Lisco v. Love

• Decision Date: 16 July 1963
• Docket Number: Civ. A. No. 7501,7637.
• Citation: 219 F. Supp. 922
• Parties: Archie L. LISCO, and all other registered voters of the Denver Metropolitan Area, State of Colorado, similarly situated, Plaintiffs, v. John LOVE, as Governor of the State of Colorado, Homer Bedford, as Treasurer of the State of Colorado, Byron Anderson, as Secretary of the State of Colorado, the State of Colorado and the Forty-Fourth General Assembly thereof, Defendants. William E. MYRICK et al., Plaintiffs, v. The FORTY-FOURTH GENERAL ASSEMBLY of the State of Colorado, John Love, as Governor of the State of Colorado, Homer Bedford, as Treasurer of the State of Colorado, and Byron Anderson, as Secretary of State of the State of Colorado, Defendants, Edwin C. Johnson, John C. Vivian, Joseph F. Little, Warwick Downing, and Wilbur M. Alter, individually and as citizens, residents and taxpayers of the State of Colorado, on behalf of themselves and for all persons similarly situated, Intervenors.
• Court: U.S. District Court — District of Colorado

219 F. Supp. 922

Archie L. LISCO, and all other registered voters of the Denver Metropolitan Area, State of Colorado, similarly situated, Plaintiffs, v. John LOVE, as Governor of the State of Colorado, Homer Bedford, as Treasurer of the State of Colorado, Byron Anderson, as Secretary of the State of Colorado, the State of Colorado and the Forty-Fourth General Assembly thereof, Defendants.

William E. MYRICK et al., Plaintiffs, v. The FORTY-FOURTH GENERAL ASSEMBLY of the State of Colorado, John Love, as Governor of the State of Colorado, Homer Bedford, as Treasurer of the State of Colorado, and Byron Anderson, as Secretary of State of the State of Colorado, Defendants, Edwin C. Johnson, John C. Vivian, Joseph F. Little, Warwick Downing, and Wilbur M. Alter, individually and as citizens, residents and taxpayers of the State of Colorado, on behalf of themselves and for all persons similarly situated, Intervenors.

Civ. A. Nos. 7501, 7637.

United States District Court D. Colorado.

July 16, 1963.

Francis R. Salazar and Carl Harthun, Denver, Colo., for plaintiffs in Civil Action No. 7501.

George Louis Creamer and Charles Ginsberg, Denver, Colo., for plaintiffs in Civil Action No. 7637.

Duke W. Dunbar, Atty. Gen., and Richard W. Bangert, Asst. Atty. Gen., Denver, Colo., Anthony F. Zarlengo and V. G. Seavy, Jr., Denver, Colo., for defendants in Civil Actions No. 7501 and No. 7637.

Richard S. Kitchen, Charles S. Vigil and J. Harley Williams, Jr., Denver, Colo., for intervenors in Civil Actions No. 7501 and No. 7637.

Philip J. Carosell, Denver, Colo., amicus curiae in Civil Actions No. 7501 and No. 7637.

Before BREITENSTEIN, Circuit Judge, and ARRAJ and DOYLE, District Judges.

BREITENSTEIN, Circuit Judge.

These consolidated actions attack the apportionment of the membership of the bicameral Colorado legislature. At the 1962 General Election, two initiated constitutional amendments were submitted to the electorate. One, known as Amendment No. 7, provided for a House of Representatives with the membership apportioned on a per capita basis and for a Senate which was not so apportioned. The other, Amendment No. 8, apportioned both chambers on a per capita basis. Amendment No. 7 carried in every county of the state and Amendment No. 8 lost in every county.¹ The contest over the conflicting theories presented by these two proposals has now shifted from the political arena to the court. The issue is whether the Federal Constitution requires that each house of a bicameral state legislature be apportioned on a per capita basis.

The plaintiffs are residents, taxpayers, and qualified voters within the Denver Metropolitan Area. The defendants are various state officials² and the Colorado General Assembly. The complaints as originally filed on March 28 and July 9, 1962, respectively, challenged the apportionment of legislative membership under the then existing constitutional and statutory provisions. Because the suits presented substantial questions as to the constitutionality of state statutes and sought injunctive relief, a three-judge court was convened under 28 U.S.C. § 2281. The proponents of Amendment No. 7, which had then been submitted to the Colorado Secretary of State for inclusion on the ballot at the 1962 General Election, were permitted to intervene.³

On August 10, 1962, after trial, the court held⁴ that it had jurisdiction, that the plaintiffs had capacity to sue, that the evidence established disparities in apportionment "of sufficient magnitude to make out a prima facie case of invidious discrimination," and that the defendants had shown no rational basis for the disparities. The court noted that the aforementioned initiated constitutional amendments would be on the ballot at the ensuing General Election, declined to enjoin the forthcoming primary election and to devise a plan of apportionment, and continued the cases until after the General Election. Following the approval by the electorate of Amendment No. 7, the plaintiffs amended their complaints to assert that Amendment No. 7 violates the Fourteenth Amendment to the United States Constitution by apportioning the Senate on a basis other than population and that, as the provisions of Amendment No. 7 are not severable, the entire amendment is invalid. In answering the amended complaints, the defendants renewed their jurisdictional objections and asserted the constitutionality of Amendment No. 7.

We are convinced that the allegations of the complaints are sufficient to establish federal jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983, and that the plaintiffs have standing to sue.⁵ The relief sought is a declaration that Amendment No. 7 is void, that the theretofore existing statutory apportionment is void, and that the court fashion appropriate injunctive relief to assure equality in voting rights. Although the prime attack is now against a provision of the state constitution rather than a state statute, the necessity of adjudication by a three-judge district court is still present.⁶

The Colorado legislature met in January, 1963, and passed a statute, H.B. No. 65, implementing Amendment No. 7. No question is raised concerning the implementing legislation.

Amendment No. 7⁷ created a General Assembly composed of a Senate of 39 members and a House of Representatives of 65 members. The state is divided into 65 representative districts "which shall be as nearly equal in population as may be" with one representative to be elected from each district. The state is also divided into 39 senatorial districts, 14 of which include more than one county. In counties apportioned more than one senator, senatorial districts are provided which "shall be as nearly equal in population as may be." Mandatory provisions require the revision of representative districts and of senatorial districts within counties apportioned more than one senator after each Federal Census.

The defeated Amendment No. 8⁸ proposed a three-man commission to apportion the legislature periodically. The commission was to have the duty of delineating, revising and adjusting senatorial and representative districts. Its actions were to be reviewed by the Colorado Supreme Court. The districting was to be on a strict population ratio for both the Senate and the House with limited permissible variations therefrom.

The record presents no dispute over the material and pertinent facts. The parties disagree as to the conclusions to be drawn from these facts. The plaintiffs rely entirely on statistics said to show that population disparities among the senatorial districts result in over-representation of rural areas. The defendants and intervenors assert that the senatorial districts, and the apportionment of senators thereto, have a rational basis and violate no provisions of the Federal Constitution.

The prime position of the plaintiffs is that representation in proportion to population is the fundamental standard commanded by the Federal Constitution. They say that this standard requires that each house must be made up of members representing substantially the same number of people.

The principle of equal weight for each vote is satisfied by a system under which all members of the legislature are elected at large. Such system would result in absolute majority rule and would effectively deny representation to minority interests. Although it would assure no dilution of the weight of any individual's vote, it presents the danger of dilution of the representative and deliberative quality of a legislature because of the practical difficulties of intelligent choice by the voters and because of the hazard of one-party domination.

The disadvantages of elections at large are overcome by the principle of districting. This principle provides representation to interests which otherwise would be submerged by the majorities in larger groups of voters.

From the very beginning of our Nation, districting has been used at all levels of government — national, state and local.⁹ The application of the districting principle to a state legislature requires the division of the state into geographical areas and the apportionment of a certain number of members of the legislature to each district. The plaintiffs say that the district boundaries must be so drawn, and the apportionment to each so made, that the result is substantial equality in the number of people represented by each member of each chamber of the legislature. The query is whether this is required by the Federal Constitution.

Baker v. Carr sets up no standards for the apportionment of a state legislature. That decision rejects the Guaranty Clause¹⁰ as a basis for judicial action in such cases and speaks in terms of the Equal Protection Clause of the Fourteenth Amendment with overtones of the Due Process Clause. The application of these principles causes us difficulty. If we are concerned with equal protection, the question arises as to what laws we consider when evaluating the equality of protection. In Baker v. Carr a noncompliance with state constitutional provisions was present. We have no need to consider whether deliberate departure from state law denies equal protection¹¹ because here we are dealing with the state constitution itself and the attacked provisions fall only if they impinge on the Federal Constitution.

We are not concerned here with racial discriminations forbidden by the Fourteenth and Fifteenth Amendments or with discrimination on the ground of sex in violation of the Nineteenth Amendment. If we reject the republican form of government standard as a basis for judicial action, we are left with the Due Process Clause to support an assertion of denial of equal protection upon the theory that unequal representation denies equal protection because minority process is not due process.¹²

For all practical purposes the Supreme Court has foregone the application of the Due Process Clause in substantive matters unless an impingement on...