Preisler v. Secretary of State of Mo.

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United States District Court, W.D. Missouri, Central Division.February 22, 1972341 F.Supp. 1158 (Approx. 16 pages)

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Preisler v. Secretary of State of Mo.

United States District Court, W.D. Missouri, Central Division.February 22, 1972341 F.Supp. 1158 (Approx. 16 pages)

341 F.Supp. 1158

United States District Court, W.D. Missouri, Central Division.

Paul W. PREISLER et al., Plaintiffs,

SECRETARY OF STATE OF MISSOURI et al., Defendants.

Civ. A. No. 1716.

Feb. 22, 1972.As Amended Feb. 23, 1972 and June 6, 1972.

Attorneys and Law Firms

*1159 Paul W. Preisler, St. Louis, Mo., and Irving Achtenberg, Achtenberg, Sandler & Balkin, for plaintiffs.

Gene E. Voights, and Charles B. Blackmar, Ass't Att'y Gens., for the State of Missouri, for defendants.

J. Anthony Dill, St. Louis, Mo., Harold L. Volkmer, Hannibal, Missouri, for amici curiae.

James Millan, Bowling Green, Mo., for The Honorable William L. Hungate, U. S. Representative and Hon. Bill D. Burlison, U. S. Representative.

Edward Welch, Welch and Wheadon, East St. Louis, Ill., for The Hon. William L. Clay, U. S. Representative.

Before GIBSON, Circuit Judge, BECKER, Chief District Judge, and WANGELIN, District Judge.

FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT ADOPTING JUDICIAL PLAN FOR CONGRESSIONAL DISTRICTS

PER CURIAM:

This is an equitable action filed on July 6, 1971, by nine citizens¹ of the *1160 United States and of the State of Missouri against the Governor, the Secretary of State and the Attorney General of Missouri, in their official capacities.

The plaintiffs seek (1) a judgment declaring the 1969 Missouri statutes dividing the State of Missouri into ten Congressional districts to be unconstitutional, (2) an injunction restraining the defendant Secretary of State from authorizing and permitting electoral processes including future primary and general elections for Congress of the United States from the districts established by the 1969 Act and (3) a judicial redistricting of the State of Missouri into ten constitutional Congressional districts for the preliminary election processes and for the primary and general elections beginning in 1972. (The injunction sought presumably would continue until the General Assembly of Missouri enacts a constitutionally permissible plan of Congressional redistricting.)

The District Judge before whom the action was pending determined the necessity for convening a Three-Judge Court as required by § 2281, Title 28, United States Code, and requested that the Chief Judge of the United States Court of Appeals for the Eighth Circuit convene this court pursuant to § 2284, Title 28, U.S.C. On August 12, 1971, in response to this request the Honorable M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit convened this Three-Judge Court.

Venue and jurisdiction to hear and determine this action on the merits exists under § 1391(b), § 1343(3), § 2201, Title 28, U.S.C., and under § 1983 and § 1988, Title 42, U.S.C.

In April 1969, the Supreme Court of the United States affirmed a district court decision holding the 1967 Missouri Congressional Redistricting Act unconstitutional. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519. Following this decision the Missouri General Assembly in 1969 enacted the Congressional Redistricting Act under attack in this action. Section 128.204 to Section 128.306, inclusive, Chapter 128 RSMo. In 1970 Congressional elections were held under this 1969 Act.

When the results of the 1970 decennial census became available it was readily apparent that the districts created by the 1969 Act had become constitutionally impermissible in 1971. See Congressional District Data, Districts of the 92d Congress, Missouri, CDD-92-93, June 1971 (a United States Department of Commerce Publication). The facts underlying this conclusion have been verified as a result of the pretrial and trial proceedings herein. Because of population growth and shifts between 1960 and 1970 the disparities between Congressional districts in Missouri, and the variations from the ideal are illustrated by the following uncontroverted tabulation from the currently available 1970 census figures:

Number of Congressional Seats:	10
Total Population:	4,677,399
Ideal Population for Each Congressional District:	467,740
Actual Population for Each
District Created by 1969 Act:

District	Actual Population Per 1970 Census	Variation from Ideal
First	377,097	-90,643
Second	508,745	+41,005
Third	376,211	-91,529
Fourth	527,990	+60,250
Fifth	379,619	-88,121
Sixth	462,024	- 5,716
Seventh	481,313	+13,573
Eighth	604,525	+136,785
Ninth	551,132	+83,392
Tenth	408,743	-58,997

None of the minor corrections in the preliminary 1970 census data substantially affects these figures.

On the basis of these 1970 census population figures, we conclude, without disagreement by any formal party, amicus curiae or any other interested person, that the 1969 Missouri Congressional Redistricting Act, supra, is unconstitutional and that no present or future Congressional preliminary election processes or primary or general elections may be held thereunder.

*1161 In early recognition of this inevitable conclusion the 76th General Assembly of Missouri at its regular session in 1971 considered legislation calculated to create in time for the 1972 elections ten new constitutionally permissible Congressional districts. Until November 22, 1971, we refrained from further judicial action with the hope that the Missouri General Assembly would be called into special session and would cause to be enacted into law, in time for the 1972 election processes a constitutionally permissible Congressional redistricting plan.

On November 22, 1971, we held a plenary evidentiary hearing to secure a basic record for action on the merits of this case when a decision was required. To give the Missouri General Assembly further time to act, action herein was stayed until January 31, 1972, when final hearings herein were held and the cause submitted. Unfortunately, no new Missouri Congressional Redistricting Act has been enacted into law as of mid-February 1972, the latest practicable time for legislative action. Now most formal and interested parties agree that we must render a decision in this case on the basis of the pretrial and trial.

So left with no alternative, reluctantly we proceed to establish by judicial action a constitutionally permissible Congressional redistricting plan for Missouri under which future primary and general elections for Congressional seats must be held until there is enacted into law by the General Assembly of Missouri a constitutionally permissible Congressional redistricting act. In doing so we will give effect as far as is practicable and legal to what we believe to be the will of the majority of the people of Missouri, as far as it can be discerned.

The federal law requires, and we willingly follow the federal standard that Article I, § 2 of the Constitution of the United States requires that “as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's”. This rule was enunciated in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and further defined in Kirkpatrick v. Preisler, supra.

In addition to this federal standard, Section 45 of Article III of the Missouri Constitution, V.A.M.S., requires that the Congressional districts “... be composed of contiguous territory as compact and as nearly equal in population as may be.” In devising a judicial plan of Congressional redistricting we respect and follow this state standard, as a matter of law and comity.

Some evidence of the will of the people of Missouri in some respects is found in the alignment of Congressional districts in the now obsolete 1969 Missouri Congressional Redistricting Act. To the extent practicable we give consideration to the salvageable portions of that Act.

Imperfect and to some extent inconsistent indicia of the will of the people of Missouri and their elected representatives are found in the two 1971 Congressional redistricting bills, each of which was passed by one branch of the Missouri General Assembly. Neither bill passed both branches of the Missouri General Assembly. The Missouri House of Representatives passed House Committee Substitute for Senate Committee Substitute for Senate Bill No. 370 containing a plan of Congressional redistricting. The Missouri Senate passed Senate Committee Substitute for Senate Bill No. 370 containing a substantially different plan. Neither bill passed both branches of the Missouri General Assembly, which remain in disagreement up to the present time.

Giving consideration to all factors and arguments advanced by the parties and amici curiae we have decided to establish the attached judicially devised constitutionally permissible plan for creating ten new Congressional districts from which the ten members of the United States House of Representatives from Missouri shall be elected in 1972 and in subsequent years unless and until there *1162 shall be timely enacted a new constitutionally permissible Missouri Congressional Redistricting Act. The judicial plan is appended hereto marked “Exhibit A” and made a part as if fully set out herein in words and figures.

In this plan an effort has been made to avoid splitting counties except where necessary. Furthermore an effort has been given to retaining counties in present districts as far as practicable and legally permissible. Compactness of districts, in the degree required by state law, has been achieved.

According to figures certified at our request by the System's Specialist, Andrew S. Loebl of the Administrative Services, Division of Budget and Comptroller of the State of Missouri, the 1970 census population figures of the judicially approved Congressional districts are as follows:

Number of Congressional Seats:	10
Total Population:	4,677,399
Ideal Population for Each Congressional District:	467,740
Actual Population for Each District Created by 1972 Judicial Plan:

District	Actual Population Per 1970 Census	Variation from Ideal	Percent Variation from Ideal
First	468,056	+ 316	+ .0675%
Second	468,808	+ 1,068	+ .2283%
Third	467,544	- 196	- .0419%
Fourth	466,940	- 800	- .1711%
Fifth	467,457	- 283	- .0605%
Sixth	469,642	+ 1,902	+ .4066%
Seventh	466,699	- 1,041	- .2225%
Eighth	467,532	- 208	- .0444%
Ninth	467,990	+ 250	+ .0534%
Tenth	466,731	- 1,009	- .2157%
Population deviation from highest to lowest populated district is 2943.
Percent deviation from highest to lowest populated district is .6291%.
Most populated district is District Number 6.
Least populated district is District Number 7.

The minor variations from the ideal are constitutionally permissible under the Constitution of the United States.

We express our gratitude to the State of Missouri, and in particular to the Division of Budget and Comptroller, and the members of the Missouri General Assembly and others who assisted as amici curiae. In this connection we note that the plan established hereby was devised solely by us, and we accept full responsibility therefor.

For the foregoing reasons, it is hereby

Ordered and adjudged and declared that the 1969 Missouri Congressional Redistricting Act, Section 128.203 to and including Section 128.306 of Chapter 128, RSMo., is unconstitutional. It is further

Ordered and adjudged that the defendant Secretary of State of Missouri be, and he is hereby, permanently enjoined and restrained from holding or permitting any primary or general election or administering any preliminary election processes thereunder. It is further

Ordered and adjudged that Congressional election processes and Congressional primary and general elections in 1972 and thereafter be conducted in and from the Congressional districts established in this judgment and by Exhibit A appended hereto and made a part hereof unless and until the State of Missouri enacts a timely and constitutionally permissible new Congressional Redistricting Act and such new act is timely submitted to and approved by this Court. It is further

Ordered and adjudged that this Court retain jurisdiction to implement, enforce and amend this judgment and to make such other orders and judgments as in the premises shall be meet and just.

EXHIBIT A
The 1972 Judicial Congressional Redistricting Plan for Missouri is set forth in words and figures.
CONGRESSIONAL DISTRICT NUMBER 1
St. Louis County (Part)
Normandy Township		35,800
Washington Township		18,427
Hadley Township		23,025
Lincoln Township		21,850
Jefferson Township		31,970
Clayton Township (Part) Census tracts or portions of census tracts within Clayton Township as listed:
Census Tract	2164	6,544
Census Tract	2189	7,266
Gravois Township (Part) Census tracts or portions of census tracts within Gravois Township as listed:
Census Tract	2196	2,034
Creve Coeur Township (Part) Census tracts or portions of census tracts within Creve Coeur Township as listed:
Census Tract	2159	6,458
Census Tract	2162	6,745
St. Louis City (Part) Census tracts or portions of census tracts within St. Louis City as listed:
Census Tract	1051	4,538
Census Tract	1052	6,731
Census Tract	1053	6,730
Census Tract	1054	5,358
Census Tract	1055	7,850
Census Tract	1061	9,939
Census Tract	1062	7,210
Census Tract	1063	8,325
Census Tract	1064	6,436
Census Tract	1065	7,337
Census Tract	1066	7,162
Census Tract	1067	7,589
Census Tract	1071	1,385
Census Tract	1072	2,553
Census Tract	1073	6,640
Census Tract	1074	5,891
Census Tract	1075	5,480
Census Tract	1076	4,168
Census Tract	1077	6,727
Census Tract	1081	3,952
Census Tract	1082	2,876
Census Tract	1083	2,814
Census Tract	1084	1,078
Census Tract	1085	1,778
Census Tract	1091	6,918
Census Tract	1092	401
Census Tract	1093	3,910
Census Tract	1094	2,613
Census Tract	1095	3,073
Census Tract	1101	7,446
Census Tract	1102	7,103
Census Tract	1103	7,324
Census Tract	1104	6,923
Census Tract	1105	6,209
Census Tract	1111	9,109
Census Tract	1112	7,878
Census Tract	1113	6,674
Census Tract	1114	7,357
Census Tract	1115	5,914
Census Tract	1121	7,128
Census Tract	1122	6,085
Census Tract	1123	6,166
Census Tract	1124	5,261
Census Tract	1192	5,533
Census Tract	1201	4,576
Census Tract	1202	3,908
Census Tract	1203	7,509
Census Tract	1212	6,752
Census Tract	1213	11,124
Census Tract	1214	984
Census Tract	1252	6,080
Census Tract	1254	1,350
Census Tract	1261	5,707
Census Tract	1262	1,347
Census Tract	1263	3,897
Census Tract	1264	2,280
Census Tract	1265	2,851
		468,056

CONGRESSIONAL DISTRICT NUMBER 2
St. Louis County (Part)
St. Ferdinand Township			72,022
Airport Township			108,477
Midland Township			55,790
Creve Coeur Township (Part) Except for census tracts or portions of census tracts within Creve Coeur Township as listed:			47,097
Except (-)
Census Tract	2159	-6,458
Census Tract	2162	-6,745
Clayton Township (Part) Except for census tracts or portions of census tracts within Clayton Township as listed:			43,792
Except (-)
Census Tract	2164	-6,544
Census Tract	2189	-7,266
Gravois Township (Part) Except for census tracts or portions of census tracts within Gravois Township as listed:			26,391
Except (-)
Census Tract	2196	-2,034
Census Tract	2197	-6,878
Census Tract	2198	-9,052
Census Tract	2208.01	-7,031
Census Tract	2208.02	-5,265
Census Tract	2208.03	-5,670
Census Tract	2212.01	- 214
Ferguson Township (Part) Census Tracts or portions of census tracts within Ferguson Township as listed:			24,402
Census Tract	2127		8,555
Census Tract	2124		2,986
Census Tract	2125		5,945
Census Tract	2126		6,720
Census Tract	2128 (Part)		196
Census Tract	2137 (Part)		0
Bonhomme Township (Part) Except for census tracts or portions of census tracts within Bonhomme Township as listed:
Except (-)
Census Tract	2216	- 1,190
Census Tract	2178.01	- 2,032
Census Tract	2178.02	- 7,797
Census Tract	2178.03	-11,224
			468,808

CONGRESSIONAL DISTRICT NUMBER 3
St. Louis County (Part)
Concord Township		58,576
Lemay Township		60,559
Gravois Township (Part) Census tracts or portions of census tracts within Gravois Township as listed:
Census Tract	2197	6,878
Census Tract	2198	9,052
Census Tract	2208.01	7,031
Census Tract	2208.02	5,265
Census Tract	2208.03	5,670
Census Tract	2212.01	214
St. Louis City (Part) Census tracts or portions of census tracts within St. Louis City as listed:
Census Tract	1011	4,166
Census Tract	1012	4,436
Census Tract	1013	5,836
Census Tract	1014	4,138
Census Tract	1015	4,516
Census Tract	1016	1,345
Census Tract	1017	4,441
Census Tract	1017.99	36
Census Tract	1021	3,564
Census Tract	1022	8,274
Census Tract	1023	2,771
Census Tract	1024	3,174
Census Tract	1025	2,514
Census Tract	1031	4,419
Census Tract	1032	4,857
Census Tract	1033	1,209
Census Tract	1034	2,967
Census Tract	1035	1,049
Census Tract	1036	2,145
Census Tract	1037	3,743
Census Tract	1041	4,439
Census Tract	1042	5,716
Census Tract	1043	2,829
Census Tract	1044	668
Census Tract	1131	6,256
Census Tract	1132	3,079
Census Tract	1133	1,178
Census Tract	1134	1,420
Census Tract	1141	11,028
Census Tract	1142	6,534
Census Tract	1143	7,620
Census Tract	1151	4,612
Census Tract	1152	3,804
Census Tract	1153	7,177
Census Tract	1154	3,999
Census Tract	1155	7,447
Census Tract	1156	6,368
Census Tract	1157	5,021
Census Tract	1161	4,083
Census Tract	1162	7,011
Census Tract	1163	8,597
Census Tract	1164	6,519
Census Tract	1165	6,230
Census Tract	1171	3,052
Census Tract	1172	10,877
Census Tract	1173	7,283
Census Tract	1174	7,554
Census Tract	1181	3,815
Census Tract	1182	4,757
Census Tract	1183	591
Census Tract	1184	1,703
Census Tract	1185	3,623
Census Tract	1191	7,937
Census Tract	1193	6,164
Census Tract	1221	2,737
Census Tract	1222	270
Census Tract	1224	7,043
Census Tract	1231	8,097
Census Tract	1232	4,430
Census Tract	1233	6,289
Census Tract	1234	5,576
Census Tract	1235	50
Census Tract	1241	7,528
Census Tract	1242	5,715
Census Tract	1243	7,522
Census Tract	1244	637
Census Tract	1245	2,595
Census Tract	1251	2,397
Census Tract	1253	587
Census Tract	1211	4,235
		467,544

DISTRICT FOUR
Barton County		10,431
Cass County		39,448
Bates County		15,468
Vernon County		19,065
St. Clair County		7,667
Henry County		18,451
Johnson County		34,172
Lafayette County		26,626
Saline County		24,837
Pettis County		34,137
Benton County		9,695
Hickory County		4,481
Morgan County		10,068
Cooper County		14,732
Howard County		10,561
Jackson County (Part):
Blue Township	186,188
Less Kansas City	-64,596
		121,592
Fort Osage Township		4,193
Prairie Township		18,369
Sni-A-Bar Township		15,244
Van Buren Township		3,602
Blue Township (Part) Census tracts or portions of census tracts within Blue Township as listed:
Census Tract	107.01	1,517
Brooking Township (Part) Census tracts or portions of census tracts within Brooking Township as listed:
Census Tract	142	156
	143	2,780
	144	824
	145	41
	125.01	4,192
	125.02	3,316
	125.03	1,480
	127.01	6,559
	127.02	594
	128.02	2,642
		466,940

CONGRESSIONAL DISTRICT NUMBER 5
Jackson County (Part)
Kaw Township			276,992
Blue Township (Part)
Kansas City (Part) Except for census tracts or portions of census tracts within Kansas City City as listed:			63,079
Except (-)
Census Tract	107.01	-1,517
Washington Township			85,713
Brooking Township (Part) Except for census tracts or portions of census tracts within Brooking Township as listed:			41,673
Except (-)
Census Tract	142	- 156
Census Tract	143	-2,780
Census Tract	144	- 824
Census Tract	145	- 41
Census Tract	125.01	-4,192
Census Tract	125.02	-3,316
Census Tract	125.03	-1,480
Census Tract	127.01	-6,559
Census Tract	127.02	- 594
Census Tract	128.02	-2,642
			467,457

DISTRICT SIX
Adair			22,472
Atchison County			9,240
Nodaway County			22,467
Worth County			3,359
Harrison County			10,257
Mercer County			4,910
Holt County			6,654
Andrew County			11,913
Gentry County			8,060
Daviess			8,420
Grundy County			11,819
Sullivan County			7,572
Buchanan County			86,915
Clinton County			12,462
Caldwell County			8,351
Livingston County			15,368
Linn County			15,125
Platte County			32,081
Clay County			123,644
Ray County			17,599
Carroll County			12,565
Chariton County			11,084
DeKalb County			7,305
			469,642

DISTRICT SEVEN
Jasper County			79,852
Newton County			32,901
McDonald County			12,357
Dade County			6,850
Lawrence County			24,585
Barry County			19,597
Polk County			15,415
Dallas County			10,054
Laclede County			19,944
Greene County			152,929
Webster County			15,562
Wright County			13,667
Christian County			15,124
Douglas County			9,268
Stone County			9,921
Taney County			13,023
Ozark County			6,226
Cedar County			9,424
			466,699

DISTRICT EIGHT
Howell County		23,521
Oregon County		9,180
Texas County		18,320
Shannon County		7,196
Dent County		11,457
Pulaski County		53,967
Crawford County		14,828
Washington County		15,086
Franklin County		55,116
Gasconade County		11,878
Maries County		6,851
Miller County		15,026
Cole County		46,228
Osage County		10,994
Boone County		80,911
Camden County		13,315
Moniteau County		10,742
Phelps County		29,567
St. Louis County (Part):
Meramec Township		11,106
Bonhomme Township (Part) Census tracts or portions of census tracts within Bonhomme Township as listed:
Census Tract	2216	1,190
Census Tract	2178.01	2,032
Census Tract	2178.02	7,797
Census Tract	2178.03	11,224
		467,532

DISTRICT NINE
Callaway County			25,950
Putnam County			5,916
Macon County			15,432
Schuyler County			4,665
Scotland County			5,499
Clark County			8,260
Knox County			5,692
Lewis County			10,993
Shelby County			7,906
Marion County			28,121
Randolph County			22,434
Monroe County			9,542
Ralls County			7,764
Audrain County			25,362
Pike County			16,928
Montgomery County			11,000
Lincoln County			18,041
St. Charles County			92,954
St. Louis County (Part):
Spanish Lake Township			40,905
Florissant Township			78,551
Ferguson Township (Part) Except for census			16,376
tracts or portions of census tracts within Ferguson Township as listed:
Except (-)
Census Tract	2127	-8,555
Census Tract	2124	-2,986
Census Tract	2125	-5,945
Census Tract	2126	-6,720
Census Tract	2128 (Part)	- 196
Census Tract	2137 (Part)	- 0
Warren County			9,699
			467,990

DISTRICT TEN
Dunklin County			33,742
Pemiscot County			26,373
New Madrid County			23,420
Mississippi County			16,647
Butler County			33,529
Ripley County			9,803
Stoddard County			25,771
Scott County			33,250
Carter County			3,878
Reynolds County			6,106
Wayne County			8,546
Bollinger County			8,820
Cape Girardeau County			49,350
Iron County			9,259
St. Francois County			36,818
St. Genevieve County			12,867
Jefferson County			105,248
Perry County			14,393
Madison County			8,641
			466,731

*1166

Image 1 within Preisler v. Secretary of State of Mo.

*1167

Image 2 within Preisler v. Secretary of State of Mo.

*1168

Image 3 within Preisler v. Secretary of State of Mo.

*1169

Image 4 within Preisler v. Secretary of State of Mo.

WILLIAM H. BECKER, Chief District Judge (specially concurring):

The plan approved by the per curiam opinion and judgment is constitutionally sound and permissible. It also has many meritorious features from a high level political standpoint, even though it obviously will not please everyone. Indeed it is impossible to devise a plan which will please everyone.

My initial proposal was to adopt with minor improvements the plan contained in the House Committee Substitute for Senate Bill No. 370. It was statistically the better of the two plans of the Missouri House and Senate. As a matter of principle this initial proposal would have given life to the best of the two proposals of the Missouri General Assembly. Thereby the representatives of *1170 the people of Missouri would have participated in the formulation of the judicial plan to the fullest extent possible under the circumstances. And the inclusion of this permissible judicial technique would in the future provide a motive for healthy competition between the branches of state legislatures in approaching the ideal in case agreement between the two branches again becomes impossible.