Shalvoy v. Curran

• Citation: 393 F.2d 55
• Decision Date: 16 April 1968
• Docket Number: No. 338,Docket 31872.,338
• Parties: Joseph SHALVOY et al., Plaintiffs-Appellants, v. Hugh C. CURRAN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

393 F.2d 55 (1968)

Joseph SHALVOY et al., Plaintiffs-Appellants, v. Hugh C. CURRAN et al., Defendants-Appellees.

No. 338, Docket 31872.

United States Court of Appeals Second Circuit.

Argued March 21, 1968.

Decided April 16, 1968.

George W. Ganim, Bridgeport, Conn., for plaintiffs-appellants.

Albert L. Coles, Bridgeport, Conn. (Robert J. Testo, and John J. McGuinness, Bridgeport, Conn., on the brief), for defendants-appellees.

Before LUMBARD, Chief Judge, and FRIENDLY and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Under the provisions of the Charter of the City of Bridgeport, Connecticut, the legislative powers of the municipality are vested in a Common Council, or Board of Aldermen. Formerly that body consisted of the Mayor and sixteen aldermen, one of whom was elected from each of sixteen voting districts in the City. On June 22, 1967, however, the Charter was amended by the Connecticut General Assembly by the enactment of Special Act 213¹ which redistricted the City into ten new voting districts each of which was empowered to elect two aldermen, or a total of twenty, which, with the Mayor, constituted the Common Council. Under the Act, the territorial limits of the City's aldermanic districts were made to coincide with the boundaries of the ten Connecticut state assembly districts which had been allotted to the City of Bridgeport as a part of the 1965 reapportionment of the House of Representatives of the Connecticut State Legislature. See C.G.S.A. § 9-10c.

On July 14, 1967, the present action challenging Special Act 213 as a violation of the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution was commenced in the District Court by Joseph Shalvoy, Emma Gowans, and Helen Delmore, the plaintiffs-appellants, residents of the three most populous aldermanic districts in the City of Bridgeport, against the Mayor and certain other City officials, the defendants-appellees. The claim of unconstitutionality was founded solely upon the alleged mathematical dilution brought about by Special Act 213 of votes cast in municipal elections by the plaintiffs and others residing in districts of greater than mean population. The complaint asked that the City-wide reapportionment effected under the Special Act be declared unconstitutional, and that further aldermanic elections be enjoined until Bridgeport was redistricted in accordance with constitutional standards.

The plaintiffs moved for summary judgment and the defendants moved to dismiss the complaint for failure to state a claim. Treating the defendants' motion as one for summary judgment, F.R. Civ.Proc. 12(b) (6), the district court, in an opinion dated September 27, 1967, granted the motion and dismissed the complaint on the merits. From the judgment entered, the plaintiffs have appealed.

The case was submitted to the district court on the basis of population figures contained in the official 1960 census for the City of Bridgeport. According to that information, the populations of the ten new aldermanic districts in the City range from 19,086 for the largest district, to 13,220 for the smallest. Assuming the accuracy of the basic numbers, this means that a person who happened to reside in the largest district in the City would, as a consequence, suffer a dilution in his vote of 44% as compared with that of a resident of the least populous district, and of 22% as compared with that of a person living in the hypothetical district of mean population. Similar calculations for the second and the third largest districts show population variances, and corresponding vote dilutions, of 35% and 23% in relation to the smallest district, and 14% and 4% as compared with the mean.²

On this appeal, the appellants, relying principally upon Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), argue that their demonstration of a maximum population variance of 1.44:1 between the largest and the smallest district in the City of Bridgeport prima facie established the unconstitutionality of Special Act 213, and that thereafter the burden was on the proponents of the municipal redistricting provisions to justify the challenged deviations from equality in terms of acceptable state or local policy, which, they claim, has not been done. In Swann v. Adams, supra, the Supreme Court reversed a judgment of the United States District Court in Florida approving a reapportionment plan for both Houses of the Florida State Legislature, in which the ratio between the largest and the smallest senatorial district was 1.30:1, and the ratio between the largest and the smallest representative district was 1.41:1, because the record before it failed to reveal any effort on the part of the State or the District Court to explain these population discrepancies in terms of one or more acceptable policies of the State. Similarly, the appellants argue, the record in this case fails to reveal the existence of specific factors which would justify the population variances among Bridgeport's aldermanic districts in terms of acceptable local policy, or in terms of some State policy which has specific relevance to local voting.

Since the argument of this appeal, the Supreme Court has made clear that the principle of "one man, one vote"³ applies to redistricting cases involving the legislative arm of a municipality, such as the City of Bridgeport, Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, Decided April 1, 1968. Nevertheless, the appellants' assertion based upon Swann v. Adams does not necessarily govern under the particular circumstances of this case. In the Swann case the Supreme Court suggested that the State's districting plan, based upon congressional district lines, might have passed constitutional muster despite population variations in the ratio of 1.41:1 had it been made to appear that in this manner the scheme came "as close as `practical' to complete population equality." 385 U.S. at 445, 87 S.Ct. at 573. While the State advanced just such a claim in Swann v. Adams, the Court found it unpersuasive in light of the fact that the appellants had submitted to the trial court their own districting scheme, which came much closer to proving districts of equal population than did the State's plan, and, in addition had suggested specific amendments which were ignored by the district court but which, if adopted, would have measurably reduced the population differences in the version which was finally approved. The appellants in the present case, however, have failed to come forward with their own plan at any time in these proceedings, either in the district court, in this court, or when Special Act 213 was pending before the General Assembly. This fact lends support to the appellees' basic position that, because of the relocation of large segments of the population of Bridgeport between 1960 and 1967 resulting from extensive urban redevelopment and the construction of a large connecting highway with the Connecticut Turnpike, it was impossible to make an accurate determination of population distribution and that therefore the redistricting solution adopted by the General Assembly in Special Act 213 was, under the circumstances, the only practicable alternative available to the legislature in June of 1967.

Under these circumstances, we think that there was no course open to the District Court in September of 1967 other than to uphold the challenged redistricting plan, and to permit the holding of the November 7, 1967 aldermanic election which the appellants sought temporarily to enjoin, rather than to take such drastic action, to have immediate impact on the 1967 City election, on the strength of so doubtful a record. While census figures are a proper basis for population determination of a particular place in reapportionment cases over the ten years following its taking, under circumstances such as those here presented where such large and obvious changes in population have occurred as to be subject to judicial notice, the census report of seven years before is not immune from challenge. We are aware of no Supreme Court decision which endows census figures with a conclusive presumption of correctness or holds them to be immutable and irrebuttable for the purpose of evaluating a particular districting plan. Where a statewide scheme is under consideration, urban renewal or redevelopment or other takings of residential areas for public purposes in particular cities scattered throughout the state may have too insignificant an effect on the overall plan to justify departure from...