Klahr v. Williams, Civ. 5112 Phoenix.

• Decision Date: 19 May 1970
• Docket Number: No. Civ. 5112 Phoenix.,Civ. 5112 Phoenix.
• Citation: 313 F. Supp. 148
• Parties: Gary Peter KLAHR, Plaintiff, Herbert L. Ely, 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

313 F. Supp. 148

Gary Peter KLAHR, Plaintiff, Herbert L. Ely, 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 Phoenix.

United States District Court, D. Arizona.

May 19, 1970.

Botsford, Simon & Jekel, J. Stephen Simon, Scottsdale, Ariz., Evans, Kitchel & Jenckes, David William West, Phoenix, Ariz., for plaintiff.

Philip J. Shea, Phoenix, Ariz., for intervenor-plaintiff.

Gary K. Nelson, Atty. Gen., John M. McGowan, Asst. Atty. Gen., for defendants.

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

MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

PER CURIAM.

In early 1966, following the decisions of the Supreme Court of the United States in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, this court in this cause adjudged void and unconstitutional the Arizona statute (§ 16-727, A. R.S., 1956), districting the state for the election of representatives in the United States Congress and the constitutional and statutory provisions of the state then in effect with respect to the membership and apportionment of the Arizona Legislature. Finding, in addition, that the Legislature, although having ample opportunity, had failed to enact a valid provision for congressional redistricting and a valid reapportionment of its own membership, the court ordered into effect a redistricting of congressional districts and a reapportionment of both houses of the Arizona Legislature for the 1966 primary and general elections and for such further elections as might follow until the Legislature itself adopted different and valid plans for districting and reapportionment. Klahr v. Goddard, Ariz., 250 F.Supp. 537; 254 F.Supp. 997.

In June, 1967, the Arizona Legislature chosen at the first elections held in conformity with this court's decree enacted legislation apportioning itself. However, when the legislation came before us in 1969, we held that the then newly rendered decisions of the Supreme Court in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535, required that we hold the legislation invalid. Klahr v. Williams, Ariz., 303 F.Supp. 224.

In January, 1970, the Legislature enacted Chapter 1, Twenty-Ninth Legislature, State of Arizona, First Special Session, (hereinafter "Chapter 1"), a new effort by the Legislature to apportion itself and to district the State of Arizona for the election of congressional representatives. Chapter 1 was approved by the Governor on January 22, 1970, and became effective on April 20, 1970. Following enactment of Chapter 1, defendants petitioned us for a hearing and asked that we determine that Chapter 1 accomplished a valid redistricting of the state's congressional districts and a valid reapportionment of the Arizona Legislature. A hearing was held on April 16 and 17, 1970, in which all parties participated and were heard.

Plaintiff, Klahr, does not question the validity of Chapter 1 insofar as it apportions the Arizona Legislature but he contends that with respect to congressional redistricting the Legislature has not devised a constitutionally valid plan because it was possible for the Legislature to have made the three congressional districts more nearly equal in population than it did in Chapter 1. Plaintiff asks an order of this court that, until a valid plan of redistricting is enacted by the Legislature, the defendants conduct the 1970 and all subsequent primary and general elections for Members of the United States House of Representatives from Arizona in a manner whereby each person seeking such office will run at large within the State of Arizona.

Intervenor-plaintiff, Ely, challenges the constitutionality of Chapter 1 insofar as it provides for apportionment of the Legislature, contending that the legislative districts established by Chapter 1 were determined upon the erroneous assumption that population can validly be calculated from voter registration figures. He contends that, if Chapter 1 becomes operative, the result will be serious under-representation in the Legislature of certain areas of the state.

Intervenor-plaintiff has submitted to the court, and asks the court to place into effect, a plan devised by his counsel for apportionment of the Legislature on the basis of 1968 projections of 1960 and 1965 Arizona censuses. The projections or estimates of population are prepared by the staff of the Arizona Employment Security Commission, using procedures prescribed by the United States Bureau of the Census. The heart of the plan proposed by intervenor-plaintiff is the building of legislative districts from census divisions, enumeration districts, and tracts. At the hearing, intervenor-plaintiff introduced testimony and exhibits in support of his proposed plan, the exhibits consisting, inter alia, of population estimates broken down by census divisions, enumeration districts, and tracts; maps of Arizona county census divisions, enumeration districts, and tracts; boundary descriptions of the census divisions existing within Arizona counties; and varicolored maps showing thirty legislative districts as proposed by intervenor-plaintiff. From what was presented to us, it is evident that counsel for intervenor-plaintiff expended a great deal of time, effort, and skill in preparing his plan. We can say that counsel was on the right track and that very likely a valid reapportionment plan could result from what counsel has in mind. However, we must hold that the plan is simply not complete and we could not adopt it. No written legal descriptions of the boundaries of the proposed legislative districts have been furnished to us, and from our study of the testimony and exhibits we are not certain that such descriptions can be derived from the census district and tract boundaries. Admittedly, there are population errors in a number of districts delineated in the plan as filed, and we are not certain that they would be cured by adjustments which counsel suggested in the course of the trial could be made. At all events, before intervenor-plaintiff's plan could be placed into operation practically every election precinct in the State of Arizona would have to be re-established, since the plan disregards election precinct boundaries entirely. The 1970 election process begins in Arizona in early June and we are certain that, even if we had the complete cooperation of the election officials of the fourteen Arizona counties, the necessary reconstruction of the election precincts could not be accomplished in time.

Before proceeding to a consideration of Chapter 1, we feel it is in order to examine and discuss the redistricting and reapportionment plan which this court adopted in 1966 and which has been in effect from that date up to the present. When this court entered its decree, it was done in the belief that rather substantial population deviations among congressional districts and state legislative districts were constitutionally permissible and that, with respect to sub-districts of state legislative districts, voter registration figures might be constitutionally substituted for population figures. Later decisions of the United States Supreme Court, however, have established that population deviations deemed to be constitutional in our 1966 decree would now exceed constitutional standards, Kirkpatrick v. Preisler, supra; Wells v. Rockefeller, supra; and it is clear now, also, that apportionment of members of a legislature on the basis of voter registration satisfies the Equal Protection Clause only if it produces a distribution of legislators not substantially different from that which would have resulted had a permissible population basis been used. Burns v. Richardson, 384 U.S. 73, 93, 86 S.Ct. 1286, 16 L.Ed.2d 376.

Under our 1966 decree, the congressional districts were established on the basis of 1960 population figures and they contain deviations from ideal district populations ranging from +7.8% to -6.3%, or a total deviation range of 14.1%. The decree also reapportioned the Arizona Legislature on the basis of 1960 population figures, setting up legislative districts with deviations from the ideal district population ranging from +15.5% to -6.5%, a deviation range of 22%. Further, the decree authorized and approved legislative sub-districts within Maricopa and Pima Counties which were proposed by the parties and were drawn upon the basis of 1964 voter registrations in the two counties. On such voter registration basis, the decree permits deviations from the ideal sub-district registration ranging from +5.66% to -8.87%, or a total range of 14.53%. It appears now that if the sub-districts are tested on the basis of their 1968 voter registration figures, the deviations from the ideal sub-district registration would range from -22.12% to +24.97%, or an expanse of 47.09%.

In light of the foregoing, we must conclude that, tested by Kirkpatrick, Wells, and Burns, supra, the present congressional districting and state legislative apportionment plan does not meet constitutional standards.

Turning now to Chapter 1, the Act provides that, commencing with the 30th Legislature, the Arizona Senate shall consist of thirty members and the Arizona House of Representatives shall consist of sixty members. For the 30th Legislature, and until changed by the Legislature, Chapter 1 provides that there will exist thirty legislative districts, each of which shall elect one senator and two representatives; and the legislative districts are described in Chapter 1 by numbered election precincts, or parts of such precincts, or by county names, or by both, as established on January 1, 1970. With respect to congressional districts, Chapter 1 provides that District No. 1 is...