Harris v. Anderson

• Decision Date: 01 March 1965
• Docket Number: No. 44026,44026
• Citation: 194 Kan. 302,400 P.2d 25
• Parties: J. P. HARRIS, Peter MacDonald, John McCormally, and the Hutchinson Publishing Company, a corporation, Plaintiffs, v. John ANDERSON, Jr., in his official capacity as Governor of Kansas, Paul R. Shanahan, in his official capacity as Secretary of State of the State of Kansas, Viola Pritchard, Commissioner of Elections of Shawnee County, Kansas, and Emogene Wineinger, County Clerk of Greeley County, Kansas, individually as such Election Commissioner and County Clerk of their respective counties, and as representatives of all Election Commissioners and County Clerks of the State of Kansas, Defendants.
• Court: Kansas Supreme Court

Page 25

400 P.2d 25

194 Kan. 302

J. P. HARRIS, Peter MacDonald, John McCormally, and the Hutchinson Publishing Company, a corporation, Plaintiffs, v. John ANDERSON, Jr., in his official capacity as Governor of Kansas, Paul R. Shanahan, in his official capacity as Secretary of State of the State of Kansas, Viola Pritchard Commissioner of Elections of Shawnee County, Kansas, and Emogene Wineinger, County Clerk of Greeley County, Kansas individually as such Election Commissioner and County Clerk of their respective counties, and as representatives of all Election Commissioners and County Clerks of the State of Kansas, Defendants.

No. 44026.

Supreme Court of Kansas.

March 1, 1965.

Rehearing Denied May 10, 1965.

Syllabus by the Court

1. Under the Supremacy Clause (Article VI) of the Constitution of the United States, Kansas, as a state of the Union, is required to recognize as binding an amendment to the Constitution of the United States from the time of its adoption and must enforce it provisions within the territorial limits of the state, notwithstanding any inconsistent provisions in the Kansas Constitution or statutory enactments.

2. Following Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States requires that seats in both houses of a bicameral state legislature must be apportioned on a population basis.

3. The admitted and stipulated facts in conjunction with population statistics of the state, of which this court takes judicial notice, show on their face an inequality of apportionment constitutionally impermissible under the Equal Protection Clause, in that the existing apportionment is not on a population basis as required by the Constitution of the United States.

4. Article 2, Section 2, and Article 10, Section 1, of the Constitution of Kansas is examined, and it is held: That those portions of said sections providing that each organized county shall have at least one representative regardless of population, are rendered inoperative by the provisions of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

5. Chapter 2, Laws 1964, Special Session, apportioning the seats of the Kansas House of Representatives in accordance with the Articles and Sections of the Constitution of Kansas designated in the foregoing paragraph of the syllabus, and in accorance with the method of equal proportions, is examined, and it is held to be an unconstitutional apportionment under the Equal Protection Clause in that the apportionment of seats therein prescribed is not based on a population basis as required by the Constitution of the United States.

W. Y. Chalfant, Hutchinson, argued the cause, and H. R. Branine and C. E. Chalfant, Hutchinson, were with him on the briefs for plaintiffs.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and William M. Ferguson, Atty. Gen., and Park McGee, Asst. Atty. Gen., were with him on the briefs for defendants.

FATZER, Justice.

In this original action sounding in quo warranto (K.S.A., 20-101a), it is alleged and claimed that the apportionment provisions of the Kansas Constitution, Article 2, Section 2, and Article 10, Section 1, and Chapter 2, of the 1964 Special Session of the legislature, apportioning the seats of the House of Representatives, were rendered unconstitutional and void by the decision of the Supreme Court of the United States in Reynolds v. Sims (June 15, 1964), 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, holding that,

'* * * as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. * * *' (84 S.Ct. p. 1385, 12 L.Ed.2d 531.)

Subsequent quotations from Reynolds will be found in 12 L.Ed.2d.

The holding was based on the premise that the right to vote for the candidate of one's choice is of the essence of the representive form of government, and that 'the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise' (84 S.Ct. p. 1378, 12 L.Ed.2d pp. 522 523); that 'Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests' (84 S.Ct. p. 1382, 12 L.Ed.2d p. 527); that 'our legislatures are those instruments of government elected directly by and directly representative of the people' (84 S.Ct. p. 1382, 12 L.Ed.2d p. 527); that 'all voters, as citizens of a State, stand in the same relation regardless of where they live' (84 S.Ct. p. 1383, 12 L.Ed.2d p. 529); that '[d]iluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race * * * or economic status' (84 S.Ct. p. 1384, 12 L.Ed.2d pp. 529, 530), and that '[t]he Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.' (84 S.Ct. p. 1385, 12 L.Ed.2d p. 531.)

In holding that, as a federal constitutional requisite, both houses of a state legislature must be apportioned on a population basis, the court stated 'we deem it expedient not to attempt to spell out any precise constitutional tests' (84 S.Ct. p. 1390, 12 L.Ed.2d p. 537); that what is 'marginally permissible in one State may be unsatisfactory in another' (84 S.Ct. p. 1390, 12 L.Ed.2d p. 537), and that it intended to state 'only a few rather general considerations which appear to us to be relevant' (84 S.Ct. p. 1390, 12 L.Ed.2d p. 537), which it denominated as 'discoverable' and 'manageable' standards or applicable guidelines for implementing its decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, in determining the constitutionality of a state legislative apportionment plan. We further quote and summarize from the opinion:

'A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. * * *' (84 S.Ct. p. 1390, 12 L.Ed.2d p. 537.)

It was then stated that one state might prefer single-member districts while another state might desire to achieve some flexibility by creating multi-member districts, but that, 'the overriding objective must be substantial equality of population among the various districts so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.' (84 S.Ct. p. 1390, 12 L.Ed.2d p. 537.) The opinion stated:

'History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures. So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparties from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equalpopulation principle. Again, people, not land or trees or pastures, vote. Modern developments and improvements in transportation and communications make rather hollow, in the mid-1960's, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.

'A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions. Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions. * * *' (84 S.Ct. pp. 1390, 1391, 12 L.Ed.2d pp. 537, 538.)

It was further stated:

'* * * And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering. However, permitting deviations from population-based representation does not mean that each local governmental unit or political subdivision can be given separate representation, regardless of population. Carried too far, a scheme of giving at least one seat in one house to each political subdivision (for example, to each county) could easily result, in many States, in a total subversion of the equal-population principle in...