Wilkins v. Davis
| Decision Date | 18 January 1965 |
| Citation | 205 Va. 803,139 S.E.2d 849 |
| Court | Virginia Supreme Court |
| Parties | Jack R. WILKINS, who sues, etc. v. Levin Nock DAVIS, Secretary, etc., et al. |
Henry E. Howell, Jr., H. Lee Kanter, Norfolk (Howell, Anninos & Daugherty, Kanter, Kanter & Sachs, Norfolk, on brief), for petitioner.
David J. Mays, Richmond, R. D. McIlwaine, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Henry T. Wickham, Tucker, Mays, Moore & Reed, Richmond, on brief), for respondents.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.
A petition for a writ of mandamus was filed in this court, Va.Const. § 88, on April 10, 1964, against the secretary and members of the State Board of Elections by the petitioner, Jack R. Wilkins, who alleged that he is a citizen of the Commonwealth, a duly qualified voter and taxpayer, and sues on behalf of himself and all other citizens of the Commonwealth similarly situated. He alleged that § 24-3 of the Code of Virginia, 1950, which apportioned the Commonwealth into congressional districts, failed to comply with § 55 of the Constitution of Virginia, violated rights guaranteed to him by the Constitution and laws of the United States, and was a nullity, in that said congressional districts do not contain as nearly as practicable an equal number of inhabitants.
Specifically petitioner alleged that each of the ten congressional districts of Virginia according to the 1960 census, should contain a population of approximately 396,694, whereas in the Second District there are 494,292 inhabitants, and in the Tenth District 539,618, and in the Seventh District only 312,890.
Petitioner prayed that defendants, State Board of Elections, be commanded to certify to all the electoral boards in the State only candidates at large for Congress, and to instruct said boards to print on the ballots only the names of candidates for Congress who offered as candidates at large in the primary elections to be held on July 14, 1964, and at the general election to be held on November 3, 1964, unless the Governor should in the meantime call a special session of the General Assembly of Virginia and said Assembly should enact a valid and legal congressional redistricting law.
Later, on June 16, 1964, on petitioner's motion, he was allowed to amend the prayer of his petition to ask that in the event the relief he prayed for was not granted in time to affect the November 3, 1964, election of congressmen, then that the State Board of Elections be commanded to take such actions as necessary to conduct only elections at large for congressmen until the General Assembly should enact a legal reapportionment act for the congressional districts.
Section 24-3 of the Code is the Redistricting Act of 1952, Acts 1958, ch. 333, and by Acts 1964, ch. 536, and divided the State into ten congressional districts. While the petitioner alleges that the said Redistricting Act is a nullity, and affords no authority for electing ten congressmen from the ten districts as now constituted, his counsel stated, in objecting to some evidence offered by the defendants, that his complaint is directed to the Second and Fourth Congressional Districts as now constituted; and that it was immaterial to examine other districts since by merely taking the City of Chesapeake from the Second District and giving it to the Fourth, 'we will have met the test of contiguity, compactness and population distribution between those districts.'
In his brief petitioner states that there are two principal questions raised by his petition, the first of which is: 'Do the disparities in population existing in the ten Congressional Districts of Virginia as constituted by the Redistricting Act of 1952, violate the requirements of Section 55 of the Constitution of Virginia?' That section provides:
'The General Assembly shall by law apportion the State into districts, corresponding with the number of representatives to which it may be entitled in the House of Representatives of the Congress of the United States; which districts shall be composed of contiguous and compact territory containing as nearly as practicable, an equal number of inhabitants.'
The requirements of § 55 were considered by this court in Brown v. Saunders, 159 Va. 28, 166 S.E. 105, in which the constitutional validity of the Virginia Apportionment Act of 1932 was assailed. The census of 1930, said the court, showed Virginia to have a population of 2,421,829, entitling her to nine congressmen. An equal division of population among the districts would give each a population of 269,092. Under the 1932 apportionment the First District had a population of 239,835; the Second 302,715; the Third 288,939; the Fourth 212,952; the Fifth 251,090; the Sixth 280,708; the Seventh 336,654; the Eighth 183,934, and the Ninth 325,024. We said in that case:
* * *' 159 Va. at 37, 166 S.E. at 107-108.
And further it was said:
159 Va. at 43-44, 166 S.E. at 110-111.
Applying the principles stated to the facts shown, the court concluded: 'The inequality is obvious, indisputable, and excessive.' It pointed out that the disparity between the Seventh (the largest district) and the Eighth (the smallest) was 152,720, and between the Eighth and Ninth the difference was 140,890, and between the Second and Fourth was 89,736. 'Tried by the test of equality of representation prescribed by the Constitution, the result obtained by the act appears arbitrary.' 159 Va. at 46, 166 S.E. at 111.
By the 1960 census, as corrected, it was ascertained that on April 1, 1960, Virginia had a population of 3,954,429. If equally divided among the ten congressional districts of the State, each would have a population of 395,442. The then population of each district, as shown by the corrected census report, was as follows:
First District .... 422,624
Second District ... 494,292
Third District .... 418,081
Fourth District ... 352,157
Fifth District .... 325,989
Sixth District .... 378,864
Seventh District .. 312,890
Eighth District ... 357,461
Ninth District .... 364,973
Tenth District .... 527,098
As will be observed, the smallest district in population is the Seventh, with 312,890. The largest is the Tenth, with 527,098, and the next largest is the Second, with 494,292. Thus the Tenth exceeds the Seventh by 214,208 and the Second exceeds the Seventh by 181,402.
It also appears that the population of the Second District exceeds the theoretical average by 98,850, and the Tenth exceeds it by 131,656, while the Fourth is 43,285 less than the average, the Fifth is 69,453 less and the Seventh 82,552 less.
Following the 1960 census report the Governor appointed a commission, known as the Hoover Commission, after its chairman, to report with recommendations concerning the apportionment of representation in the General Assembly and in Congress. At the completion of this study the Commission reported that 'The present apportionment [Act of 1952] of the House of Representatives of the Congress should remain as it is.' Among the reasons given for so reporting were these:
(1) The population of the Tenth and Second Districts were substantially greater than the average, but the only feasible way to change the Tenth would be to split Fairfax county, which had never been done, or put the city of Alexandria into the Eighth District, which would result in a geographically divided, non-contiguous district, impairing the elements of community interest, compactness and contiguity.
(2) The Second District, composed of the City of South Norfolk and Norfolk county [now composing the city of Chesapeake], and the cities of Norfolk and Portsmouth, represent nearly the ideal in community of interest, compactness, contiguity and other factors, exclusive of population, to be considered in a reapportionment.
(3) To bring the districts to approximately equal population would involve changes of doubtful practicality, the dissolution of districts which have the greatest community of interest, and mean a radical restructuring of the State.
The report referred to Brown v. Saunders, supra, as being the controlling case in Virginia on the reapportionment of congressional districts.
The defendants contend that while the principles laid down in the Brown case are applicable here, and to that extent control the decision to be rendered, the application of those principles to the facts and circumstances of this case compel a different result. They point out that a demurrer to the petition was filed in the Brown case, thus admitting the facts concerning population and no other facts were before the court, while the present case contains the testimony of population experts, the report of the Hoover Commission, and the testimony of three congressmen and four citizens concerning compactness, natural boundaries and community of interest of four congressional...
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