Reapportionment of Towns of Hartland, Windsor and West Windsor, In re, s. 92-088

Decision Date27 January 1993
Docket Number92-230,Nos. 92-088,92-259,92-136,92-261 and 92-291,s. 92-088
PartiesIn re REAPPORTIONMENT OF TOWNS OF HARTLAND, WINDSOR AND WEST WINDSOR. In re REAPPORTIONMENT OF TOWN OF MONTGOMERY. In re REAPPORTIONMENT OF TOWN OF SHREWSBURY. In re REAPPORTIONMENT OF TOWN OF BERLIN. In re REAPPORTIONMENT OF TOWN OF SPRINGFIELD. In re REAPPORTIONMENT OF TOWN OF RICHFORD.
CourtVermont Supreme Court

Thomas O. Kenyon, et al., pro se, Brownsville, for petitioners (92-088).

Douglas D. DeVries, Enosburg Falls, and Michael Rose (on the brief), St. Albans, for petitioners (92-136 and 92-291).

James M. Jeffords and Rebecca R. Osterhoudt, Shrewsbury, for petitioners (92-230).

Robert Halpert, Montpelier, for petitioners (92-259).

Stephen S. Ankuda and Patrick M. Ankuda, Law Clerk (on the brief), of Parker & Ankuda, P.C., Springfield, for petitioners (92-261).

Jeffrey L. Amestoy, Atty. Gen., William E. Griffin, Chief Asst. Atty. Gen., and Claudia Horack Bristow and William P. Russell, Legislative Council, Montpelier, for respondents.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

Before ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and MALONEY, Superior Judge, Specially Assigned (92-230 only).

GIBSON, Justice.

Six groups of petitioners from various towns in the state challenge the reapportionment of legislative districts by the General Assembly during the 1992 legislative session. Five of the groups contest various House districts, and the other group challenges a Senate district. We dismiss five of the petitions, and, with respect to the other petition, remand the House plan to the Legislature for revision and correction, if possible.

I. LEGISLATIVE REDISTRICTING

To comply with federal and state constitutional requirements that state legislatures afford substantially equal weight to citizens' votes, the General Assembly is required to redraw legislative voting districts after each federal decennial census or after a state census taken for the purpose of redistricting. Vt. Const. ch. II, § 73; 17 V.S.A. § 1903(a). In forming representative and senatorial districts "which shall afford equality of representation, the General Assembly shall seek to maintain geographical compactness and contiguity and to adhere to boundaries of counties and other existing political subdivisions." Vt. Const. ch. II, §§ 13, 18. Statutory criteria also require, "insofar as practicable," that the districts be drawn consistent with the following policies: "(1) preservation of existing political subdivision lines; (2) recognition and maintenance of patterns of geography, social interaction, trade, political ties and common interests; [and] (3) use of compact and contiguous territory." 17 V.S.A. § 1903(b).

Following the 1990 census, the Legislature reapportioned the House and Senate. See 1991, No. 116 (Adj.Sess.) (initial House districts); 1991, No. 147 (Adj.Sess.) (subdivided House districts and established Senate districts). The Legislature also amended the statutory procedures for redistricting the House in the same bill that redrew the initial House districts. 1991, No. 116 (Adj.Sess.), §§ 7-12. Under the new law, the bipartisan Legislative Apportionment Board, whose members do not serve in the General Assembly, must prepare a tentative redistricting proposal, consider the responsive recommendations of the municipal boards of civil authority, and then prepare a final proposal for dividing the state into initial districts for the election of the 150 representatives. 17 V.S.A. §§ 1905-1906. The final proposal is referred to the appropriate legislative committee, and eventually the General Assembly, which may accept or amend the proposal, or substitute another plan. Id. § 1906.

House districts may have no more than two members, Vt. Const. ch. II, § 13, but larger districts may be approved preliminarily subject to further subdivision. See 17 V.S.A. § 1906a(c). Similarly, two-member districts may be subdivided at that time. Id. § 1906a(b). The boards of civil authority within districts that are subdivided must prepare a proposal for drawing the internal lines within the districts, based on considerations of "incumbencies" in addition to the statutory criteria specified above. Id. §§ 1906b(b), (c) and 1906c(b), (c). The proposal is referred to the appropriate legislative committee, and eventually the General Assembly, which "shall" approve the House districts proposed by the town boards "if they are consistent with the standards set forth" in the statutes. Id. §§ 1906b(e), (f) and 1906c(e), (f). If a majority of the town boards fail to agree to a subdivision proposal for a two-member House district, the Legislature "may divide the initial district into single-member representative districts." Id. § 1906b(e). If a majority of the town boards fail to agree to a subdivision proposal for a House district with three or more representatives, the Legislature "shall divide the initial district into representative districts." Id. § 1906c(e). 1

Any five citizens may petition this Court, which has original and exclusive jurisdiction, for review of a final House or Senate plan. See id. § 1909(a). If this Court finds the plan in violation of constitutional or statutory requirements, it must forward its decision to the General Assembly and retain jurisdiction until the Legislature has approved a plan conforming to those requirements. Id. § 1909(e); see Vt. Const. ch. II, § 73 (authorizing Supreme Court to order reapportionment of legislative districts if Legislature fails to revise the districts as required).

In the present case, the Legislative Apportionment Board proposed a Senate and a House plan, neither of which was accepted by the Legislature. The legislative committees devised their own plans, which were adopted by the Legislature in most respects. The initial multimember districts created by Act 116 were subdivided by Act 147, resulting in a final House plan with an overall deviation of 17.6%. 2 The Legislature approved a final Senate plan with an overall deviation of 16.4%. Five petitions challenged specific districts within the House plan, and one petition challenged the Senate plan. In all but one of the petitions, hearings were held before masters, who took testimony and made findings of fact. See 17 V.S.A. § 1909(d). We declined to order any interim relief, pending resolution of the petitions, and elections have proceeded under the new redistricting plans.

II. THE STANDARD OF REVIEW

Redistricting is "primarily a matter for legislative consideration and determination." In re Senate Bill 177, 130 Vt. 365, 371, 294 A.2d 657, 660 (1972). Accordingly, the redistricting plans approved by the General Assembly are presumed to be valid, In re Senate Bill 177, 130 Vt. 358, 361, 294 A.2d 653, 654 (1972), and there is "a heavy burden of proof on those who allege that a redistricting plan violates the Constitution." Davis v. Bandemer, 478 U.S. 109, 185, 106 S.Ct. 2797, 2838, 92 L.Ed.2d 85 (1986) (Powell, J., concurring in part and dissenting in part). Further, it is primarily the Legislature, not this Court, that must make the necessary compromises to effectuate state constitutional goals and statutory policies within the limitations imposed by federal law. See In re 1983 Legislative Apportionment of House, Senate, & Congressional Districts, 469 A.2d 819, 827 (Me.1983) (hereinafter In re 1983 Legislative Apportionment ). Accordingly, the Legislature must resolve the tension that exists between the one-person, one-vote requirement and state laws concerning the maintenance of compact and contiguous districts made up of communities with common interests. If a plan is consistent with the fundamental constitutional requirement that districts be drawn to afford equality of representation, we will return it to the Legislature only when there is no rational or legitimate basis for any deviations from other constitutional or statutory criteria. See Holmes v. Farmer, 475 A.2d 976, 986 (R.I.1984).

We will not reject a redistricting plan simply because the petitioners have devised one that appears to satisfy constitutional and statutory requirements to a greater degree than the plan approved by the Legislature. See Gaffney v. Cummings, 412 U.S. 735, 750-51, 93 S.Ct. 2321, 2330, 37 L.Ed.2d 298 (1973) (redistricting plan is not rendered unconstitutional simply because some "resourceful mind" has come up with a better one). Of course, the presentation of a plan that substantially improves on the one proposed by the Legislature may cast doubt on the legality of the Legislature's plan. In re 1983 Legislative Apportionment, 469 A.2d at 828. The petitioners' burden, however, is not to establish that some other preferable plan exists, but to demonstrate the absence of a rational or legitimate basis for the challenged plan's failure to satisfy constitutional or statutory criteria. In re 1991 Pennsylvania Legislative Reapportionment Commission, 530 Pa. 335, 609 A.2d 132, 136-37 (1992); see In re Senate Bills 177 & 83, 132 Vt. 282, 290, 318 A.2d 157, 162 (1974) ("Whatever this Court may believe about the wisdom of an alternative solution, our testing of this legislative function must be confined to its constitutional and statutory propriety...."); In re Reapportionment of Colorado General Assembly, 828 P.2d 185, 189 (Colo.1992) (court's role is to measure the redistricting plan against constitutional standards; the choice among alternative plans is for the redistricting commission, not the court).

In reviewing the petitions, we must consider not only the specific violations claimed, but also those claims within the context of the entire plan, keeping in mind the difficulties in satisfying the various legal requirements statewide. In re Senate Bills 177 & 83, 132 Vt. at 289, 318 A.2d at 162; see In re Reapportionment Plan for Pennsylvania General Assembly...

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