O'SULLIVAN v. Brier, 82-1335

• Decision Date: 03 June 1982
• Docket Number: 82-4096.,No. 82-1335,82-1335
• Court: U.S. District Court — District of Kansas
• Parties: Pat O'SULLIVAN, John Schmidt, Leonard Moore, Eva Jane Vaughn, Verdis Robinson, Mary Ladesic, Alois G. Befort, Jr., and Nathaniel Watson, Plaintiffs, v. Jack H. BRIER, Secretary of State of the State of Kansas, Defendant. Walter W. CARSON, Paul N. Bahnmaier, J. Kurt von Achen, and Vallerie Ann Miller, Plaintiffs, v. John CARLIN, Governor of the State of Kansas, and Jack H. Brier, Secretary of the State of Kansas, Defendants.

540 F. Supp. 1200

Pat O'SULLIVAN, John Schmidt, Leonard Moore, Eva Jane Vaughn, Verdis Robinson, Mary Ladesic, Alois G. Befort, Jr., and Nathaniel Watson, Plaintiffs, v. Jack H. BRIER, Secretary of State of the State of Kansas, Defendant.

Walter W. CARSON, Paul N. Bahnmaier, J. Kurt von Achen, and Vallerie Ann Miller, Plaintiffs, v. John CARLIN, Governor of the State of Kansas, and Jack H. Brier, Secretary of the State of Kansas, Defendants.

Nos. 82-1335, 82-4096.

United States District Court, D. Kansas.

June 3, 1982.

Arnold Berman, Kansas City, Kan., for plaintiffs Pat O'Sullivan, John Schmidt, Leonard Moore, Eva Jane Vaughn, Verdis Robinson, Mary Ladesic, Alois G. Befort, Jr., and Nathaniel Watson.

Eugene W. Hiatt of Hiatt, Hiatt & Carpenter, Topeka, Kan., for plaintiffs Walter W. Carson, Paul N. Bahnmaier, J. Kurt von Achen, and Vallerie Ann Miller.

Dan Biles and Patricia A. Reeder, Asst. Attys. Gen., State of Kan., Topeka, Kan., for defendant Jack H. Brier, Secretary of State of the State of Kan.

Jerry K. Levy, Topeka, Kan., for defendant John Carlin, Governor of the State of Kan.

Before LOGAN, Circuit Judge, and ROGERS and KELLY, District Judges.

LOGAN, Circuit Judge.

These cases, before a three-judge panel convened pursuant to 28 U.S.C. § 2284(a), challenge the constitutionality of the existing congressional districts in Kansas and ask this Court to adopt a new congressional redistricting plan.

After the Census Bureau released the 1980 census figures, the Clerk of the United States House of Representatives informed Kansas Governor John Carlin that the number of congressional seats for the State of Kansas would remain at five. Thereafter, the Kansas legislature attempted to enact a new redistricting law to comport with those census figures. The House and the Senate passed and sent to the Governor two reapportionment acts, S. 664 and S. 561, but the Governor vetoed both.

The day following the Governor's veto of the second bill, S. 561, Pat O'Sullivan, John Schmidt, Leonard Moore, Eva Jane Vaughn, Verdis Robinson, Mary Ladesic, Alois G. Befort, Jr., and Nathaniel Watson (collectively, O'Sullivan plaintiffs) brought an action for declaratory and injunctive relief against Kansas Secretary of State Jack N. Brier, asking this Court to find that the existing Kansas congressional districts are in violation of Article I, section 2 and the Fourteenth Amendment of the United States Constitution, as well as 42 U.S.C. §§ 1981 and 1983. In their complaint, the O'Sullivan plaintiffs argued a three-judge panel must decide what redistricting plan should be used for the 1982 elections because the 1980 census figures establish that the current congressional districts are unconstitutional, and because the Kansas legislature failed to enact a plan and was unlikely to do so before adjournment or in time for a "proper, fair, and orderly 1982 Congressional election in the State of Kansas." Subsequently, these plaintiffs submitted a proposed plan (the O'Sullivan plan) for our consideration.

On May 5, 1982, Walter W. Carson, Paul N. Bahnmaier, J. Kurt von Achen, and Vallerie Ann Miller (collectively, Carson plaintiffs) brought an action against Governor Carlin and Secretary of State Brier, making many of the same allegations as the O'Sullivan plaintiffs. However, in their complaint the Carson plaintiffs contended that S. 561, the last bill passed by the two houses of the legislature, is a constitutionally acceptable plan this Court should adopt.

On May 14, 1982, the Kansas legislature adjourned without having enacted a new redistricting plan. The parties have agreed that the existing congressional districting is constitutionally infirm and that the legislature will not reconvene before the June 21 filing deadline for congressional candidates seeking election this fall. Because both cases raise the same questions and ask us to adopt a new redistricting plan, we consolidated them for trial. With the parties' agreement, we accelerated the trial so that we can timely adopt a new plan.

The O'Sullivan plaintiffs, supported by the Governor, present a plan very close to a bill unsuccessfully urged upon the Kansas legislature by the Democratic minority. They assert that the maximum population variations between districts in their plan— 0.11%—is within constitutional limits, and that their plan more fully accomplishes what the Kansas legislature's joint committee charged with the reapportionment task set as a major goal: not splitting county, municipal, or township boundaries unless absolutely necessary to meet population variance requirements. They also urge that their plan restores the strength of the black vote diluted by the existing split of Wyandotte County, and more nearly meets the other criteria approved in Supreme Court and other reapportionment cases.

The Carson plaintiffs and the Secretary of State present essentially the views of the Republican majority in the Kansas legislature. They urge that we adopt a redistricting plan identical or similar to that contained in S. 561, which the Kansas House and Senate passed and the Governor vetoed. They assert that the maximum population variations between districts under the S. 561 plan—0.09%—are within acceptable constitutional limits, and urge us to adopt S. 561 for two principal reasons: (1) in deference to the good-faith efforts of the legislators, whose views presumably reflect most of their constituencies; and (2) because the plan departs the least from current congressional lines and hence reassigns fewer people from one district to another.

We consider first whether we owe deference either to the plan passed by the legislature and vetoed by the Governor, or to the plan now supported by the Governor but rejected by the legislature. Congressional redistricting is primarily the state legislature's task, but becomes a judicial task when the legislature fails to redistrict after having an adequate opportunity to do so. White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 2354, 37 L.Ed.2d 335 (1973). Although a federal court should defer to any enacted, constitutionally acceptable state redistricting plan, id. at 795, 93 S.Ct. at 2354, we are not required to defer to any plan that has not survived the full legislative process to become law. See Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 197, 92 S.Ct. 1477, 1484, 32 L.Ed.2d 1 (1972). In Beens, after the Minnesota legislature had reapportioned state legislative districts and the Governor had vetoed the legislation, a three-judge panel adopted a reapportionment plan. The Supreme Court, though disapproving the panel's plan, agreed with the panel that it was not required to defer to either the legislature's or the Governor's plan: "The present Governor's contrary recommendation, though certainly entitled to thoughtful consideration, represents only the executive's proffered current policy, just as the reapportionment plan he vetoed ... represented only the legislature's proffered current policy." Id. In accordance with Beens we are bound to give only "thoughtful consideration" to plans that were passed by the state legislature but subsequently vetoed by the Governor, or to plans urged by the Governor. See Carstens v. Lamm, 543 F.Supp. 68 at 78-80 (D.Colo.1982).

In the circumstances before us, with the 1971 Kansas redistricting plan being constitutionally unacceptable and the legislature having failed to enact a new redistricting plan, our powers are broad. We may adopt in whole a proposed plan, see Donnelly v. Meskill, 345 F.Supp. 962 (D.Conn.1972); Dunnell v. Austin, 344 F.Supp. 210 (E.D. Mich.1972); David v. Cahill, 342 F.Supp. 463 (D.N.J.1972); Skolnick v. State Electoral Bd. of Ill., 336 F.Supp. 839 (N.D.Ill.1971), adopt a proposed plan with some modifications, or draw up a new plan, see Carstens v. Lamm, 543 F.Supp. 68 (D.Colo.1982); Preisler v. Secretary of Missouri, 341 F. Supp. 1158 (W.D.Mo.), aff'd sub nom. Danforth v. Preisler, 407 U.S. 901, 92 S.Ct. 2440, 32 L.Ed.2d 678 (1972); Maryland Citizens Comm. for Fair Congressional Redistricting, Inc. v. Tawes, 253 F.Supp. 731 (D.Md.), aff'd sub nom. Alton v. Tawes, 384 U.S. 315, 86 S.Ct. 1590, 16 L.Ed.2d 586 (1966).

The only relevant constitutional requirement imposed upon a plan we adopt is that it must make "as nearly as is practicable one man's vote in a congressional election ... be worth as much as another's." Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 529-530, 11 L.Ed.2d 481 (1964). This requirement is the "preeminent, if not the sole, criterion" for evaluating the constitutionality of redistricting plans. Chapman v. Meier, 420 U.S. 1, 23, 95 S.Ct. 751, 764, 42 L.Ed.2d 766 (1975); accord, Mahan v. Howell, 410 U.S. 315, 322, 93 S.Ct. 979, 984, 35 L.Ed.2d 320 (1973) (equality of population alone is sole criterion). Of course, the plan must not discriminate on the basis of race. See, e.g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973). But although the existing districts dilute the block voting power of the black minority in Wyandotte County because it is split between two districts and S. 561 would continue that effect, no evidence has been presented that the present districts or S. 561 disenfranchises blacks or invidiously discriminates against them on the basis of race. The dilution of black voting power, therefore, is simply a factor to be considered along with others we discuss below.

Courts frequently face situations in which several redistricting plans achieve virtually identical levels of population equality. In these cases, courts have considered such factors as (1) whether a proposed plan preserves county and municipal boundaries, see Carstens, 82, 88 (unnecessary fragmentation undermines ability of constituencies to organize effectively and increases likelihood of voter confusion regarding other elections based on political subdivision geographics); Shayer v. Kirkpatrick, 541 F.Supp. 922 at 933 (W...