Ferrell v. State of Oklahoma ex rel. Hall
| Decision Date | 22 May 1972 |
| Docket Number | Civ. No. 71-656. |
| Citation | 339 F. Supp. 73 |
| Parties | Donald FERRELL et al., Plaintiffs, v. The STATE OF OKLAHOMA ex rel. Governor David HALL et al., Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
R. C. Jopling, Jr., and Timothy D. Leonard, of Jopling, Blankenship, Herrold, Russell & Leonard, Oklahoma City, Okl., for plaintiffs.
Larry Derryberry, Atty. Gen. of Okl., and Robert H. Mitchell and Marvin C. Emerson, Asst. Attys. Gen., for defendants.
Before McWILLIAMS, Circuit Judge, BOHANON, Chief District Judge, and EUBANKS, District Judge.
Judgment Affirmed May 22, 1972. See 92 S.Ct. 2045.
This Declaratory class action is brought by five Republican State Senators and four individual citizens of the State of Oklahoma challenging the constitutionality of the Oklahoma State Senate Apportionment Act of 1971. A three-judge court was convened to hear the case and jurisdiction is predicated upon the Fourteenth and Fifteenth Amendments to the Constitution of the United States; 28 U.S.C. §§ 2281, 2284; 28 U.S.C. § 1343(3) and 42 U.S.C. §§ 1983, 1988. The specific contentions of the plaintiffs as set forth in the pretrial order are as follows:
1. The Act is invidiously discriminatory on its face against Negro citizens of Tulsa County because it failed to create a single State Senate District in which Negro citizens constituted a clear majority and that this result was intentional.
2. That the State Senate Apportionment Act of 1971 was a purposeful device to further racial discrimination used by the Oklahoma Legislature for such purpose in enacting this Act.
3. That placing the Negro citizens of Tulsa County into three State Senatorial Districts in each of which they constitute a minority of the total population has the effect of cancelling and diluting these citizens' vote in an invidiously discriminatory way violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
4. Those citizens who live in odd numbered State Senatorial Districts which elected a State Senator in 1968 and whose place of residence has been included by the Act in the territory of a State Senate District where there is a holdover Senator elected in 1970 will not get to vote again for a State Senator until 1974 and this situation infringes upon the right to vote of such citizens by allowing them to vote only one time over a six year period for a State Senator.
5. Those citizens who reside in a district which elected a State Senator in 1968 and whose residences have been included in the territory of a State Senate District with a holdover Senator elected in 1970 who will not be subject to reelection until 1974 will be represented for two years by a holdover Senator in whose election they did not participate.
6. The Act in shortening the terms of State Senators Don Ferrell, Leon Field and G. O. Williams, elected in 1970 to represent Districts 18, 28 and 30, while not shortening the terms of the other incumbent State Senators elected in 1970 violates the Oklahoma Constitution and the United States Constitution. Such action was arbitrary and capricious conduct by the Legislature and constitutes invidious discrimination against the three incumbent State Senators elected in 1970 to represent State Senate Districts 18, 28 and 30 and the people of Oklahoma who voted for or against them.
7. The Act violates the second sentence of Section 9A of Article V of the Constitution of Oklahoma and the United States Constitution in that it fails to consider compactness, area, political units, historical precedents, economic and political interests, contiguous territory, and other major factors, to the extent feasible, although it is conceded that the Act gave consideration to population.
8. That the plan unnecessarily violates existing boundary lines of political subdivisions, community interests, natural and historical boundary lines, and particularly county boundary lines and that such violation was intentional and by preference. This failure to do so constitutes invidious discrimination against those citizens who reside in counties whose boundaries were crossed by the State Senate District lines of the Act.
9. The plaintiffs and other citizens of Oklahoma similarly situated cannot through the elective processes or otherwise protect their rights.
10. The plaintiffs and other citizens similarly situated have no remedy against the invidious discrimination of the Act through initiative petition, referendum, or constitutional convention.
As their defenses herein the defendants' contentions as stated in the pretrial order are:
1. The State Senate Apportionment Act of 1971 is a valid, full and complete, good faith satisfaction of the requirements of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, as interpreted and applied in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and subsequent decisions of the United States Supreme Court, and Section 9A of Article V of the Oklahoma Constitution as interpreted and modified by this Court in Reynolds v. State Election Board, 233 F.Supp. 323.
2. That the Act is a valid, full, complete, good faith effort to divide the State into 48 State Senatorial Districts as equal as may be in population to the end that the vote of each citizen will be equal to the vote of all other citizens in the election of members of the State Senate.
3. That equality of population between the State Senatorial Districts was the preeminent factor (overriding objectives) considered in the legislative processes which led to enactment of the Act.
4. That contiguity was the next principal factor considered in the legislative processes which led to the enactment of the Act, subordinate only to the preeminent consideration of equality of populations.
5. The contiguity, compactness, political units, historical precedents, area, and economic and political interests were considered as factors in the legislative processes leading to the enactment of the Act, but they were subordinate to the preeminent principal of equality of population, and that such ranking of priorities of consideration was required and appropriate under the Fourteenth Amendment to the Constitution of the United States as interpreted in Reynolds v. Sims, supra, and subsequent decisions of the United States Supreme Court.
6. That the factors of compactness, area, political units, historical precedents, economic and political interests, contiguous territory and other major factors to be considered according to the second sentence of Section 9A of Article V of the Oklahoma Constitution are no longer a valid part of the Oklahoma Constitution and are not mandatory considerations of the Legislature in enacting an apportionment plan because the same were found to be unconstitutional and declared to be null and void by this Court in Reynolds v. State Election Board, 233 F.Supp. 323, at page 329. Such factors are now permissible considerations, but not mandatory considerations for the Legislature in designing an apportionment plan.
7. That no consideration was given to race in the legislative processes which led to the enactment of the Act.
8. That the Act is not invidiously discriminatory against Negro citizens residing in Tulsa County or anywhere else, nor against any other cognizable racial minority.
9. That no data as to voter registration, party affiliation, or votes cast in past elections was considered in the legislative processes leading to the enactment of the Act.
10. That it is inevitable whenever four year terms are to be respected and continued during the period in which a reapportionment of State Senate Districts occurs (See Supplemental Order in Reynolds v. State Election Board, 233 F. Supp. 323, at page 363) that some citizens will reside in territory which is assigned to a district which has an incumbent holdover Senator who will represent those citizens for the final two years of his term and that such situation does not constitute invidious discrimination contrary to the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
11. The Act was not arbitrary and capricious in shortening the terms of the three State Senators elected in 1970 from Senate Districts 18, 28 and 30. On the contrary, inasmuch as the Section 9A of Article V of the Constitution of Oklahoma specifies that there shall be only one Senator elected to represent each State Senate District and inasmuch as there were two such incumbent State Senators in each of the new Senate Districts 49 and 50, it was required by the Oklahoma Constitution that the terms of such incumbent Senators in former Districts 18, 28 and 30 be shortened to expire in 1972 in order that only a single Senator would be elected from new Senate Districts 49 and 50 in 1972.
12. That to satisfy Section 9A of Article V of the Oklahoma Constitution it was necessary to provide that the three Senators elected from the new Senate Districts 50, 52 and 54 be elected in 1972 for an initial term of only two years in order that in 1974 and subsequent years the provision of the Oklahoma Constitution requiring that one-half of the Senators be elected at each General Election would be met. That for the Act to do so did not constitute arbitrary and capricious action, but on the contrary constituted compliance with the Constitution of the State of Oklahoma.
13. That there is no competent evidence, nor, indeed, any evidence whatsoever, of improper, unlawful or unconstitutional considerations having been made by the Legislature during the processes which led to the enactment of the Act.
The case came on for trial on January 17, 1972 and evidence was presented by both sides lasting a full day and arguments were heard on the following day. The Court, being fully advised does...
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