Sims v. Amos, Civ. A. No. 1744-N

Citation365 F. Supp. 215
Decision Date03 August 1973
Docket NumberCiv. A. No. 1744-N,and 3459-N.,3017-N
CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
PartiesM. O. SIMS, et al., Plaintiffs, R. E. Farr, et al., Intervening Plaintiffs, United States of America, Plaintiff and Amicus Curiae, v. Mabel AMOS, Secretary of State of the State of Alabama, et al., Defendants, Pierre Pelham, et al., Individually and as members of the Joint Legislative Committee of the Legislature of Alabama, etc., et al., Intervening Defendants. E. D. NIXON, et al., Plaintiffs, Alabama Independent Democratic Party, a corporation, Plaintiff-Intervenor, v. George C. WALLACE, as Governor of the State of Alabama, and his successors, et al., Defendants, Pierre Pelham, et al., Individually and as members of the Joint Legislative Committee of the Legislature of Alabama, etc., et al., Intervening Defendants. J. Elbert PETERS, Individually, for himself, and for all others similarly situated, Plaintiff, v. George C. WALLACE, as Governor of the State of Alabama, and Mabel Amos, as Secretary of State of the State of Alabama, Defendants, Pierre Pelham, et al., Individually and as members of the Joint Legislative Committee of the Legislature of Alabama, etc., et al., Intervening Defendants.

Morris Dees and Joseph J. Levin, Jr., Southern Poverty Law Center, Montgomery, Ala., Charles Morgan, Jr., Morris Brown and Norman Siegel, ACLU, Atlanta, Ga., for M. O. Sims and others.

Ira DeMent, U. S. Atty., and Kenneth E. Vines, Asst. U. S. Atty., Middle District of Albama, Montgomery, Ala., for the United States.

William J. Baxley, Atty. Gen., State of Alabama, Montgomery, Ala., and Julian D. Butler of Butler & Potter, Huntsville, Ala., Special Asst. Atty. Gen., State of Alabama, for defendants Mabel Amos and William J. Baxley.

Edward Allen, Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, Ala., for J. Richard Bennett, Jr., and Carolyn Golden.

Robert S. Vance, Callaway & Vance, Birmingham, Ala., for himself.

Morris Dees and Joseph J. Levin, Jr., Southern Poverty Law Center, Montgomery, Ala., Orzell Billingsley, Jr., Peter A. Hall, David Vann, Birmingham, Ala., for E. D. Nixon and others.

William J. Baxley, Atty. Gen., Montgomery, Ala., and Julian D. Butler, Spec. Asst. Atty. Gen., Huntsville, Ala., for the Governor, the Secretary of State and the Attorney General.

Robert S. Vance, Birmingham, Ala., for himself and the Democratic Party and State Executive Committee.

William L. Irons, Speir & Irons, Birmingham, Ala., for Jefferson County Citizen Committee for Local Self Government.

Maurice Bishop, Bishop & Carlton, Birmingham, Ala., for Jefferson County.

Dieter J. Schrader, Huntsville, Ala., for J. Elbert Peters, and others.

Before RIVES, Circuit Judge, and THOMAS and JOHNSON, District Judges.

OPINION
I. History of the Litigation

A) The protracted history of this suit is capsulized in Sims v. Amos, M.D.Ala. 1972, 336 F.Supp. 924, 930-932. In that decision, climaxing over a decade of litigation, this Court:

1) Rejected four separate reapportionment plans submitted by the defendants, because each plan utilized multi-member districts, rigidly followed existing county lines, and produced wide variances from the ideal of one-man/one-vote (the per cent deviations ranged from a low of 24.28% in the Attorney General's Senate Plan # 2 to a high of 52.34% in the Attorney General's House Plan # 3).

2) Adopted the plaintiffs' proposed reapportionment plan calling for complete reapportionment of the Alabama Legislature through the use of 105 single-member House districts (2.23% total deviation) and 35 single-member Senate districts (1.39% total deviation).

3) Refused to order mid-term elections and, instead, directed that the reapportionment would become effective for use in the 1974 State elections, primary and general, and for the Legislature as chosen in the 1974 elections.

That decision, entered January 3, 1972, was affirmed without opinion by the Supreme Court on October 24, 1972. Sims v. Amos, 1972, 409 U.S. 942, 93 S. Ct. 290, 34 L.Ed.2d 215.

B) In a February 26, 1973 opinion and order to aid in implementing its January 3, 1972 judgment, this Court took note of the Alabama Legislature's repeated failure to adopt a constitutional reapportionment plan and ordered the defendants to complete by May 1, 1973 the location and establishment of the legislative district lines under the court-ordered plan.

In an addendum to the February 26 order, this Court expressed the firm view that the recent Supreme Court decision in Mahan, Secretary, Board of Elections of Virginia v. Howell, 1973, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320, neither undermined the validity of the original January 3 decree nor warranted a delay in that decree's implementation.

Yet, in spite of this Court's view that the Supreme Court's Virginia decision did not dictate adoption of a state-initiated reapportionment plan in Alabama, and in spite of the Legislature's prolonged recalcitrance, this Court culminated its February 26 order by stating that,

"Notwithstanding all that has been said in the foregoing opinion and order and in this addendum, if the Alabama Legislature promptly enacts a proposed alternate reapportionment plan, we will consider that plan with open minds and with the sincere hope that it may, under all proper considerations, be more acceptable than the present court-ordered plan."

Emphasis added.

C) In an order entered April 9, 1973, this Court defined the term "promptly," as used in the preceding quotation, to mean "on or before May 17, 1973."

D) On May 16, 1973, one day prior to the May 17 deadline, Governor Wallace and Attorney General Baxley filed for the defendants a motion seeking relief from implementation of the January 3 court-ordered plan and acceptance of the reapportionment plan set forth in Act No. 3, House Bill 2, passed in the 1973 Special Session of the Legislature of Alabama and signed by the Governor on May 15, 1973.

Whether to grant or deny the defendants' May 16 motion is the sole issue now before this Court.

II. Defendants' Reapportionment Plan

The defendants' current reapportionment plan was prepared by a University of Alabama task force under the supervision of Professor Henry Moore. The task force began operations under instructions set forth in a letter, dated May 16, 1972, from Representative Hugh Merrill to Don James, a task force member.

Representative Merrill's letter directed the task force to draw a plan conforming to the following guidelines (promulgated by the Alabama Joint Legislative Committee on Reapportionment):

1) Formation of 105 single-member House districts and 35 single-member Senate districts (composed of 3 House districts each);
2) formation of districts "based solely on total population as provided by the 1970 Census";
3) construction of districts as nearly equal in population as possible;
4) preservation of existing political subdivisions, including precincts, wherever possible, with concomitant minimization of crossed county lines.

A) Cherner Plan

In response to Representative Merrill's directive, the task force completed in October 1972 the Cherner Plan which, according to Professor Moore, incorporated extremely small population deviations between districts (3.8% for the House, 2.8% for the Senate). Moore Dep., p. 73. However, due to the death of Representative Cherner and the prevalent opinion that the Cherner Plan had little chance of passing the Senate, that plan was shelved indefinitely. Moore Dep., p. 76.

B) Defendants' Current Plan

Following the decision, Mahan v. Howell, supra, in February of 1973, Representative Merrill contacted Professor Moore and asked the task force to draw a new plan which, in Moore's words, "would not increase the deviation unduly, but would uncross a number of the county lines that were left crossed in the Merrill plan Cherner Plan." Moore Dep., p. 77. Prodded on cross-examination as to the precise content of Representative Merrill's directive, Professor Moore replied in the following colloquy:

"Q. Were you instructed, at that time, Professor Moore, that you could go as high as 16 plus per cent, the percentage of differential, which the Supreme Court approved in the Virginia case, Mahan versus Howell?
"A. We were told not to exceed that.
"Q. Were you —
"A. (Interrupting) But to stay as low as we possibly could.
"Q. All right, sir. Were you told to shoot for 16 per cent?
"A. No. We were told to stay under it, was the only admonition we had and to keep the percentage as low as possible."

Moore Dep., p. 83.

Thus, defendants' current reapportionment plan evolved under a hybrid directive composed of Representative Merrill's original letter to the task force and his subsequent instructions regarding the Virginia decision.

Defendants' current reapportionment plan, embodied in Act No. 3 of the 1973 Special Session, assuming its statistical accuracy, produces a total population variance between House districts of 13.24% and between Senate districts of 13.43%.

Its salient characteristics can be briefly listed:

1) 105 single-member House districts and 35 single-member Senate districts;
2) maintenance of all existing precinct lines;
3) split of 33 out of Alabama's 67 counties, 29 between districts, 4 internally.

The only reasonably accurate 1970 population information available to the task force was that contained in the 1970 decennial census. The 1970 census enumeration is subdivided into four kinds of geographical units — census county divisions, enumeration districts, census tracts and block groups. The smallest identifiable population unit is the enumeration district (ED). Because ED boundaries do not uniformly coincide with precinct boundaries and because the task force interpreted its instructions as requiring complete fidelity to precinct autonomy, a method had to be devised for allocating population to the separate portions of an ED split by a precinct line. In his testimony, Professor Moore...

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