Gorin v. Karpan

• Decision Date: 15 October 1991
• Docket Number: No. 91-CV-0054-K.,91-CV-0054-K.
• Citation: 775 F. Supp. 1430
• Parties: Sarah GORIN, Bern Hinckley, Chelsea R. Kesselheim, John M. Faunce, Linda Kirkbride, Jesse Guidry, Verna Crusch, Ernest A. Roybal, Chris Plant, Wayne E. Morrow, Larry W. McGonigal, and Teri J. Royer, Plaintiffs, Harriett Elizabeth "Liz" Byrd, Edith V. Garcia, Pat Hacker, Fred Harrison, Shirley J. Humphrey, Patrick F. O'Toole, Scott J. Ratliff, Bill Vasey, and Carol Watson, Intervening Plaintiffs, v. Kathy KARPAN, Wyoming Secretary of State in her individual official capacity and as a member of the State Canvassing Board, Michael J. Sullivan, Governor of the State of Wyoming in his individual official capacity and as a member of the State Canvassing Board; David Ferrari, Wyoming State Auditor in his individual official capacity and as a member of the State Canvassing Board, and Stan Smith, Wyoming State Treasurer in his individual official capacity and as a member of the State Canvassing Board, Defendants.
• Court: U.S. District Court — District of Wyoming

775 F. Supp. 1430

Sarah GORIN, Bern Hinckley, Chelsea R. Kesselheim, John M. Faunce, Linda Kirkbride, Jesse Guidry, Verna Crusch, Ernest A. Roybal, Chris Plant, Wayne E. Morrow, Larry W. McGonigal, and Teri J. Royer, Plaintiffs Harriett Elizabeth "Liz" Byrd, Edith V. Garcia, Pat Hacker, Fred Harrison, Shirley J. Humphrey, Patrick F. O'Toole, Scott J. Ratliff, Bill Vasey, and Carol Watson, Intervening Plaintiffs, v. Kathy KARPAN, Wyoming Secretary of State in her individual official capacity and as a member of the State Canvassing Board, Michael J. Sullivan, Governor of the State of Wyoming in his individual official capacity and as a member of the State Canvassing Board; David Ferrari, Wyoming State Auditor in his individual official capacity and as a member of the State Canvassing Board, and Stan Smith, Wyoming State Treasurer in his individual official capacity and as a member of the State Canvassing Board, Defendants.

No. 91-CV-0054-K.

United States District Court, D. Wyoming.

October 15, 1991.

Steven F. Freudenthal of Herschler, Freudenthal, Salzburg, Bonds & Rideout, P.C., Cheyenne, Wyo. (Hardy H. Tate, Sheridan, Wyo., William John Disney, Douglas, Wyo., with him on the briefs), for plaintiffs.

Ford T. Bussart of Greenhalgh, Bussart, West & Rosetti, P.C., Rock Springs, Wyo., Lisa A. Botham, Green River, Wyo., for intervening plaintiffs.

Mark Braden and Marc D. Flink of Baker & Hostetler, Denver, Colo. (Joseph B. Meyer, Wyo. Atty. Gen., Clinton D. Beaver, Wyo. Senior Asst. Atty. Gen., Thomas B. Evans of Baker & Hostetler, Denver, Colo., with them on the briefs), for defendants.

Peter C. Maxfield, Laramie, Wyo., on the brief for amicus curiae Wyoming Democratic Party.

Before BRORBY, Circuit Judge, BRIMMER, Chief District Judge, and JOHNSON, District Judge.

BRORBY, Circuit Judge.

I. INTRODUCTION

This case raises an equal protection challenge, based upon the Fourteenth Amendment of the United States Constitution and provisions in the Wyoming Constitution, to the validity of Wyoming's 1991 Legislative Reapportionment Act.¹

Plaintiffs Sarah Gorin, Bern Hinckley, Chelsea R. Kesselheim, John M. Faunce, Linda Kirkbride, Jesse Guidry, Verna Crusch, Ernest A. Roybal, Chris Plant, Wayne E. Morrow, Larry W. McGonigal, and Teri J. Royer are citizens, taxpayers and qualified voters of Wyoming. Plaintiff Intervenors (Intervenors) are duly elected, qualified and serving members of the Fifty-First Legislature of the State of Wyoming.

Defendants Michael J. Sullivan, Kathy Karpan, David Ferrari and Stan Smith are the Governor, Secretary of State, State Auditor, and State Treasurer, respectively. Defendants collectively constitute the State Canvassing Board with the authority to certify the official state canvass.²

Plaintiffs and Intervenors are united in their contention that the 1991 Reapportionment Act (Act) violates equal protection by creating intolerable population inequalities among election districts in election of members of both the Wyoming House of Representatives and the Wyoming Senate. Likewise, both Plaintiffs and Intervenors assert that Article III, § 3 of the Wyoming Constitution is unconstitutional insofar as it mandates that each county shall constitute a senatorial and representative district.³ Their positions differ, however, with respect to the constitutionality of multi-member districts. Plaintiffs contend that Wyoming's multi-member districts are unconstitutionally denied political equality with single-member districts in the State. In contrast, Intervenors assert that reapportionment of the Wyoming legislature can provide for multi-member districts in some areas while at the same time securing equal protection of voting rights to all state citizens.

Defendants contend the Act provides for fair and effective representation, and is therefore in compliance with both the United States Constitution and the Wyoming Constitution. Defendants further contend the population deviations inherent in the Act are justified by significant and reasonable state interests.

This court is therefore called upon to determine the permissible range of deviation from voter equality under the Fourteenth Amendment as applied to circumstances in Wyoming. Jurisdiction is based upon 28 U.S.C. § 1343(a)(3)-(4) and 28 U.S.C. §§ 2201-2202. A three-judge court was designated pursuant to 28 U.S.C. § 2284, which provides that "a district court of three judges shall be convened when ... an action is filed challenging the constitutionality of ... the apportionment of any statewide legislative body."

II. BACKGROUND

Geographically, Wyoming may have been best characterized by former Governor and United States Senator Milward L. Simpson when he said: "Wyoming is a land of high altitudes and low multitudes." Straddling the continental divide, Wyoming's population typically congregates in small, hospitable towns bearing such distinctive western names as Buffalo, Cheyenne, Laramie, Sundance, and Ten Sleep. Scattered among the miles separating Wyoming's towns and cities are ranchers and mineral extractors. A total state population of 453,588 is dispersed over 97,914 square miles.

Since Wyoming became a state in 1890, the number of Wyoming counties has increased from thirteen to twenty-three. County boundaries last changed in 1921 with the addition of Teton and Sublette counties. Sweetwater, the largest of Wyoming's counties, contains 10,475 square miles, while Hot Springs, the smallest county, contains 2,022 square miles. With few exceptions, the population of towns and cities within those counties has increased over the years, while the number of citizens residing in unincorporated areas of Wyoming has decreased.

The Wyoming Constitution unequivocally commands the state legislature to reapportion every ten years based upon the most recent United States census data.⁴ The state constitution also provides for a bicameral legislature with each county constituting a senatorial and representative district, and each county having at least one senator and one representative.⁵ Although the federal courts declared the provision requiring one senator from each county to be violative of Fourteenth Amendment equal protection,⁶ the Wyoming legislature has continued to provide each county with at least one representative regardless of how small the county population may be. As a result, the citizens in Wyoming's more populous counties have historically been under-represented in the state legislature, and those citizens in Wyoming's less populous counties have been overrepresented. In other words, the less populous counties have more than their fair share of legislative voting power. This is the root of the problem now before this court.

As indicated, this problem is not new. Wyoming citizens have challenged the constitutionality of the state's reapportionment legislation on three prior occasions. In 1963, the Wyoming legislature reapportioned the state by allocating at least one Senate seat and one House seat to each county in accordance with the mandate of the Wyoming Constitution. The plan resulted in a maximum deviation range of 205% in the Senate and 90% in the House. Plaintiffs, as citizens and voters, challenged this plan on equal protection grounds. Another citizen group intervened to persuade the court to redistrict the state into single-member districts. Schaefer v. Thomson.

A three-judge panel declared the Senate plan unconstitutional, but upheld the House plan. Id. at 251-52. The court withheld immediate affirmative judicial relief in order to permit the legislature to reconsider reapportionment of its Senate and to enact a valid law. However, the court exercised its retained jurisdiction after the legislature failed to enact another plan within the prescribed time.

The court reapportioned the Wyoming Senate into seventeen multi-member senatorial districts, combining contiguous counties only when necessary to satisfy the "one person, one vote" principle. Schaefer v. Thomson, 251 F.Supp. at 452. The court's plan reduced the maximum population deviation in the Senate from 205% to 71%. Only the intervenors appealed. The United States Supreme Court affirmed in a per curiam decision without opinion. Harrison v. Schaefer.

Wyoming citizens also challenged the 1971 Legislative Apportionment Act. This legislation was upheld in its entirety because the 1971 Act merely reflected population fluctuations and did not substantially alter either the previously approved 1963 House plan, or the court's 1965 Senate plan. Thompson v. Thomson, 344 F.Supp. 1378, 1380-81 (D.Wyo.1972). This decision was not appealed.

Voters again challenged the reapportionment of the Wyoming House of Representatives after the legislature enacted the 1981 Legislative Apportionment Act. This challenge, however, was a narrow one, pertaining to a single county. In Brown v. Thomson, 536 F.Supp. 780 (D.Wyo.1982), aff'd, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983), plaintiffs urged the court to find only that the allocation of a representative to Niobrara County, the state's least populated county, violated equal protection principles. The three-judge court dismissed the plaintiffs' complaint, finding the allocation of a representative to Niobrara County statistically insignificant where it only increased the total number of seats in the House from sixty-three to sixty-four. Because the dilution of the plaintiffs' vote was de minimis, plaintiffs failed to meet their burden of proving invidious discrimination. The district court also noted that the long-standing policy of maintaining county boundaries was rational. Id. at 783-84.

The United States Supreme Court, in a three-way split decision, affirmed the district court decision. Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). Justices Powell, Burger and Rehnquist constituted the plurality. Recognizing the narrowness of the issue, Justice Powell adopted the de minimis rationale applied...