Marshall v. Hare
| Decision Date | 22 June 1964 |
| Docket Number | Civ. No. 24013. |
| Citation | 227 F. Supp. 989 |
| Parties | William C. MARSHALL, Barney Hopkins, August Scholle, Alexander D. Fuller and Charles A. Rogers, Plaintiffs, v. James M. HARE, Secretary of State of State of Michigan, Defendant, and Frank D. Beadle, John W. Fitzgerald, and Paul C. Younger, Senators of the State of Michigan, and Stanton S. Faville, Chief Assistant Attorney General of the State of Michigan, Intervening Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Theodore Sachs, Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, Mich., for plaintiffs.
Frank J. Kelley, Atty. Gen. of State of Michigan, and Robert A. Derengoski, Sol. Gen. of State of Michigan, Lansing, Mich., for defendant.
Edmund E. Shepherd, Foster, Campbell, Lindemer & McGurrin, Lansing, Mich., R. William Rogers, Patrick J. Ledwidge, and George B. Martin, Dickinson, Wright, McKean & Cudlip, Detroit, Mich., for intervening defendants Beadle, Fitzgerald and Younger.
Stanton S. Faville, Chief Asst. Atty. Gen. of State of Michigan, James R. Ramsey and Russell A. Searl, Asst. Attys. Gen. of State of Michigan, Lansing, Mich., for intervening defendant Faville.
Judgment Reversed June 22, 1964. See 84 S.Ct. 1912.
On June 20, 1963, the Board of State Canvassers certified that the vote on the Constitution proposed by the Michigan Constitutional Convention was 810,860 to 803,436 in favor of adoption. On June 21, 1963, this suit was brought to declare the provisions relating to the apportionment of the legislature, Mich. Const.1963, Art. IV, §§ 2-6, invalid under the Fourteenth Amendment. The plaintiffs are Michigan citizens and qualified electors residing in Wayne County, Oakland County, and Muskegon County. The allegations of the complaint are that the provisions of the Michigan Constitution are irrational, are invidiously and purposefully discriminatory, and grossly impair the right to vote of the plaintiffs and other Michigan citizens similarly situated.
The plaintiffs have urged the invalidity of any plan of apportionment adopted in accordance with the provisions of the Michigan Constitution. The defendant, the Michigan Secretary of State, has joined in the presentation of the plaintiffs' case, and left the defense of the Michigan Constitution to the intervening Senators and Chief Assistant Attorney General. The defendant has suggested, however, that it would be premature to consider the constitutional questions presented until a definite plan of apportionment has been adopted.
Various plans proposed by members of the Commission on Legislative Apportionment have already been submitted to the Supreme Court of Michigan. The responsibility of determining which plan complies most accurately with the requirements of the Michigan Constitution now rests with that Court. Mich.Const.1963, Art. IV, § 6. While constitutional questions must be considered on the basis of specific facts and not abstractly, it is of grave concern to us that the processes of state government may be interrupted through prolonged litigation. No plan of apportionment has been adopted, yet the tendency of the provisions of the Michigan Constitution can be foretold, and the degree of departure from the principle of equal population accurately predicted.
In accordance with the decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, we hold that we have jurisdiction of the subject matter of the constitutional claim asserted in the complaint, that the plaintiffs have standing, and that we are not to be deterred from granting appropriate relief by the argument that the claim presents a political question.
The Michigan Constitution provides for a House of Representatives apportioned on the basis of population, subject only to the qualifications that county lines are to be followed in the creation of districts and that counties having a population of not less than 0.7% of the population of the state are to be accorded separate representation. By statistical tests it may be shown that the districting set forth in the Senators' Map II A-2 embodies the principle of equal population most faithfully while adhering to county lines. Three classes have been established in our analysis — the five most populous counties, the remaining counties of the southern part of the Lower Peninsula, and the counties of the Upper Peninsula and the northern part of the Lower Peninsula.
Wayne County, as the center of the Detroit metropolitan area, stands apart. It has 34.08% of the population of the state, nearly four times the population of the next most populous county. Together the five most populous counties have 57.52% of the population of the state, the remaining counties of the southern part of the Lower Peninsula 33.58%, and the counties of the Upper Peninsula and the northern part of the Lower Peninsula 8.90%. Muskegon, Kent, Montcalm, Isabella, Midland, and Bay Counties have been selected to form a line dividing the Lower Peninsula. To the north of the line, the density of population falls sharply and there are distinct changes in climate and fertility of the soil and in the activities and income of the people.1
By reference to Table I it may be seen that the effect in districts created in the five most populous counties would be minimal. The effect would be appreciable only in districts created in less populous areas. In the district for Ottawa County (No. 19, Senators' Map II A-2) and the district for Shiawassee and Livingston Counties (No. 22, Senators' Map II A-2), the degree of under-representation, expressed as a percentage of the ratio of representation, would be 38.8% and 28.9% respectively. The degree of over-representation would be an average of 28.9% for the districts created in Monroe County (No. 30, Senators' Map II A-2), 32.0% for the district for Van Buren County, and 18.8% for the district for Allegan County (No. 25, Senators' Map II A-2). The ratio of the population of the most populous district to that of the least populous will exceed two to one, since the ratio of the population of Ottawa County, 98,719, to that of Van Buren County, 48,395, will exceed two to one.
It is a matter of general knowledge that county lines continue to have significance for persons who live in less populous areas. The county seat will be a focal point of political organization, and will often be the market place and the social and economic center of the surrounding countryside. There the county remains a natural unit of apportionment. In the great metropolitan areas, the county may assume greater importance than it has ever had as cities are transcended. The model for local government in the future may be the City and County of Los Angeles.
Authority to depart from the county line could create significantly more complex issues in districting. Not only could heretofore unrelated townships, villages or cities be combined, but they could be combined, for this one purpose, in a manner that cut across existing relationships in the manifold matters of local government. Of particular significance, authority to depart from county lines could lead to a patchwork or an impasse in the Commission on Legislative Apportionment. Thus there are strong arguments in favor of the county line.
The 0.7% provision permits a slight increase in the representation of persons living in sparsely populated areas. It is argued, on the one hand, that the provision is a grant of authority to the Commission on Legislative Apportionment to be exercised in its discretion, and, on the other, that it must be given full effect. Whether the provision must be given full effect is a matter of state law, to be determined by the Supreme Court of Michigan. In any event, it represents a minor departure from the principle of equal population. In Tennessee, the standard for the apportionment of the House of Representatives is the number of qualified voters (as opposed to population), subject to the qualification that any county having two-thirds of the ratio of representation is entitled to one member. Tenn.Const. Art. II, § 5. The Supreme Court found such a qualification minor in Baker v. Carr, supra. In Michigan, only counties having not less than seventy-seven hundredths of the ratio of representation2 could be assured separate representation.
The effect of the provision would be appreciable, not in the most populous counties, but in the sparsely populated counties and the counties of intermediate population. At most, the representation of persons living in the Upper Peninsula and the northern part of the Lower Peninsula would be increased by two seats. The possible increase in representation would be made through a shift of one seat from Monroe County and one seat from Oakland County. Table II gives a general view of the departure inherent in following county lines and giving full effect to the 0.7% provision. By reference to Table III it may be seen that the most populous counties would still enjoy representation in the House very nearly in proportion to their population, even with a shift of two seats.
If the 80%, 20% formula is considered objectively, it will be found that it is equivalent to a formula in which greater weight is attached to population figures for sparsely populated areas, and that its effect is to increase the representation of persons living in the Upper Peninsula and the northern part of the Lower Peninsula. The mathematical precision of the formula adopted by the Constitutional Convention may be explained as a reaction to the decision reached by the Supreme Court of Michigan in Scholle v. Secretary of State, 367 Mich. 176, 116 N.W.2d 350, petition for certiorari pending before the United States Supreme Court. However, the formula is more than a recasting of the balance that existed between urban and rural areas. It represents a profound change, as it gives urban areas a clear preponderance.
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