Shayer v. Kirkpatrick | Cases | Westlaw

This is an action in which the court is being asked to redistrict the State of Missouri into nine congressional districts. Missouri is currently divided into ten districts pursuant to the congressional allocation of 1972 and as set forth in Preisler v. Secretary of State, 341 F.Supp. 1158 (W.D.Mo.1972), aff'd mem. sub nom Danforth v. Preisler, 407 U.S. 901, 92 S.Ct. 2440, 32 L.Ed.2d 678 (1972). Because of the population count disclosed by the 1980 decennial census, Missouri is now entitled to only nine members in the United States House of Representatives. In accordance with federal constitutional requirements, appropriate federal legislation, and pertinent Missouri statutes and constitutional provisions, Missouri is obligated to divide the state into nine congressional districts. It has failed to enact an apportionment plan.

Shortly after the Missouri General Assembly adjourned its regular session on June 15, 1981, without passing a congressional redistricting bill, actions seeking a court-ordered apportionment plan were filed in both the Eastern and Western Districts of Missouri.

*925 The parties challenged the constitutionality of the existing apportionment (now outdated by the new population figures and decreased allocation of congressional districts); therefore, three-judge courts were established pursuant to 28 U.S.C. s 2284(a) (1976). The same judges were named to each panel. The allegations of an unconstitutional apportionment provide the jurisdictional basis. This court has jurisdiction under 28 U.S.C.A. s 1331 (1981 Supp.) (federal question) and 28 U.S.C. s 1343(a)(3) (Supp. III 1979) (deprivation of constitutional rights). The parties also alleged a violation of 42 U.S.C. s 1983 (Supp. III 1979), which provides for liability for deprivation of constitutional rights.

We determined that according to 28 U.S.C. s 1391(b) (1976) venue was proper only in the Western District. Section 1391(b) allows a claim to be brought only where all defendants reside or where the claim arose. A claim arises where the complained-of acts or omissions of a defendant occur. 92 C.J.S. Venue s 80. The defendant, Honorable James C. Kirkpatrick, Secretary of State, has his offices in the Western District (Jefferson City, Missouri), and his actions relating to elections would occur in the Western District. Therefore, a claim based on his conduct would accrue where his election duties are performed, i.e., the Western District of Missouri. The two cases filed in the Eastern District were transferred to the Western District and consolidated with the actions that were filed in the Western District. All motions to intervene were granted.

We held a hearing on September 28, 1981. Interested persons, both parties and nonparties, were allowed to present plans and suggestions for redistricting. Other plans and suggestions were subsequently filed with the clerk of the court.

In November 1981, the Governor called a special legislative session to consider the congressional redistricting issue. To prevent speculation on the plans of the court from affecting legislative action, we held no hearings and issued no orders while the General Assembly was in session. The General Assembly adjourned its extraordinary session on December 17, 1981, without passing an apportionment plan. Thus, this court is left with the task of providing an apportionment remedy.

According to 28 U.S.C. s 2284(a) (1976): “A district court of three judges shall be convened when ... an action is filed challenging the constitutionality of the apportionment of congressional districts ....” The parties alleged a violation of their rights under Article I, s 2 of the United States Constitution. Paragraph 3 of that section reads: “Representatives ... shall be apportioned among the several States which may be included within this Union, according to their respective Numbers ....” Paragraph 1 states: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ....” Missouri has not enacted a redistricting law consistent with paragraph 3, and failure to do so could result in a deprivation of the right to select representatives, a violation of paragraph 1. Therefore the constitutionality of the present, ten-district apportionment is called into question. It is apparent that the present apportionment plan (based on the 1970 census figures and subsequent allocation of congressional seats) is unconstitutional.

The General Assembly's failure to provide a means for congressional representation would, if unremedied, result in an unconstitutional deprivation of the Article I, s 2, P 1 right of the people to select representatives. Indeed, one authority has called a legislature's failure to reapportion in light of new census figures “patently and obviously unconstitutional.” Wright, Miller, and Cooper, Federal Practice and Procedure, s 4235, at 400; see Ryan v. Board of Elections, 661 F.2d 1130, 1135 (7th Cir. 1981). The apportionment ordered in Preisler v. Secretary of State, 341 F.Supp. 1158 (W.D.Mo.1972), is now outmoded and is unconstitutional because it fails to provide a *926 means by which Missouri can choose its nine representatives.

Our next task is to determine the proper remedy.

In formulating the proper remedy, we first note that a declaratory judgment is one permissible remedy. Under 28 U.S.C. s 2201 (Supp. II 1978), that remedy is available in cases of “actual controversy,” and 28 U.S.C. s 2202 (1976) allows for further relief based on a declaratory judgment. We are also aware that 42 U.S.C. s 1988 (1976) requires use of the common law when necessary to furnish suitable remedies. That section is applicable to the instant case because it applies to actions brought under 42 U.S.C. s 1983 (Supp. III 1979). See section I, supra.

Beyond these general considerations, we perceive two possible remedies. First, we could draw a court plan. Second, we could have elections at large, either by court order or by dismissal of the actions.

The first option was adopted by the three-judge court in Preisler v. Secretary of State. There the court also found an apportionment unconstitutional. In that case, population shifts disclosed by the 1970 census showed population variances between districts so great as to be unconstitutional. 341 F.Supp. at 1160. To remedy the situation the court invalidated the then-existing apportionment and drew a map which substantially achieved population equality.

A second option would be to order an election at large, or to dismiss the court actions with the assumption that an election at large would be held. The basis for this option would be 2 U.S.C. s 2a(c)(5) (1976), passed in 1929, which reads: “Until a State is redistricted in the manner provided by the law thereof after any apportionment, ... if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.”

On the other hand, a statute subsequently enacted in 1967, 2 U.S.C. s 2c (1976), appears to prohibit at-large elections. It reads: “In each State entitled ... to more than one Representative ..., there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ....” The difficulty results from the fact that neither section 2c nor its legislative history makes any reference to repealing section 2a(c)(5). Nevertheless we conclude that the later statute, section 2c, repealed section 2a(c)(5) by implication. We base this conclusion on several factors. First, nothing in section 2c suggests any limitation on its applicability. Second, the floor debate on section 2c¹ indicates that Congress intended to eliminate the possibility of at-large elections, including those in situations where the legislature had failed to enact a plan. The following comments, made by Senators Bayh and Baker, are enlightening:

We realize that the court decisions which prompted Congress to enact section 2c were not based on the statute at issue here, section 2a(c)(5). Rather, those court decisions were based on section 2a(c)(1), which provides a remedy when a state fails to redistrict and there is not a change in the number of representatives. However, that remedy, maintenance of the old districts, would usually violate the one man-one vote rule of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), because of population inequalities. See section V.A.1., infra. Nevertheless, we can see no reason to limit section 2c to the situation where there is a failure to reapportion but there is no change in the number of representatives. The plain language of section 2c suggests no such limitation. Furthermore, there is no reason to think that had Congress considered the situation where the number of representatives is decreased, it would have favored at-large elections in that context. The passages from the floor debate quoted above indicate opposition to at-large elections, rather than opposition to at-large elections prompted by Wesberry.

We also realize that “repeals by implication are not favored.” Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 193, 89 S.Ct. 354, 358, 21 L.Ed.2d 334 (1968). Nevertheless, such repeals are not unprecedented. See Gordon v. New York Stock Exchange, 422 U.S. 659, 685, 95 S.Ct. 2598, 2613, 45 L.Ed.2d 463 (1975). It is well settled that when a later statute is inconsistent with an earlier statute, the later one repeals the earlier. United States v. Yuginovich, 256 U.S. 450, 463, 41 S.Ct. 551, 554, 65 L.Ed. 1043 (1921); United States v. Tynen, 78 U.S. (11 Wall.) 88, 92, 20 L.Ed. 153 (1870); see United States v. California, 297 U.S. 175, 188, 56 S.Ct. 421, 426, 80 L.Ed. 567 (1936). Here, the plain language of section 2c is inconsistent with section 2a(c)(5), warranting a finding of repeal by implication.

Therefore, the only appropriate remedy is a court-ordered apportionment. The plan we have adopted is set forth in “Appendix A.” We now explain the criteria we used in formulating the plan.

In drawing the district boundaries we are guided by the United States Constitution, the State of Missouri Constitution, state law, and sound judicial discretion. An explanation of the criteria we have used is in order.

Our first obligation is to follow the requirements of the United States Constitution. The only requirement that has expressly been found by the Supreme Court in congressional apportionment is that the population of the districts must be as equal as practicable.

The population standard for congressional districts was announced in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The Court said: “We *928 hold that, construed in its historical context, the command of Art. I, s 2, that Representatives be chosen ‘by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.” Id. at 7-8, 84 S.Ct. at 529-30 (footnotes omitted). Five years later the Court elucidated the “as nearly as practicable” standard in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). The Court declared: “(T)he command of Art. I, s 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” Id. at 531, 89 S.Ct. at 1229. See also White v. Weiser, 412 U.S. 783, 790-91, 93 S.Ct. 2348, 2352-53, 37 L.Ed.2d 335 (1973). The Court expressly rejected a de minimis standard for population deviation.³ The Court has called population equality “the preeminent, if not the sole, criterion on which to adjudge constitutionality” in congressional reapportionment. Chapman v. Meier, 420 U.S. 1, 23, 95 S.Ct. 751, 764, 42 L.Ed.2d 766 (1975) (dictum).

The command of the Supreme Court is that there must be a reason for every deviation; the deviation must be either unavoidable with the available data, or there must be a permissible policy strong enough to justify the deviation.

The Court in Preisler specifically considered policies offered to justify deviations from the ideal. The following proffered justifications for population variances were found inadequate: (1) avoiding the fragmentation of political subdivisions, including counties and municipalities, (2) avoiding the fragmentation of distinct economic and social interests, (3) the give and take of the legislative process, and (4) compactness of districts. 394 U.S. at 533-36, 89 S.Ct. at 1230-31. The Court said projected population shifts would justify variances, but these projections must be capable of precise documentation. The Court assumed without deciding that districts could be based on the eligible voter population rather than the total population. If that method is chosen, however, it must be applied throughout the state and not be based on haphazard adjustments.⁴

In Weiser, the Supreme Court left open the possibility that a district court could deviate from the ideal population in an attempt to implement as much as possible a plan passed by the legislature. 412 U.S. at 795-97, 93 S.Ct. at 2354-55. There the Court ordered a district court to explain why it had not adopted an apportionment plan based on one passed by the legislature. Id. at 796-97, 93 S.Ct. at 2355-56. The plan adopted by the legislature had been found unconstitutional because the districts were not as equal in population as practicable. Id. at 788, 93 S.Ct. at 2351. The plan adopted by the court disregarded the one passed by the legislature. Id. at 787, 93 S.Ct. at 2351. However, the plan adopted by the court did not achieve population equality as well as the one based on the legislature's plan. Id. at 796, 93 S.Ct. at 2355. Therefore, Weiser does not stand for the proposition that implementation of a legislative plan is more important than population equality. Furthermore, four Justices concurred solely on the population equality issue. Id. at 798, 93 S.Ct. at 2356 (Powell, J., concurring, joined by Burger, C. J., and Rehnquist, J.), id. (Marshall, J., concurring in part.)

In applying the “one man-one vote” rule, we have concentrated solely on population equality. The 1980 decennial census shows *929 that Missouri has a population of 4,916,686, making the mathematical ideal for each district 546,298. We drew boundaries which give the districts populations as close as possible to equal, and we received assistance from demographic experts⁵ to bring the population even closer to the ideal. Only one district deviates from the ideal by more than one-tenth of one percent. The variance between the largest and smallest districts is 0.18%. The average variance is 0.054%. We did not consider possible justifications for a population variance because of the lack of reliable data to show population shifts and uncertainty as to what other policies can justify variance.

The plan we are adopting achieves population equality better than any plan submitted to this court and, so far as we can determine, better than any plan proposed in the legislature. The plan suggested by the dissent has a variance between the largest and smallest districts of 1.17%, more than six times as great as that in the plan we have adopted. The average variance is 0.34%, also more than six times as great as in the court plan. Only two of the districts in the dissent's plan (Sixth and Seventh) have a variance smaller than that in the district with the greatest deviation in the majority plan (Fifth). Unless there is a justification for these deviations, the dissent's plan is not constitutional because it does not create districts with populations as equal as is practicable.

The dissent does not address this constitutional requirement, but two possible justifications for the population variances can be read into the dissenting opinion. The first is that the variances resulted from an attempt not to split counties. See p. 948, par. 3, post. Although we agree that this is desirable, at least in rural counties, because it contributes to the efficient administration of elections, see p. 933, infra, it must be secondary to achieving population equality. Kirkpatrick v. Preisler, 394 U.S. at 533-34, 89 S.Ct. at 1230. The other possible justification is that the variance resulted from implementing a legislative plan. See pp. 927-928, par. 1, post. Even if Weiser would allow a variance for that reason, a proposition not at all clear, p. 947, supra; In re: Illinois Congressional Districts Reapportionment Cases, No. 81 C 3915, slip op. at 12 (N.D.Ill. Nov. 23, 1981), appeal docketed, Nos. 81-1068 and 81-1077 (U.S. Dec. 9 and 10, 1981), it would not apply to the dissent's plan. Weiser dealt with a plan approved by the legislature and later found to be unconstitutional. The dissent's plan is a proposal that was not adopted by either the House or the Senate in the General Assembly. Such a plan can hardly be said to demonstrate any legislative intent other than a rejection of the plan.

The constitutional requirement is that population be as nearly equal as is practicable, and we have achieved this better than any other plan that has been presented to the court or considered by the General Assembly. Because of the population equality requirement, discussion of rewards or punishments for population changes in the old districts is irrelevant.

The Supreme Court has also discussed the requirements of the Fourteenth and Fifteenth Amendments regarding minority voting rights. Although these cases have usually dealt with noncongressional apportionment, the questions they raise might be applicable to congressional apportionment, and therefore they deserve our consideration.

The Supreme Court has held that only purposeful discrimination or abridgment of the vote violates the Fifteenth Amendment or the equal protection clause of the Fourteenth Amendment. *930 City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Although the opinion of the Court was only a four-justice plurality, Justice Stevens concurred on the basis that even invidious discrimination would not necessarily be unconstitutional, id. at 94, 100 S.Ct. at 1514, and Justice White dissented on the grounds that purposeful discrimination was not proved. Id. at 103, 100 S.Ct. at 1520. Only two Justices, Brennan and Marshall, felt that discriminatory impact would make out a constitutional violation. Id. at 94, 100 S.Ct. at 1514 (Brennan, J., dissenting), 103, 100 S.Ct. at 1520 (Marshall, J., dissenting). Thus it is clear that we are under no constitutional duty to draw a black-majority district.⁶ This explanation of our criteria dispels any notion that a possible adverse impact on blacks is based on a discriminatory motive.

On the other hand, race can constitutionally be considered. This principle can be discerned from the opinions in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). Justices White, Stevens, and Rehnquist said that districts with black majorities can deliberately be drawn so long as white voting strength is not unfairly cancelled out. Id. at 165-68, 97 S.Ct. at 1009-11.⁷ Justices Stewart and Powell, concurring in the judgment, said that a racial criterion is not unconstitutional per se. Id. at 179-80, 97 S.Ct. at 1016-17.⁸ Although lacking a majority opinion, a majority of the Justices in U.J.O. rejected the idea that the Constitution requires color-blind redistricting.

Three months after the U.J.O. decision was announced, the Court suggested in dicta the extent to which a district court must consider race in redistricting. In Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977), the Court remanded a state legislative apportionment to a three-judge court because of population variances. The plan was also challenged as diluting black voting strength. The Supreme Court said in dicta that a court must explain departures from neutral guidelines if the departures have an adverse impact on black voting strength. In order to dispel any notion of invidious discrimination, we have not departed from neutral guidelines.

The bottom line as to our duty regarding black voting strength is that we cannot intentionally dilute it, we can-but need not-intentionally preserve it, and we probably cannot intentionally enhance it to the detriment of other groups' voting strength.

We have not attempted to divide Missouri's present black-majority district (the First). Instead, we have increased its geographic size to bring the population to the required amount. We drew a compact district by extending it to natural boundaries (the Missouri River/St. Louis County line on the north and Interstate Highway 44 on the south, connected by a line on the west that runs north-south which generally follows municipal boundaries or census tracts). This neutral approach achieves maximum compactness in the First district and also makes the Second district more compact by not wrapping it around the First district. *931 This neutral approach comports with constitutional requirements.

Finally, there is a question as to whether it is constitutional to intentionally discriminate against nonracial voting groups such as religious, ethnic, economic, or political groups. See City of Mobile v. Bolden, 446 U.S. at 86, 100 S.Ct. at 1510. (Stevens, J., concurring); Bush v. Martin, 224 F.Supp. 499, 510 (S.D.Tex.1963), aff'd, 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656 (1964), and cases cited therein. We need not resolve the question of the constitutionality of discrimination against these groups because we are not deviating from neutral standards.

The next legal standard is that imposed by the Missouri Constitution: “(Congressional) districts shall be composed of contiguous territory as compact and as nearly equal in population as may be.” Mo.Const. art. 3, s 45. We respect the additional standard of compactness as a matter of law as well as of comity.⁹ White v. Weiser, 412 U.S. at 795, 93 S.Ct. at 2354; Preisler v. Secretary of State, 341 F.Supp. at 1161; see Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964).

Determining whether a particular plan meets the state requirements can be difficult. No state appellate court has interpreted the words “compact” and “contiguous” in this section. We therefore look to the construction of those word in the sections of the constitution relating to apportionment of the Missouri House of Representatives, Mo.Const. art. 3, s 2, and the Senate. Id. at s 5. Although there are no appellate cases construing the words relating to the House, there are cases which have construed them regarding state Senate apportionment. The Missouri Supreme Court has read the words as prohibiting “gerrymandering,” long and narrow strips, and “branches,” while requiring districts to be composed of “closely united territory.” Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427, 433-35 (1955). See also State v. Hitchcock, 241 Mo. 433, 146 S.W. 40 (1912). In both of these cases, apportionment plans were invalidated. 284 S.W.2d at 437; 146 S.W. at 65.

Neither of these cases, nor others construing the words, see, e.g., Preisler v. Kirkpatrick, 528 S.W.2d 422 (Mo. banc 1975); Preisler v. Hearnes, 362 S.W.2d 552 (Mo. banc 1962), gives us guidance as to the outer limits of compactness and contiguity, although they do indicate a willingness on the part of Missouri courts to invalidate plans for failure to meet these standards. Furthermore, we do not know whether those words would be given an identical meaning as related to congressional apportionment.

It is important that our plan adhere to the requirements of the Missouri Constitution; if it were to be invalidated by a state court because it failed to meet the compactness requirement, the state would be in a quagmire regarding the election of its congressional representatives. Just the existence of lengthy litigation on the issue would be harmful. While we cannot prevent litigation, we can endeavor to lessen the probability of legal challenges by adhering to state constitutional and legal requirements where such requirements do not intrude on the commands of the United States Constitution. In fact, we are obligated to do so. White v. Weiser, 412 U.S. at 795, 93 S.Ct. at 2354.

Therefore, we strived not simply for legally sufficient compact and contiguous districts; we drew the most compact and contiguous districts we could, given the considerations involved and the weight of the various factors that go to make up the equation. We drew compact districts by blocking a district out from each of the four corners of the state until the proper population *932 was reached, by concentrating one district in the Kansas City area,¹⁰ and by concentrating three districts in four counties in the St. Louis area, where there are 149,610 people more than enough for three districts.¹¹ The last district is composed of the remaining area in the western part of the state. Complete compactness is lacking only because of our desire not to split rural counties, p. 933, infra, while achieving population equality.

On the other hand, the dissent's plan is not compact. A “finger” in the Eighth district probes into St. Louis County to secure approximately 144,000 of the required population. There are unnecessary irregular lines between the Ninth and Second districts as the Ninth dips into two separate parts of St. Louis County. We do not think it is proper for a federal court to give so little regard to the state constitutional requirement of compactness when that requirement does not conflict with federal law.

Within these legal constraints there are, of course, many plans which could be devised. We now set forth those criteria which we believe are most appropriate for a court.

Because reapportionment is primarily a legislative function, we must follow the policies and preferences of the state in fashioning an apportionment plan. Connor v. Finch, 431 U.S. at 414-15, 97 S.Ct. at 1833-34; White v. Weiser, 412 U.S. at 795, 93 S.Ct. at 2354, and cases cited therein. We did not want to intrude upon state policies any more than necessary to meet constitutional requirements. Whitcomb v. Chavis, 403 U.S. 124, 160-61, 91 S.Ct. 1858, 1877-78, 29 L.Ed.2d 363 (1971). Adhering to state policies is a way in which we can give effect to the will of the majority of the people of Missouri. Preisler v. Secretary of State, 341 F.Supp. at 1161. Other than the state constitution's compact and contiguous requirements, state policies are difficult to discern. Following them is not required by state law, so we have given the compact and contiguous requirements preeminence over all other state policies.

The state legislature's own work on apportionment can be indicative of state policy. When a state enacts apportionment legislation which is later declared unconstitutional, a court which fashions a remedy by drawing its own plan should follow the legislature's version as much as is constitutionally possible. White v. Weiser, 412 U.S. at 795-97, 93 S.Ct. at 2354-55; Preisler v. Secretary of State, 341 F.Supp. at 1161. In the instant case, however, we are being asked to apportion because no bill has been passed.

As an alternative, we could look to legislative proposals to attempt to discern a state policy. The further a bill goes in the legislative process (e.g., out of committee, passed by one house, passed by both houses but vetoed) the more it evidences a legislative policy. See Skolnick v. State Electoral Board, 336 F.Supp. 839, 846 (N.D.Ill.1971). On the other hand, the failure of a bill to be enacted evidences a legislative policy that the bill is not desired by the legislature. Therefore, we cannot simply embrace as our own the bill that went the furthest or that experts believe would have or could have passed. Such action would be a massive intrusion into the legislative process. We would, in effect, be amending the rules for enacting legislation. Although political scientists may argue over the extent to which the legislative process reflects the will of the people, we must take the procedures as we find them.

*933 This does not mean that all legislative proposals are useless. To the extent the proposals which came closest to passing have common elements, we have tried to incorporate those elements into our plan. However, plans considered by the General Assembly were so different from one another that extracting common elements is difficult. Furthermore, even when some general common elements can be discerned, they are hard to apply. The specific application of these elements will often have ramifications on the entire plan, which caused the dispute and present stalemate in the General Assembly.

Another indication of a state policy is the state's historical practices regarding apportionment. See Connor v. Finch, 431 U.S. at 419, 424, 97 S.Ct. at 1836, 1838. We have adhered to these practices to the extent possible. However, these practices are not always easy to discern or apply.

Prior apportionments are of little help. Missouri was divided into ten districts under the 1970 census. Legislative debate has centered on where to eliminate a district. The old plan, therefore, is of little help. Furthermore, that plan was drafted by a court, reducing its usefulness for reflecting legislative intent.¹²

One historical practice is that of not bisecting rural counties. Although this goal is secondary to population equality, Kirkpatrick v. Preisler, 394 U.S. at 533-34, 89 S.Ct. at 1230-31, we feel we can reasonably adhere to this practice. Respecting political subdivisions is a proper judicial approach to apportionment. Skolnick v. State Electoral Board, 336 F.Supp. at 843.

We are also mindful of the admonition of the Supreme Court in Kirkpatrick v. Preisler, 394 U.S. at 533-34, 89 S.Ct. at 1230: “(W)e do not find legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries.” However, we have attempted to not disturb county boundaries except where necessary to achieve approximate equality of population, because all of the evidence adduced in the case was that the splitting of counties can cause innumerable administrative problems and additional costs in holding elections, along with confusion among voters in the split counties. While we read the Supreme Court cases as being basically concerned with population and as demanding a population distribution as near to the quotient as is practicably possible under the prevailing circumstances, we do believe that minor deviations based on preserving definitive county and political subdivisions are permissible within very narrow limits.

We also note that historically the City of St. Louis has been divided into two districts. We realize that until the 1980 census, the official population of the City of St. Louis was greater than that necessary for one congressional district. However, in the past both districts in the City of St. Louis extended into St. Louis County, indicating that more than numerical necessity caused the division. Legislative proposals conflicted on whether to divide the City of St. Louis. This is unfortunate, because whether or not the city is divided has almost no ramifications on the rest of the plan, and therefore if legislative proposals had been in agreement we could have adopted the approach in these proposals. Because the proposals conflict on this issue, we rely on the previous state policy of dividing the City of St. Louis. We chose as the dividing line a “natural” boundary, an interstate highway near the center of the city.¹³

We realize that we could be criticized for dividing the City of St. Louis in light of its population. The city's population is 453,085, *934 which is 93,213 less than enough for one district. If the city were not divided, it would have 83% of the population of the district in which it is located. Dividing the City of St. Louis has given it a minority of the population in two districts (48% in the First and 35% in the Third). Arguably, its vote has been diluted. Nevertheless, we are not interested in preserving or diluting a particular area's strength. We have divided the City of St. Louis because of the prior state policy of doing so.

Because state policies as to apportionment are largely inconclusive, we are guided primarily by equality of population and compactness.

We have given consideration to the expressions of political and civic bodies and individuals which have been brought to the attention of this court. Of course, sentiment may conflict within a community and between communities, limiting the usefulness of such expressions.

The divergent interests which are most directly reflected in geographic distributions are those between rural and urban areas. We do not mean to suggest that all rural interests are identical; rather, we believe that the differences among various rural interests are less than the differences between any rural interest and an urban interest. These varied interests are secondary to the compactness requirement of the Missouri Constitution. Indeed, grouping of urban interests is to some extent necessary to meet the compactness requirement.

Census figures show that the population of the St. Louis Standard Metropolitan Statistical Area is 1,788,504, or 149,610 more than enough to completely fill three districts. The population of the Kansas City Standard Metropolitan Statistical Area is 884,502, or 338,204 more than enough for one district, and 208,094 less than enough to completely fill two districts. There would be no reason to have fewer than four completely urban districts, or 44.4 percent of the districts. The urban population of Missouri is 54.4 percent of the state's population, and five urban districts would give the urban areas 55.6 percent of the representatives.

Our criteria in reapportionment are, in order of importance: (1) achieving population equality, (2) drawing compact and contiguous districts, and (3) implementing state policies on apportionment, including not bisecting rural counties.

We regret that we were unable to reach a unanimous decision. However, the plan espoused by our esteemed brother does not comport with the federal constitutional requirement of population equality and does not appear to comply with the Missouri constitutional requirement of compactness. We therefore adopt the plan appended to this opinion and marked “Appendix A.” The 1980 census population figures of the judicially approved congressional districts are as follows:

*935 For the foregoing reasons, it is ORDERED, ADJUDGED, AND DECLARED that the congressional apportionment set forth in Preisler v. Secretary of State, 341 F.Supp. 1158 (W.D.Mo.1972), is unconstitutional. It is further

ORDERED AND ADJUDGED that congressional election processes and congressional primary and general elections in 1982 and thereafter be conducted in and from the congressional districts established in this judgment and by Appendix A unless and until a timely new congressional redistricting act enacted by the State of Missouri takes effect. In the event there is a conflict in Appendix A between, on the one hand, the census tract and county descriptions, and, on the other, the boundary lines as shown on the appended maps, the maps shall control. In particular, the line between the First and Third districts is the middle of the present location of Interstate Highway 44, and after it reaches Interstate Highway 55 in the eastern part of the city, the center of Interstate Highway 55 is the dividing line. The State of Missouri Office of Administration shall provide the Secretary of State with maps which detail the maps set forth in Appendix A. It is further

ORDERED AND ADJUDGED that this court retain jurisdiction to implement, enforce, and amend this judgment as shall be meet and just and in accordance with the 1980 census figures.

In Civil Actions No. 81-4144, 81-4180, 81-4196, and 81-4184, the court's redistricting plan for Missouri is set forth in words and figures, as follows: