Klahr v. Williams, Civ-5112 Phx.

• Decision Date: 22 July 1969
• Docket Number: No. Civ-5112 Phx.,Civ-5112 Phx.
• Parties: Gary Peter KLAHR, Plaintiff, Richard Duffield, individually, and as Chairman of the Democratic Party of Arizona, Intervenor-plaintiff, v. Jack WILLIAMS, Governor of the State of Arizona, et al., Defendants.
• Court: U.S. District Court — District of Arizona

303 F. Supp. 224

Gary Peter KLAHR, Plaintiff, Richard Duffield, individually, and as Chairman of the Democratic Party of Arizona, Intervenor-plaintiff, v. Jack WILLIAMS, Governor of the State of Arizona, et al., Defendants.

No. Civ-5112 Phx.

United States District Court D. Arizona.

July 22, 1969.

Simon, Smart & Jekel, Scottsdale, Ariz., for plaintiff.

Gorey & Ely, Phoenix, Ariz., for intervenor, Richard Duffield, individually and as Chairman of the Democratic Party of Ariz.

Gary K. Nelson, Atty. Gen., State of Ariz., Phoenix, Ariz., for defendants.

Before JERTBERG, Senior Circuit Judge, and WALSH and CRAIG, District Judges.

OPINION AND DECISION

PER CURIAM.

The Arizona Legislature chosen at the 1966 state elections held in conformity with the decree of this court (Klahr v. Goddard, Governor, etc., D.C., 250 F. Supp. 537; 254 F.Supp. 997), in June, 1967, enacted Chapter 1, Twenty-eighth Legislature, First Special Session, (hereinafter "Chapter 1"), apportioning both the Senate and the House of Representatives of Arizona. Shortly thereafter, pleadings filed herein by the parties sought a determination by the court as to the validity of Chapter 1, plaintiff and defendants seeking a ruling that the legislation is valid, and intervenor-plaintiff contending it must be held unconstitutional under the decisions of the United States Supreme Court relating to apportionment of state legislatures. When referendum petitions were filed against Chapter 1, so that it would not become law unless and until approved by a majority of the votes cast thereon at the 1968 general election, we deferred a hearing as to the validity of Chapter 1 until the time when, if ever, it became effective.

Chapter 1 received the support of the majority of those voting upon it at the 1968 general election and, the Governor of Arizona having thereafter proclaimed it in force and effect, on January 17, 1969, we held the deferred hearing.¹ On April 7, 1969, the Supreme Court of the United States decided Kirkpatrick, Secretary of State of Missouri, et al., v. Preisler, et al., 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, and Wells v. Rockerfeller, as Governor, et al., 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535. These decisions require that we hold Chapter 1 to be unconstitutional and invalid.

Chapter 1 provides that, beginning with the Twenty-ninth Arizona Legislature, the State of Arizona is divided into seven election districts; and the election districts are subdivided into legislative districts, from each of which there will be elected one senator and two representatives. The plan of Chapter 1 is for the entire membership of the legislature to be apportioned among the election districts on the basis of population; but Chapter 1 provides, further, that the number of legislators apportioned to each election district shall be apportioned among its legislative districts on the basis of voter registration. With respect to election districts, Chapter 1 permits until 1971 a deviation from the ideal population per district of as much as 15%²; and in 1971 and thereafter, a deviation from the ideal population per district of 16% plus or minus, is allowable. With respect to legislative districts, Chapter 1 permits until 1971 a deviation from the ideal voter registration per district of as much as 40%³; and in 1971 and thereafter, a deviation from the ideal voter registration per district of 16%, plus or minus, is allowable.

It is quite evident that the Legislature in enacting Chapter 1 had the belief that a population variance among election districts of not more than 16%, plus or minus, from the ideal election district population satisfied the constitutional requirements for valid apportionment of such districts.⁴ It is evident, too, that with respect to legislative districts the legislature assumed that a like percentage variance of registered voters among legislative districts was permissible. But Kirkpatrick and Wells hold that the establishment by a state legislature of a fixed percentage population variance which the legislature will consider de minimis is inconsistent with and will not satisfy the constitutional requirements that states make their Congressional districts and their state legislative districts as nearly of equal population "as is practicable".⁵ Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 11 L.Ed.2d 481, 492; Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506, 536. Kirkpatrick held, further, that even if the court were to assume that apportionment might be based upon eligible voter population rather than total population⁶, the districts must be as nearly of equal eligible voter population as is practicable.

Nothing presented to the court upon the hearing would permit us to hold that the Legislature could not come any closer than it did in Chapter 1 to achieve population equality among the districts from which its senators and representatives are to be elected. To the contrary, it appears plain that the Legislature assumed that so long as its reapportionment plan kept all election district deviations from ideal population within 16%, plus or minus, the constitutional tests for a valid apportionment were met. No evidence was presented which would justify either the population variance among the election districts or the registered voter variance among the legislative districts. We hold, therefore, that ...