Oklahoma City, Okl., for plaintiffs.

Henry W. Floyd, Oklahoma City, Okl., and Nathaniel R. Jones and James I. Meyerson, New York City, for intervenor-plaintiff.

Larry Derryberry, Atty. Gen., State of Okl., Robert H. Mitchell and Marvin C. Emerson, Asst. Attys. Gen., Oklahoma City, Okl., for defendants.

Before McWILLIAMS, Circuit Judge, BOHANON, Chief District Judge, and EUBANKS, District Judge.

MEMORANDUM OPINION

PER CURIAM.

GENERAL ISSUES AND JURISDICTION

This is an action for declaratory and injunctive relief brought by the Plaintiffs, individually, and on behalf of citizens and electors of the state similarly situated under 42 U.S.C. § 1983 and § 1988 seeking this Court to declare the State House of Representatives Apportionment Act of 1971, O.S.L.1971, c. 118, codified as 14 O.S.1971, §§ 111-115, both inclusive, (hereinafter called "Act") unconstitutional under the Federal and State Constitutions and to enjoin the Defendants from implementing the Act and requiring them to enact a new plan of apportionment using guidelines to be established by the Court upon hearing this cause.

The Intervenor, Oklahoma State Conference of Branches of the National Association for the Advancement of Colored People, has been conditionally permitted to intervene in this cause by minute order of this Court entered March 21, 1972. Intervenor substantially relies upon Plaintiffs' allegations and seeks the same relief.

Jurisdiction of the Court was heretofore found present by Order of the three-judge Court entered February 17, 1972, and is invoked under 28 U.S.C. § 1343(3).

Plaintiffs and Intervenor contend that the Act is invalid under the equal protection clause of the Fourteenth Amendment, and violates the right to vote and be represented and freedom of political association of certain black citizens and electors of the State of Oklahoma under the Fourteenth, Fifteenth and First Amendments to the United States Constitution. Further, that it violates mandatory provisions of Article V, § 10A of the Oklahoma Constitution. That by virtue of its unconstitutionality this Court should declare the same void and enjoin the Defendant, State of Oklahoma, from implementing the Act and to enact another apportionment plan that meets state and federal constitutional guidelines.

The Defendants contend that the Act is a full and complete good faith compliance with the requirements of the equal protection clause of the Fourteenth Amendment, and does not violate the rights of black citizens of the State under the First, Fourteenth and Fifteenth Amendments to the United States Constitution, nor is it violative of pertinent provisions of the Oklahoma Constitution.

The trial of said cause was commenced on the 30th day of May, 1972, and numerous witnesses were heard and many exhibits received. The trial continued through May 31, 1972, and final arguments were heard on June 1, 1972. The parties were invited to submit proposed findings and conclusions which has been done, and the Court, being fully advised in the premises, does find and conclude as follows:

FINDINGS OF FACT

1. This case is brought under (a) the First, Fourteenth and Fifteenth Amendments to the Constitution of the United States, (b) 28 U.S.C. §§ 2281 and 2284, (c) 28 U.S.C. § 1343(3), and (d) 42 U. S.C. §§ 1983 and 1988.

2. Plaintiffs are Vernon Dunn, Hannah D. Atkins, Kenneth Converse and Carl Robinson, all Democratic members of the Oklahoma House of Representatives, and Harry D. Smith and Maurice Ball, citizens of the State of Oklahoma.

3. The Intervening Plaintiff is the Okahoma State Conference of Branches of the National Association for the Advancement of Colored People (NAACP).

4. Defendants in the action are the State of Oklahoma, its duly elected or appointed and acting officers and agencies, including David Hall, Governor; Rex Privett, Speaker of the House of Representatives, Thirty-third Legislature; Finis W. Smith, President Pro Tempore of the Senate, Thirty-third Legislature; Edna Mae Phelps; William H. Mattoon, and Lee Slater, the duly appointed members of the State Election Board.

5. The House of Representatives Apportionment Act of 1971 (Ch. 118, 1971 Okla.Sess.Laws) has been codified as 14 O.S.1971, §§ 111 through 115. This Act was duly and regularly enacted in accordance with law. The Oklahoma Constitution required and population shifts since 1960 dictated the redistricting of the Oklahoma House seats in 1971.

6. The best available 1970 Bureau of Census data that were utilized in the State House of Representatives Apportionment Act of 1971 (House Bill 1065, Thirty-third Legislature, First Session; OSL 1971, C. 185; 14 O.S.1971, §§ 111-114) was the First Count Summary (computer) Tape of the Master Enumeration Districts List for Oklahoma, hereinafter referred to as "the First Count MED List". According to this data, the 1970 population of the State of Oklahoma was 2,559,253, which represents an increase of 230,969 or 9.9 percent, from the 2,328,284 inhabitants of the State in 1960.

7. The formula and procedure for apportionment of the House of Representatives under the Act were derived by dividing 101 Representative Districts into the total population of Oklahoma according to the 1970 Federal Decennial Census. Under that division an "ideal" district would contain a population of 25,339 persons.

8. The smallest census areas for which the First Count Master Enumeration District List provided population figures were Enumeration Districts and Block Groups, of which there were a total of 4,013 such areas. The First Count Master Enumeration District List described each such area by county name, assigned census number and gave the 1970 population thereof.

9. The smallest area breakdown of population in non-metropolitan areas as provided by the United States Bureau of Census is the "Enumeration District". The smallest area breakdown of population in metropolitan areas in the First Count Master Enumeration List is Block Groups. Any further breakdown did not become available from the Bureau of Census until after the 1971 Legislature adjourned.

10. The 1971 Oklahoma Legislature used the First Count Master Enumeration District List exclusive of all other data as to population in drafting the House of Representatives Apportionment Act of 1971.

11. The 1971 Oklahoma Legislature utilized a computer in the preparation of the House of Representatives Apportionment Act of 1971. Except for insignificant errors cured by a 1972 statute, the 1970 population assigned in the Act is correct as reported in the First Count Master Enumeration District List.

12. The apportionment plan in the State House of Representatives Apportionment Act of 1971 closely approaches nearly exact mathematical equality of the 1970 populations of 101 State House of Representatives Districts. Mathematical variances are as follows:

(a) The least populous district (No. 48) is 302 below the ideal or 1.2 percent at variance with the ideal ratio population per district.

(b) The most populous district (No. 59) is 262 above the Act's ideal population or 1.0 percent at variance with the ideal ratio population per district.

(c) The range of variance is 2.2 percent from high to low.

(d) The mean-high variance is 25,434 or 0.3 percent at variance with the ideal ratio of population per district.

(e) The mean-low variance is 25,232 or 0.4 percent at variance with the ideal ratio of population per district.

(f) There are 56 districts whose population variance from the ideal is less than 100.

(g) There are 97 districts in which the deviation from the ideal is 229 persons or fewer. These 97 districts deviate from the ideal by less than one percent.

13. None of the Plaintiffs submitted (to the House of Representatives or its Committee on Constitutional Revision and Regulatory Services) a complete plan for districting the Oklahoma House of Representatives.

14. No other persons introduced (to the Oklahoma House of Representatives or its Committee on Constitutional Revision and Regulatory Services) any plan for a complete redistricting of the House of Representatives. The evidence did establish that several amendments to the Oklahoma House of Representatives Apportionment Act of 1971 were submitted both in the form of amendments and Motions to Recommit to the Committee of the Whole instructions to amend. These were rejected.

15. Oklahoma City and Tulsa are the major urban and metropolitan areas of the State. They are generally situated in Oklahoma and Tulsa counties, respectively, although the greater metropolitan areas of each extend into surrounding and contiguous counties.

16. Although Plaintiff Atkins requested computer information as to racial distribution of population, Speaker Privett refused upon the stated belief that such racial information should not be considered by the Legislature during the formulation of the House of Representatives Apportionment Act of 1971. The State House of Representatives and its Committee on Constitutional Revision and Regulatory Services did not use any census data pertaining to race or racial distribution of population in the consideration of the State House of Representatives Apportionment Act of 1971; nor were such census data printed or made available in usable form to any member of the Legislature or to any other person while the State House of Representatives Apportionment Act of 1971 was under consideration. Such information...