Stout v. Bottorff, 61C236

• Decision Date: 16 December 1965
• Docket Number: No. 61C236,62C326.,61C236
• Parties: Bruce L. STOUT et al., Plaintiffs, v. John D. BOTTORFF, Secretary of State of the State of Indiana, et al., Defendants. Nelson GRILLS, Plaintiff, v. Roger D. BRANIGIN, Governor of Indiana, et al., as members of the State Election Board, Defendants.
• Court: U.S. District Court — Southern District of Indiana

249 F. Supp. 488

Bruce L. STOUT et al., Plaintiffs, v. John D. BOTTORFF, Secretary of State of the State of Indiana, et al., Defendants.

Nelson GRILLS, Plaintiff, v. Roger D. BRANIGIN, Governor of Indiana, et al., as members of the State Election Board, Defendants.

Nos. 61C236, 62C326.

United States District Court S. D. Indiana, Indianapolis Division.

December 16, 1965.

Robert D. Risch and Jerome Strauss, John Wood, William D. Ruckelshaus, Frank E. Spencer, Indianapolis, Ind., for plaintiffs Bruce L. Stout et al.

John J. Dillon, Atty. Gen. of Indiana, Indianapolis, Ind., for defendants John D. Bottorff et al.

Nelson Grills, pro se.

John J. Dillon, Atty. Gen. of Indiana, Indianapolis, Ind., for defendants Roger D. Branigin et al.

Before KILEY, Circuit Judge, and STECKLER and GRANT, Chief Judges.

PER CURIAM.

On September 20, 1965, after declaring unconstitutional Chapter 230, Acts of 1965, enacted by the 94th Indiana General Assembly at its Regular Session, this court set December 1, 1965, as the "cutoff date" by which the General Assembly might enact a constitutional reapportionment of the State of Indiana. In response to this court's decision, the Second Special Session was convened on October 18, 1965. The Attorney General of the State of Indiana, on the 3rd day of November, 1965, on behalf of the defendants and the people, filed Senate Enrolled Acts 464, 473, 469, and 474, and House Enrolled Acts 1678, 1680, 1681, and 1683, to which we shall, as the parties do, refer in this opinion respectively as Senate Plans A, B, C, and D, and House Plans A, B, C, and D. Except for both Plans A, each Plan contains a statement that it is "the understanding and intent" of the General Assembly that that Plan is to be void if the prior Plan is constitutional. Thereafter, the several plaintiffs filed "Objections" to the various plans. Having considered Senate Plans A and B, and House Plans A, B, and C, and the objections thereto, we decide that Senate Plan A is unconstitutional; that House Plan A and House Plan B are unconstitutional; and that Senate Plan B and House Plan C are constitutional.

I.

The court has selected, from Senate Plan A, six instances or combinations representing twelve of the thirty-two senatorial districts, in which there are overall deviations in excess of 20%¹ from the ideal senate ratio of one senator per voting population of 55,558.² The greatest deviation above the ideal senate ratio is 15.57% in District 25 (Grant and Wabash Counties), and the greatest deviation below the ideal is 15.46% in District 18 (Fayette, Rush, and Shelby Counties). Thus a vote in District 25 is diluted by more than 31% from a vote in District 18. The other five instances of overall deviation range from 28.90% down to 20.27%.

The court finds there is no sufficient justification shown for these "significant departures" from apportionment on a population basis, and that approval, express or implied, of Senate Plan A by some plaintiffs cannot justify the deviations. In these six instances the deviations are impermissible as rendering voting rights substantially unequal under federal standards of constitutionality as set forth in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

The court further finds that the provisions of Senate Plan B, discussed immediately hereinafter, are the best evidence that the deviations result from districts constructed in Senate Plan A which are not "as nearly of equal population as is practicable," Reynolds v. Sims, 377 U.S. at 577, 84 S.Ct. at 1390, and the deviations are unjustified because unnecessary.

II.

The court selects, from Senate Plan B, in the same manner used in passing on Senate Plan A, two instances wherein the sum of the extreme deviations above and below the ideal senate ratio results in overall deviations in excess of 20%. In District 5 (Elkhart County) the deviation is 12.77% above the ideal, and in District 20 (Wayne and Union Counties) the deviation is 11.22% below the ideal. The spread between the extremes is an overall deviation of 23.99%, and a corresponding dilution of voting strength in District 5. In District 28 (Jackson, Lawrence, Orange, and Washington Counties) the deviation is 10.89% above the ideal, and in District 18 (Hendricks, Owen, and Morgan Counties) the deviation is 10.61% below the ideal. The result here is an overall deviation of 21.50%, and a corresponding dilution of voting strength in District 28.

Under Senate Plan B, the ratio of the district with the largest population per senator to the smallest such district is 1.27 to 1, as compared with the ratio of 1.37 to 1 in Senate Plan A. The minimum percentage of total voting population residing in districts which could elect a majority of the senators under Senate Plan B is 49.46%. Under Senate Plan A, the percentage is 48.29%.

It is our opinion that Senate Plan B does not offend against the Equal Protection Clause of the Fourteenth Amendment and meets the federal standards. As we have pointed out, Senate Plan B in only two instances deviates significantly from the ideal, and in those instances exceeds but little the 20% danger line announced by this court. We think the result is a "substantial equality" in the voting rights among voters in all districts, apportioned on the population basis required by Reynolds v. Sims, supra.

In view of our conclusion that Senate Plan B meets federal standards of constitutionality, we need not and do not consider Senate Plans C and D.

III.

The court has selected, from House Plan A, seven instances of deviation above and below the ideal House ratio of one representative per voting population of 27,779, that constitute unjustifiable, impermissible deviations.³ The deviation extremes are in District 18 (Huntington and Wells Counties), where the deviation is 19.92% above the ideal, and in District 42, where the deviation is 15.02% below the ideal. The spread between these extremes is an overall deviation of 34.94%. This dilutes the vote of a voter in District 18 almost 35% from that of a voter in District 42. The overall deviations in the other six instances selected by the court range from 33.39% down to 21.61%, and constitute corresponding dilutions in voting strength in the districts involved.

The court finds there is no justification shown for these "significant departures" from the ideal house ratio. Approval of House Plan A by the parties, express or implied, cannot justify the deviations. The court finds the deviations in these seven instances show the impermissible dilution of voting rights under the federal standard of "substantial equality" of population. House Plan A is unconstitutional.

IV.

The court has selected, from House Plan B, thirteen instances of deviation above and below the ideal house ratio that constitute excessive and unjustifiable deviations.⁴ The deviation extremes are 31.18% above the ideal house ratio in District 29 (Boone and Montgomery Counties), and 19.97% below the ideal in District 43 (Lawrence County). The overall deviation between these extremes is 51.15%. This dilutes the vote of a voter in District 29 more than 51% from that of a voter in District 43. The overall deviations in the other twelve instances range from 48.14% down to 22.56%.

The court finds that there is no justification shown for these "significant departures" from the ideal house ratio. And, as we have noted with respect to other plans, approval of House Plan B by the parties, express or implied, cannot justify the deviations. In these thirteen instances the deviations show the impermissible dilution of voting rights under the federal standard requiring "substantial equality" of population. House Plan B is unconstitutional.

V.

We think House Plan C meets the federal standards of constitutionality. In this Plan, there is but one instance of the extreme deviations above and below the ideal house ratio of 27,779, resulting in an overall deviation in excess of 20%. In District 22 (Randolph and Wayne Counties) the deviation is 13.50% above the ideal, and in District 17 (Howard and Tipton Counties) the deviation is 10.01% below the ideal. The overall deviation between these extremes is 23.51%. Thus a vote in District 22 is diluted 23.51% from a vote in District 17.

Under House Plan C, therefore, the ratio of the district with the largest population per representative to the smallest such district is 1.26 to 1, as compared with a like ratio of 1.41 to 1 in House Plan A and 1.64 to 1 in House Plan B. The minimum percentage of total voting population residing in districts which could elect a majority of the House of Representatives under House Plan C is 48.72%, as compared with a like percentage of 48.29% in House Plan A and 46.93% in House Plan B.

House Plan C in our opinion clearly meets federal constitutional standards of "substantial equality" in the voting rights among voters in all districts, apportioned on the population basis required by Reynolds v. Sims, supra. As in Senate Plan B, where we found only two instances of significant overall deviations from the senate ideal, in House Plan C we find only one such deviation from the house ideal, and this one too is but slightly in excess of the 20% danger line previously mentioned.

Since we find and conclude that House Plan C meets federal constitutional standards, we need not and do not consider House Plan D.

VI.

Thus the General Assembly has, in Senate Plan B and House Plan C, provided substantially equal state legislative representation for all voters in Indiana regardless of where they reside. Reynolds v. Sims, supra. We think the General Assembly has made an honest and good faith effort to reapportion both houses of Indiana's bicameral legislature into districts of substantially equal population "as nearly as practicable"; that it has evidently applied in Senate Plan B and House Plan C the "overriding objective" of attaining "substantial equality of population among the...