Ellis v. Mayor and City Council of Baltimore, 9899.

• Citation: 352 F.2d 123
• Decision Date: 11 October 1965
• Docket Number: No. 9899.,9899.
• Parties: Frank J. ELLIS, Appellee, v. MAYOR AND CITY COUNCIL OF BALTIMORE, Appellant,
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

352 F.2d 123 (1965)

Frank J. ELLIS, Appellee, v. MAYOR AND CITY COUNCIL OF BALTIMORE, Appellant,

No. 9899.

United States Court of Appeals Fourth Circuit.

Argued May 31, 1965.

Decided October 11, 1965.

Clayton A. Dietrich, Chief Asst. Sol., City of Baltimore, Md. (Joseph Allen, City Sol. of Baltimore, Md., and Harold L. Glaser, S. Leonard Rottman and Solomon Baylor, Asst. City Sol., on brief), for appellant.

Archie D. Williams, Baltimore, Md., for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BRYAN and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Circuit Judge:

The present apportionment and a proposed reapportionment of the Baltimore City Council were declared unconstitutional by the United States District Court for the District of Maryland. This is the municipality's appeal from that decision. Jurisdiction is founded on 28 U.S.C.A. § 1343(3) and 42 U.S.C.A. §§ 1983 and 1988.¹

Plaintiff, a resident and registered voter of the Fifth Councilmanic District of Baltimore City, brought suit on his own behalf and on behalf of all voters in Baltimore City who are similarly situated.

In his initial complaint he contended that the apportionment scheme, set out in sections 16 and 20 of the 1946 Charter and Public Laws of Baltimore City (1949 ed.),² is void in that it violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. As those sections apportioned to a voter in the Second District three times the voting power of one in the Third District, the District Court found the Equal Protection Clause had been violated. The merit of this part of the decision is not, and could not successfully be, contested in this appeal, for the "one man, one vote" principle, infra, 352 F.2d 126 logically applies to councilmanic no less than to statewide apportionment.

Before the suit came on for hearing, indeed contemporaneously with its initiation, in April, 1963, the Mayor appointed a committee to draw up a reapportionment plan for the city. This group, known as the Bard Commission in deference to its chairman, Dr. Harry Bard, submitted its report on April 23, 1963. The report proposed a new apportionment plan commonly referred to as Plan X. This, as amended by the City Council, was embodied in Resolution No. 9, passed on May 16, 1963.

The plan was then to be submitted to the voters for their approval at the election in November, 1964.³ The plaintiff thereupon amended his complaint to attack, again on equal protection grounds, this proposed remedy for the malapportionment. The District Court found this plan, like that in the 1946 Charter, unconstitutional, and enjoined its submission to the voters of Baltimore City. It is from this part of the court's decision, invalidating Modified Plan X, that the city appeals.

Modified Plan X redraws the boundaries of Baltimore's six councilmanic districts and awards three councilmen to each district having less than 70,000 registered voters, four to each district with voters in excess of that number.⁴

The District Court concluded that this plan is unconstitutional in two respects: first, that it gives voters of the First District a disproportionate voice in the selection of city councilmen; and second, that the representation of Fourth District residents is irrationally diluted vis-a-vis that of Fifth District residents.

I

We agree with the District Court as to the overly generous treatment of the First District. Under Modified Plan X a councilman from the First District would represent 12,370 registered voters while a councilman from the Third would represent 21, 193, a variation in the ratio of 1.71 to 1. When we look to total population, rather than voter registration, the discrepancy is almost as striking. A First District councilman would represent 34,367 persons while a Second District councilman would represent 56,930, a variation in the ratio of 1.66 to 1.

In our opinion the District Court was eminently reasonable in holding that a seventy percent variance in voting strength does not constitute "faithful adherence to a plan of population-based representation." Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964). The record offers no justification for this discrepancy except the city's contention that the Bard Commission, the authors of the predecessor of Modified Plan X, considered such factors as neighborhood, state legislative districts, economics, etc. A study of the Commission report and of the testimony of its chairman fails to indicate concretely how these factors required or warranted the substantial imbalance in favor of the First District. Furthermore, the City Council made an unexplained reduction of approximately 20% in the size of the First District from that proposed by the Commission, thereby aggravating the discrimination in favor of that district. The chairman of the Commission, appearing as amicus curiae, testified that he was unhappy with this amendment though he was apparently willing to acquiesce in it.

The city may not justify a significant departure from the principle of "one man, one vote" by a vague and unsupported reference to abstract considerations. Justification for divergences from the norm may be found only in specific proof of permissible considerations that necessitated the particular variance. Davis v. Mann, 377 U.S. 678, 691, 84 S.Ct. 1453, 12 L.Ed.2d 609 (1964). No such justification has been tendered in this case.

II

The second ground relied on by the District Court for enjoining the submission of Modified Plan X to the voters of Baltimore presents a more difficult problem. The total populations of the proposed Fourth and Fifth Districts are approximately equal, yet the Fifth District would have four councilmen while the Fourth would be allowed only three. This disparity results from the fact that Baltimore, pursuant to section 16 of its Charter, bases its apportionment on the number of registered voters in a district, rather than the total population.⁵

Looking to the registration figures we find that there are 59,750 registered voters in the proposed Fourth District and 73,728 in the Fifth. Basing its apportionment plan on registration, the Commission and in turn the City Council approved a plan giving the Fifth District one more city councilman than the Fourth. This means that a Fourth District councilman would represent 19,917 registered voters while one from the Fifth would represent 18,432, an acceptable variance of less than three percent if voter registration is a permissible basis.

The District Court, however, found that the proposed plan would deny residents of the Fourth District equal protection in giving them one less councilman than an approximately equal number of persons residing in the Fifth District.

This additional ground which was assigned by the District Court for voiding Modified Plan X necessarily stems from three prior determinations, the latter two being implicit: first, that the constitutionality of an apportionment plan is to be tested by its impact on total population rather than on the number in a given community who are registered to vote; second, that a variance of 1 to 1.37, the approximate disproportion in representation of the respective populations of the Fourth and the Fifth Districts arising from the use of registration rather than total population as a test, is presumptively too wide a departure from the equality norm; and third, that registration is not a "factor free from arbitrariness or discrimination" justifying the variance. The contention of the appellant is that, constitutionally, total population is not the sole test and that a plan may meet constitutional standards if it satisfies an equality test based on voter registration. We shall set forth the appellant's argument fully and then state our reasons for agreeing with the District Court in rejecting it.

The appellant's argument is developed as follows: The Supreme Court's reference in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), to "population" as the "starting point" for consideration and the controlling criterion for judgment in legislative apportionment controversies, 377 U.S. at 567, 84 S.Ct. 1362, does not, according to appellant, preclude the use of other rational criteria, such as voter registration. He contends that the Supreme Court has indicated that the term "population" is subject to reasonable definition by the political unit that is apportioning itself and that in his opinion the Court repeatedly equated the term "population" with voters. He points to page 577, at page 1390 of 84 S.Ct., of Reynolds, where the Court stated, "We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters." (Italics added.) It is also noted that in the sentence immediately following the reference to "population" as the "controlling criterion," the Supreme Court referred to "citizens" and "qualified voters" without distinction. 377 U.S. at 568, 84 S.Ct. 1262.

Further reliance is placed by the appellant on the fact that the Constitution of Tennessee, the state whose apportionment was contested in the seminal case, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), defines "population" as "qualified voters," that is, persons over 21, and no objection was voiced on this score. See Baker v. Carr, 222 F.Supp. 684 (M.D.Tenn.1963); 206 F. Supp. 341, 344 (M.D.Tenn.1962). However, that issue was not presented and the Court did not directly address itself to it.

The appellant suggests that a more explicit indication of the Supreme Court's view is to be found in New York's apportionment case. WMCA, Inc. v. Lomenzo, 377 U.S. 633, 647-651, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964). That state defines population as total population less aliens. N.Y.Constitution, Art. III. The Court cited this provision and proceeded to demonstrate the...