Klahr v. Goddard

• Decision Date: 02 February 1966
• Docket Number: Civ. No. 5112-Phx.
• Parties: Gary P. KLAHR, Plaintiff, v. Samuel P. GODDARD, Governor of the State of Arizona, Wesley Bolin, Secretary of State of the State of Arizona, Defendants.
• Court: U.S. District Court — District of Arizona

250 F. Supp. 537

Gary P. KLAHR, Plaintiff, v. Samuel P. GODDARD, Governor of the State of Arizona, Wesley Bolin, Secretary of State of the State of Arizona, Defendants.

Civ. No. 5112-Phx.

United States District Court D. Arizona.

February 2, 1966.

Felke, Simon & Henderson, Scottsdale, Ariz., Evans, Kitchel & Jenckes, Associate Counsel, Phoenix, Ariz., for plaintiff.

Darrell R. Smith, Atty. Gen. of Ariz., John P. Frank, Special Counsel, Phoenix, Ariz., for defendants.

Before POPE, Circuit Judge, and MATHES and WALSH, District Judges.

POPE, Circuit Judge.

This is an action brought by Gary P. Klahr, as plaintiff, on behalf of himself and all of the persons of the voting population of the State of Arizona, against the defendants above named. The purpose of the action, as stated in the third amended complaint dated April 29, 1965, is to compel compliance by the officials of the State of Arizona, who are responsible for the supervision and conduct of the elections therein, with the requirements of the Equal Protection Clause of the Federal Constitution with respect to the apportionment of the seats in the two houses of the Arizona Legislature as outlined in the decisions of the Supreme Court of the United States in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, and other similar decisions; and also to compel the redistricting of congressional districts within the State so as to equalize the population of each such district as near as may be done in accordance with the rule laid down by the United States Supreme Court in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481.

The complaint alleges that by virtue of certain provisions of the Arizona Constitution, members of the State Senate are required to be elected upon a purely geographical basis without regard to the wide differences in population. This, it is claimed, has resulted in an unconstitutional apportionment of the Senate membership.

It is also alleged that the manner prescribed for the apportionment of state representatives within the State results and necessarily always will result in a denial of the equal protection of the law and that in consequence of such malapportionment said provisions respecting the apportionment of members of the House are invalid.

With respect to the congressional districts within the State, it is alleged that the districting for the election of representatives in the United States Congress now provided by § 16-727, subsec. B of Arizona Revised Statutes 1956, is void and unconstitutional in that although congressional district No. 2, according to the United States census for 1960, or according to the total of registered voters for the several districts for the general election of November 2, 1964, represents approximately one-third of the population, or one-third of the registered voters within the State, yet congressional district No. 1 on either basis represents 51 percent or more of the population or voters of the State while congressional district No. 3 represents 15 percent or less of the population or voters of the State.

Pursuant to the prayer of the complaint a court of three judges was constituted for the purpose of hearing and considering the issues herein. The said court initially ordered that the proceeding be stayed until after the conclusion of the 1965 session of the Legislature. At such session no reapportionment or redistricting was accomplished. The Governor of Arizona called a special session which was convened for the specific purpose of considering and acting upon such matters. The court being advised thereof, ordered that pretrial hearings and trial of the cause be deferred until conclusion of such special session. Sundry proposals to reapportion the Legislature and to redistrict the State for the election of the members of the National House of Representatives were considered by the special session. It enacted a statute for the purpose of reapportioning the Senate, said enactment being commonly known as Senate Bill 11. The said special session adjourned without any action in respect to redistricting the congressional districts or with respect to reapportioning the House of Representatives. Thereupon this cause proceeded to a pretrial hearing resulting in a pretrial order dated October 13, 1965.

As shown by said pretrial order it was stipulated and agreed that the court must accomplish congressional redistricting of the State of Arizona. Said pretrial order discloses that the following issues with respect to redistricting remain for determination by the court upon trial: whether all three congressional districts should be redefined and realigned as asserted by the plaintiff, or whether the boundaries of said districts be readjusted only to the extent of making the population of districts 1 and 3 substantially equal without disturbing the boundaries of district 2, as asserted by the defendants; whether such congressional redistricting should be based upon the most recent voting registration figures, as asserted by plaintiff, or upon the census population figures taken from the 1960 census as asserted by the defendants.

Both parties concede that the Arizona constitutional provision for a Senate composed of two members from each of the fourteen counties of the State is invalid; and that if the court determines that Senate Bill 11, as enacted at the special session aforesaid, does not validly apportion the Arizona Senate membership, then reapportionment of the Senate must be accomplished by the court in this action.

With respect to legislative reapportionment, the issues between the parties, as made by said pretrial order, are as follows: whether Senate Bill 11, as enacted, validly apportions the membership of the Arizona Senate as claimed by defendants, or whether the same is invalid as accomplishing an invidious and unconstitutional discrimination against the majority of the voters of the State and against those subdivisions of the State containing the greater portion of its population. Whether, if a reapportionment of the Senate be ordered by the court the same should be based upon the 1960 census figures, as asserted by the defendants, or whether the reapportionment should be based upon voter registration figures; and whether upon such reapportionment of the Senate, the court may include more than one county in a single district as contended by the plaintiff and denied by the defendants.

Another issue presented is whether or not the Arizona House of Representatives is presently invalidly apportioned as asserted by the plaintiff, or whether the present system is proper and lawful. It is contended that any attempted reapportionment of the House by this court would be premature at the time of trial of this action in view of the constitutional power of the Secretary of State to make reapportionment within the year 1966.

FINDINGS.

1. The court finds that the population in congressional districts 1 and 3 is unequal and disparate and constitutes an unconstitutional imbalance; and that such imbalance renders the continued following and enforcement of the apportionment requirements of that portion of § 16-727 which relates to congressional districts 1 and 3 void, unconstitutional and prohibited within the meaning of the decision of the Supreme Court of the United States in Wesberry v. Sanders, supra.

The court finds that congressional district No. 2, as now established, is valid and properly apportioned and that there is no occasion for this court to undertake to alter the boundaries thereof. The population of the State of Arizona, as disclosed by the 1960 census, was 1,302,161. The same census discloses that the then population of congressional district No. 2 was 440,415, or 34 percent of the population of the State, that is to say, substantially one-third of such population, and the same represents, as to congressional district No. 2, an appropriate apportionment of the State's population.

2. The court finds that because congressional districts No. 1 and No. 3, as heretofore constituted, are adjacent to each other, it is feasible to adjust and correct the malapportionment between such two districts by moving a portion of Maricopa County, which is district No. 1, into and making the same a part of district No. 3. According to the 1960 census, district No. 1 then had a population of 663,510, while congressional disstrict No. 3 had a population of 198,236, or 51 percent and 15 percent respectively of the state population. The court finds that an appropriate transfer of populated areas from congressional district No. 1 to congressional district No. 3, may be made by drawing a new line through Maricopa County in the manner which was proposed by a conference committee of the two Houses during a special session of the Legislature, aforesaid, which line was as follows: "Beginning at a point where the Agua Fria River intersects the Maricopa-Yavapai county boundary line; thence south along the Agua Fria River to its intersection with Olive Avenue; thence east along Olive Avenue (Dunlap Avenue) to its intersection with Nineteenth Avenue; thence south along Nineteenth Avenue and its alignment to its intersection with the Maricopa-Pinal county boundary line." All portions of Maricopa County lying west of the line so drawn are to be transferred to and become a part of congressional district No. 3.

The change thus made in respect to congressional districts 1 and 3 will accomplish a reapportionment of congressional districts (using 1960 census figures) as follows: district No. 1, 461,495, district No. 2, 440,415, district No. 3, 400,251.

3. The court finds that in making the several reapportionments herein provided for, it can do so most accurately by basing its findings upon the figures appearing in the 1960 census. For the purpose of supporting his contention that the...