Baker v. Clement | Cases | Westlaw

This case presents the question of whether the statute creating Tennessee's nine congressional districts violates Article 1, Section 2 of the Constitution of the United States.

This statute, Chapter 4, Public Acts of the Extraordinary Session of 1965, T.C.A. § 2-502 (1965 Supp.),¹ amended the existing code section bearing the same number, which was codified from Chapter 251, Public Acts of 1951. By its terms the 1965 amendment will apply to the primary election of August 1966 and the general election of November 1966. The incumbent members of Congress from Tennessee will continue to represent their districts as they existed prior to the enactment of the 1965 statute until their successors are elected and qualified.

The population of the districts provided by the 1965 statute and the population of the nine Tennessee districts prior to the 1965 amendment,² are as follows:

*889 The total population of the State according to the 1960 census is 3,567,089. The average population of the nine congressional districts is 396,343.

This suit was initiated prior to enactment of the 1965 amendment. The original complaint was filed December 1, 1964, as a class action on behalf of all qualified voters of the Ninth Congressional District and ‘all qualified voters of the State of Tennessee who are, or may become, similarly situated.’ The original plaintiffs are three registered voters of Shelby County, of which Memphis is the county seat. At that time Shelby County, with a population of 627,019, comprised the ninth congressional district. The original complaint was based upon the disparity between the population of the ninth district, which at that time was the largest in the State, and the populations of the adjoining seventh and eighth districts, with populations of 232,652 and 223,387, respectively.

The 1965 amendment corrected the huge disparity between the ninth district on the one hand and the seventh and eighth districts on the other hand by partitioning Shelby County into three parts, one part consisting of the ninth district and the other two parts being made respectively a part of the seventh and eighth districts.

No question is now raised as to disparity of population as among the seventh, eighth and ninth congressional districts under the terms of the 1965 amendment.

Under date of July 23, 1965, the original plaintiffs filed a supplemental complaint reciting the enactment of the 1965 amendment and stating as follows:

‘Plaintiffs believe, and therefore aver, that the 1965 amendatory act constitutes a good faith effort of the part of the General Assembly of Tennessee to reapportion the congressional election districts upon an equitable and representative basis and the congressional districts as now constituted, meet the requirements of the Constitution of the United States.’

Plaintiffs now ask that this court find and determine that the 1965 amendment ‘constitutes a proper and valid apportionment of congressional districts in Tennessee.’

Thus, in the present posture of the case, the original plaintiffs are aligned with the defendants, viz: the Governor of Tennessee, the Secretary of State, the State Attorney General and various State and local election officials.

The attack upon the validity of the 1965 amendment is made in three intervening petitions under which the petitioners have been permitted to intervene as parties plaintiff: (1) The petition of Guy L. Smith of Knoxville, a citizen and qualified voter of the second congressional district, on behalf of himself and all other citizens of the first, second, third and fourth congressional districts; (2) the petition of Z. Cartter Patten of Chattanooga, a member of the State Senate and a citizen and qualified voter of the third congressional district, on behalf of himself and the other qualified voters of the first, second and third congressional districts; and (3) the petition of Jack McNeil of Memphis and six other citizens and qualified voters of Shelby County and citizens of the seventh, eighth and ninth congressional districts. All seven of the petitioners under this third petition are members of the Shelby County delegation in the Eighty-Fourth General Assembly of Tennessee.

The intervening petition of Guy L. Smith charges that the 1965 statute is unconstitutional in that it creates gross inequities and malapportionment against the voters and citizens of the first, second, third and fourth districts, all of which have larger populations than the remaining five districts. Particular emphasis is placed upon the fact that the second district, now the largest in the state, has a population of 453,298, which is 111,830 in excess of the population of the sixth district, which has a population of 341,468.

Petitioner Smith submits a proposal for congressional districting which would *890 result in a difference of only 5,939 between the largest and smallest districts. The Smith proposal is set forth in detail in the margin.³

*892 The petition of Z. Cartter Patten reiterates the disparity in population between the second and sixth districts and further avers as follows:

‘That plaintiff and other voters of the Third Congressional District are severely prejudiced in that the Third Congressional District is composed of twelve counties with a total population of 436,421 citizens, or 94,953 citizens more than is contained in the Sixth Congressional District. The difference in population between the Third Congressional District and the Sixth Congressional District is almost twenty-eight (28%) per cent of the total population of the Sixth Congressional District. Likewise, the difference in population between the First Congressional District and the Sixth Congressional District is 100,048 citizens, which is in excess of twenty-nine (29%) per cent of the total population of the Sixth Congressional District. The Seventh, Eighth and Ninth Congressional Districts are also unconstitutionally favored.’

Intervenor Patten asserts, however, that the Smith proposal ‘is not the best plan, arithmetically speaking, for congressional redistricting, nor is it practical or feasible. * * * On the contrary * * * such plan * * * would upset and do violence to the balance of power as it is now distributed between the two major political parties within the State.’ Intervenor Patten submits an alternative proposal which would provide a difference of 6,251 between the largest and smallest districts, averring his plan is ‘(1) arithmetically constitutional; (2) does as little violence to the present district boundaries as any plan which might be devised; (3) does not place more than one incumbent congressman in the same district and (4) would not radically affect the balance of power between the two major political parties.’ The Patten proposal is set forth in the margin.⁴

*893 The intervening petition of Jack McNeil and certain other members of the Shelby County legislative delegation is filed ‘on their own behalf and on behalf of all qualified voters and citizens in their respective congressional districts and all qualified voters and citizens of the State of Tennessee who are, or may become, similarly situated,’ and avers as follows:

‘The average population of the nine congressional districts is 396,343 with Shelby County thus having an excess of 230,676. Under Chapter 4, Public Acts of 1965, Extraordinary Session, T.C.A. § 2-502, *894 this excess has been divided in such a fashion that the newly formed seventh congressional district and the newly formed eighth congressional district dominate the excess in Shelby County according to the 1960 census and according to registered vote of population, this disenfranchisement being consistent with the main theme of the act which completely *895 ignored a population formula and made the eastern districts of the State much too heavily populated in each of its congressional districts, leaving the seventh and eighth congressional districts still under the average of 396,343 along with dividing Shelby County on a completely unjustified and unconstitutional basis.’

Petitioner Smith filed a motion for summary judgment, but our disposition of the case is upon the pleadings and the evidence introduced at the hearing on the merits.

In Reynolds v. Sims, 377 U.S. 533, 559, 84 S.Ct. 1362, 1380, 12 L.Ed.2d 506, the Court said:

‘In Wesberry v. Sanders, 376 U.S. 1 (84 S.Ct. 526, 11 L.Ed.2d 481), decided earlier this Term, we held that attacks on the constitutionality of congressional districting plans enacted by state legislatures do not present nonjusticiable questions and should not be dismissed generally for ‘want of equity.’ We determined that the constitutional test for the validity of congressional districting schemes was one of substantial equality of population among the various districts established by a state legislature for the election of members of the Federal House of Representatives.'

Following the decision in Wesberry v. Sanders, the congressional districting statutes of a number of states have been held to be unconstitutional: Park v. Faubus, 238 F.Supp. 62 (E.D.Ark.); Meeks v. Anderson, 229 F.Supp. 271 (D.Kan.); Maryland Citizens Committee for Fair Congressional Districting, Inc. v. Tawes, 228 F.Supp. 956 (D.Md.); Calkins v. Hare, 228 F.Supp. 824 (E.D.Mich.); Wilkins v. Davis, 205 Va. 803, 139 S.E.2d 849; see also Martin v. Bush, 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656, affirming per curiam 224 F.Supp. 499 (S.D.Texas).

In all of the states in which such statutes have been ruled unconstitutional, including *896 the Georgia statute in Wesberry v. Sanders, and the Texas statute in Martin v. Bush, the disparity between the most populous district and the least populous district has been larger than the difference of 111,830 or the ratio of 1.32 to 1 between the second and sixth Tennessee districts in the present case. See Annotation, 12 L.Ed.2d 1282, 1288. In some states, however, the ratio was only slightly higher than the 1.32 to 1 ratio here involved. In Michigan the ratio of the most populous district to the least populous was 1.6 to 1; in Kansas 1.44 to 1; in Virginia 1.68 to 1; and in Arkansas 1.73 to 1. In Moore v. Moore, 246 F.Supp. 578 (S.D.Ala., October 4, 1965), sustaining the 1965 Alabama redistricting statute, the ratio was 1.14 to 1.⁶

It is established by both the Smith proposal and the Patten proposal in the present case that it is both possible and practicable to apportion the congressional districts so that their populations will be far more nearly equal than under the 1965 amendment. Both the Smith and Patten proposals demonstrate that it is practicable to arrange the counties of the State into congressional districts with ‘substantial equality of population.’ 377 U.S. at 559, 84 S.Ct. 1362. It is further demonstrated that the counties of the State can be arranged in congressional districts in a manner that will not result in any part of any county except Shelby being placed in more than one congressional district, thereby avoiding the partitioning of any county except Shelby, whose population of 627,019 obviously requires partitioning in some manner.

A summary of the comparison of the 1965 Act, the Smith proposal and the Patten proposal is as follows:

*897 We express no preference as between the Smith or Patten proposals, but are of the opinion that either of these proposals, if enacted by the Tennessee Legislature, would meet the standards of Wesberry v. Sanders, supra. It may be that the Legislature could enact a statute creating congressional districts even more nearly equal in population than set forth in either the Smith or Patten proposals.

We therefore are of the opinion that the statute in question, Ch. 4, Public Acts of the extraordinary Session of 1965, does not conform to the requirements of Article 1, Section 2 of the Constitution of the United States.

We now come to the question of the relief to be granted. Both the Patten intervening petition and the petition of McNeil and others pray that this court enjoin and restrain the defendants from conducting elections under the 1965 statute, and that, pending the enactment of valid legislation, we order that the members of the House of Representatives from the State of Tennessee be nominated and elected from the State at large. Petitioner Smith opposes election from the State at large on the ground that state- *898 wide elections might upset the representation in the Tennessee congressional delegation as between the two major political parties.

In Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393, 1394, 12 L.Ed.2d 506, in speaking with respect to reapportionment of a state legislature, the Supreme Court said:

‘We do not consider here the difficult question of the proper remedial devices which federal courts should utilize in state legislative apportionment cases. Remedial technique in this new and developing area of the law will probably often differ with the circumstances of the challenged apportionment and a variety of local conditions. It is enough to say now that, once a State's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a State's election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court's decree. As stated by Mr. Justice Douglas, concurring in Baker v. Carr (369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663) ‘any relief accorded can be fashioned in the light of well-known principles of equity.‘‘

In Martin v. Bush, 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656, the Supreme Court continued in effect a stay order entered by Mr. Justice Black, Circuit Justice, upon appeal, until appellants had an opportunity to apply to the district court ‘for further equitable relief in light of the present circumstances including the imminence of the forthcoming election and ‘the operation of the election machinery of Texas' noted by the District Court in its opinion.’ 376 U.S. at 223, 84 S.Ct. 709.

We find exceptional circumstances and equitable considerations in the present case justifying the court in withholding the granting of immediate relief.

The same 1965 extraordinary session of the Tennessee Legislature that enacted the districting statute which we now hold to be unconstitutional also reapportioned the state legislature by adoption of a statute which has been held constitutional following the most recent hearing in Baker v. Carr, 247 F.Supp. 629 (M.D.Tenn.), November 15, 1965. Thus the Eighty-fifth General Assembly of Tennessee which will convene the first Monday in January 1967 will be composed of senators and representatives *899 elected under a valid apportionment law, as contrasted with the membership of the Eighty-fourth General Assembly which has been held to be unconstitutionally apportioned. Baker v. Carr, 222 F.Supp. 684 (M.D.Tenn.). The Eighty-fifth General Assembly will be the first constitutionally apportioned legislature to assemble in Tennessee in many years.

An order will be entered reserving final judgment herein until after the 1966 elections, and until the Eighty-fifth General Assembly of Tennessee, to be elected in November 1966, has had an opportunity at its regular 1967 session to act upon the matter of congressional redistricting, but not later than June 1, 1967. After that date, or after the date of adjournment of the General Assembly if occurring prior to June 1, 1967, the case may be reopened upon application of any party or upon the court's own motion. Notwithstanding such time limits, full jurisdiction is retained, and if necessary for any reason, this action may be reopened at any time hereafter, either upon the court's own motion or upon the application of any party.