League of Nebraska Municipalities v. Marsh

• Decision Date: 04 June 1965
• Citation: 242 F. Supp. 357
• Parties: LEAGUE OF NEBRASKA MUNICIPALITIES a non-profit Nebraska corporation, et al., Plaintiffs, v. Frank O. MARSH, as Secretary of State of the State of Nebraska and as Member of the State Board of Education Canvassers of the State of Nebraska, et al., Defendants, Nebraska State American Federation of Labor and Congress of Industrial Organizations et al., Intervenors.
• Court: U.S. District Court — District of Nebraska

242 F. Supp. 357

LEAGUE OF NEBRASKA MUNICIPALITIES a non-profit Nebraska corporation, et al., Plaintiffs, v. Frank O. MARSH, as Secretary of State of the State of Nebraska and as Member of the State Board of Education Canvassers of the State of Nebraska, et al., Defendants, Nebraska State American Federation of Labor and Congress of Industrial Organizations et al., Intervenors.

Civ. 551 L.

United States District Court D. Nebraska.

May 12, 1965.

Dissenting Opinion June 4, 1965.

Ralph D. Nelson, Lincoln, Neb., and Herbert M. Fitle, Omaha, Neb., for plaintiffs.

Robert A. Nelson, Sp. Asst. Atty. Gen., of Nebraska, and Richard H. Williams, Asst. Atty. Gen., of Nebraska, for defendants.

August Ross and Robert E. O'Connor, Omaha, Neb., for intervenors.

Before JOHNSEN, Circuit Judge, and ROBINSON and VAN PELT, District Judges.

PER CURIAM.

This case has been before the Court upon three previous occasions. Opinions were filed setting forth the Court's views, 209 F.Supp. 189, 232 F.Supp. 411, and an unpublished opinion dated March 3, 1964. It is therefore unnecessary to recite here the background of this case or to restate the issues previously decided. We have continued to retain jurisdiction of the case.

The matter is now before us upon the supplemental answer and counterclaim filed by the Attorney General of Nebraska, on behalf of the defendant elective and appointive officers. It is alleged by the defendants, and admitted by the plaintiffs and the intervenors in their reply, that the Legislature of Nebraska in its 75th session duly passed a legislative reapportionment bill, Legislative Bill 628, with an emergency clause as a part thereof, and that it was signed by the Governor of Nebraska on March 29, 1965.

The pleadings raise the question now for decision by this Court whether L.B. 628, mentioned above, meets the standards outlined in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 1962, and subsequent decisions of the United States Supreme Court for a constitutionally valid legislative reapportionment plan. We hold that it does not.

L.B. 628 increases the Legislature to 50 members, which is the maximum provided for in Article III, Section 6, of the Nebraska Constitution.

Of the 50 districts created by this bill, 21 are identical in boundaries and population with districts created under the 1963 enactment, which this Court held unconstitutional. Douglas County, in which the City of Omaha is situated, will have 12 legislators. This is two more legislators than were provided in the 1963 act. Lancaster County, in which the City of Lincoln is located, is again provided with 5 legislators. The boundary changes in the remaining 12 districts are relatively minor and will not be commented upon individually.

We turn to the claimed inequality in population. L.B. 628 creates one district, Number 35 Hall County, with a population of 35,737.¹ The smallest district created, number 44, has a population of 22,301. Thus one vote in district Number 44 is the equivalent of 1.6 votes in district Number 35.

The 10 smallest districts under this bill, which range in population from 22,301 to 24,287, have a total population of 235,705, or an average population of 23,571. These 10 districts are thus afforded 10 legislators when they are entitled to 8 on a population basis and to 6 on the basis that Hall County is entitled to 1. These 10 legislative districts are generally in the area which benefited most under the area amendment previously held unconstitutional. The 7 smallest districts with a population of 162,851 are afforded under this act 7 legislators while Lancaster County, with a population of 155,272, is afforded 5 legislators

Moreover, 5 districts created by L.B. 628, districts Number 2, 15, 30, 35, and 48, exceed the average population per district by over 15% and 6 districts created by the act, districts Number 40, 42, 43, 44, 46, and 49, are more than 15% below this average. Thus 11 of the 50 districts do not fall within a 15% variation which has been discussed in the United States House of Representatives as a permissible variation in that body. By this reference this Court is not saying that it approves such a variation, or that the House of Representatives has or will approve it. It is mentioned because it points out the range of inequality of representation in L.B. 628.²

The act certainly had the effect of reducing the inequality previously pointed out in Douglas County, but it did not rectify the inequalities elsewhere.

The doctrine of "one person-one vote" is not new in Nebraska. The Supreme Court of Nebraska in State ex rel. Harte v. Moorhead, 99 Neb. 527, 156 N.W. 1067, laid down this principle years ago:

"Under our Constitution all government derives its `just powers from the consent of the governed' Article 1, § 1, and the principle of `equality before the law' requires that every voter shall, as far as practicable, have an equal voice in the affairs of government. Syl. 4

"It is not required that equality of representation shall be mathematically exact. But the apportionment of representatives of the people in any government body must be according to the population represented as near as may be." Syl. 6

The Nebraska court further said:

"To give them unequal power in the local government of the county violates the constitutional right of representation as plainly and in the same degree as unequal representation in the state Legislature or in Congress would violate the constitutional right of representation in public affairs. * * * The principle of our Constitution of absolute equality in governmental matters is recognized in the legislation which requires that the great seal of the state shall contain the words `Equality before the law.' * * * All voters are equal before the law. The Constitution will not permit one class of voters to be given more power to determine the government than is given another class."

This principle has stood unchanged and unchallenged for nearly 50 years. The previous opinions of this Court, in applying Baker v. Carr, supra, and other decisions of the United States Supreme Court have not announced any principle of representation not expressed in substance 49 years earlier by the highest court of Nebraska.

Two practical problems appear. It was stated by one State Senator who, as disclosed by the record, was influential in the drafting and passage of the present bill, "* * * You could go, you have another approach, you could go to around 32,000 average but you will do away with about 4 or 5 senators of the present senators serving." The goal of reapportionment, however, is just representation of the people, not the protection of incumbents in a legislative body.

The second problem arises because, if county lines are to be followed, it is apparent that mathematical exactness cannot be had. It does not follow, however, that greater exactness cannot be had than is furnished by L.B. 628. If county lines are to be followed by the Legislature, then new districts must be formed using Hall County as a median; provided, however, that they do not impinge upon the rights of voters of Hall County.

Whether more than 39 or 40 districts, which is the approximate number which could be created using Hall County as a median, can be formed providing for "population represented as near as may be" we need not decide. However, it is proper, in view of the unsuccessful efforts of the 1963 and 1965 Legislatures to adopt a constitutionally valid plan, to state our conclusion that if county lines are to be followed a legislature of 49 or 50 districts is an impossibility as a constitutionally valid legislative reapportionment plan.

The Court further observes that by providing for a lesser number of legislative districts than proposed in either 1963 or 1965, districts following county lines can be created with greater mathematical exactness than are contained in L.B. 628. By this reference we are not giving pre-passage approval to any proposal brought to the attention of the Court. We are only rejecting the contention that L.B. 628 is the best or the fairest plan that the Legislature can devise.

We have considered the opinion in Lucas v. Colorado General Assembly, 377 U. S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, indicating that a maximum population variance ratio of 1.7 to 1 is at least arguably apportioned substantially on a population basis. If there were no redistricting plan other than L.B. 628 which could be devised following county lines, the 1.6 to 1 ratio present thereunder might arguably be permissible, conceding the correctness of two claims, which are unnecessary to be decided here, first, the Attorney General's ruling that counties cannot be divided, except where the county is entitled to more than one legislator, and, secondly, that some good reason exists for respecting county boundaries in the selection of legislators, even though school districts, power districts, towns and cities and many other governmental bodies created under enactments of the Legislature do not respect them.

The determinative factor, however, is that the situation does not bear out the claim of the supporters of L.B. 628 that it is the best plan which possibly could be devised. Under the teaching of the reapportionment cases, each plan must be examined on its own merits. In footnote 27, Lucas, supra, at page 735, 84 S. Ct. at page 1473, we read:

"Consistent with this approach, in determining whether a good faith effort to establish districts substantially equal in population has been made, a court must necessarily consider a State's legislative apportionment scheme as a whole. Only after an evaluation of an apportionment plan in its totality can a court determine whether there has been sufficient compliance with the requisites of the Equal Protection Clause. Deviations from a strict population basis, so long as rationally justifiable, may be utilized to balance a slight overrepresentation of a

...