Reynolds v. State Election Board, Civ. No. 64-255

• Decision Date: 19 August 1964
• Docket Number: 9130.,Civ. No. 64-255
• Citation: 233 F. Supp. 323
• Parties: Norman E. REYNOLDS and Delmar L. Stagner, Plaintiffs, v. STATE ELECTION BOARD et al., Defendants, Don Baldwin et al., Interveners. Harry R. MOSS, Norman Reynolds and Council of Democratic Neighborhood Clubs, Plaintiffs, v. William A. BURKHART et al., Defendants, M. A. Price et al., Interveners.
• Court: U.S. District Court — Western District of Oklahoma

233 F. Supp. 323

Norman E. REYNOLDS and Delmar L. Stagner, Plaintiffs, v. STATE ELECTION BOARD et al., Defendants, Don Baldwin et al., Interveners.

Harry R. MOSS, Norman Reynolds and Council of Democratic Neighborhood Clubs, Plaintiffs, v. William A. BURKHART et al., Defendants, M. A. Price et al., Interveners.

Civ. Nos. 64-255, 9130.

United States District Court W. D. Oklahoma.

August 7, 1964.

Supplemental Order August 19, 1964.

No. 64-255:

Norman E. Reynolds, Oklahoma City, Okl., pro se.

Delmer L. Stagner, Oklahoma City, Okl., pro se.

Harvey H. Cody, Jr., Charles Nesbitt, Atty. Gen. of Oklahoma, Oklahoma City, Okl., for State Election Board of Oklahoma and Apportionment Commission of Oklahoma.

Jim Rinehart, El Reno, Okl., for Don Baldwin and others.

No. 9130:

Sid White, Oklahoma City, Okl., for Harry R. Moss.

G. D. Spradlin, and Norman E. Reynolds, Oklahoma City, Okl., for Council of Democratic Neighborhood Clubs and Norman E. Reynolds.

U. Simpson Tate, Wewoka, Amos T. Hall, Tulsa, Okl., E. Melvin Porter, Oklahoma City, Okl., for A. Willie James, J. W. Simmons, J. M. Tyler, Amos T. Hall and J. J. Simmons.

Bryce A. Baggett, Oklahoma City, Okl., for Bryce Baggett, Jimmy Birdsong, James Demopolos, John L. Garrett, George C. Keyes, J. C. Jiggs Ray, Allie P. Reynolds, Cleeta John Rogers, John Rogers and Jack R. Skaggs.

Charles E. Norman, Tulsa City Atty., by Paul Johnson, Asst. City Atty., Tulsa, Okl., Smith & Brown, by Finis Smith, Sp. Associate Atty., Johnson & Fisher, by Lewis C. Johnson, Sp. Associate Atty., Tulsa, Okl., for City of Tulsa, Mayor James L. Maxwell, Commrs. Bennie G. Garren, Robert LaFortune, R. L. Langenheim and Fay Kee.

Delmer Stagner, Oklahoma City, Okl., for William A. Burkhart, State Treasurer.

Charles Nesbitt and Harvey H. Cody, Oklahoma City, Okl., for Andy Anderson, State Auditor, and J. D. Dunn, Lawton Leininger and Mike Conners, composing State Tax Commission of Oklahoma.

Albert D. Lynn and E. J. Armstrong, Oklahoma City, Okl., for the State.

John Wagner, Oklahoma City, Okl., Robert Blackstock, Bristow, Okl., Herbert F. Hewett, Oklahoma City, Okl., for Clee Fitzgerald, Chairman, State Election Bd., Herbert F. Hewett, V-Chairman and Louie R. Geiser, Secretary.

Norman Reynolds, Oklahoma City, Okl., for Gov. J. Howard Edmondson.

Otjen, Carter, Huddleston & Otjen, Enid, Okl., for Oklahoma Farm Bureau and Lewis H. Munn.

Jim A. Rinehart, El Reno, Okl., Leon S. Hirsh and Paul Johanning (of Hirsh & Harkin), Oklahoma City, Okl., for Don Baldwin, Ed Berrong, Roy C. Boecher, Ray Fine, Glen Ham, LeRoy McClendon, Alfred Stevenson, Basil R. Wilson, Walt Allen, Boyd Cowden, Byron Dacus, Clem Hamilton, Bob A. Trent, Joe Bailey Cobb, Leon B. Field, Allen G. Nichols and Gene Stipe.

Jim A. Rinehart, El Reno, Okl., Leon S. Hirsh and Paul Johanning (of Hirsh & Harkin), Oklahoma City, Okl., for M. A. Price, John M. Rasberry, J. R. Hutchins and Roy Grimes, Directors of Oklahomans for Local Government.

V. P. Crowe, Oklahoma City, Okl., for League of Women Voters, amicus curiae.

Mrs. Trimble B. Latting, Pres., Oklahoma Congress of Parent-Teachers Assn., Oklahoma City, Okl., Richard K. McGee, Tulsa, Okl., Tom Tate, House of Representatives, Oklahoma City, Okl., amici curiae.

W. Timothy Dowd, Tulsa, Okl., for Dewey F. Bartlett, William A. Silver, Dwight Williamson, Paul Meek, William P. Gable, Jr., Lewis C. Johnson, W. Timothy Dowd, Carrol Guthridge, and Ralph Rhoades, intervening as amici curiae.

Before MURRAH, Circuit Judge, and DAUGHERTY and BRATTON, District Judges.

PER CURIAM.

No. 9130, Moss v. Burkhart, reported 207 F.Supp. 885, and 220 F.Supp. 149, comes on for further consideration pursuant to summary order of the United States Supreme Court affirming this Court's order of reapportionment on its merits and remanding for further proceedings in conformity with the opinion in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, and related cases. We will briefly review the course of this protracted litigation to again put it in proper perspective.

After Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and pursuant to hearings in June, 1962, we refused to interfere with the up-coming 1962 Oklahoma primary, but declared the Oklahoma apportionment laws prospectively null and void, and inoperative for all future elections and continued the case until July 31, 1962, to afford the State an opportunity to provide a remedy for the adjudicated malapportionment. When the matter came on for hearing pursuant to assignment on July 31st, we again refused to interfere with the election then in being, but we laid down positive and precise guidelines for bringing Oklahoma apportionment laws into conformity with the requirements of the Oklahoma and the Federal Constitutions. These guidelines were in accordance with the opinion of the then Attorney General of the State of Oklahoma, submitted to the Court in June, 1962. This plan has been referred to throughout this proceedings as "Model C." We recessed the proceedings until March 8, 1963, to afford the incoming Legislature an opportunity to enact a system of election laws apportioning the State of Oklahoma in accordance with the opinion of the Attorney General of the State, which we recommended as in conformity with the requirements of the Federal Constitution. We then said that if the Legislature failed to act within the time allotted to it, the Court would then be compelled, as a last resort, to reapportion by judicial order.

An Initiative Petition was submitted in the November, 1962, election, providing for the transfer of the apportionment duties of the Legislature to a constitutional reapportionment commission. The Petition received a majority of the votes cast on the measure, but failed of adoption for lack of sufficient affirmative votes. See: Allen v. Burkhart, Okl., 377 P.2d 821. When this case came on for further hearing March 8, 1963, pursuant to assignment, the then Attorney General of the State of Oklahoma and the intervening Senators offered Senate Joint Resolution No. 8, 14 O.S.Supp. §§ 78.1-78.11, and House Bill No. 586, 14 O.S.Supp. §§ 102-106 as an appropriate remedy for the adjudicated malapportionment. Upon a hearing on the appropriateness of the proffered remedy, we rejected the House Bill as providing "little or no relief for malapportionment under antecedent laws." We rejected Senate Joint Resolution No. 8 as a "patchwork of political maneuvering and manipulation to perpetuate the same invidious apportionment which prevailed under the antecedent laws." The 1963 session of the Oklahoma Legislature also referred to the people a proposed amendment to the Constitution providing for reapportionment of both houses of the Legislature in accordance with a new formula with built-in constitutional means for effecting reapportionment. This proposal was referred to as Senate Joint Resolution No. 4, Laws 1963, p. 736 and was ultimately submitted as State Question 416. We considered this proposed amendment only to determine its acceptability as an appropriate remedy, if adopted. We noted the gross disparity provided therein and expressed misgivings, but were careful not to interfere with the right of the people to speak on the proposal. Being convinced by all that had transpired that the Oklahoma Legislature was unable or unwilling to reapportion itself, and realizing the importance of settling apportionment laws applicable to the forthcoming 1964 elections, we then promulgated our order of July 17, 1963, reapportioning the Oklahoma Legislature in accordance with so-called "Model C." The Attorney General and the intervenors appealed from this order.

During pendency of the appeal, an original action was brought in the Supreme Court of Oklahoma to review House Bill No. 586 and Senate Joint Resolution No. 8, to determine if they were in accord with the Oklahoma Constitution. In the same action, the Attorney General applied to the Oklahoma Court for a "Provisional or Conditional Order" directing "how the 1964 elections for legislative offices should be conducted if the Order of Reapportionment entered on July 17, 1963, * * * should be stayed, reversed, vacated, or held ineffective for any reason." Davis v. McCarty, Okl., 388 P.2d 480, 482. The Oklahoma Court proceeded to determine whether the most recent apportionment legislation in Oklahoma, i. e., H.B. 586 and SJR 8, "meet the test of substantial equality prescribed by our State Constitution," and apparently assumed that compliance with the Oklahoma Constitution would constitute compliance with the mandate of the Federal Constitution. Upon consideration of this legislation, the Oklahoma Court concluded that the legislation could be made acceptable as an appropriate remedy "without disturbing in any way H.B. 586, except to remove flotorial representation unauthorized by the State constitution; and without disturbing in any way SJR No. 8, except to add senatorial representation to meet the test of substantial equality prescribed by our State Constitution." Davis v. McCarty, supra, p. 482.

After the Oklahoma Supreme Court's stand-by order of reapportionment, our reapportionment order was stayed pending appeal. Primaries have been conducted under the stand-by order in accordance with the apportionment formulae provided therein, based upon H.B. 586 and SJR 8 as revised by the Oklahoma Supreme Court to bring it in conformity with the Oklahoma Constitution. In the 1964 run-off primaries, State Question 416 was duly adopted. The gist of the amendment is to amend Article 5 of the Oklahoma Constitution relating to apportionment of the State Legislature and repealing all conflicting sections of the Constitution. After adoption of this amendment, qualified electors brought an action, No. 64-255 Civil, Reynolds et al. v. State Election Board, to declare null and void the apportionment formulae provided in Sections 9A and 10A of Article 5, as amended, as repugnant to the Fourteenth Amendment...