Sims v. Baggett

Citation247 F. Supp. 96
Decision Date02 October 1965
Docket NumberCiv. A. No. 1744-N.
PartiesM. O. SIMS et al., Plaintiffs, R. E. Farr et al., Intervening Plaintiffs, United States of America, Plaintiff and Amicus Curiae, v. Agnes BAGGETT, Secretary of State of the State of Alabama, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama


Charles Morgan, Jr., Birmingham, Ala., Robert H. Loeb, Birmingham, Ala., for plaintiffs.

Cooper, Mitch, Johnston & Crawford, Jerome Cooper, Birmingham, Ala., for R. E. Farr, Marshall Meadows, Jack Hopping, Jack Ryan and Max W. Morgan.

David J. Vann, Robert S. Vance and C. H. Erskine Smith, Birmingham, Ala., for David J. Vann, Robert S. Vance, and Richard P. Humphrey, Jr.

Ben Hardeman, U. S. Atty., Montgomery, Ala., John Doar, Asst. Atty. Gen., Civil Rights Division, Department of Justice, Washington, D. C., and Charles Nesson, Attorney, Department of Justice, Washington, D. C., for plaintiff and amici curiæ.

Richmond M. Flowers, Atty. Gen., State of Alabama, Montgomery, pro se, and for Secretary of State.

Boswell & Smith, Geneva, Ala., for Harrell Hammonds.

Roy D. McCord and H. G. Rains, Gadsden, Ala., for Roy Mayhall and H. G. Rains.

T. G. Gayle, J. E. Wilkinson, Jr., McLean Pitts, Selma, Ala., and Rankin Fite, Hamilton, Ala., for B. A. Reynolds and Frank Pearce.

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


In our earlier opinion and decision,1 we reapportioned both Houses of the Alabama Legislature only moderately and provisionally in the hope that the strangle hold would be broken and that the Legislature would then provide for a true reapportionment. The Supreme Court affirmed the judgment of this Court and remanded this case for further proceedings consistent with the views stated in its opinion.2

That opinion specifically directed this court "to take some further action should the reapportioned Alabama Legislature fail to enact a constitutionally valid, permanent apportionment scheme in the interim * * *," that is, in time to be used as the basis for conducting the 1966 election of the Alabama legislators. This court's decision was rendered on July 21, 1962, and the date of affirmance by the Supreme Court was June 15, 1964. Both this court and the Supreme Court recognized, as stated by the Supreme Court, "that legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." That time has now arrived. Since the decision of the Supreme Court, the Legislature of Alabama has met in regular session and has adjourned without enacting any reapportionment measure. The Legislature has been convened in special session and in that special session it has enacted bills to reapportion both houses. Each of those Acts is entitled to the most careful scrutiny and consideration by this court. If either does not conflict with the controlling provisions of the Constitution of the United States and of the Constitution of Alabama, then, as to that house, the Legislature will have met its primary responsibility, and the labors of this court will be at an end.

The constitutionality vel non of the Acts of the Legislature of Alabama should be promptly determined. The time for the qualification of candidates in the 1966 nomination and election of the Alabama legislators is approaching.

In view of the foregoing considerations, the Judges of this court have studied the problems involved over the several years that this action has been pending. Since the pretrial hearing on the 25th of August, this case has received concentrated and intense study and deliberation by each of the Judges. This court is now prepared to decide this case and feels that its final decision should not be delayed.

The Supreme Court, in its opinion remanding these cases for further proceedings, carefully outlined the general principles which should govern the action of this court. We briefly restate those principles.

The rights impaired by malapportionment are individual and personal in nature. Under the Equal Protection Clause of the Fourteenth Amendment, one person's vote must be worth as much as that of any other person, so far as is practicable. "* * * the judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State's citizens which constitutes an impermissible impairment of their constitutionally protected right to vote."

"We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis."3

The Supreme Court recognized that:

"* * * Mathematical nicety is not a constitutional requisite * * *. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.
* * * It may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting while still affording adequate representation to all parts of the State. * * * Somewhat more flexibility may therefore be constitutionally permissible with respect to state legislative apportionment than in congressional districting. * * * A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. * * * And apportionment in one house could be arranged so as to balance off minor inequities in the representation of certain areas in the other house. * * * Arguments for allowing * * * deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing. * * * A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions. * * * We agree with the view of the District Court that state constitutional provisions should be deemed violative of the Federal Constitution only when validly asserted constitutional rights could not otherwise be protected and effectuated. Clearly, courts should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible. * * When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls."

The three sentences last quoted require us to consider instances of unavoidable conflict between the Constitution of the United States and the Constitution of Alabama. One such instance, on which all of the parties are agreed, involves the concluding proviso of section 199 of the Constitution of Alabama which reads: "* * * provided, that each county shall be entitled to at least one representative." Five Justices of the Supreme Court of Alabama in an advisory opinion to the House of Representatives of Alabama, filed September 6, 1965, said:

"It follows that we must say, in all candor, that we believe that the quoted proviso in Section 199 has been held to be violative of the equal protection clause of the Federal Constitution in the Reynolds case, and is therefore, not controlling as to any plan the Legislature might evolve in trying to meet the guidelines set out in the Federal Court decisions."

In a separate opinion, Justice Coleman advised that the House Bill, which was later enacted, does violate section 199 of the Constitution of Alabama.4

The quoted proviso, on its face, does not conflict with the Federal Constitution. We think that the Supreme Court's opinion in Reynolds v. Sims, supra, does not render that proviso wholly inoperative. The quoted proviso in section 1995 and its companion section 1986 are intended to insure that each of the counties as a political unit of the State have separate representation in the House. It is apparent that the framers of the Constitution had at least two purposes in mind: First, to prevent gerrymandering, and, second, to insure compact geographic districts with legislators attuned to local problems. Intelligent and meritorious purposes are not enough to sustain application of this initially valid constitutional provision to counties whose population falls below the minimum required for valid reapportionment, or to counties of larger population whose joinder into a single district becomes necessary to reapportionment based on population. In those instances, the proviso as applied contravenes the Federal Constitution. In instances where the proviso can be applied without bringing about a conflict with federal constitutional requirements, the proviso remains operative.7

In Mintz v. Baldwin, 2 F.Supp. 700, 705 (N.D.N.Y.1933), Judge Augustus Hand explained the principles as follows:

"It is well settled that a statute may be constitutional as applied to one set of facts and unconstitutional as applied to another. citations omitted And this is so, not only when the unconstitutional operation of the statute is the result of a distinct and grammatically separable provision, but also when it is the result of general prohibitory language contained in a single clause, provided the intent of the Legislature will not be violated by allowing the statute to operate in a limited field. citations omitted * * *.
* * * * * *
"To enforce the order within constitutional limits will in no way

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