Preisler v. Secretary of State of Missouri, Civ. A. No. 1716.

• Decision Date: 23 February 1972
• Docket Number: Civ. A. No. 1716.
• Parties: Paul W. PREISLER et al., Plaintiffs, v. SECRETARY OF STATE OF MISSOURI et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

341 F. Supp. 1158

Paul W. PREISLER et al., Plaintiffs, v. SECRETARY OF STATE OF MISSOURI et al., Defendants.

Civ. A. No. 1716.

United States District Court, W. D. Missouri, C. D.

February 22, 1972.

As Amended February 23, 1972 and June 6, 1972.

Paul W. Preisler, St. Louis, Mo., and Irving Achtenberg, Achtenberg, Sandler & Balkin, for plaintiffs.

Gene E. Voights, and Charles B. Blackmar, Ass't Att'y Gens., for the State of Missouri, for defendants.

J. Anthony Dill, St. Louis, Mo., Harold L. Volkmer, Hannibal, Missouri, for amici curiae.

James Millan, Bowling Green, Mo., for The Honorable William L. Hungate, U. S. Representative and Hon. Bill D. Burlison, U. S. Representative.

Edward Welch, Welch and Wheadon, East St. Louis, Ill., for The Hon. William L. Clay, U. S. Representative.

Before GIBSON, Circuit Judge, BECKER, Chief District Judge, and WANGELIN, District Judge.

FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT ADOPTING JUDICIAL PLAN FOR CONGRESSIONAL DISTRICTS

PER CURIAM:

This is an equitable action filed on July 6, 1971, by nine citizens¹ of the United States and of the State of Missouri against the Governor, the Secretary of State and the Attorney General of Missouri, in their official capacities.

The plaintiffs seek (1) a judgment declaring the 1969 Missouri statutes dividing the State of Missouri into ten Congressional districts to be unconstitutional, (2) an injunction restraining the defendant Secretary of State from authorizing and permitting electoral processes including future primary and general elections for Congress of the United States from the districts established by the 1969 Act and (3) a judicial redistricting of the State of Missouri into ten constitutional Congressional districts for the preliminary election processes and for the primary and general elections beginning in 1972. (The injunction sought presumably would continue until the General Assembly of Missouri enacts a constitutionally permissible plan of Congressional redistricting.)

The District Judge before whom the action was pending determined the necessity for convening a Three-Judge Court as required by § 2281, Title 28, United States Code, and requested that the Chief Judge of the United States Court of Appeals for the Eighth Circuit convene this court pursuant to § 2284, Title 28, U.S.C. On August 12, 1971, in response to this request the Honorable M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit convened this Three-Judge Court.

Venue and jurisdiction to hear and determine this action on the merits exists under § 1391(b), § 1343(3), § 2201, Title 28, U.S.C., and under § 1983 and § 1988, Title 42, U.S.C.

In April 1969, the Supreme Court of the United States affirmed a district court decision holding the 1967 Missouri Congressional Redistricting Act unconstitutional. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519. Following this decision the Missouri General Assembly in 1969 enacted the Congressional Redistricting Act under attack in this action. Section 128.204 to Section 128.306, inclusive, Chapter 128 RSMo. In 1970 Congressional elections were held under this 1969 Act.

When the results of the 1970 decennial census became available it was readily apparent that the districts created by the 1969 Act had become constitutionally impermissible in 1971. See Congressional District Data, Districts of the 92d Congress, Missouri, CDD-92-93, June 1971 (a United States Department of Commerce Publication). The facts underlying this conclusion have been verified as a result of the pretrial and trial proceedings herein. Because of population growth and shifts between 1960 and 1970 the disparities between Congressional districts in Missouri, and the variations from the ideal are illustrated by the following uncontroverted tabulation from the currently available 1970 census figures:

                       Number of Congressional Seats:             10
                       Total Population:                   4,677,399
                       Ideal Population for Each
                         Congressional District:             467,740
                       Actual Population for Each
                       District Created by 1969 Act
                                              Actual Population
                                                     Per                   Variation
                   District                      1970 Census               from Ideal
                   First                            377,097                  -90,643
                   Second                           508,745                  +41,005
                   Third                            376,211                  -91,529
                   Fourth                           527,990                  +60,250
                   Fifth                            379,619                  -88,121
                   Sixth                            462,024                  - 5,716
                   Seventh                          481,313                  +13,573
                   Eighth                           604,525                 +136,785
                   Ninth                            551,132                  +83,392
                   Tenth                            408,743                  -58,997
                

None of the minor corrections in the preliminary 1970 census data substantially affects these figures.

On the basis of these 1970 census population figures, we conclude, without disagreement by any formal party, amicus curiae or any other interested person, that the 1969 Missouri Congressional Redistricting Act, supra, is unconstitutional and that no present or future Congressional preliminary election processes or primary or general elections may be held thereunder.

In early recognition of this inevitable conclusion the 76th General Assembly of Missouri at its regular session in 1971 considered legislation calculated to create in time for the 1972 elections ten new constitutionally permissible Congressional districts. Until November 22, 1971, we refrained from further judicial action with the hope that the Missouri General Assembly would be called into special session and would cause to be enacted into law, in time for the 1972 election processes a constitutionally permissible Congressional redistricting plan.

On November 22, 1971, we held a plenary evidentiary hearing to secure a basic record for action on the merits of this case when a decision was required. To give the Missouri General Assembly further time to act, action herein was stayed until January 31, 1972, when final hearings herein were held and the cause submitted. Unfortunately, no new Missouri Congressional Redistricting Act has been enacted into law as of mid-February 1972, the latest practicable time for legislative action. Now most formal and interested parties agree that we must render a decision in this case on the basis of the pretrial and trial.

So left with no alternative, reluctantly we proceed to establish by judicial action a constitutionally permissible Congressional redistricting plan for Missouri under which future primary and general elections for Congressional seats must be held until there is enacted into law by the General Assembly of Missouri a constitutionally permissible Congressional redistricting act. In doing so we will give effect as far as is practicable and legal to what we believe to be the will of the majority of the people of Missouri, as far as it can be discerned.

The federal law requires, and we willingly follow the federal standard that Article I, § 2 of the Constitution of the United States requires that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's". This rule was enunciated in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and further defined in Kirkpatrick v. Preisler, supra.

In addition to this federal standard, Section 45 of Article III of the Missouri Constitution, V.A.M.S., requires that the Congressional districts "... be composed of contiguous territory as compact and as nearly equal in population as may be." In devising a judicial plan of Congressional redistricting we respect and follow this state standard, as a matter of law and comity.

Some evidence of the will of the people of Missouri in some respects is found in the alignment of Congressional districts in the now obsolete 1969 Missouri Congressional Redistricting Act. To the extent practicable we give consideration to the salvageable portions of that Act.

Imperfect and to some extent inconsistent indicia of the will of the people of Missouri and their elected representatives are found in the two 1971 Congressional redistricting bills, each of which was passed by one branch of the Missouri General Assembly. Neither bill passed both branches of the Missouri General Assembly. The Missouri House of Representatives passed House Committee Substitute for Senate Committee Substitute for Senate Bill No. 370 containing a plan of Congressional redistricting. The Missouri Senate passed Senate Committee Substitute for Senate Bill No. 370 containing a substantially different plan. Neither bill passed both branches of the Missouri General Assembly, which remain in disagreement up to the present time.

Giving consideration to all factors and arguments advanced by the parties and amici curiae we have decided to establish the attached judicially devised constitutionally permissible plan for creating ten new Congressional districts from which the ten members of the United States House of Representatives from Missouri shall be elected in 1972 and in subsequent years unless and until there shall be timely enacted a new constitutionally permissible Missouri Congressional Redistricting Act. The judicial plan is appended hereto marked "Exhibit A" and made a part as if fully set out herein in words and figures.

In this plan an effort has been made to avoid splitting counties except where necessary. Furthermore an effort has been given to retaining counties in present districts as far as practicable and legally permissible. Compactness of districts, in the degree required by state law, has been achieved.

According to figures...