Preisler v. Secretary of State of Missouri
| Decision Date | 05 August 1966 |
| Docket Number | No. 1064.,1064. |
| Citation | 257 F. Supp. 953 |
| Parties | Paul W. PREISLER et al., Plaintiffs, v. The SECRETARY OF STATE OF MISSOURI and the Attorney General of Missouri, Defendants, and F. V. Heinkel, R. J. Rosier, W. W. Beckett, A. D. Sappington, L. O. Wallis, Miller Hern, Herman Hetlage, Herman Kertz, Turpin Youtsey and Glen Myers, Intervenor-Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Edwards, Hess & Collins, Macon, Mo., for intervenor-defendants.
Paul W. Preisler, St. Louis, Mo., for plaintiffs.
Norman H. Anderson Atty. Gen., Jefferson City, Mo., J. Gordon Siddens, Asst. Atty. Gen., Jefferson City, Mo., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, Mo., for defendants.
Before MATTHES, Circuit Judge, and OLIVER and COLLINSON, District Judges.
This Congressional reapportionment case is a sequel to Preisler v. Secretary of State of Missouri, W.D.Mo.1965, 238 F. Supp. 187, decided January 4, 1965. Preisler I pended as consolidated cases Nos. 923 and 924. In those consolidated cases plaintiffs sought and obtained a declaration that the 1961 Congressional Redistricting Act of Missouri was unconstitutional. In this case, No. 1064, the same plaintiffs contest the constitutional validity of Missouri's 1965 Congressional Redistricting Act.1
The point of beginning in this case, as it was in Preisler I, must be the 1964 decision of the Supreme Court in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). In Preisler I the present defendants conceded that the constitutional principles enunciated in Wesberry controlled the disposition of that case "unless the Supreme Court overrules or modifies such decision" (238 F.Supp. at 189). Defendants, as they must, make the same concession in this case. The Supreme Court has not modified or overruled Wesberry v. Sanders. Wesberry v. Sanders controlled Preisler I; it controls Preisler II.
In Preisler I this Court held that "Wesberry v. Sanders, supra, teaches that apportionment is void when it appears from the scheme thereof there has been inadequate consideration to equality in population as between districts in the same State" (238 F.Supp. at 190). We emphasized that Wesberry v. Sanders determined that "the command of Art. I, ß 2 (of the Constitution of the United States) * * * means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's" (238 F.Supp. at 190, quoting directly from 376 U.S. at 7-8, 84 S. Ct. 526). Further, we stated that the "mandate of Art. I, ß 2, as construed in Wesberry v. Sanders precludes the consideration of `area' representation as being a valid factor in the determination of Congressional Representation" (238 F. Supp. at 190).
In Preisler I this Court stayed its hand "until the Legislature of the State of Missouri has once more had an opportunity to deal with the problem" (238 F. Supp. at 191). We 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 Constitution, as well as its own State, Constitution."2
Using respectful but unequivocal language, this Court held in Preisler I on January 5, 1965, that "the State Legislature of Missouri has an unmistakable duty to reapportion the Congressional Districts of that State in accordance with the principles enunciated in Wesberry v. Sanders 376 U.S. 1, 84 S.Ct. 526, 11 L. Ed.2d 481 (1964); Martin v. Bush 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656 (1964); and Colegrove v. Green 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946)" (238 F.Supp. at 191). Jurisdiction of Cases Nos. 923 and 924 was therefore retained "in order to afford the Legislature of the State of Missouri a full opportunity to `heed the constitutional mandates' considered in the above cited authorities" (238 F.Supp. at 191).
The Seventy-third General Assembly of Missouri enacted the legislation now before this Court in 1965 after our decision in Preisler I. The 1965 Act, Sections 128.202 to 128.305, constituting Chapter 128 of Title IX of the Missouri Statutes, as amended (September, 1965 Pamphlet V.A.M.S., pages 76-77), originated as Senate Bill No. 320 and was introduced on March 4, 1966. After various changes and substitutions, that bill, as amended, was passed by the 1965 Missouri General Assembly on the final day of its session and was later approved by the Governor on August 5, 1965.3
Particular Changes Made by the 1965 Act in regard to the Redistricting Provided in the 1961 Act
The changes made in the 1961 redistricting by the 1965 Act are illustrated in Table I below. The "deviation" columns in that table represent the difference between the population allocated to a particular district by the 1961 Act and by the 1965 Act, respectively, and the population that would have been included in each of Missouri's ten congressional districts if absolute mathematical precision was practicable.
An ideal average district would have included 431,981.3 population (4,319,813 total population ˜ 10 districts) in each of the ten districts. We recognize, as did Wesberry v. Sanders, that "it may not be possible to draw congressional districts with mathematical precision" (376 U.S. at 18, 84 S.Ct. at 535, 11 L.Ed.2d 481). But recognition of that fact may not be converted into an "excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives" (376 U.S. at 18, 84 S.Ct. at 535).
Table I is as follows:
TABLE I
Changes in 1961 Redistricting Made by 1965 Act
DIST. 1961 Act 1965 Act Changes made by 1965 Act TOTAL
NO. POPULATION POPULATION POPULATION 1961 1965
SHIFT DEVIATION DEVIATION
----------------------------------------------------------------------------------------------------------------------
1 466,482 474,895 Shifts of St. Louis County Townships and one + 8,413 +34,500.7 +42,913.7
St. Louis city ward between First, Third and
Ninth Districts
2 506,854 460,501 Shift of St. Louis County Townships and one -46,353 +74,872.7 +28,519.7
St. Louis ward between First and Second
Districts
3 480,222 469,888 Shift of two St. Louis wards between First -10,334 +48,240.7 +37,906.7
Second and Third Districts
4 418,981 402,813 Shift of four Kansas City wards to Fifth +16,168 -13,000.3 -29,168.3
District. Shift of Barton County from
Seventh District
5 378,499 405,780 Shift of four Kansas City wards from Fourth +27,281 -53,482.3 -26,201.3
District
6 388,486 394,236 Shift of Mercer County from the Ninth District + 5,750 -43,495.3 -37,745.3
7 436,933 425,820 Shift of Barton County to the Fourth District -11,113 + 4,951.7 - 6,161.3
8 452,385 443,747 Shift of Wayne County to Tenth District - 8,638 +20,404.7 +11,765.7
9 409,369 451,893 Shift of Mercer County to Sixth District. +42,524 -22,612.3 +19,911.7
Shift of St. Louis County townships from
First District
10 381,602 390,240 Shift of Wayne County from the Eighth - 8,638 -50,379.3 -41,741.3
District
Table II below is an extension of the table originally set forth in Preisler I as it appeared on page 188 of 238 F.Supp. That table repeats the malapportionment variances under the 1961 Act between the Second and Third Districts and the other respective districts, to which we have added new columns for the First District and the 1965 figures for all three districts for the reasons set forth in the footnote below.4
Table II is as follows:
TABLE II
Comparison of District Populations Under 1961 Act and 1965 Act
-------------------------------------------------------------------------------------------------------------------------------
| | | |
| | Differs from | Differs from | Differs from
| | Population of | Population of | Population of
DIST. | POPULATION | Third District | Second District | First District
NO. | 1961 Act 1965 Act | 1961 1965 | 1961 1965 | 1961 1965
------|-------------------------|------------------------------|-----------------------------|--------------------------------
1 | 466,482 474,895 | - 13,740 + 5,007 | -40,372 +14,394 | -- --
2 | 506,854 460,501 | + 26,632 - 9,387 | -- -- | +40,372 -14,394
3 | 480,222 469,888 | -- -- | - 26,632 + 9,387 | +13,740 - 5,007
4 | 418,981 402,813 | - 61,241 -67,075 | - 87,873 -57,688 | -47,501 -72,082
5 | 378,499 405,780 | -101,723 -64,108 |
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