Buckley v. Hoff | Cases | Westlaw

We hold that the Equal Protection Clause permits the use either of total residents as under Act No. 97, § 3(c), or of registered voters as under Act No. 97, § 3(a), as a base for apportionment of the Senate and the House of Representatives. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and four companion decisions, the Supreme Court reviewed apportionment plans which were based on total residents, and nowhere was it intimated that the five plans were for that reason unconstitutional. Cf. WMCA, Inc. v. Lomenzo, 238 F.Supp. 916, 925 (SDNY 1965). As for the use of a registered voter base, it is entirely consistent with Reynolds v. Sims, supra, 377 U.S. at 554-568, 84 S.Ct. 1362, in which the Supreme Court repeatedly discussed the Equal Protection Clause in terms of equality of voting rights among qualified citizens.

*876 To be sure, in particular cases the selection of total residents or registered voters may violate the Equal Protection Clause, if it evidences an attempt to perpetuate prior malapportionment. Cf. WMCA, Inc. v. Lomenzo, supra at 924-925. In Vermont, however, a malapportioned body has not switched from one apportionment base to another, thereby arousing a suspicion of discriminatory motives on the part of the present General Assembly. The use of total residents as a base for apportionment of the Senate is merely a continuation of an historic state policy, and the House of Representatives has never before been apportioned on the basis of any popular figure whatever. Compare WMCA, Inc. v. Lomenzo, supra at 924.

Moreover, there is no evidence that the selection of registered voters as a base for apportionment of the House of Representatives has the effect of perpetuating existing discrimination against ‘citizens of the state's larger communities.’ Buckley v. Hoff, supra, 234 F.Supp. at 197. When we compare the consequences of using a base of registered voters as against a base of total residents, we not that Burlington-Winooski's Winooski's share of the total apportionment base only drops from 11.0% To 10.0%, and that the combined share of the next three largest communities, Rutland, Bennington, and Brattleboro, jumps from 11.0% To 12.2%, excluding adjacent towns with which they are districted, and from 11.7% To 13.0% When the adjacent towns are added. The ten largest cities and towns in the state, those already named and Springfield, Barre St. Albans, Montpelier, St. Johnsbury, and South Burlington, when taken together, also show a gain when registered voters rather than total residents are used, for their share of the total apportionment base increases from 35.8% To 36.0%, excluding adjacent towns with which they are districted, and from 37.7% To 37.9% When the adjacent towns are added. We find here no ‘ghost of prior malapportionment.’ Compare WMCA, Inc. v. Lomenzo, supra, 238 F.Supp. at 924.

It is often argued that the Supreme Court must ultimately condemn the registered voter base in general because of its potential abuse in areas of the country where people are still systematically deprived of the right to vote. This argument overlooks the possibility that different rules may apply in different parts of the nation. As the Supreme Court remarked in Reynolds v. Sims, supra 377 U.S. at 578, 84 S.Ct. at 1390: ‘What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case.’ In Vermont there is no evidence that anyone has been unjustly denied the franchise in elections to the General Assembly. On the contrary, we note that the 209,225 registered voters constitute 53.7% Of the 389,895 residents of the state. Surely this fact demonstrates that registered voters can properly be used as a representative base for legislative apportionment in Vermont.

We also find that the plans enacted by the General Assembly comply with ‘the basic standard of equality among voters in the apportionment of seats in state legislatures.’ Reynolds v. Sims, supra at 561, 84 S.Ct. at 1381. Under Act No. 98, § 4, the disparity in registered voters per representative between the largest and smallest districts in the House of Representatives is 1.30:1, and the minimum percentage of registered voters represented by a majority of the House is 48.7%. Under Act No. 97, § 3(b)(2), the maximum potential disparity in registered voters per representative between the largest and smallest districts in any future House of Representatives will be 1.35:1. These figures are well within the disparity ratio of 1.7:1% And the minimum percentage of 45.1% In the Colorado House of Representatives, which the Supreme Court indicated was ‘at least arguably apportioned substantially on a population basis' Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 730, 84 S.Ct. 1459, 1470, 12 L.Ed.2d 632 (1964).

All the parties apparently concede that multi-member districts, such as are established in the Senate and the House of Representatives by Act No. 96, § 1 and Act No. 98, § 4, are clearly permissible under the Equal Protection Clause. We agree. In Reynolds v. Sims, supra at 579, 84 S.Ct at 1390, the Supreme Court remarked that a state ‘might (legitimately) desire to achieve some flexibility by creating multimember of floterial districts,’ and in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965) the Court expressly upheld against constitutional attack the general use of multi-member districts. To be sure, in particular cases multi-member districts may violate the Equal Protection Clause, if they are designed ‘to minimize or cancel out the voting strength of racial or political elements of the voting population,’ Fortson v. Dorsey, supra at 439, 85 S.Ct. at 501. In Vermont, however, they are attributable solely to the General Assembly's policy of preserving county boundaries in the Senate, and, to a limited extent, town boundaries in the House of Representatives.