Drum v. Seawell | Cases | Westlaw

In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court laid down guide lines to assist the lower courts in implementing the constitutional guaranties of suffrage. The Equal Protection Clause requires substantially equal representation for all citizens in a state in each of the two Houses of a state bicameral Legislature. This right may not be debased by weighing votes differently according to where a citizen happens to reside. Representation in state legislative bodies must be, as nearly as practicable, apportioned on districts of equal population though mechanical exactness is not required. Political subdivisions may be recognized but not at the cost of substantial equality among the several districts. Considerations of history, economic or other group interests or area alone do not justify substantial deviations from the equal population concept. Nor will the presence of large numbers of military and military related personnel justify the under-representation of an area. ‘Discrimination against a class of individuals, merely because of the nature of their employment, without more being shown, is constitutionally impermissible.’ Davis v. Mann, 377 U.S. 678, 691, 84 S.Ct. 1441, 1448, 12 L.Ed.2d 609 (1964).

We turn to the congressional districting of the State. There are eleven districts and the proportional representation per district is 414,196 persons. We note that six of the eleven districts vary from the average by more than 10 per cent; four by more than 15 per cent, and only two districts are within 5 per cent of the average. The smallest district in population (the first) contains 136,335 less than the average while the largest (the eighth) contains 77,265 more than the average. No valid explanation is offered to justify these glaring discrepancies, if indeed they could be justified. We agree with the statement in the Amicus brief that the minimum controlling percentage is not significant. We are concerned with the population variance ratio of 1.8 to 1. Such a variance cannot be justified. In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court said:

The Constitution of North Carolina (Art. II, §§ 5 and 6) provides that the House of Representatives shall consist of 120 members and that each of the State's counties shall have at least one representative ‘although it may not contain the requisite ratio of representation.’ The remaining 20 are to be divided among the more populous counties. The House is now apportioned in accordance with this requirement. The proportional representation in the House is one member per 37,968 persons. The member from Wayne County has 82,059 constitutents and the member from Tyrrell 4,520. A population variance of 18.2 to 1. Sixty-one of the least populous counties having a population of 1,234,325 can elect a majority of the House. Thus the minimum controlling percentage is 27.1%. These variances are too great to be acceptable. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, cert. denied, 382 U.S. 894, 86 S.Ct. 185, 15 L.Ed.2d 150. We cannot accept the State's argument that this formula has been in the Constitution since 1836 and that the State re-entered the Union with the formula in effect. Reynolds v. Sims, supra. We note, however, that when the formula originally took effect the State had 65 counties, leaving 55 memberships in the House to be apportioned. Today with 100 counties only 1/6 of the House remains to be apportioned among the most populous counties. North Carolina has no provisions for initiative and referendum; its Governor has no veto power, thus the people of the State have no practical means by which to rectify an imbalance of representation in one of the most powerful legislative bodies in America.

*881 The North Carolina Constitution, Article II, Section 4, requires the General Assembly to alter the senatorial districts after the return of every census so that each district, as nearly as may be, shall have an equal number of inhabitants. Pursuant to this mandate, the 1963 Act (N.C.G.S. § 120-1) apportioned the fifty Senators among 36 districts of the State. An examination of the evidence shows that each of the fifty Senators should ideally represent 91,123 persons; that the smallest district in terms of population contains 65,722 persons and the three largest, respectively, 123,260, 127,074, and 148,418. We note that the minimum controlling percentage is 47.1 and the population variance ratio 2.3 to 1.

The plaintiff having proven his charge of discrimination on the basis of population by evidence to which the parties have stipulated, the burden was placed upon the defendants to justify the variations from this standard which were shown to exist. The defendants have failed to meet this burden and we are forced to the conclusion that the plaintiff and those in his class are entitled to relief. Mann v. Davis, 213 F.Supp. 577, 584 (E.D.Va.1962). We will enter a judgment declaring the invalidity of the pertinent State constitutional and statutory provisions.

We cannot allow the regularly scheduled 1966 primaries and elections to proceed under laws now held to be invalid. We recognize, however, that it is fit and proper that the Legislature of this State should be given an opportunity to rectify the inequities which exist before this court should undertake to do so. Ample time now exists before the primary scheduled for May 28, 1966, for the Governor to call a special session of the Legislature. We will, therefore, stay the mandate of our injunction until January 31, 1966, in order that such a session may be convened. If apportionment compatible to constitutional standards cannot be achieved by that date this court will regretfully undertake to fashion a scheme of apportionment which will permit the 1966 primaries and elections to proceed on a just and equitable basis. We think that the right of the people of the First Congressional District to be represented *882 in the Congress during the interval which must intervene while adequate consideration is given to a statewide reapportionment of our Congressional representation requires us to decline to interfere with the special election which has been called to fill the vacancy in that District.