Schaefer v. Thomson, Civ. No. 4717.

• Court: United States District Courts. 10th Circuit. District of Wyoming
• Writing for the Court: PICKETT, Circuit , and KERR and DAUGHERTY
• Citation: 240 F. Supp. 247
• Parties: Harry H. SCHAEFER, Adrian W. Reynolds, Burton W. Marston, Patrick H. Meenan, Darlene Elliot, Ralph A. Urbigkit, and Edwin H. Whitehead, Plaintiffs, v. Thyra THOMSON, as Secretary of State of the State of Wyoming, Thyra Thomson, Minnie A. Mitchell and Everett T. Copenhaver, as members of the Board of the State Board of Election Canvassers, and Clifford P. Hansen, as Governor of the State of Wyoming, Defendants.
• Docket Number: Civ. No. 4717.
• Decision Date: 23 November 1964

240 F. Supp. 247

Harry H. SCHAEFER, Adrian W. Reynolds, Burton W. Marston, Patrick H. Meenan, Darlene Elliot, Ralph A. Urbigkit, and Edwin H. Whitehead, Plaintiffs,
v.
Thyra THOMSON, as Secretary of State of the State of Wyoming, Thyra Thomson, Minnie A. Mitchell and Everett T. Copenhaver, as members of the Board of the State Board of Election Canvassers, and Clifford P. Hansen, as Governor of the State of Wyoming, Defendants.

Civ. No. 4717.

United States District Court D. Wyoming.

November 23, 1964.

240 F. Supp. 248

COPYRIGHT MATERIAL OMITTED

240 F. Supp. 249

A. G. McClintock, Walter C. Urbigkit, Jr., and Maxwell E. Osborn, Cheyenne, Wyo., for plaintiffs

John F. Raper, Atty. Gen., of State of Wyoming, and Dean W. Borthwick, Deputy Atty. Gen., of State of Wyoming, Cheyenne, Wyo., for defendants.

Before PICKETT, Circuit Judge, and KERR and DAUGHERTY, District Judges.

PICKETT, Circuit Judge.

Plaintiffs, as citizens and voters of the six most populous counties of the State of Wyoming, brought this action seeking to restrain and enjoin the defendants, who are state officers charged with conducting elections under state laws,¹ from proceeding in the 1964 primary and general elections under Chapter 22 of the Session Laws of Wyoming, 1963, relating to the election of representatives to the Wyoming State legislature. It is alleged that this statute is unconstitutional and void because the representation provided for wholly fails to result in a state senate and house of representatives apportioned among the several counties of the state as nearly as may be, according to their inhabitants, as required by the Wyoming Constitution, and deprives them and other similarly situated of the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States.²

Applicable provisions of the Wyoming Constitution are as follows:

"§ 37, Article 1: Constitution of United States supreme law of land. — The State of Wyoming is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land."

"§ 24, Article 21: State part of United States. — The State of Wyoming is an inseparable part of the federal union and the constitution of the United States is the supreme law of the land."

"§ 3, Article 3: Legislative apportionment. — Each county shall constitute a senatorial and representative district; the senate and house of representatives shall be composed of members elected by the legal voters of the counties respectively, every two (2) years. They shall be apportioned among the said counties as nearly as may be according to the number of their inhabitants. Each county shall have at least one senator and one representative; but at no

240 F. Supp. 250

time shall the number of members of the house of representatives be less than twice nor greater than three times the number of members of the senate."

"§ 48, Article 3: State census.— The legislature shall provide by law for an enumeration of the inhabitants of the state if the year 1895, and every tenth year thereafter, and at the session next following such enumeration, and also at the session next following an enumeration made by authority of the United States, shall revise and adjust the apportionment for senators and representatives, on the basis of such enumeration according to ratios to be fixed by law."

The pertinent provisions of Chapter 22, as it relates to the apportionment of the Wyoming senate and house of representatives in Wyoming's bicameral legislature, reads:

"Section 1. That Section 28-9, Wyoming Statutes, 1957, be amended and re-enacted to read as follows:

"Each organized county shall have one senator for every thirty thousand (30,000) inhabitants, or major portion thereof, as shown by the enumeration of such inhabitants in the federal census of the year one thousand nine hundred sixty (1960)."

"Section 2. That Section 28-10, Wyoming Statutes, 1957, be amended and re-enacted to read as follows:

"Each organized county shall have one representative for each fifty-four hundred (5,400) inhabitants, or major portion thereof, as shown by the enumeration of such inhabitants in the federal census of the year one thousand nine hundred sixty (1960)."

Applying the formula provided for in these sections, the existing house of representatives was increased by five members and the senate diminished by two.³

Final disposition of this case has been delayed because of uncertainty in the law and the Court's announcement that no action would be taken which would interfere with the 1964 election. By a series of recent decisions of the Supreme Court of the United States, the law controlling the disposition of this case is now settled. The jurisdiction of the federal courts to grant relief upon

240 F. Supp. 251

allegations which show an invidious discrimination and a substantial disparity in representation in state legislatures is no longer open to question. Furthermore, it is now acknowledged that the equal protection clause of the Fourteenth Amendment to the Constitution of the United States requires that both houses of a bicameral state legislature be apportioned substantially on a population basis. However, mathematical exactness is not required, "So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy * * *." Reynolds v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 1391, 12 L.Ed.2d 506. The foregoing rules are applicable regardless of whether the scheme for representation in either house of a bicameral state legislature results from statutory or constitutional provisions.⁴ Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Reynolds v. Sims, supra; W. M. C. A., Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, Governor, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct....