WISCONSIN STATE AFL-CIO v. Elections Bd.

• Decision Date: 16 June 1982
• Docket Number: Civ. A. No. 82-C-0113.
• Citation: 543 F. Supp. 630
• Parties: The WISCONSIN STATE AFL-CIO, John W. Schmitt as its president and individually, and Jack B. Reihl as its secretary-treasurer and individually; the United Auto Workers Union, Region 10, Ralph W. Koenig as its director and individually, and William Troestler as the coordinator of its Community Action Program and individually; the Democratic Party of Wisconsin and Matthew Flynn as its chairman and individually; Ronald J. De Lain as the Clerk of Brown County and individually; Gary R. George as a member of the Wisconsin State Senate and individually; and, John Brogan, Plaintiffs, v. ELECTIONS BOARD, an independent agency of the State of Wisconsin; its chairman, William Mattka; each of its members individually, Gary Aamodt, Stephen A. Beyer, Gregory B. Conway, Esther Kaplan, James Murphy, John Niebler, and Helen Sigmund; and, its executive secretary, Gerald J. Ferwerda, Defendants, and the Republican Party of Wisconsin, the League of Women Voters, the City of Milwaukee, Clifford W. Krueger, Stephen R. Leopold, Thomas A. Hauke, Annette Polly Williams, Governor Lee S. Dreyfus, Tommy G. Thompson, Donald J. Hannaway, Fred A. Risser and Ed G. Jackamonis, Intervening parties.
• Court: U.S. District Court — Eastern District of Wisconsin

543 F. Supp. 630

The WISCONSIN STATE AFL-CIO, John W. Schmitt as its president and individually, and Jack B. Reihl as its secretary-treasurer and individually; the United Auto Workers Union, Region 10, Ralph W. Koenig as its director and individually, and William Troestler as the coordinator of its Community Action Program and individually; the Democratic Party of Wisconsin and Matthew Flynn as its chairman and individually; Ronald J. De Lain as the Clerk of Brown County and individually; Gary R. George as a member of the Wisconsin State Senate and individually; and, John Brogan, Plaintiffs, v. ELECTIONS BOARD, an independent agency of the State of Wisconsin; its chairman, William Mattka; each of its members individually, Gary Aamodt, Stephen A. Beyer, Gregory B. Conway, Esther Kaplan, James Murphy, John Niebler, and Helen Sigmund; and, its executive secretary, Gerald J. Ferwerda, Defendants, and the Republican Party of Wisconsin, the League of Women Voters, the City of Milwaukee, Clifford W. Krueger, Stephen R. Leopold, Thomas A. Hauke, Annette Polly Williams, Governor Lee S. Dreyfus, Tommy G. Thompson, Donald J. Hannaway, Fred A. Risser and Ed G. Jackamonis, Intervening parties.

Civ. A. No. 82-C-0113.

United States District Court, E. D. Wisconsin.

June 9, 1982.

Order Filed June 16, 1982.

Jon P. Axelrod, Madison, Wis., for plaintiffs.

F. Joseph Sensenbrenner, Deputy Atty. Gen., Madison, Wis., for defendants.

Before BAUER, Circuit Judge, and GORDON and EVANS, District Judges.

DECISION and ORDER

In 1972 the Wisconsin Legislature enacted legislation to reapportion the state's 33 Senate districts and 99 Assembly districts on the basis of the 1970 census. See Wis. Stat. § 4.001(1). The 1972 legislative elections and subsequent legislative elections have been conducted under the district boundaries established by the Wisconsin Legislature in 1972.

In 1980, the Bureau of the Census, United States Department of Commerce, conducted a decennial census of Wisconsin, as well as all other states. The 1980 census figures, as recertified by the Census Bureau on May 19, 1982, set the population of Wisconsin at 4,705,521. According to the current census figures, if the state were to be divided into 33 Senate districts of precisely equal numbers, each district would contain 142,591 persons. The population required to make the districts perfectly equal in population will be referred to in this decision as the "ideal norm." The ideal norm for 99 Assembly districts, according to the 1980 census, is 47,531.

The 1980 population of 4,705,521 represents a 6.5 percent increase from the 1970 population of 4,417,933. The 1980 census figures also reveal shifts in population, most notably an increase in the population in northern Wisconsin and a decrease in the population in southeastern Wisconsin, particularly in the City of Milwaukee. Because of population growth and shifts, there exists today significant disparities in the populations of the current state legislative districts. The existing Senate districts range from a district where the population exceeds the ideal norm by 27.3%, to a district where the population is less than the ideal norm by 22.5%. The current Assembly districts range from a district where the population exceeds the ideal norm by 29% to a district where the population is less than the ideal norm by 33.4%.

To date, a new legislative reapportionment plan has not been enacted. We have been advised that a plan was passed by the legislature in May but that it was vetoed by Governor Lee Dreyfus. The vetoed plan has been submitted to us for our consideration and, after reviewing it, we conclude that it is one of the worst efforts before us and for that reason we decline to adopt it. The plan has, in our opinion, no redeeming value¹ and we will not discuss it further in this opinion.

This action, seeking a declaration that the present apportionment of Wisconsin's legislative districts is unconstitutional and praying for a judicial plan of reapportionment was filed in this district on February 2, 1982. Judge Terence T. Evans, the United States District Court judge to whom this matter was originally assigned, determined that the case was appropriate for treatment by a three judge panel under 28 U.S.C. § 2284, and accordingly he requested in a letter to the Chief Judge of the United States Court of Appeals for the Seventh Circuit that two other judges be appointed to form a panel to consider this case. On February 8, 1982, Chief Judge Walter J. Cummings of the Seventh Circuit Court of Appeals designated Judge Myron L. Gordon of the United States District Court for the Eastern District of Wisconsin and Judge William J. Bauer of the United States Court of Appeals for the Seventh Circuit to join Judge Evans in forming a three judge court to consider this case.

On February 22, 1982, we entered an order declaring the current reapportionment scheme unconstitutional and enjoining the defendant state Elections Board from preparing for or administering any elections using the current Senate and Assembly districts. The order also set deadlines for the filing of motions to intervene and for the submission of proposed reapportionment plans. Within the scheduled deadlines, the court received eight motions to intervene and, after one was withdrawn, the remaining seven were granted. Three of the parties, in addition to the original plaintiffs, submitted proposed state-wide reapportionment plans. Other parties submitted plans dealing with portions of Milwaukee County. Plans were also submitted by interested non-parties.

Subsequently, Governor Dreyfus moved to intervene. He also moved that we abstain from further proceedings because he had filed a petition to invoke the original jurisdiction of the Wisconsin Supreme Court to consider reapportionment. The Governor's motion to intervene as a party was granted. His abstention motion was denied. In light of the intervention of the Governor, legislative leaders of both the majority Democratic party and the minority Republican party moved to intervene in the case. Their motions were granted.

The Wisconsin Supreme Court granted the Governor's petition and assumed jurisdiction of his reapportionment action, but that action was removed to the United States District Court for the Western District of Wisconsin. On April 1, 1982, the Western District court transferred the case to us. The matter is properly here, and the requisite conditions precedent to the exercise of our jurisdiction have been satisfied.

On April 21, 1982, we entertained oral arguments, and on April 23 an order was entered noting that we were reluctant to act until convinced that all reasonable efforts to establish a constitutionally acceptable redistricting plan had been exhausted by those charged with a duty to perform. Because the elected representatives of the people of Wisconsin have been unable to agree, we must now discharge our duty under the law. Before performing that duty, however, we deem it appropriate to note the following.

In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the United States Supreme Court held that the Equal Protection Clause of the United States Constitution requires that state legislative districts be apportioned on a population basis.

"We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State."

Reynolds v. Sims, 377 U.S. at 568, 84 S.Ct. at 1385. In so holding, the Supreme Court extended the "one person, one vote" principle enunciated with respect to congressional reapportionment in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), to state legislative reapportionment.

Pursuing the concept of apportionment by population, the court continued:

"By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." Reynolds, supra, at 577, 84 S.Ct. at 1388.

Clearly, with respect to apportionment, equal population is the "most elemental requirement of the Equal Protection Clause." Connor v. Finch, 431 U.S. 407, 409-410, 97 S.Ct. 1828, 1830, 52 L.Ed.2d 465 (1977); Chapman v. Meier, 420 U.S. 1, 22, 95 S.Ct. 751, 763, 42 L.Ed.2d 766 (1975). To prevent the debasement of citizens' voting power and to honor the dictates of the Equal Protection Clause, equality of population, to the extent it is practicable, is the cornerstone of any constitutional apportionment plan.

Within the overall requirement that districts be as equal in population as practicable, different standards of population equality apply to different types of plans. A congressional plan is held to a more exacting standard of population equality than a legislative plan, Chapman v. Meier, 420 U.S. 1, 23, 95 S.Ct. 751, 764, 42 L.Ed.2d 766 (1975), Gaffney v. Cummings, 412 U.S. 735, 741-742, 93 S.Ct. 2321, 2325, 37 L.Ed.2d 298 (1973). Similarly, a court-ordered legislative plan is held to a higher standard of equality than a legislative plan enacted by a state. See: Chapman and Connor, supra.

Some deviations from a strict population standard may be permitted in a legislative reapportionment plan, if they promote some rational state policy, Reynolds, supra, at 579, 84 S.Ct. at 1390:

"So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the

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