Preisler v. Secretary of State of Missouri

Decision Date04 January 1965
Docket Number924.,Civ. A. No. 923
Citation238 F. Supp. 187
PartiesPaul W. PREISLER, Louise Erbe, Bostic J. Franklin, and Lucile Riedel, Plaintiffs, v. The SECRETARY OF STATE OF MISSOURI and the Attorney General of Missouri, Defendants. Dorothy CHILDS, Sarah Rifkin, and Martha Leonard, Plaintiffs, v. The SECRETARY OF STATE OF MISSOURI and the Attorney General of Missouri, Defendants.
CourtU.S. District Court — Western District of Missouri

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

Thomas F. Eagleton, Atty. Gen., St. of Mo., Joseph Nessenfeld, Asst. Atty. Gen., Jefferson, City, Mo.

Before RIDGE, Circuit Judge and DUNCAN and OLIVER, District Judges.

PER CURIAM.

In the above-captioned cases we are called upon to consider the constitutionality of the Congressional Apportionment of the State of Missouri, as made by Chapter 128, R.S.Mo. (Cum.Supp. 1963), V.A.M.S.

Plaintiffs in both of these cases are citizens of the United States, the State of Missouri, and duly qualified voters residing in the Second and Third Congressional Districts of that State. They seek a declaration that the 1961 Congressional Apportionment of Missouri for members in the House of Representatives of the Congress of the United States, as made by the above-cited statute, is unconstitutional; and pray that the defendants be enjoined from performing any further duties relating to the election of Congressmen from Missouri under the above State Statute.

This Three-Judge District Court was duly convened pursuant to 28 U.S.C.A. §§ 2281 and 2284. Our jurisdiction over these cases is premised in Article III, Section 2, of the Constitution of the United States of America; Title 28 U.S. C.A., § 1343(3); 42 U.S.C.A. §§ 1983 and 1988. Venue exists in this Court under 28 U.S.C.A. § 1391(b).

After hearing, these cases were duly submitted for decision on the pleadings and admissions of record. The basic issues in both cases are the same. The facts giving rise thereto are not in dispute and may be stated as follows:

Prior to the 1960 Federal Census, Missouri had a representation of eleven (11) in the House of Representatives of the Congress of the United States. As a result of the 1960 National Census, that representation was reduced to ten (10). Chapter 128, R.S.Mo., supra, was enacted in 1961 by the 71st General Assembly of the State of Missouri for the purpose of dividing that State into ten (10) Congressional Districts.

Since the total population of Missouri, according to the 1960 Census, was 4,319,813, it was divided into Congressional Districts by the Missouri State Legislature as follows:

                                    District Population Table
                                             Differs from         Differs from
                                           population of 3rd    population of 2nd
                   District    Population      district by          district by
                  First         466,482         -13,740               -40,372
                  Second        506,854         +26,632
                  Third         480,222                               -26,632
                  Fourth        418,981         -61,241               -87,873
                  Fifth         378,499        -101,723              -128,355
                  Sixth         388,486         -91,736              -118,368
                  Seventh       436,933         -43,289               -69,921
                  Eighth        452,385         -27,837               -54,469
                  Ninth         409,369         -70,853               -97,485
                  Tenth         381,602         -98,620              -125,252
                Entire State 4,319,813
                

It is this Congressional Apportionment of the State of Missouri that the plaintiffs in the cases at bar claim is "invidious", as not providing to them "equal representation for equal numbers of people" in the Congress of the United States.

In support thereof, plaintiffs assert that it is apparent in the above tabulation that the population of the Second and Third Congressional Districts of Missouri are approximately 20% to 25% larger than the population of the Fifth Congressional District of that State, and such diversity in population between districts is "invidious" as a matter of law, under Wesberry v. Sanders, 376 U.S. 1-18, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).

In the light of the foregoing, we think the first thing that should here be noticed is that defendants concede:

"Wesberry v. Sanders (supra) enunciate(s) the principles governing the disposition of these actions * * * and unless the Supreme Court overrules or modifies such decision, it sets forth the law of this case."

Notwithstanding, the defendants argue:

"The real question in the instant cases, conceding the controlling effect of Wesberry, is to determine precisely what Wesberry actually means, in the context of the facts there for decision, by the holding `as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's.'"

From that premise, defendants argue that since "there is no disparity" between the weight of individual votes in Missouri's Congressional Apportionment comparable to the uneven "weight of votes" considered in Wesberry v. Sanders, supra; Martin v. Bush, 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656 (1964); or Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), the present Congressional Districts in Missouri should be ruled constitutional.

In the context of the foregoing, defendants point out that since the average population of Missouri is 431,981, the Second Congressional District of that State, having a population of 506,854, is only "74,873 over the ideal average" of population of that State, which "in terms of percentages" establishes that District as containing approximately 17 1/3 percent of the population of Missouri as a whole. As to the Third Congressional District in Missouri, they state it "has a population of only 48,241 over the average of population of the State of Missouri," a figure which is only approximately ten percent more than the average. On the other side of the population picture, defendants point out that "the smallest (Congressional) District (in Missouri), the Fifth, has a population of only 63,482 below the average, a figure which is only approximately 12 1/3 percent under the ideal average" of the total population in Missouri. From the above premise defendants argue that since it appears that no Congressional District in Missouri varies from the ideal average "as much as two percent above ten percent of the population of the State (as a whole) and the lowest only about 1¼ below" 10% of such average, the apportionment here cannot be considered as "invidious".

In support of the argument so made, defendants cite Preisler v. Hearnes, 362 S.W.2d 552, a decision of the Supreme Court of Missouri, en banc, where the Congressional Apportionment of Missouri here questioned was ruled constitutional and sustained as being "as nearly equal in population as may be," as mandated by Article III, Section 45, of the Missouri Constitution, V.A.M.S.; the Fourteenth Amendment to the United States Constitution; Article I, Section 2, of the Missouri Constitution; and, Title 2, Section 2a(c), United States Code. By brief, defendants state:

"Although (they) do not contend that the decision of the Missouri Supreme Court (ante) has any binding effect on this Court or that such decision precludes any further attack on the validity of the districting (here in issue, they) do submit that (such) decision is of persuasive value in construing the meaning to be attributed to the language, `as nearly equal in population as may be', the standard which plaintiffs urge is required by Wesberry v. Sanders." (Par. added.)

Certiorari was not sought from the decision of the Supreme Court of Missouri in Preisler v. Hearnes, supra. Thus, this Three-Judge United States District Court is placed in the judicially-unenviable role of reviewing a decision of the highest court of the State of Missouri, without previous review thereof by the Supreme Court of the United States.

After giving thoughtful consideration to that situation, and the teaching of Wesberry v. Sanders, supra, we think judicial prudence presently demands no more than that we note, defendants' contention ante is misleading since there is no "ideal congressional district" established by Chapter 128, R.S. Mo., or such as defendants here assume. Further, 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. Plaintiffs' contention that matter of "area" consideration for Congressional Apportionment to the effect that "the St. Louis...

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9 cases
  • Preisler v. Secretary of State of Missouri
    • United States
    • U.S. District Court — Western District of Missouri
    • 4 March 1968
    ...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 Redistri......
  • Williams v. Rhodes Socialist Labor Party v. Rhodes, s. 543
    • United States
    • U.S. Supreme Court
    • 15 October 1968
    ...the Legislature of the State of Missouri has once more had an opportunity to deal with the problem * * *.' Preisler v. Secretary of State, 238 F.Supp. 187, 191 (D.C.W.D.Mo.1965). The Missouri General Assembly then enacted the 1965 Congressional Redistricting Act. On August 5, 1966, the Dist......
  • Irish v. Democratic-Farmer-Labor Party of Minnesota
    • United States
    • U.S. District Court — District of Minnesota
    • 7 August 1968
    ...Honsey v. Donovan, 249 F.Supp. 987 (D. Minn.1966); Davis v. Cameron, 238 F. Supp. 462 (S.D.Iowa 1965); Preisler v. Secretary of State of Missouri, 238 F. Supp. 187 (W.D.Mo.1965); Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga.1964); Honsey v. Donovan, 236 F.Supp. 8 (D. Minn.1964); Baker v. Carr......
  • Wells v. Rockefeller, 66-Civ.-1976.
    • United States
    • U.S. District Court — Southern District of New York
    • 18 December 1967
    ...in the future apply for such relief as may be warranted. Settle judgment on notice. 1 Preisler II is a sequel to Preisler v. Secretary of State, 238 F.Supp. 187 (W.D.Mo.1965), a case in which the 1961 Congressional Redistricting Act of Missouri was declared unconstitutional. In Preisler II,......
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