Preisler v. Secretary of State of Missouri
| Citation | 279 F. Supp. 952 |
| Decision Date | 04 March 1968 |
| Docket Number | No. 1064.,1064. |
| Parties | Paul W. PREISLER et al., Plaintiffs, v. The SECRETARY OF STATE OF MISSOURI and The Attorney General of Missouri, Defendants, F. V. Heinkel et al., Intervenor Defendants. |
| Court | U.S. District Court — Western District of Missouri |
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Paul W. Preisler, St. Louis, Mo., for plaintiffs.
Norman H. Anderson, Atty. Gen., of State of Mo., and Thomas H. Downey, Asst. Atty. Gen., for defendants.
Before MATTHES, Circuit Judge, and OLIVER and COLLINSON, District Judges.
Probable Jurisdiction Noted March 4, 1968. See 88 S.Ct. 1053.
JOHN W. OLIVER, District Judge, joined by WILLIAM R. COLLINSON, District Judge.
This case presents for judicial review the third effort made by a Missouri General Assembly since the 1960 decennial census to divide this State into ten congressional districts of as nearly equal population as is practicable, in conformity with the dual mandates of Article 3, Section 45 of the 1945 Missouri Constitution, V.A.M.S. and of Art. I, ? 2 of the Constitution of the United States. Application of principles established by Art. I, ? 2 of the Constitution, as construed by the Supreme Court of the United States, requires that we hold that this third effort does not pass constitutional muster.
The initial decision of this Court, rendered January 4, 1965, determined that the 1961 Missouri Congressional Redistricting Act was unconstitutional but deferred granting any judicial relief "until the Legislature of the State of Missouri has once more had an opportunity to deal with the problem;" this Court refused to presume that "the Legislature of the State of Missouri will refuse to take all necessary action to comply with its duty under the Federal, as well as its own State, Constitution." Preisler v. Secretary of State of Missouri, 238 F.Supp. 187, 191 (W.D.Mo.1965) (Preisler I).
Following Preisler I the Seventy-third General Assembly of Missouri enacted the 1965 Congressional Redistricting Act, Mo.Stat.Ann. Title 9, ?? 128.202-128.305 (1965). That Act was subjected to judicial scrutiny and held to be constitutionally void on the ground that it also failed to comply with the command of Art. I, ? 2 of the Constitution. Preisler v. Secretary of State of Missouri, 257 F.Supp. 953 (W.D.Mo.1966) (Preisler II). Our decree in the second case, however, for reasons fully stated in light of Swann v. Adams II, 383 U.S. 210, 86 S. Ct. 767, 15 L.Ed.2d 707 (1966), permitted the 1966 Congressional elections to be conducted under the constitutionally void 1965 Act. We retained jurisdiction for the purpose of reviewing any new Congressional redistricting plan enacted by a future General Assembly and signed by the Governor. 257 F.Supp. at 982. On January 9, 1967 the judgment of this Court was affirmed by the Supreme Court of the United States. Kirkpatrick v. Preisler, 385 U.S. 450, 87 S.Ct. 613, 17 L.Ed.2d 511 (1967).
In 1967 the Seventy-fourth General Assembly of Missouri again tackled the problem. Its effort culminated in legislation which became effective on October 13, 1967, hereinafter referred to as the 1967 Act, Mo.Stat.Ann. Title 9, ?? 128.202-128.305 (1967). This case pends on the Attorney General of Missouri's motion for approval of the 1967 Act and for dismissal of this case.
Plaintiffs contend that the 1967 Act is unconstitutional because the populations of the districts were not "as equal as is practicable," since the variances between district populations are substantial. The 1967 Act is not challenged on any ground other than failure to comply with Art. I, ? 2 of the federal Constitution. The parties who intervened in Preisler II and urged approval of the 1965 Act have appeared and participated in the same role in regard to the 1967 Act.
Defendants attached to their pending motion a map of the State of Missouri which illustrated the boundaries of the districts and purported to show the actual population of each district. Defendants' motion alleged that "all of the population figures referred to on that exhibit are based on the United States Census for 1960." Plaintiffs' responsive pleading suggested that the population data presented by defendants in their motion did not accurately reflect the 1960 census population data. Procedures were therefore adopted at a prehearing conference under which accurate figures were promptly obtained from the Bureau of Census.
The following table illustrates the differences between the population data presented by Appendix B attached to defendants' motion and that established by the accurate 1960 census figures:
Comparison of Population Figures
Represented As Accurate in
Defendants' Appendix B With
Actual 1960 Census Figures in Evidence
Population Variance Actual Actual
Represented Represented Census Census
District Def. App. B Def. App. B Population Variation
1 436,417 + 4,436 439,746 + 7,765
2 442,302 +10,321 436,448 + 4,467
3 431,507 - 474 436,099 + 4,118
4 423,815 - 8,166 419,721 - 12,260
5 430,412 - 1,569 431,178 - 803
6 425,238 - 6,743 422,238 - 9,743
7 436,769 + 4,788 436,769 + 4,788
8 439,984 + 8,003 445,523 + 13,542
9 428,223 - 3,758 428,223 - 3,758
10 423,866 - 8,115 423,868 - 8,113
It is apparent that defendants' Appendix B accurately reflected the actual population of only two of the ten districts (Districts 7 and 9). The variations in regard to two other districts (Districts 5 and 10) are obviously minor.1
Before the facts concerning the actual population variances were established, defendants' sole legal contention that the 1967 Act be approved was based on the notion that "the districts resulting from the 1967 Congressional Redistricting Act comply with the doctrine of de minimis in regard to population variances between the districts." After defendants learned that the actual population variances established by the 1967 Act were in many instances substantially greater than those set forth in defendants' pending motion, they advised the Court that defendants would like to adduce evidence to attempt to justify the greater variations that had in fact been established.1a Defendants and intervenors continue to contend that, in any event, the variances actually established, even though greater than those that the 1967 Missouri Legislature believed it was creating, nevertheless should still be ruled to be de minimis.
Defendants' motion was set for hearing before the full panel of this Court as requested by defendants. The evidence adduced at that hearing established that the 1967 General Assembly of Missouri at no time ever considered accurate 1960 federal census population figures in its consideration of the 1967 Act. That evidence further established that the accurate 1960 census figures for all appropriate 1967 political subdivisions were in fact furnished the experienced chairman of the Missouri Senate Reapportionment Committee (the same Senator served in the same capacity in regard to both the void 1961 and 1965 Acts) for his consideration and use. The inaccurate population figures presented by defendants' pending motion were in fact the inaccurate population figures used by both the Missouri Senate and House in connection with its legislative action that produced the 1967 Act.2 Chief Judge Biggs' statement in Sincock v. Duffy, D. Dela.1963, 215 F.Supp. 169 at 194, is apposite. In considering a proposed apportionment plan for Delaware it was found as a fact that "census enumeration districts were included when they should have been excluded, or excluded when they should have been included." After noting that "to the extent they were erroneously included, the population for the proposed district is overstated," Chief Judge Biggs said:
The erroneous exclusion or inclusion of enumeration districts in representative districts throws population figures askew. When one vote?€”one person is the aim, it is impossible to hit the bull's eye with a defectively sighted weapon.
The difficulties of attempting to reapportion the State of Missouri with inaccurate population figures is made vividly apparent by a comparison of the variances created by the unidentified population figures actually used by the chairman of the Senate Reapportionment Committee when he prepared the original of the bill eventually enacted, Senate Bill No. 182, (see pages 27-28 of the Chairman of the Senate Reapportionment Committee's deposition), with the variances in fact produced by that original bill under the 1960 federal census figures. The following table makes that comparison:
Senate Bill No. 182
As Originally Introduced
by the Chairman of the
Senate Reapportionment Committee
Figures Used Actual Actual
by S.B. 182 Apparent Census Census
District Author Variance Population Variance
1 423,712 - 8,269 408,950 -23,031
2 444,462 +12,481 460,469a +28,488
3 448,824 +16,843 462,716 +30,735
4 428,113 - 3,868 428,224 - 3,757
5 430,412 - 1,569 434,459 + 2,478
6 427,710 - 4,271
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