In Re the Legislative Districting of General Assembly

BECKER, Justice

(dissenting).

I reluctantly dissent from Divisions IV, V and VI of the opinion and the result. My reluctance stems from the gravity of the issue and the unanimity of the court in reaching the indicated result. There is a new duty imposed on this court by amendment to the Iowa Constitution. Since I cannot agree that because of the time element involved we can or should fail to perform this duty, it seems necessary to set out the reasons for the position taken.

I. It should first be clear that I concur in Divisions I, II and III wherein this court finds the apportionment plan represented by House File 781 is unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This immediately brings us to our own duties under the recently adopted section 36 of Article III of the Iowa Constitution:

“Upon verified application by any qualified elector, the supreme court shall review an apportionment plan adopted by the general assembly which has been enacted into law. Should the supreme court determine such plan does not comply with the requirements of the constitution, the court shall within ninety (90) days adopt or cause to be adopted an apportionment plan which shall so comply. The supreme court shall have original jurisdiction of all litigation questioning the apportionment of the general assembly or any apportionment plan adopted by the general assembly.” In the first sentence of Article 36 review is not simply permitted by this court on application by a verified elector. Such review is mandated. If we are to follow our Iowa Constitution we must review the matter.

Likewise if we determine such plan is unconstitutional, and we are apparently unanimous on the point, we shall “adopt or cause to be adopted” a constitutional plan. Professor Lettschwager testified new computer based plans could be generated within 30 to 45 days. This puts the constitu *30 tional 90 day mandate for the whole task in a reasonable light. The preparation of material for computer assistance and the consideration of individual plans could be done within the 90 day limitation.

This duty is abnegated on practical grounds. It is said it is too late to adopt a wholly new plan. The result is predicated on the election dates and filing dates for the 1970 elections. A June primary is not sacrosanct. It is inferior in terms of constitutional law to what is plainly mandated by the constitution itself. If our action creates a time difficulty the legislature need only put the primary date back to the date used in 1968 to gain 97 days. 1 I cannot believe the legislature would refuse to change the primary voting date but if it did I believe this court would have the power and duty to declare any primary election based on the malapportioned formula to be void and to order a new election at a later date. This inheres in the new duty imposed on us by the Iowa constitutional amendment.

The resolution of this problem on “practical” grounds starts the immediate erosion of the new Iowa constitutional concept. Practical grounds are familiar constitutional rationalizations. Before Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 , it was “impractical” to enter the “thorny thicket of reapportionment” so the courts tolerated the grossest kind of inequality. But whenever constitutional law has been followed according to its clear intent and purpose the “practical” difficulties have been met.

A large part of the fight over the United States Supreme Court’s insistence on equal representation is waged from the doubtful base of what is practical. It is said to be impractical to expect a political body like the legislature to reapportion on the basis of substantially equal representation. This requires, not just bipartisanship, it requires nonpartisanship. It is submitted this was recognized by the 1965 and 1967 legislatures when they proposed a constitutional amendment for our Iowa Constitution. Presumably it was also recognized by the people of the state when they approved the amendment. The practical difficulties inherent in asking an elected (political) body to reapportion itself without regard to the election (political) results were recognized when the people looked to this court to do the job if all else failed. We should try to perform the duty.

It is no answer to say this plan is acceptable because it applies to only one legislature because of the new census. The admittedly malapportioned legislature will have the task of adopting a new apportionment plan. This simply perpetuates the wrong. Our action condoning this malap-portionment notifies the legislature we will though we are mandated not to do so. accept an unconstitutional result even

As to the unreliability of the 1960 census figures, we have decided House File 781 is unconstitutional even though the legislature relied on those figures. We need not and probably should not use estimates, no matter how carefully made. The 1960 census figures are the best available. The point is, we are not talking about apportionment of the 1973 legislature. It is the malappor-tionment of the 1971 legislature that is at issue. The inequities inherent in the population shifts since the 1960 census are unavoidable no matter what we do. To use this as a reason for inaction begs the question.

There is little point in reviewing all cases ably noted in the majority opinion. *31 None of those cases were decided by state or federal courts under the state constitutional mandate we have in Iowa.

On the subject of timing of the relief sought, the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 585 , 84 S.Ct. 1362, 1393 , 12 L.Ed.2d 506 , 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 techniques 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, ‘any relief accorded can be fashioned in the light of well-known principles of equity.’ ”

Here the election is not imminent. There is time both to draw and implement a constitutional plan. Further it is no longer simply a matter of equity. Under our new state constitutional amendment we have a further mandate from our people.

This court should follow our new constitutional provision and cause a constitutionally acceptable reapportionment plan to be adopted.

II. There is another reason for reapportionment by this court which is not considered by the majority. This is the disenfranchisement of the voters of the Fourth Ward in Waterloo, Iowa. The 1967 legislature assigned certain Ward Four Precincts to Subdistrict One of the Thirty-second Senatorial Districts. This did not meet with opposition because the senate seat was not up for vote in 1968. The 1969 legislature took the precincts out of Subdistrict One and assigned them to another district where the senatorial seat is not up for vote in 1970. Thus the people of the affected precincts lost their vote for senator both in 1968 and in 1970. Apparently they have not had a chance to vote for senator since 1964 and will not have a chance to so vote until 1972, if then, (the 1971 reapportionment might again shift them elsewhere).

The above situation involves several thousand voters. Such disenfranchisement, if justifiable at all, must be justified on the strongest basis of necessity in meeting equal population standards. Such justification is not in the record.

To me, at least, this situation is a very strong additional reason for reapportionment by this court because no correction can be made without affecting the balance of other districts.

III. If the foregoing analysis is wrong the court has another alternative to House File 781. In an effort to achieve a bipartisan result the legislature caused an apportionment commission to be formed. As noted by the majority, the resolution providing for the commission made it impossible for the commission to achieve a constitutional result by prohibiting division of *32 precincts. Nevertheless the commission tried and did come up with a solution that, while not constitutionally acceptable, was at least a little closer to equality than House File 781. Not only was the result closer to equality, it was also fairer, at least to the major political parties, because it was worked out from a somewhat more equal bargaining position.

If it is too late to make a new constitutional plan, it is not too late to cause the adoption of the plan finally agreed upon by the bipartisan commission set up by the legislature. The record is replete with instances of the way the bipartisan committee traded areas and juggled the districts for political rather than equality purposes. The legislature then continued the same process, worsening the result.

Of the two plans the fairer and more equal, from the constitutional standpoint, is the commission’s plan. Pressure of time and practicality does not militate against this plan. It was adopted by the commis-

sion, delivered to the legislature and is substantially complete. If a new plan is not to be formulated by this court as directed by the constitution, I believe the commission plan should be implemented. Any necessary minor corrections could be speedily made.

Of the three alternatives open to this court, (1) formulation of a new plan, (2) adoption of the commission plan, and (3) affirmance of House File 781, the least acceptable both from the standpoint of constitutional law and plain fair dealing is the third alternative adopted by the majority. I would proceed in accordance with the constitutional mandate and adopt or cause to be adopted a constitutionally adequate population based legislative apportionment plan. I must therefore dissent from Divisions IV, V and VI and the result.

LeGRAND, J., joins in Divisions I and II.

. It should be noted the June primary date was adopted by the same 1969 legislature. Before that, in 1968 and for several prior elections, the primaries were held in September for one election. If the primary date formula for the 1968 election was again used the primary election would be held on September 8, 1970. Thus 97 days would be gained to perform this all important task without upsetting past voting patterns and with no prejudice to anyone. When time is no longer of the essence the legislature can, of course, set the primary election date as it desires.