Wilson v. Fallin, 109,652.

• Decision Date: 03 October 2011
• Docket Number: No. 109,652.,109,652.
• Citation: 2011 OK 76,262 P.3d 741
• Parties: Senator Jim WILSON, Petitioner,v.Mary FALLIN, Governor of the State of Oklahoma, Kris Steele, Speaker of the Oklahoma House of Representatives, Brian Bingman, President Pro Tempore of the Oklahoma State Senate, Paul Ziriax, Secretary of the Oklahoma State Election Board, Respondents.
• Court: Oklahoma Supreme Court

262 P.3d 741

2011 OK 76

Senator Jim WILSON, Petitioner,

v.Mary FALLIN, Governor of the State of Oklahoma, Kris Steele, Speaker of the Oklahoma House of Representatives, Brian Bingman, President Pro Tempore of the Oklahoma State Senate, Paul Ziriax, Secretary of the Oklahoma State Election Board, Respondents.

No. 109,652.

Supreme Court of Oklahoma.

Sept. 1, 2011.Rehearing Denied Oct. 3, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld UnconstitutionalConst. Art. 5, § 9A

PROCEEDING TO REVIEW SENATE REDISTRICTING ACT¶ 0 Petitioner seeks review of the State Senate Redistricting Act of 2011, pursuant to the section 11C, Article V of the Oklahoma Constitution. Petitioner alleges the Act does not comply with the apportionment formula in section 9A, Article V of the Oklahoma Constitution. This Court finds that the petitioner has failed to show that the State Senate Redistricting Act of 2011 does not comply with the provisions of section 9A.STATE SENATE REDISTRICTING ACT OF 2011 COMPLIES WITH SECTION 9A, ARTICLE V, OKLAHOMA CONSTITUTION.Mark Hammons, Oklahoma City, Oklahoma, for petitioner Senator Jim Wilson.Neal Leader, Nancy Zerr, Assistant Attorneys General, for respondents Governor Mary Fallin and Secretary Paul Ziriax.Robert McCambell, Lee Slater, Oklahoma City, Oklahoma, for respondent President Pro Tempore Brian Bingman.Andrew Lester, Edmond, Oklahoma, for respondent Speaker Kris Steele.TAYLOR, C.J.

¶ 1 This is a proceeding to review the State Senate Redistricting Act of 2011 (the Redistricting Act), Enrolled Senate Bill 821, sections 2 through 6, signed by the Governor on May 20, 2011. Two threshold first impression legal questions are presented: 1) What part, if any, of the apportionment formula in section 9A, Article V of the Oklahoma Constitution¹ remains in effect, and 2) What is the extent of a review proceeding authorized in section 11C, Article V of the Oklahoma Constitution? Our answer to the first question is that the population-based aspect of the apportionment formula in section 9A remains in effect, while the county-based aspect of the apportionment formula is invalid. Our answer to the second question is that the extent of a review proceeding authorized by section 11C is limited by section 11D to a review for compliance with section 9A's population apportionment formula. Having reviewed the filings, contentions, and arguments herein, we determine and hold that the Senate Redistricting Act of 2011 complies with the population apportionment formula in section 9A, Article V of the Oklahoma Constitution.

¶ 2 Oklahoma State Senator Jim Wilson, a resident of Cherokee County, Oklahoma, filed a petition pursuant to section 11C for review of the Redistricting Act.² Senator Wilson named as respondents Mary Fallin, the Governor of Oklahoma; ³ Kris Steele, the Speaker of the Oklahoma House of Representatives; Brian Bingman, President Pro Tempore of the Oklahoma Senate; and Paul Ziriax, Secretary of the Oklahoma Election Board. As required by section 11C, Senator Wilson filed a proposed apportionment plan that he contends more closely complies with Article V than does the Redistricting Act.

¶ 3 Senator Wilson alleges that the Redistricting Act does not comply with section 9A because it “fails to create Senate districts which as nearly as possible provide for compactness, political units, historical precedents, economic and political interests.” Senator Wilson does not explicitly identify every district in the Redistricting Act that he contends is not in compliance with section 9A but claims that he has identified such districts by the maps provided in his appendix.⁴ Senator Wilson's petition prays that this Court direct the Apportionment Commission to modify the Redistricting Act “to achieve conformity with” the Oklahoma Constitution.

¶ 4 Senator Wilson points out what he considers the primary differences in the Redistricting Act and his proposed apportionment plan. He states that the largest district in the Redistricting Act has 78,943 persons and the largest district in his plan has 78,929 persons—a difference of fourteen persons—⁵ and that the smallest district in both plans has 77,350 persons. Based on a method that compares a district's boundaries to a circle, Senator Wilson posits that the Redistricting Act's average district compactness is 58.9% and that his plan's average district compactness is 65.5%. Senator Wilson points out that the Redistricting Act splits counties eighty times but that his plans split counties only sixty-two times.

¶ 5 Respondent Paul Ziriax, Secretary of the Oklahoma State Election Board, filed a preliminary statement, contending that the review of legislative apportionment provided in section 11C is limited in section 11D to a review for “compliance with the formula as set forth in this Article.” Secretary Ziriax questions whether there is a manageable standard for adjudication of challenges brought under section 11C because a large part of section 9A was declared unconstitutional in Reynolds v. State Election Bd., 233 F.Supp. 323, 329 (W.D.Okla.1964), and then reinstated in an emasculated form in Ferrell v. State ex rel. Hall, 339 F.Supp. 73, 74 (W.D.Okla.1972). Secretary Ziriax asks this Court to address whether this proceeding is a superficial contest between the Legislature's redistricting map and Senator Wilson's proposed redistricting map.⁶ Secretary Ziriax urges that this matter be quickly resolved so that his office might adequately prepare for the 2012 election cycle.

¶ 6 Respondent Brian Bingman, President Pro Tempore of the Oklahoma State Senate, in his recommendations to this Court, also advances threshold issues: what is the proper standard or test for determining whether apportionment legislation complies with Article V as required by section 11D; whether and to what extent section 9A is viable after being declared unconstitutional in Reynolds v. State Election Bd. and then declared partially constitutional in Ferrell v. State ex rel. Hall; whether population is the only mandatory criterion in section 9A; which issues presented herein are justiciable; and what is the Court's role in this review proceeding. The President Pro Tempore also suggests a procedure for taking evidence in this proceeding, if needed. Respondent Kris Steele, Speaker of the Oklahoma House of Representatives, filed a report adopting the procedure suggested by the President Pro Tempore.

¶ 7 Responding to the respondents' suggestions, Senator Wilson admits that he is not asserting a claim under the Voting Rights Act, 42 U.S.C. §§ 1973, et seq. ; states there is no need for a briefing schedule in this proceeding; and opposes any order issued by this Court that would allow the Election Board to prepare for the 2012 election under the Redistricting Act. The President Pro Tempore asks to file a brief on issues relevant to the 2012 election in reply to Senator Wilson.

¶ 8 We agree with the respondents that we must address, for the first time, the application of sections 9A, 11C, and 11D of the apportionment provisions in Article V of the Oklahoma Constitution. Sections 9A, 10A, and 11A through 11E were added to Article V by State Question 416, Referendum Petition No. 142, adopted at a special election held May 26, 1964. The 1963 Legislature proposed State Question 416 in Senate Joint Resolution No. 4, 1963 Okla. Sess. Laws, p. 736, to establish constitutional reapportionment formulas for both houses. In the joint resolution, the Legislature resolved that county-based apportionment, with consideration given to “the federal analogy, history, economics, custom, territory, and similar and related factors,” was a proper method of providing adequate and fair representation of groups with like political, social, and economic interests and of avoiding divesting segments of the population of their representation.

¶ 9 Section 9A provides for forty-eight state senate districts to be based on the most recent federal decennial census. It provides that each of the nineteen most populous counties constitutes a senate district and the fifty-eight less populous counties be joined into twenty-nine two-county districts. It further provides that population, compactness, area, political units, historical precedents, economic and political interests, contiguous territory, and other factors are to be considered to the extent feasible in apportioning the state senate. Section 9A fixes the term of the senate office as four years with one-half of the senators elected at each general election.

¶ 10 Section 11C authorizes any qualified voter to petition the Supreme Court for review of any apportionment by the Legislature or the Apportionment Commission⁷ within sixty days from the filing thereof. It provides that the petition must set forth a proposed apportionment more nearly in accordance with Article V and requires that the review petition be given precedence over other cases pending before the Supreme Court. Section 11D directs that this Court “shall determine whether or not the apportionment order of the Commission or act of the legislature is in compliance with the formula as set forth in this Article....” Section 11D further directs the Supreme Court to remand the matter to the Apportionment Commission if the Court determines that the apportionment order or act is not in compliance with the formula as set forth in Article V. ¶ 11 When the county-based apportionment formula in section 9A was submitted to a vote of the people, many states' legislative districts were based on units of local government and rural/urban distinctions. Several states, including Oklahoma, had failed to reapportion and redistrict for decades. Many states were involved in litigation challenging the legislative apportionment. The state courts had declined to resolve apportionment complaints, considering them to be nonjusticiable political matters, and many state apportionment schemes were challenged in federal court. Then the United States Supreme...