Sincock v. Terry

• Decision Date: 16 October 1962
• Docket Number: Civ. A. No. 2470.
• Citation: 210 F. Supp. 396
• Parties: Richard SINCOCK et al., Plaintiffs, v. Charles L. TERRY et al., Defendants.
• Court: U.S. District Court — District of Delaware

210 F. Supp. 396

Richard SINCOCK et al., Plaintiffs, v. Charles L. TERRY et al., Defendants.

Civ. A. No. 2470.

United States District Court D. Delaware.

October 16, 1962.

Vincent A. Theisen, and Victor Battaglia, Wilmington, Del., for plaintiffs.

Januar D. Bove, Jr., Frank O'Donnell, Wilmington, Del., N. Maxson Terry, James H. Hughes, III, Dover, Del., and Robert Tunnell, Georgetown, Del., for defendants.

Before BIGGS, Circuit Judge, and WRIGHT and LAYTON, District Judges.

PER CURIAM.

The suit at bar is a class action brought by the plaintiffs on their own behalf and on behalf of all other persons similarly situated. The plaintiffs assert variously that they are residents of four representative districts and four senatorial districts of the State of Delaware and are duly qualified voters and taxpayers of the State and citizens of the United States. The defendants comprise the Boards of Canvass, the Clerks of Peace, the Departments of Election, and their Secretaries, of New Castle, Kent and Sussex Counties respectively, and the State Election Commissioner, all of whom perform statutory and constitutional duties relating to the conduct of the general elections in the State of Delaware.

The cause of action, both under the original complaint and an amendment thereto hereinafter referred to, arises under the Constitution and laws of the United States; the Fourteenth Amendment to the Constitution of the United States, 42 U.S.C. §§ 1983 and 1988. See also 28 U.S.C. §§ 1343 and 2201. Under the complaint as originally filed, as we held in our first opinion in this case, D.C., 207 F.Supp. 205 (1962), the issue presented is whether or not the apportioning of members of the General Assembly of Delaware by geographical units pursuant to Section 2 of Article II of the Constitution of Delaware of 1897, Del.C.Ann. offends the constitutional rights of the electors of this State under the equal protection clause of the Fourteenth Amendment to the Constitution of the United States because of alleged debasement of their voting rights.

The plaintiffs ask us to declare Section 2 of Article II of the Constitution of Delaware to be unconstitutional and invalid for the reason just stated; to enjoin the defendants from conducting, canvassing, or otherwise engaging in any general election for the election of members of the House of Representatives or of the Senate of the General Assembly pursuant to the provisions of Section 2 of Article II of the Constitution of Delaware; to enter an order reapportioning the representative and senatorial districts of Delaware in accordance with the population of the State and the provisions of Section 3 of Article I of the Constitution of Delaware to provide for free and equal elections; or, to enter an order directing the conduct of the general election to be held on November 6, 1962 for Representatives and Senators in the General Assembly but on an at-large basis; and for other relief.

On July 25, 1962 we stayed the proceedings until August 7, 1962 in order to permit the 121st General Assembly to take such action as it deemed appropriate by way of amendment to Section 2 of Article II of the Constitution of Delaware. On July 30, 1962 the 121st General Assembly enacted a proposed amendment to the Constitution of Delaware, now embodied in H.B. 574, which, if agreed to by the 122nd General Assembly, would amend Section 2 of Article II of the Constitution to provide a new composition of the House and Senate of the General Assembly. Publication of the proposed amendment has been made in accordance with Section 1, Article XVI of the Constitution. The first step to effect an amendment to Section 2 of Article II has therefore been taken.

On August 7 the defendants moved for a further stay asserting in substance that the 122nd General Assembly, coming into office on January 8, 1963, should be given the opportunity to agree to the amendatory provisions to Section 2, Article II, proposed by the 121st General Assembly. We took this motion under consideration.

On August 8 the plaintiffs moved for a preliminary injunction to enjoin the defendants from conducting the General Election scheduled for November 6, 1962 insofar as it pertains to the election of members of the General Assembly.

On October 8, 1962 the plaintiffs amended the prayers of their complaint to ask that we provisionally reapportion the House of Representatives and the Senate and declare H.B. 574 to be unconstitutional for the same reasons as asserted for the invalidation of Section 2 of Article II of the Constitution.

Hearings and arguments have now been had on the motions to further stay the proceedings and for a preliminary injunction. The validity of Section 2 of Article II and of the provisions of H.B. 574 is presently before this court. Cf. Sims v. Frink, 205 F.Supp. 245 (D.C. Ala.1962). The defendants have filed answers but, in replying to many vital allegations of the complaint, they assert that they do not possess sufficient knowledge or information to form a belief as to the truth of the matters alleged. Some of the defendants admit the accuracy of the allegations as to population figures set out in paragraphs 21 to 25 inclusive of the complaint which, seemingly, find support in the exhibits attached to the complaint. Other defendants do not make such admissions. The defendants deny that irreparable damage will inure to the plaintiffs if this court fails to enjoin the election of November 6, 1962 in respect to the election of members of the General Assembly.

The plaintiffs by charts and other exhibits, explained at the hearing, show the population of the election districts of the State of Delaware, the geographical boundaries of the districts and the counties, and have put before the court various other data which may be relevant. By the deposition of Dr. Paul Dolan and the evidence of others they seek to establish invidious discrimination in the method of selection of members of the General Assembly as presently required by Section 2 of Article II and under the method of selection proposed by H.B. 574. The plaintiffs assert that the discrimination demonstrated by both Section 2 of Article II and by H.B. 574 is such as to destroy any claim of rationality as to the apportionment of the General Assembly. Some defendants contend that the present election districts are justified by historical, economic, geographic and topographic factors. The position of other defendants in this respect is not clear. Certain defendants¹ claim that the provisions of H.B. 574 constitute a rational basis of representation in the General Assembly, both in House and Senate, and the charge of invidious discrimination or debasement of voting rights in respect to H.B. 574 cannot be maintained. Cf. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. The defendants, however, do not present any substantial evidence to support their respective positions, though as we have indicated they controvert what may be vital operative facts asserted by the plaintiffs. In short, we have a situation where the plaintiffs contend that the population figures demonstrate invidious discrimination and many defendants claim, at least insofar as H.B. 574 is concerned, that apparent discrepancies and disparities of electors' rights are not sufficient to overthrow the presumption of constitutionality.

We recognize of course that a statute must be presumed to be constitutional and that a state constitution may be deemed to be endowed with an even stronger presumption of constitutionality, and that he who would attack successfully the constitutionality of either statute or constitution must bear a very heavy burden. Dartmouth College v. Woodward, 4 Wheat. 518, 17 U.S. 518, 4 L.Ed. 629 (1819). If the verity of all of the operative facts presented by the plaintiffs on the instant record be assumed and the ultimate conclusions of mixed law and fact drawn by the plaintiffs therefrom were presumed to be accurate it might be concluded that the plaintiffs had made a showing of invidious discrimination as to the provisions of Section 2 of Article II and of H.B. 574 as well, and a court would be compelled to hold that the presumption of constitutionality would fall and that invidious discrimination would be established.

It is the law of this Circuit and of this District, however, that a party seeking a preliminary injunction must allege facts as to which there is no serious dispute as well as showing a reasonable probability of success on final...