Dunnell v. Austin, 37533.

• Decision Date: 31 May 1972
• Docket Number: No. 37533.,37533.
• Citation: 344 F. Supp. 210
• Parties: Mildred DUNNELL et al., Plaintiffs, and John B. Bruff et al., Intervening Plaintiffs, v. Richard H. AUSTIN, Defendant.
• Court: U.S. District Court — Western District of Michigan

344 F. Supp. 210

Mildred DUNNELL et al., Plaintiffs and John B. Bruff et al., Intervening Plaintiffs, v. Richard H. AUSTIN, Defendant.

No. 37533.

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

May 31, 1972.

Foster, Lindemer, Swift & Collins, Lansing, Mich., for plaintiffs.

Russell A. Searl and Solomon Bienenfeld, Lansing, Mich., for defendant Richard H. Austin.

Theodore Sachs, Detroit, Mich., for defendant Bruff.

OPINION

KEITH, District Judge.

This is a suit to compel valid redistricting of Michigan's nineteen Congressional Districts in the light of the 1970 U. S. decennial census.

On December 10, 1971, plaintiffs Dunnell, Fletcher, Haynes and Lyle brought suit to challenge the existing Congressional districting of the State of Michigan, Act 282, Public Acts of Michigan of 1964, being M.C.L.A. § 3.51, M.S.A. § 4.24(1), and to seek judicial relief in the event the Michigan legislature did not sooner and appropriately redistrict Michigan's Congressional districts in accordance with the 1970 census. Subsequently, Messrs. Bruff, Winograd, Vagnozzi and Staebler were granted leave to intervene as parties plaintiff, as was, at a later date, Congressman James Harvey of Michigan's 8th Congressional District. The defendant is Richard H. Austin, Secretary of the State of Michigan and, under the Michigan Election Law, Act 116, Public Acts of 1954, M.C.L.A. § 168.1 et seq., M.S.A. § 6.1001 et seq., Michigan's chief election officer. See inter alia, M.C.L.A. §§ 168.31-168.35, M.S.A. §§ 6.1031-6.1035.

On January 18, 1972, all parties entered into a Stipulation (which Intervenor Harvey later joined) that Michigan's existing Congressional districting was unconstitutional by reason of population changes and shifts since 1964, and that new legislation was required.¹ As part of the Stipulation the parties agreed that, "A reasonable time by which the State Legislature shall have completed valid legislative enactment of a Congressional Redistricting Act would be February 29, 1972." (Stipulation, January 18, 1972, ¶ V). The parties further stipulated that, "In the event the Legislature of the State of Michigan has not enacted a valid new Congressional Redistricting Act on or before February 29, 1972, any party may move that this Court set a pre-trial hearing in the above entitled action, if possible, on or before March 3, 1972, and thereafter the Court may order the parties to present to it for consideration plans for Congressional Districting." (Stipulation, January 18, 1972, ¶ VI).

The legislature did not in fact enact a Congressional Districting law by February 29, 1972, nor thereafter. Pursuant to the Stipulation, the parties thereafter were requested to submit proposed plans of Congressional redistricting by April 6, 1972 and to argue the merits thereof on April 14, 1972. Plaintiffs Dunnell et al. timely filed three alternative plans, captioned "A," "B," and "C," on April 6, 1972, and on the same date intervening plaintiffs Bruff et al. filed a basic plan, together with a partial alternate plan as to certain districts. Neither intervenor Harvey nor the defendant Secretary of State proposed any plans. On April 14, 1972, counsel for the parties (except for the Secretary of State, who took no position) argued the merits of the respective plans and the Court took the matter under advisement. The Assistant Attorney General representing the Secretary of State advised the Court that in order for Michigan to conduct orderly Congressional elections in 1972, it was essential that (if the legislature did not sooner enact a valid plan of Congressional redistricting) the Court direct the adoption of a plan no later than the end of the first week of May, 1972 (i. e., May 5, 1972). Because the establishment of Congressional districts is initially, at least, a matter for legislative action, the Court exercised forbearance in the hope that the Michigan legislature would sooner do its duty and enact a valid Congressional districting law which, moreover, would be timely so as to enable the orderly and efficient conduct of Michigan's primary and general elections in 1972. The legislature failed to do so. On May 12, 1972, the Court was advised by all counsel in chambers that there was no likely prospect that the legislature would; and counsel requested the Court itself to adopt a valid plan, to be effective forthwith. Mindful of the election exigencies implied in the Stipulation of the parties dated January 18, 1972, that the end of February would be the maximum reasonable period for the legislature itself to enact a new Congressional districting law, and mindful of the concerns expressed by the Assistant Attorney General on behalf of the Secretary of State at oral arguments that the end of the first week in May would represent a critical juncture in enabling the conduct of orderly elections, the Court on May 12, 1972, advised the parties that it could no longer forbear in the matter and that, consequently, it was directing forthwith the adoption of the plan of the intervening plaintiffs Bruff et al., as modified by their partial alternate plan. Such announcement was then made "so that those affected thereby will have time to plan accordingly," and the Court promised that an opinion would follow. Accordingly, this opinion is intended to set forth the views of the Court in directing the adoption of the intervening plaintiffs' plan as modified by their partial alternate plan. (Judgment to that effect was entered May 15, 1972).

As indicated above, the unconstitutionality of the present statute, Act 282, Michigan Public Acts of 1964, is patent, on which account all of the parties hereto—the plaintiffs, intervening plaintiffs, and defendant chief election officer of Michigan—stipulated to that fact and conclusion. In addition to such stipulation, the unconstitutionality of the statute and district thereunder is manifest under applicable precedents, which circumstance, of course, induced the parties to enter into the stipulation. It is manifest because, under applicable Federal precedents, Congressional districts must contain substantially equal numbers of persons to satisfy the constitutional requirement of Article I, Section 2 of the Federal Constitution, that Congressmen be chosen "by the people of the several states." Such provision means that "as nearly as practicable" one man's vote in a Congressional election must be worth as much as another's. Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). More recently, the Supreme Court held that the "as nearly as practicable" standard requires a good faith effort to achieve precise mathematical equality of population in the apportionment of Congressional districts. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). And see Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). In Kirkpatrick, the Court held that deviations from exact population equality which in no district exceeded 3.13%, but which could have been avoided by good faith efforts, were not justifiable on such grounds as the representation of distinct interest groups, the maintenance of political subdivision lines, the achievement of district compactness, the anticipation of population trends, or the accommodation of "political realities," etc. In any event, the population variances under the current Michigan districts, which result from population shifts since 1964, are so gross as to foreclose any substantial claim that the present statute is not on its face unconstitutional.²

Application of the same legal principles which require invalidation of the existing Congressional Districts leads the Court to the inescapable conclusion that the submitted plan of the intervening plaintiffs Bruff et al., as modified by their partial alternate plan as to six districts, is the superior plan which this Court should adopt.

The population variances in the adopted plan, detailed in the margin,³ are minuscule. The average deviation from ideal district size (467,543) is but 2 persons (2.47368), or 0.00053%. With two exceptions, no district varies from norm by more than 4 persons, and those two exceptions are Districts 6 and 7, respectively, only 7 and 8 persons less than norm, or a maximum percentage variation from norm of only 0.00171%. The aggregate number of persons deviating from average in all districts is but 47. So tight are the approximations to exact equality that three districts, the 5th, 12th and 15th, have no deviations from norm; they precisely equal the ideal population district. Finally, variations from largest to smallest districts are similarly infinitesimal. The largest districts, the 4th, 10th and 11th, each have 467,547 persons, merely 4 above average, or a variation of 0.00086%. Those largest districts are but 0.00257% larger than the smallest district, the 7th, which has 467,535 persons, 8 below norm. The ratio of the largest districts (the 4th, 10th and 11th) to the smallest (the 7th) is 1.000026:1. There appears, then, to be justification for the assertions by the intervening plaintiffs Bruff et al., that their plan (including the partial alternate) "for the first time in United States history, achieves not only the spirit but the letter of precise mathematical equality, as constitutionally urged in the cited cases, and particularly Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969)."

Plaintiffs Dunnell et al. argued that their own plans satisfied the constitutional principles cited earlier, whose application they conceded. Based upon revised U. S. census data, however, their plan "A" as "corrected"⁴ appears to have a population range of 2,828, or 236 times as much as the adopted plan, while their plan "B" appears to have a range of at least 701, approximately 58 times as much as in the adopted plan.⁵ (Their plan "C" was withdrawn after oral arguments, by letter to the Court dated April 20, 1972, for conceded substantial...