Silver v. Reagan

• Decision Date: 06 October 1967
• Citation: 62 Cal.Rptr. 424,67 Cal.2d 452,432 P.2d 26
• Court: California Supreme Court
• Parties: , 432 P.2d 26 Phill SILVER et al., Petitioners, v. Ronald REAGAN, as Governor, etc., et al., Respondents. Abe VICKTER et al., Petitioners, v. Ronald REAGAN, as Governor, etc., et al., Respondents; The Senate and the Assembly of the State of California, Interveners. Sac. 7814, 7815.

Page 424

62 Cal.Rptr. 424

67 Cal.2d 452, 432 P.2d 26

Phill SILVER et al., Petitioners, v. Ronald REAGAN, as Governor, etc., et al., Respondents.

Abe VICKTER et al., Petitioners, v. Ronald REAGAN, as Governor, etc., et al., Respondents;

The Senate and the Assembly of the State of California, Interveners.

Sac. 7814, 7815.

Supreme Court of California,

In Bank.

Oct. 6, 1967.

Phill Silver, Hollywood, in pro. per., and David A. Leveton, Beverly Hills, for petitioners.

Robert L. Leggett, Vallego, H. Allen Smith, Los Angeles, Don H. Clausen, Charles S. Gubser, C. Craig Hosmer, Long Beach, Glenard P. Lipscomb, William S. Mailliard, Robert B. Mathias, Ed Reinecke, Burt L. Talcott, Salinas, Charles M. Teague, Ventura, James B. Utt, Santa Ana, Bob Wilson, in pro. per., Thomas C. Lynch, Atty. Gen., Charles A. Barrett, Asst. Atty. Gen., Sanford N. Gruskin, Deputy Atty. Gen., George H. Murphy, Legislative Counsel, Edward K. Purcell, Principal Deputy Legislative Counsel, and Clinton J. deWitt, Deputy Legislative Counsel, for respondents and interveners.

TRAYNOR, Chief Justice.

In these proceedings petitioners as citizens, taxpayers, and voters seek a writ of mandate or other appropriate relief to enforce their rights and the rights of all others similarly situated to equality of voting power in the election of members to the House of Representatives of the United States Congress. (U.S.Const., art. I, § 2; U.S.Const., Amend. XIV; Wesberry v. Sanders (1964) 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481.) The Governor, the Secretary of State, the Attorney General, and the representatives in Congress from the State of California are respondents in both cases. The Senate and the Assembly of the California Legislature are respondents in the Silver case and interveners in the Vickter case.

In 1961 the Legislature divided the state into 38 congressional districts (Elec.Code, § 30000) pursuant to section 27 of article IV of the California Constitution. ¹ Because that section requires congressional districts to consist either of whole counties, whole assembly districts, or combinations thereof, many of the resulting districts departed substantially from the ideal population of one thirty-eighth of the total population of the state. Nine districts deviated from the ideal population of 414,000 ² by more than 15 percent. The largest district was 42.9 percent larger than the ideal district and the smallest was 27.3 percent smaller. The ratio of the largest to the smallest was 1.97 to 1.

On July 29, 1965, petitioners in the Silver case sought a writ of mandate to secure reapportionment of the state's congressional districts on the same grounds urged in the present proceedings. We concluded that the Legislature should be given an opportunity to reapportion the congressional districts in the light of our recent legislative reapportionment decision (Silver v. Brown (1965) 63 Cal.2d 270, 46 Cal.Rptr. 308, 405 P.2d 132) without being required to meet the urgent time limits that would have come into play had reapportionment been ordered in time for the 1966 elections. We therefore denied the petition 'without prejudice to the right to seek similar relief if the Legislature has not enacted a new congressional districting measure by the close of its regular 1967 session.' (Silver v. Brown (1965) 63 Cal.2d 316, 318, 46 Cal.Rptr. 531, 532, 405 P.2d 571, 572.) The Legislature adjourned on September 8, 1967, without enacting such a measure. Unless the Governor calls a special session, the Legislature will have no further opportunity to reapportion the congressional districts this year.

Under the decisions of the United States Supreme Court, we are convinced that the policies underlying the requirements of compactness and contiguity and the policies underlying maintenance of the integrity of political subdivisions and assembly districts cannot justify such extensive departures from population-based representation as exist among the state's congressional districts (Kilgarlin v. Hill (1967) 386 U.S. 120, 87 S.Ct. 820, 822, 17 L.Ed.2d 771; Swann v. Adams (1967) 385 U.S. 440, 87 S.Ct. 569, 572, 17 L.Ed.2d 501; see Silver v. Brown (1965) 63 Cal.2d 270, 277, 46 Cal.Rptr. 308, 405 P.2d 132, and cases cited.) Moreover, the requirement that assembly districts not be divided in forming congressional districts has been substantially vitiated by the 1965 reapportionment of the Assembly.

Respondents contend, however, that because of the tremendous growth of the state's population since the 1960 census, any reapportionment based on that census might create more inequalities than it would eliminate. They also contend that effective representation requires reasonable stability of congressional districts. They therefore conclude that the practical disruption of effective representation that would be caused by reapportionment now would outweigh any gain in theoretical equality of representation from such reapportionment in the remaining two Congresses that will be elected before the House of Representatives is reapportioned pursuant to the 1970 census.

If the departures from equally populous districts were substantially less than they are, it might be constitutionally permissible to defer reapportionment until after the 1970 census. The United States Supreme Court has made it clear, however, that the practical difficulties necessarily resulting from reapportioning cannot justify perpetuating an unconstitutional apportionment. (Swann v. Adams (1966) 383 U.S. 210, 211--212, 86 S.Ct. 767, 15 L.Ed.2d 707; Reynolds v. Sims (1964) 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506; see also Swann v. Adams (1967) 385 U.S. 440, 87 S.Ct. 569, 571, 17 L.Ed.2d 501; Silver v. Brown (1965) 63 Cal.2d 270, 277, 278, 46 Cal.Rptr. 308, 405 P.2d 132.) Moreover, although the United States House of Representatives and Senate have not agreed on a measure to set congressional reapportionment standards, each house has passed a bill that would limit permissible population deviations to 15 percent before the 1970 census and to 5 percent thereafter. (H.R. 2508.) In contrast, 9 of California's districts deviate by more than 15 percent, 8 by more than 20 percent, and 1 by more than 40 percent. Given these discrepancies, we could deny relief in these cases only if it were demonstrated that population changes would make reapportionment on the basis of the 1960 census self-defeating and that no better population data are available.

We are convinced that a reapportionment based on the 1960 census would not be self-defeating, and therefore we adhere to our holding in Silver v. Brown (1965) 63 Cal.2d 270, 46 Cal.Rptr. 308, 405 P.2d 132, that article IV, section 6, of the California Constitution validly requires that reapportionment be based on the 1960 census (See also, Maryland Citizens Committee for Fair Cong. Redist. v. Tawes (1966) D.C., 253 F.Supp. 731, 734.) Although the population of the state has increased by about 25 percent since the 1960 census, it is only to the extent that such growth has been uneven throughout the state, that reapportioning on the basis of the 1960 census will result in inequalities. Except in those few districts where by chance uneven growth may have corrected an inequality created at the time of the 1961 apportionment, reapportionment pursuant to the 1960 census will not create population-shift inequalities that do not already exist under the present apportionment.

The contention that because of population shifts, a reapportionment based on the 1960 census may lead to greater inequalities in the population of districts than now exists may be tested by reference to the number of registered voters for each district in the 1966 general election. If it is assumed that there is at least a rough correlation between the number of registered voters and the whole population of each district, it appears that a reapportionment based on the 1960 census would substantially reduce the inequalities in the present apportionment. ³ Furthermore, inequalities resulting from population shifts during the 10 years between regular censuses are reasonable (Reynolds v. Sims (1944) 377 U.S. 533, 583--584, 84 S.Ct. 1362, 12 L.Ed.2d 506), whereas inequalities resulting from arbitrary geographical requirements are invidious.

In the legislative reapportionment case we held that the Legislature should be given an opportunity to reapportion both of its houses even though it had already been given an opportunity to reapportion the Senate and had failed to do so. (Silver v. Brown (1965) 63 Cal.2d 270, 278--279, 46 Cal.Rptr. 308, 405 P.2d 132.) We concluded that if it enacted a valid reapportionment measure and adjourned more than 180 days before the June 1966 primary or failed to enact such a measure by that time, there would be sufficient time before...