Mann v. Davis

• Citation: 238 F. Supp. 458
• Decision Date: 18 September 1964
• Docket Number: Civ. A. No. 2604.
• Parties: Harrison MANN et al., Plaintiffs, v. Levin Nock DAVIS et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

238 F. Supp. 458

Harrison MANN et al., Plaintiffs, v. Levin Nock DAVIS et al., Defendants.

Civ. A. No. 2604.

United States District Court E. D. Virginia, at Alexandria.

September 18, 1964.

Edmund D. Campbell, Arlington, Va., and E. A. Prichard, Fairfax, Va., for plaintiffs.

Henry E. Howell, Jr., Sidney H. Kelsey, and Leonard B. Sacks, Norfolk, Va., for plaintiff-interveners.

Robert Y. Button, Atty. Gen. of Va., R. D. McIlwaine, III, Asst. Atty. Gen. of Virginia, David J. Mays, and Henry T. Wickham, Richmond, Va., for defendants.

Before BRYAN, Circuit Judge, and HOFFMAN and LEWIS, District Judges.

ALBERT V. BRYAN, Circuit Judge:

A foremost concern in framing the order on the mandate of the Supreme Court affirming our original decree is the question of the maximum period in which the present, 1963, General Assembly elected under the condemned statute may still function and with what powers. In our opinion it must expire as to both houses not later than the 2nd Wednesday in January 1966.

We think the 1963 Assembly necessarily is empowered to enact the requisite reapportionment laws. There is no other body to do so, and unless its jurisdiction is recognized for this purpose the State would be helpless to accomplish the reapportionment. The Supreme Court has tacitly approved such accordance of provisional vitality to the existing legislature. Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 675, 84 S.Ct. 1429, 12 L.Ed. 2d 595 (1964); Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) adopting the view expressed by Justice Douglas concurring in Baker v. Carr, 369 U.S. 186, 250 footnote 5, 82 S.Ct. 691, 7 L.Ed.2d 663.

We think, also, that after the 1963 Assembly has enacted a constitutionally valid reapportionment statute — but not before then — and during the interval between its adoption and the commencement of the terms of the Senators and Delegates chosen in the 1965 elections, vide post, the Assembly should not be restrained from considering and passing such legislation as it considers necessary or proper in the public interest. If the present legislature could not act in this interim, a potentially dangerous interregnum could result, for there would be no legislature available in an emergency. Moreover, if this authority were not conceded, special elections for the creation of a new General Assembly would have to be called immediately after the passage of the reapportionment statute. This would mean an election of Delegates to serve for a matter of months, when a primary election of Delegates is probable in July and a regular general election is set for November, 1965. That would be an undue burden upon the State's elective processes. In these exigencies general principles of equity, as noted by the Supreme Court in the decisions just cited, sustain an order permitting such a temporary continuance of the powers of the current legislature.

In the effort to minimize disruption of the State's elective processes as far as possible, but still consistently with our first order, it is well to recall those processes and consider their application here. When our finding of invalidity in the legislative apportionment was made in November 1962, both houses of the General Assembly were to stand for election the following year, 1963. During the temporary stay of enforcement of this finding, the 1963 election proceeded upon the unconstitutional apportionment. Delegates where then chosen for 2-year terms expiring on the 2nd Wednesday in January 1966, and the Senators were selected for 4 years each, that is until the 2nd Wednesday in January 1968.

Orderly procedure would, therefore, suggest that the 1963 House of Delegates should continue in being until the expiration of their terms in January 1966. Cf. Reynolds v. Sims, supra, 377 U.S. 533, 585, 84 S.Ct. 1362 (June 15, 1964). In the November 1965 general election a House of Delegates will, under the Virginia law, be elected to assume their duties on the 2nd Wednesday in January 1966. Of course, the 1965 House would be serving under the new apportionment.

As noted, however, the 1963 Senate would not normally leave office until January 1968. Elected on a void pattern of representation, there is no warrantable foundation for its accreditation beyond January 1966. Further, if it should be allowed to survive until 1968, the General Assembly — from January 1966 to January 1968 — would be composed of a House of Delegates elected on one (a valid) scheme of apportionment with a Senate elected upon another (invalidated) plan. This, too, would be constitutionally unjustifiable. Together the two houses in a bicameral system form a unitary and entire legislature. For equality of popular representation they are mutually complementary, and constitutional validity is not fulfilled if one house is deliberately permitted to lag behind the other in maintaining fairness of representation. Cf. Maryland Committee for Fair Representation v. Tawes, supra, 377 U.S. 656, 673, 84 S.Ct. 1429.

Incidentally, practical difficulties might develop if the life of the 1963 Senate lasted until 1968. In the event of vacancies in the Senate, as an illustration, they could not be filled because no elections may be conducted under the nullified apportionment statutes. Reynolds v. Sims, supra, 377 U.S. 533, 585, 84 S.Ct. 1362. Probably none could be held under the new act because of the subsequent rearrangement of the districts. While such eventualities might occur in the House of Delegates also, the opportunity...