Howell v. Mahan, Civ. A. No. 105-71-N

• Citation: 330 F. Supp. 1138
• Decision Date: 02 July 1971
• Docket Number: Civ. A. No. 105-71-N,111-71-A,174-71-R.
• Parties: Henry E. HOWELL, Jr., et al., v. Joan S. MAHAN et al. Stanford E. PARRIS et al., v. Edgar A. PRICHARD et al. Clive L. DuVAL, II, et al., v. Edgar A. PRICHARD et al.
• Court: U.S. District Court — Eastern District of Virginia

330 F. Supp. 1138

Henry E. HOWELL, Jr., et al., v. Joan S. MAHAN et al.

Stanford E. PARRIS et al., v. Edgar A. PRICHARD et al.

Clive L. DuVAL, II, et al., v. Edgar A. PRICHARD et al.

Civ. A. Nos. 105-71-N, 111-71-A, 174-71-R.

United States District Court, E. D. Virginia, Norfolk, Alexandria and Richmond Divisions.

July 2, 1971.

Edmund D. Campbell, Arlington, Va., for Clive L. DuVal.

Henry E. Howell, Jr., pro se.

Stanford E. Parris, pro se.

Andrew P. Miller, Atty. Gen. of Va., Anthony F. Troy, Theodore J. Markow, Asst. Attys. Gen., for defendants.

James M. Thomson, pro se.

Gordon B. Taylor, Jr., Norfolk, Va., for intervenor City of Norfolk.

J. Dale Bimson, Virginia Beach, Va., for intervenor City of Virginia Beach.

Armand Durfner, R. Stephen Browning, Washington, D. C., for black plaintiffs intervenors.

Before ALBERT V. BRYAN, Circuit Judge, and LEWIS, MacKENZIE and MERHIGE, District Judges.

ALBERT V. BRYAN, Circuit Judge:

The Constitution of Virginia, Article II, Section 6 directs, inter alia, that "members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly the legislature" and that "every electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district". Article IV provides for a Senate of not more than 40 and not less than 33 members, and a House of Delegates of not more than 100 and not less than 90. Reapportionment of the Commonwealth into districts was required for 1971 and every ten years thereafter.

Validity of the General Assembly's present effort to meet this obligation is at stake in these three suits. By an Act approved March 1, 1971, Chapter 116, Acts of Assembly, Code § 24.1-12.1, the State was divided into 52 districts for the election of 100 members of the House of Delegates. This enactment is here attacked by the plaintiffs in DuVal, et al. v. Prichard, et al. and Parris, et al. v. Prichard, et al., as well as by William S. Thornton, et al., plaintiff-intervenors in the DuVal case, chiefly as failing to provide "representation in proportion to the population of the district." Aside from this common ground, DuVal strikes at the provision for multi-member districts, while Parris complains of the division of Fairfax County into two districts of five delegates each, rather than its continuance as a whole district with 10 delegates. The Thornton plaintiffs object that black residents of several metropolitan areas are denied full voting strength by multi-member districts.

By another Act approved March 1, 1971, Chapter 120, Acts of Assembly, Code § 24.1-14.1 as amended by an Act approved June 14, 1971, Chapter 246, Acts of Assembly, the State was partitioned into 40 districts for election of 40 senators, one from each district. This Act is not questioned by the DuVal and Parris original or intervening plaintiffs. But Howell, et al. v. Mahan, et al. condemns it as breaching the Virginia Constitution's demand for equal district representation. In this legislation the City of Norfolk has been split into three districts: 5th, 6th and 7th, the last supplemented by a slice of abutting City of Virginia Beach. Specifically, the Howell protest is that as drawn the districts are unbalanced (1) by the allocation of servicemen aboard Navy ships "home-ported" in Norfolk, (2) by including Government reservations which do not permit political campaigns thereon, and (3) in circumscribing the Negro electors principally into one district.

Obviously, in each of these three suits the protestations, if sustained, would establish contraventions of the Equal Protection Clause of the Fourteenth Amendment and transgress the now familiar doctrine of "one man, one vote". Kirkpatrick v. Preisler, 394 U.S. 526, 530, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Wells v. Rockefeller, 394 U.S. 542, 546, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969); Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Our search, therefore, is a factual scrutiny of the reapportionment Acts for such deviations, if any, as may be impermissible under the State and Federal constitutions.

With the population count of Virginia by the 1970 decennial census amounting to 4,648,494, each of the 100 members of the House of Delegates should represent approximately 46,485 persons. Nevertheless, we find throughout the State numerous instances of delegate representation which have not been so evened in the reapportionment statutes. Seemingly, the variances are traceable to the desire of the General Assembly to maintain the integrity of traditional county and city boundaries. Senatorial assignments have uniformly been restricted to one senator per district. The only attack on the senatorial plan is the division of the City of Norfolk into three districts.

A foremost example of disparateness is the 16th district. It is composed of Rockingham, Page and Shenandoah counties and the City of Harrisonburg, with a population of 101,928, and allotted two delegates — one for each 50,964 — thus exceeding the norm of 46,485, and under-represented by 9.6%. On the contrary, district 12 comprising Campbell County has a delegate for 43,319 and so is over-represented by 6.8%, making the total disparity 16.4%.¹

This variation is sufficient to condemn the plan. In reapportionment cases the burden is on the State to justify deviations from parity by "legitimate considerations incident to the effectuation of a rational state policy." Reynolds v. Sims, supra, 377 U.S. 533, 579, 84 S.Ct. 1362, 1391, 12 L.Ed.2d 506 (1964); see Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). The State has proved no governmental necessity for strictly adhering to political subdivision lines. Further, the General Assembly has not consistently implemented its asserted policy, as witness the division of Fairfax County.

These unconstitutional disparities can be remedied in most instances by merely shifting district lines, leaving undisturbed the numerical allocation of delegates to districts. It is an adequate remedy whenever malapportionment arises from over-population in a district which is contiguous to one or more under-populated districts. We have endeavored to pursue this adjustment wherever feasible because it fosters the clear preference of the Assembly to adopt recognized political subdivision lines in apportioning delegates. An exception, however, to the effectiveness of this remedial device necessarily arises when a cluster of districts is over-represented, and there is no contiguous district which has an off-setting under-representation. The drafting of district lines to dissolve this regional concentration of disparity is formidable; it is not achievable at all if the integrity of political subdivisions is mandated.

To accomplish constitutional reapportionment throughout Virginia we have been compelled to draft a plan consisting of the Assembly's layout with necessary amendments. The plan of reapportionment now drawn by the court follows the Assembly's district numbers.

As to each district there is given the number of delegates, the total population, the composition by political subdivisions of present boundaries and, where enlarged or reduced, the percentage of the increase or decrease. The source of every change is either existing political subdivisions or the descriptions provided by Enumeration Districts (ED), Block Groups (BG) or Census Tracts (CT) provided by the United States Bureau of the Census for 1970. The number of persons in the district exceeding or falling beneath the norm of 46,485 is expressed in percentages, with a plus (+) percentage indicating an excess in population and a minus (-) showing a population deficiency; consequently, a plus population percentage reveals an under-representation, with a minus sign pointing to an over-representation. The plan is this:

Districts for the Virginia House of Delegates shall be constituted as follows:

1. First: 2 delegates; existing population 100,722 — a deviation of +8.3% — consisting of Dickenson, Lee, Wise and Scott counties with the town of Norton. This district shall be altered by a transfer of Enumeration Districts 14 (pop. 1,676), 19 (pop. 1,004), 23 (pop. 986), 24 (pop. 1,309) and 25 (pop. 1,088) in Scott County to the contiguous Second District, reducing the total population of the First to 94,659 (100,722 less 6,063) creating a deviation of +1.8%.

2. Second: 2 delegates; existing population 87,041 — a deviation of -6.4% — consisting of the City of Bristol and the counties of Smyth and Washington. This district shall gain ED's 14, 19, 23, 24 and 25 from Scott County, contiguous to Washington County, bringing the total population to 93,104 (87,041 plus 6,063) leaving a deviation of +0.14% per seat.

3. Third: 2 delegates; existing population 96,420 — a deviation of +3.7% — consisting of Russell, Tazewell and Buchanan counties. This district shall remain unchanged.

4. Fourth: 1 delegate; existing population 49,279 — a deviation of +6.0% — consisting of Wythe, Grayson and Bland counties along with the City of Galax. This district will lose ED's 2 (pop. 331) and 23 (pop. 1,271) from Wythe County to be added to the contiguous Sixth District, reducing the total population of the Fourth to 47,677, with a resulting deviation of +2.56%.

5. Fifth: 1 delegate; existing population 49,829 — a deviation of +7.2% — made up of Craig, Giles and Pulaski counties. This district shall lose all of Craig County (pop. 3,524) to the Eighth District, leaving the Fifth with a total population of 46,305 (49,829 less 3,524), a deviation of -0.39%.

6. Sixth: 2 delegates; existing population 91,620 — a deviation of -1.5% — consisting of Carroll, Floyd and Montgomery counties and the City of Radford. This district shall gain ED's 2 and 23 from contiguous Wythe County of...