Ely v. Klahr

Decision Date07 June 1971
Docket NumberNo. 548,548
Citation403 U.S. 108,29 L.Ed.2d 352,91 S.Ct. 1803
PartiesHerbert L. ELY, Individually and as Chairman of the Democratic Party of Arizona, Appellant, v. Gary Peter KLAHR et al
CourtU.S. Supreme Court

Philip J. Shea, Phoenix, Ariz., for appellant.

John M. McGowan, II, Phoenix, Ariz., for appellees.

Mr. Justice WHITE delivered the opinion of the Court.

This appeal is the latest step in the long and fitful attempt to devise a constitutionally valid reapportionment scheme for the State of Arizona. For the reasons given, we affirm the judgment of the District Court.

In April 1964, shortly before this Court's decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and in its companion cases, suit was filed in the District Court for the District of Arizona attacking the then-existing state districting laws as unconstitutional.1 Following those decisions, the three-judge District Court ordered all proceedings stayed 'until the expiration of a period of 30 days next following adjournment of the next session' of the Arizona Legislature. (App. 2—3, unreported.) Nearly a year later, on May 18, 1965, after the legislature had failed to act, the court again deferred trial pending a special legislative session called by the Governor to deal with the necessity of reapportionment. The special session enacted Senate Bill 11, which among other things provided one senator for a county of 7,700 and another for a county of 55,000. The session did not undertake to reapportion the House. Trial was had in November 1965 and on February 2, 1966, the court enjoined enforcement of Senate Bill 11, which, it held, 'bears evidence of having been thrown together as a result of considerations wholly apart from those laid down as compulsory by the decisions of the Supreme Court.' Klahr v. Goddard, 250 F.Supp. 537, 541 (D.C.Ariz.1966). The plan, said the court, was 'shot through with invidious discrimination.' Id., at 546. The court also held that the existing House plan produced disparties of nearly four to one, which was clearly impermissible under our decisions.

Noting that the legislature 'has had ample opportunity' to produce a valid reapportionment plan, the court formulated its own plan as a 'temporary and provisional reapportionment,' designed to govern the impending preparation for the 1966 elections. The plan was to be in effect 'for the 1966 primary and general elections and for such further elections as may follow until such time as the Legislature itself may adopt different and valid plans for districting and reapportionment.'2 Id., at 543. It retained jurisdiction, as it has done since.

Some 16 months later, in June 1967, the Arizona Legislature enacted 'Chapter 1, 28th Legislature,' which again attempted reapportionment of the State. Within the month, suit was filed charging that this Act also was unconstitutional, but the court deferred action pending the outcome of a referendum3 scheduled with the November 1968 election for the legislature and Congress. It ordered those elections to be held in accordance with its own 1966 plan, as supplemented. Klahr v. Williams, 289 F.Supp. 829 (D.C.Ariz.1967). The legislative plan was approved by the voters in the referendum and signed into law by the Governor on January 17, 1969. A hearing on the plan was commenced the same day. The court concluded on July 22, 1969, that the plan, which set up 'election districts' based on population and 'legislative' subdistricts based on voter registration, would allow deviations among the legislative subdistricts of up to 40% from ideal until 1971, and up to 16% thereafter. The court properly concluded that this plan was invalid under Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), since the legislature had operated on the notion that a 16% deviation was de minimis and consequently made no effort to achieve greater equality. The court ordered its 1966 plan continued once again 'until the Legislature shall have adopted different, valid and effective plans for redistricting and reapportionment * * *.' (App. 85, unreported.) It refused to order the 1970 elections to be held at large, since there was 'ample time' for the legislature 'to meet its obligation' before the machinery for conducting the 1970 elections would be engaged.

The legislature attempted a third time to enact a valid plan. It passed 'Chapter 1, House Bill No. 1, 29th Legislature,' which was signed into law by the Governor on January 22, 1970, and which is the plan involved in the decision from which this appeal is taken. Appellant challenged the bill, alleging that it 'substantially disenfranchises, unreasonably and unnecessarily, a large number of the citizens of the state,' App. 106, and 'creates legislative districts that are grossly unequal.' App. 108. Appellant at that time submitted his own plan for the court's consideration. Appellant's primary dispute with the new plan was that it substantially misconceived the current population distribution in Arizona. The court agreed that appellant's plan, which utilized 1968 projections of 1960 and 1965 Arizona censuses, could 'very likely (result in) a valid reapportionment plan' but it declined to implement the plan, since it was based on census tracts, rather than the existing precinct boundaries, and 'the necessary reconstruction of the election precincts could not be accomplished in time' to serve the 1970 election, whose preliminary preparations were to begin in a few weeks. Klahr v. Williams, 313 F.Supp. 148, 150 (Ariz.1970). At the same time, the court observed that its 1966 plan had fallen behind contemporary constitutional requirements, due to more recent voter registration data (which increased the deviation between high and low districts to 47.09%) and the intervening decisions of this Court in Kirkpatrick and Wells, supra, and Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966).

Turning to the legislature's plan, the court found it wanting in several respects. First, though the result indicated population deviation between high and low districts of only 1.8%, the population formula used4 did not 'truly represent the population within (the) precincts in either 1960 or 1968,' and thus 'the figures produced * * * are not truly population figures.' 313 F.Supp., at 152. Second, the computer that devised the plan had been programmed to assure that the plan would not require any incumbent legislator to face any other incumbent for re-election. Third, the programming gave priority to one-party districts over districts drawn without regard to party strength. The court held that 'the incumbency factor has no place in any reapportionment or redistricting'5 and found 'inapposite' the 'consideration of party strength as a factor * * *.' Ibid.

The court was thus faced with a situation where both its 1966 plan and the legislature's latest attempt fell short of the constitutional standard. At that time, however, the 1970 elections were 'close at hand.' The court concluded that another legislative effort was 'out of the question' due to the time and felt that it could not itself devise a new plan without delaying primary elections, 'a course which would involve serious risk of confusion and chaos.' Ibid. It considered at-large elections, but the prospect of electing 90 legislators at large was deemed so repugnant as to be justified only if the legislature's actions had been 'deliberate and inexcusable'; the court instead believed that the large population increase in Arizona since the last reliable census in 1960 was more to blame. Concluding that the 1970 elections would be the last to be held before the 1970 census data became available for new plans, the court chose what it considered the lesser of two evils and ordered the elections to be conducted under the legislature's plan. In its order to this effect, the court noted that it 'assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment,' but that '(u)pon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.' Id., at 154.

The state officials did not seek review of the District Court's judgment declaring Chapter 1 unconstitutional. Appellant, however, appealed to this Court. His notice of appeal was filed on June 18, 1970, his jurisdictional statement on August 17, 1970. The latter presented the single question whether it was error for the United States District Court to refuse to enjoin the enforcement of the Arizona Legislature's most recent effort to reapportion the State. Appellees' motion to dismiss or affirm was filed on November 24. We noted probable jurisdiction on December 21, 1970, Ely v. Klahr, 400 U.S. 963, 91 S.Ct. 364, 27 L.Ed.2d 382.

Meanwhile, the 1970 elections were held in accordance with the District Court's decree. Appellees suggest that the issue presented is moot and appellant concedes 'the 1970 general election has already been held so that that aspect of the wrong cannot be remedied.' Brief 8. But appellant now argues that however that may be, the District Court should now proceed to adopt a plan of reapportionment which would be displaced only upon the adoption of a valid plan by the legislature. Appellant doubts that postponing judicial action until after November 1 will give the District Court sufficient time, prior to June 1972, when the election process must begin in Arizona, to consider the legislative plan and to prepare its own plan if the legislative effort does not comply with the Constitution. The feared result is that another election under an unconstitutional plan would be held in Arizona.

Reapportionment history in the State lends some substance to these fears, but as we have often noted, districting and apportionment are legislative tasks in the first instance,6 and the court did...

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    ...plans in question were themselves unconstitutional. E.g., White v. Weiser, 412 U.S. at 783, 93 S.Ct. at 2348; Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971); Kilgarlin v. Hill, 386 U.S. at 121, 87 S.Ct. at 821. We think that the same principle should be applicable to a pla......
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    ...would not and should not follow that an invalid apportionment plan could not be used on an interim basis. (Ely v. Klahr (1971), 403 U.S. 108, 113--115, 91 S.Ct. 1803, 29 L.Ed.2d 352; Legislature v. Reinecke, 6 Cal.3d 595, 603, 99 Cal.Rptr. 481, 492 P.2d 385.) Petitioners' characterization o......
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1 books & journal articles
  • American Indians and the Fight for Equal Voting Rights.
    • United States
    • Yale Law Journal Vol. 120 No. 6, April 2011
    • April 1, 2011
    ...have lost his seat and concludes that "[t]here is ample basis to suspect that 'the Indians were done in,'" id. (quoting Ely v. Klahr, 403 U.S. 108, 119 (1971) (Douglas, J., concurring)); MCDONALD, AMERICAN INDIANS, supra note 3, at 104, which discusses how the 1992 Montana state legislature......

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