Preisler v. Mayor of City of St. Louis

• Decision Date: 30 June 1969
• Docket Number: No. 68C 338(2).,68C 338(2).
• Citation: 303 F. Supp. 1071
• Parties: Paul W. PREISLER, Ernest Calloway, Carmelita Lowry, Bostic J. Franklin, Lucy King, and Mary Hilliker, individually, and in behalf of all other persons resident of the City of St. Louis, who are eligible to vote for Members of the Board of Aldermen of the City of St. Louis, Missouri, Plaintiffs, v. The MAYOR OF the CITY OF ST. LOUIS, the President of the Board of Aldermen, individually, and in behalf of all other members of the Board of Aldermen of the City, and the Members of the Board of Election Commissioners of the City of St. Louis, MISSOURI, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

303 F. Supp. 1071

Paul W. PREISLER, Ernest Calloway, Carmelita Lowry, Bostic J. Franklin, Lucy King, and Mary Hilliker, individually, and in behalf of all other persons resident of the City of St. Louis, who are eligible to vote for Members of the Board of Aldermen of the City of St. Louis, Missouri, Plaintiffs, v. The MAYOR OF the CITY OF ST. LOUIS, the President of the Board of Aldermen, individually, and in behalf of all other members of the Board of Aldermen of the City, and the Members of the Board of Election Commissioners of the City of St. Louis, MISSOURI, Defendants.

No. 68C 338(2).

United States District Court E. D. Missouri, E. D.

June 30, 1969.

Paul W. Preisler, St. Louis, Mo., for plaintiffs.

Gary M. Gaertner, City Counselor, David S. Hemenway, Assoc. City Counselor, St. Louis, Mo., for defendant.

MEMORANDUM

MEREDITH, District Judge.

The plaintiffs are six registered voters of the City of St. Louis, Missouri. They brought this suit, individually and in behalf of others similarly situated, against the Mayor of the City of St. Louis, the President of the Board of Aldermen of the City of St. Louis, the members of the Board of Aldermen of the City of St. Louis, and the Board of Election Commissioners of the City of St. Louis. The plaintiffs seek a declaratory judgment that the manner in which the twenty-eight wards of the City of St. Louis are divided for the purpose of aldermanic representation, and whose boundaries are created by Ordinances Nos. 53564 and 54404 of the City of St. Louis, violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. The plaintiffs also request injunctive relief prohibiting future elections under these ordinances, and that the Court retain jurisdiction until such time as the ward boundaries are drawn in accordance with the United States Constitution.

This Court has jurisdiction under the provisions of 28 U.S.C. § 1343(3) and 42 U.S.C. §§ 1983 and 1988. The ordinances sought to be declared unconstitutional are part of the Charter of the City of St. Louis, which was approved by the 1945 Constitution of the State of Missouri, V.A.M.S. (Article 6, Section 31). The Charter is of local and not statewide application. A three-judge court under the provisions of 28 U.S.C. § 2281 is not required. See Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967), and Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967).

The City of St. Louis is divided into twenty-eight wards which elect one alderman each to the Board of Aldermen. The President of the Board of Aldermen is elected at large. The legislative power of the City of St. Louis is vested in this Board. See Charter of City of St. Louis, August 29, 1914, as amended, Article IV, Section 1. The twenty-eight wards are created by Article I, Section 3, of the Charter. That section provides:

"WARDS — The city is hereby divided into twenty-eight wards, bounded and numbered as the wards of the city now are, provided, that from time to time corrected ward boundaries may be established by ordinance which shall comprise, as nearly as practicable, compact and contiguous territory within straight lines, and contain as nearly as may be the same number of registered voters."

The ward boundaries as they presently exist were drawn by Ordinance 53564, June 30, 1965, and Ordinance 54404, November 10, 1966.

The plaintiffs contend that the present apportionment of the aldermanic wards creates an invidious discrimination and vote debasement as between citizens of various wards. They urge that the only constitutionally permissible basis for apportionment is equal population. The defendants contend that registered voters are a proper criterion upon which ward boundaries may be drawn in St. Louis.

The Supreme Court of the State of Missouri and the Supreme Court of the United States have clearly held that the principle of one man, one vote enunciated in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), and in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), is applicable to units of local government. Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); and Armentrout v. Schooler, 409 S.W.2d 138 (Mo.1966). The Supreme Court of the State of Missouri applied these principles to councilmen elected from disproportionate wards in a third-class city in Armentrout v. Schooler, supra. In that case the Court said:

"Since the members of the City Council * * * are elected by the people in a representative capacity, and perform primarily legislative functions importantly affecting the people, the wards from which they are elected must be substantially equal in population, under the equal protection of the laws clauses of the constitutions of the United States and of the State of Missouri."

The United States Supreme Court has consistently held that the controlling criterion in apportionment controversies is that the Constitution permits no substantial variation from equal population as a basis for districting legislative bodies. See Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Avery v. Midland County, supra; Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L. Ed.2d 609 (1964); and Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964).

The above decisions, while establishing "equal population" as a basis for apportionment, do not define what the Supreme Court means by population. This was brought out by the Court in Burns v. Richardson, 384 U.S. 73, 91, 86 S.Ct. 1286, 1296, 16 L.Ed.2d 376 (1966):

"We start with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured. Although total population figures were in fact the basis of comparison in that case Reynolds v. Sims and most of the others decided that day, our discussion carefully left open the question what population was being referred to. At several points, we discussed substantial equivalence in terms of voter population or citizen population, making no distinction between the acceptability of such a test and a test based on total population."

The Supreme Court in Burns v. Richardson approved a temporary apportionment of the Hawaii House of Representatives on the basis of registered voters. It was pointed out that the decision was not an approval of registered voters as a basis for apportionment other than as an interim basis under the particular facts of that case. The use of registered voters was approved "only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis." Burns v. Richardson, supra, at 93, 86 S.Ct. at 1297.

The Burns decision shows that total population figures derived from the federal decennial census is a constitutionally permissible basis for apportionment. That decision also shows that some type of net population basis is also permissible. The Supreme Court called attention to the fact that it had never suggested that "the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime * * *" Burns v. Richardson, supra, at 92, 86 S. Ct. at 1296.

The Burns decision shows, as a minimum, that voter registration per se is not a constitutionally permissible basis for apportionment. It is constitutionally acceptable only if the results substantially reflect the results obtainable by the use of another permissible basis, such as total population. It cannot be contended seriously that elected officials represent only registered voters. The right to equal representation does not depend upon the extent of a person's political activity or his exercise of political rights.

The Supreme Court in Roman v. Sincock, supra, stated that the constitutional validity of an apportionment scheme could not be tested by a "rigid mathematical standard." That Court has rejected the acceptability of any fixed de minimis numerical or percentage variation from the requirement that "as nearly as practicable" each person's vote is to be worth as much as another's vote. See Kirkpatrick v. Preisler, supra. The proper judicial approach is to determine whether, under the particular circumstances of a specific case, there "has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." Roman v. Sincock, supra, 377 U.S. at 710, 84 S.Ct. at 1458.

The equal protection clause of the Fourteenth Amendment requires "equal representation for equal numbers of people * * *" Reynolds v. Sims, supra, 377 U.S. at 560-561, 84 S.Ct. at 1381. A maximum variance of +3.13% and -2.84% from the ideal congressional district was held not to meet the constitutional requirements in Kirkpatrick v. Preisler, supra. A maximum variance of +6.488% and -6.608% from the ideal was held unacceptable in Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L. Ed.2d 535 (1969). A maximum total population variance ratio of 1.66 to 1 between city wards was held constitutionally impermissible in Ellis v. Mayor and City Council of Baltimore, 352 F.2d 123 (4th Cir. 1965).

The total population figures in this case based upon the 1960 Census, and the registered voter figures for September 4, 1968, April 27, 1967, and September 1, 1966, broken down for each of the twenty-eight aldermanic wards of the City of St. Louis are shown in Attachment A.

The wards as presently drawn and as...