# Preisler v. Secretary of State of Missouri > District Court, W.D. Missouri · March 4, 1968 · 279 F. Supp. 952 URL: https://www.frixlaw.com/law-library/cases/9756831 ## Case - **Full name:** Paul W. PREISLER Et Al. Plaintiffs, v. the SECRETARY OF STATE OF MISSOURI and the Attorney General of Missouri, Defendants, F. v. Heinkel Et Al, Intervenor-Defendants - **Court:** District Court, W.D. Missouri - **Decided:** March 4, 1968 - **Citations:** 279 F. Supp. 952 - **Precedential status:** Published - **Opinion:** Dissent by Matthes - **Judges:** Matthes, Oliver, Collinson - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756831 ## How later opinions describe it (automated extraction) - observing that when § 2c became law, the court “was relieved of the prior existing Congressional command [under § 2a(c)] to ordjer that the 1968 ... congressional elections in Missouri be held at large ...” were the Missouri Legislature to fail to enact a valid reapportionment… ## Opinion text MATTHES, Circuit Judge (dissenting). I respectfully dissent. In my view the majority effectively but unwarrantedly sounds the death knell *1005 to the “de minimis” doctrine in the field of Congressional redistricting. If the majority opinion survives and becomes the law, no Congressional redistricting act enacted by the Missouri Legislature can withstand judicial scrutiny so long as that body could conceivably formulate a better plan which would mathematically redistrict the state with greater equality. In short, the majority rejects the Missouri plan despite the relatively minor variations in populations between districts because it does not approach their standards of perfection. Their position necessarily leads to the conclusion that only the courts can ultimately assume and properly complete the task of Congressional redistricting — a function primarily committed to the state legislatures. Even the courts, however, would be beset with difficulties in formulating court plans to comply with the unduly strict and unrealistic standards enunciated by the majority. The “as nearly as is practicable” standard of Wesberry v. Sanders, 376 U.S. 1 , 84 S.Ct. 526 , 11 L.Ed.2d 481 (1964), or “the substantial equality of population” rule enunciated in Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), do not require the mathematical exactness contemplated by the majority. The Supreme Court has fully realized the impossibility of drawing Congressional districts with “mathematical precision.” Wesberry v. Sanders, supra, 376 U.S. at 18 , 84 S.Ct. 526 . Attainment of the “as nearly as is practicable” standard has been relegated to the legislature, not to the judgment of an idealist divorced from the problems and pressures which beset the legislator. More recently in Reynolds v. Sims, supra, a state reapportionment case involving a far greater population disparity between districts than is present here, the Supreme Court reiterated its view that “mathematical nicety is not a constitutional requisite” : “We realize that it is a practical impossibility to arrange legislative disricts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.” 377 U.S. at 577 , 84 S.Ct. at 1390. Cf. Roman v. Sincock, 377 U.S. 695, 710 , 84 S.Ct. 1449 , 12 L.Ed.2d 620 (1964). In reaching the conclusion that the 1967 Act does not pass constitutional muster the majority proceeds to discard the “de minimis” principle on the rationale that if the legislature can at any point reapportion the state on a more equal basis, without doing violence to any articulated legally acceptable state policy, that doctrine has no applicability. Although neither Wesberry nor Reynolds expressly incorporates the “de minimis” doctrine by name, its applicability in appropriate situations is implicit in both decisions. Reynolds plainly holds that “minor variations” based on legitimate considerations are permissible. 377 U.S. at 579, 84 S.Ct. 1362 . In Swann v. Adams, 385 U.S. 440 , 87 S.Ct. 569 , 17 L.Ed.2d 501 (1967), on the other hand, Mr. Justice White stated for the majority: “De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without satisfactory explanation grounded on acceptable state policy.” 385 U.S. at 444 , 87 S.Ct. at 572 . To me the quoted statement lends itself to the interpretation that if the variations are of a “de minimis” nature the plan should be judicially approved. 1 No *1006 less an authority than Judge Oliver has recognized the applicability of the doctrine in Preisler II. Speaking for the Court Judge Oliver stated: “Use of such words as ‘feasible’ and ‘practicable’ in a careful statement of the fundamental constitutional principle constitutes but a recognition that the familiar doctrine of de minimis is applicable and is designed to make clear that a State legislature would not be expected to create entirely new political subdivision lines in order to have absolute and precise mathematical equality in its congressional districts.” 257 F.Supp. at 973. Although the majority seems to disavow any reliance on the “de minimis” doctrine on the basis that only two Supreme Court [Baker v. Carr, 369 U.S. 186, 258 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1960) and Swann v. Adams, supra] and three lower court decisions have made specific reference to the pharse ’ “de minimis”, I believe its implicit recognition by the Supreme Court as well as other Three-Judge courts lies in their approval of redistricting acts which have contained a measurably greater degree of disparity between districts than does the Missouri Act. See Connor v. Johnson, infra. The majority opinion in my view has been induced in large part by an erroneous concept of the extent to which the proponents of redistricting legislation must carry forward the burden of proof enunciated in Swann v. Adams, supra and Kilgarlin v. Hill, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771 (1967). In Swann v. Adams the Supreme Court voided a state reapportionment plan consisting of variations of 30% and 40% among Senate and House districts “for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts with respect to both the senate and house of *1007 representatives.” Id. 385 U.S. at 443-444 , 87 S.Ct. at 572. In Kilgarlin v. Hill, the Supreme Court rejected an equally malapportioned plan for the reason that: “Under that case [Swann v. Adams] it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here are sufficient to invalidate an apportionment plan. Without such justification, appellants’ analysis of H. B. 195 made out a sufficient case under the Fourteenth Amendment.” Id. 386 U.S. at 122 , 87 S.Ct. at 822. (Emphasis supplied.) My brethren have interpreted these foregoing pronouncements of the Supreme Court in a very narrow light. Their position appears to be that a redistricting scheme containing minor variations in population between districts cannot satisfy the one man, one vote concept, absent the presentation of acceptable proof for these variations. This theme is clearly manifested in their statement that “ * * * the Constitution does not leave room for intentional 85%, 95%, or even 98'% compliance with its mandate; Art. I, § 2, commands equality of population in Congressional districts ‘as nearly as practicable’ and that any enacted plan that fails to eomply^with that constitutional standard, unless otherwise justified by substantial evidence in accordance with applicable law, is constitutionally void.” I would agree that population variances between districts of the magnitude of those present in Wesberry v. Sanders, supra, and Swann v. Adams, supra cannot stand absent a justifiable explanation of the reasons for such variations. I cannot, however, subscribe to the view that every unexplained, unjustified minor deviation from the ideal district renders the entire redistricting scheme constitutionally void. It seems utterly unrealistic to advocate that even a small variation of only 2% between the largest and smallest districts, absent justification, cannot survive constitutional attack. That, however, is precisely what the majority claims to be the law. To consistently apply the majority rationale to Congressional redistricting schemes would require a legislature to consider population alone as the sole, determinative standard for Congressional redistricting. Under such an approach a greater exactness in equality of population would necessarily and properly be required.' The Supreme Court, however, has not renounced all considerations other than population equality in Congressional redistricting. I do not intimate that the “equal population principle” has been discarded or weakened. It is the essential element, but the Supreme Court has also averted to other factors as justifiable variations from a pure population standard, such as the “integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts and the recognition of natural or historical boundary lines.” Swann v. Adams, supra, 385 U.S. at 444 , 87 S.Ct. 569 at 572 . Reynolds v. Sims, supra, 377 U.S. at 578-579 , 84 S.Ct. 1362 ; Cf. Wells v. Rockefeller, 273 F.Supp. 984 (S.D. Although various leaders of the Missouri Senate and House of Representatives testified unequivocally that population was the primary factor utilized in securing adoption of the Act, they did attest to the fact that the legislature did take into account other permissive considerations, such as those policy considerations specified in Reynolds and Swann , in drafting the 1967 Act. This is not to suggest that the Missouri Legislature has justifiably articulated its reasons for the variances that do exist, but merely points out, I believe, some of the intangible considerations and pressures which confronted the Missouri General Assembly as well as other state legislatures, and discloses the futility of a leg *1008 islative attempt to formulate districts of precise equality in populations. 2 An analytical comparison of the various legislative redistricting plans that have been subjected to judicial scrutiny will aptly disclose that the variations in population under the 1967 Act are truly of a “de minimis” nature. In no case has either the Supreme Court or any other Three-Judge court held constitutionally void variations as minimal as those present in the Missouri Act. See Appendix I, infra. The following Table, based upon the population of Missouri as disclosed by the .1960 census, accurately portrays the result achieved by the Missouri Legislature in the 1967 Act. District No. Population Per Centage of Variation From Ideal One 439,746 + 1.8 Two 436,448 1.03 Three 436,099 + .95 Four 419,721 2.84 Five 431,178 .19 Six 422,238 2.26 Seven 436,769 + 1.11 Eight 445,523 + 3.13 Nine 428,223 .87 Ten 423,868 1.88 Ideal population per district: 431,981 Average variation from Ideal: 1.6 % Ratio of largest to smallest district: 1.06 to 1 Number of districts above Ideal: 5 Number of districts below Ideal: 5 Number of districts within 1.88% of Ideal: 7 Population difference between largest and smallest districts: 25,802 By way of comparison, the 1961 Act voided in Preisler I created districts with an average variation of 8.47% from the ideal. In striking contrast to the 1967 Act the difference in population between the largest and smallest district was 128,-355 or a disparity ratio of 1.339 to 1. The 1965 Act declared unconstitutional in Preisler II produced Congressional districts with an average variation of 6.54% from the ideal district. The disparity ratio of the largest to smallest district was 1.218 to 1 or a population spread of 85,015. What is the practical effect of these maximum variations? Simply stated, a *1009 Congressman from the Eighth District (the largest) would represent 25,802 more constituents than his counterpart from the Fourth District (the smallest). Considering the fact that each Congressman would represent 431,981 persons if the state could be divided on an exactly equal population basis, I have difficulty in comprehending how. the residents of the Eighth District would, for practical purposes, be appreciably deprived of substantially equal representation in Congress. Certainly the 6% variation in the Missouri plan is a far cry from the 430,-368 population spread between districts found in Wesberry , or the approximately 30% to 40% population variations in Swann, Kilgarlin, Lucas v. Rhodes, Civil No. 65-264, N.D.Ohio, 1967, rev’d per curiam, 389 U.S. 212 , 88 S.Ct. 416 , 19 L. Ed.2d 423 (1967); and the large variations in Wells v. Rockefeller, supra. The Mississippi Case. Despite the herculean efforts of my brothers to sweep Connor v. Johnson, 386 U.S. 483 , 87 S. Ct. 1174 (1967), under the rug as wholly irrelevant to the case before us, (see Appendix C of the majority opinion) I strongly believe that Connor supports my conclusion that the Missouri Act is constitutional, and that the variations therein can only be considered “de minimis” in nature. I do not propose to engage in a lengthy battle of words over the underlying reason for the Supreme Court’s summary affirmance of the district court’s decision validating the 1966 Mississippi Redistricting Act. The fact is, as revealed by the district court’s opinion, Connor v. Johnson, Civil No. 3830, S.D.Miss., September 28, 1966, 256 F.Supp. 962 , the variance in population among the Congressional districts was an issue before that court. The jurisdictional statement, considered in context, discloses that this same issue was before the Supreme Court. 3 Even though the appellants in Connor did not squarely present the case before the Supreme Court in terms of an Article I, § 2 issue, I submit that the Supreme Court was concerned with the substance of all facets of the Mississippi Act, and would have unhesitatingly reversed if the variations in populations violated its one man, one vote concept as enunciated in prior cases. Inasmuch as the difference in population between the largest and smallest districts in Mississippi is 26,265, as compared to 25,802 under the Missouri Act, or a disparity ratio of 1.062 to 1, I am driven to the conclusion that Connor is impelling authority for approval of the Act before us. 4 In view of the strictness of their holding the majority has unwarrantedly given great emphasis to the failure of the General Assembly to use population figures that accurately reflected the 1960 *1010 census. I need not recount in detail the testimony of Senator Avery, who sponsored the 1967 Act in the General Assembly, in regard to the Legislature’s misgided source of information. That testimony does reveal, however, that the sources of the inaccurate population data were in part the various Election Boards in the City of St. Louis, St. Louis County, and Jackson County, which encompasses the Kansas City area. I am completely satisfied from my reading of the record that the sponsors of the 1967 Act clearly labored under the misguided impression that the sources of the inaccurate figures were reliable. Despite the inaccuracies, however, both parties stipulated that this Court should determine the validity of the 1967 Act on the basis of the 1960 census population. The difference, moreover, between the correct and incorrect figures for the entire state amounted to a negligible 1,280. This case should be decided on the basis of what was in fact achieved by the Missouri General Assembly in light of the correct population figures. To me, the crucial question is not whether a better plan might have been adopted if the correct figures were used, but rather whether the variations in population created by the 1967 Act, based on accurate population figures, offend the principle of substantially equal representation. Under the rigid formula promulgated by the majority, I am satisfied that any reapportionment scheme which might have resulted on the basis of the correct population figures, would similarly have been destined to judicial condemnation. The underlying rationale of the majority is very disturbing to me. Careful analysis of their opinion will permit only one conclusion — that if in the judgment of the court, not the legislature, a plan providing for greater equality in representation can be formulated, the legislative plan must fail. Appendices A and B attest to this conclusion. In those appendices the court has engaged in a game of “redistricting checkers” by shifting counties and townships from one district to another in order to demonstrate how smaller deviations could have been reached. This reasoning runs counter to my conception of the law. Whether the 1967 Act is constitutionally permissible should not be tested by the results that could be achieved by the use of a “mindless computer” or by the efforts of a group that is completely detached from the duties, responsibilities and perplexing problems of duly elected legislators. Obviously the Seventy-Fourth General Assembly did not achieve mathematical perfection in the distribution of Missouri’s overall population. The problem of population disparities, however, cannot be reconciled solely in terms of a mechanical test of shifting counties until the judicial ideal is met. If every apportionment Act must be cast aside because a reviewing court could devise a scheme for more equal representation, I believe it is high time that the Supreme Court, in no uncertain language, promulgates such a standard. See dissenting opinion of Mr. Justice Harlan in Rockefeller v. Wells, supra. I would hold that the 1967 Act conforms to the mandate of the Constitution. *1011 APPENDIX I A — Plans Held Unconstitutional. STATE CASE * Affirmed by Supreme Court **Court Plan Subsequently Adopted Population Difference Ratio of Between Largest and Largest to Smallest Districts Smallest District ARIZONA ARKANSAS FLORIDA ** MARYLAND* MASSACHUSETTS MICHIGAN * NEW YORK NEBRASKA NEW JERSEY ** TENNESSEE VIRGINIA Klahr v. Goddard 465, 274 D.C., 250 F.Supp. 537 Park v. Faubus 242, 541 D.C., 238 F.Supp. 62 Gong v. Kirk 90, 495 D.C., 278 F.Supp. 133 Maryland Citizens 113,505 Comm., etc. v. Tawes D.C., 253 F.Supp. 731 Dinis v. Volpe 102, 626 D.C., 264 F.Supp. 425 Calkins v. Hare 188, 084 D.C., 228 F.Supp. 824 Wells v. Rockefeller 120, 366 D.C., 273 F.Supp. 984 Exon v. Tiemann 126, 403 D.C., 279 F.Supp. 603 (1967) Jones v. Falcey 64,760 48 N.J. 25 , 222 A.2d 101 Baker v. Clement 111, 830 D.C., 247 F.Supp. 886 Wilkins v. Davis 214,208 205 Va. 803 , 139 S.E.2d 849 1 .73 tó 1 1.34 to 1 1.27 to 1 1.6 to 1 1.312 to 1 1.32 to 1 1.68 to 1 *1012 B — Held Constitutional *Reversed by Supreme Court ■ **Affirmed by Supreme Court STATE_ Population Difference Ratio of Between Largest and Largest to CASE Smallest Districts Smallest District ALABAMA Moore v. Moore D.C., 246 F.Supp. 578 54 ,505 1.14 to 1 ILLINOIS Kirby v. Illinois State Electoral Board D.C., 251 F.Supp. 908 57 ,046 ..... * INDIANA Grills v. Branigin D.C., 255 F.Supp. 155 84 ,545 1.2 to 1 KANSAS Meeks v. Avery D.C., 251 F.Supp. 245 15 ,060 1.03521 to 1 MISSISSIPPI Connor v. Johnson D.C., 265 F.Supp. 492 26 ,265 1.062 to 1 NEW HAMPSHIRE Levitt v. Maynard 105 N.H. 447 , 202 A.2d 478 56 ,715 1.2 to 1 NORTH CAROLINA Drum v. Seawell D.C., 271 F.Supp. 193 17 ,276 1.04 - to 1 * OHIO Lucas v. Rhodes (Unreported) 137,806 1.430 to 1 TEXAS Bush v. Martin D.C., 251 F.Supp. 484 [Held provisionally constitutional] 80,892 1.22 to 1 . Consideration of various judicially drafted Congressional redistricting plans, which the Courts have formulated as the result of legislative inaction, reveals the difficulties inherent in attempting to achieve substantial equality in population in creating Congressional districts. In my view each of these court-created plans embodies the philosophy that the “de minimis” doctrine is applicable in reapportionment cases. In each instance a Three-Judge court adopted and approved a plan which included variations from the norm, without attempting to achieve a *1006 greater degree of equality between districts. In Baker v. Ellington, Civil No. 3945, M.D.Tonn., July 13, 1967, 273 F.Supp. 174 , the Court redistrictod the State of Tennessee, which had a population of 3,-567,089, into nine districts. Based on this figure the ideal population per district was 396,343. The Court-adopted plan provided for a difference in population of 16,728 between the largest and smallest Congressional district, or stated differently, a maximum variation of 2.-176% above the ideal district and 2.044% below. In Maryland Citizens Committee For Fair Cong. Redist. v. Tawes, 253 F.Supp. 731, 733 (D.Md.1986), aff’d sub nom., Alton v. Tawes, 384 U.S. 315 , 86 S.Ct. 1590 , 16 L.Ed.2d 586 (1966), a Three-Judge district court, after holding unconstitutional the 1965 Maryland Congressional Redistricting Act, prescribed its own redistricting plan with a maximum deviation ratio of 1.026 to 1, or a difference of 9,973 between the population of the largest and smallest district. Under another court-created redistricting plan, the State of Florida was divided into twelve Congressional districts, each consisting ideally of 412,630 persons. The largest district contained a population of 415,704 or .74% greater than the ideal district, while the smallest district contained a population of 407,677, a difference of 8,027, or 1.20% below the ideal. Gong v. Kirk, Civil No. 64-143, S.D.Fla., August 2, 1967, 278 F. Supp. 133 . A Three-Judge district court in Montana eliminated a previous disparity of 120,332 between that state’s two Congressional districts by creating two new districts having a population of 327,019 and 347,701, respectively, or a variation of 20,682. Roberts v. Babcock, 246 F. Supp. 396 (D.Mont.1965). In Illinois a Three-Judge federal court in consultation with the state court divided the state into twenty-four Congressional districts. The plan was adopted despite the fact that the district having the least population (No. 16-394.481) deviated from the norm 420,048) by 6.1%, and the largest district (No. 8-451,527) by 7.5%. People ex rel Scott v. Kerner, 33 Ill.2d 460 , 211 N.E.2d 736 (1965). Lastly, in Klahr v. Goddard, 250 F. Supp. 537 (D.Ariz.1966), a Three-Judge court apportioned Arizona’s three Congressional districts on the basis of the 1960 consus. The court’s plan reshuffled various counties from one district to another to equalize the population disparity, but resulted nonetheless in a 61,-244 variance in population between the First and Third districts. . On page 5 the opinion states, in substance, that after defendants learned that the actual population variances were in many instances substantially greater than those appearing in defendants’ motion, they advised the court of their desire to “adduce evidence, to attempt to justify the greater variations that had in fact been established.” This does not comport with my knowledge and understanding of the pre-hearing proceedings. The Attorney General of Missouri advised Judge Oliver by letters dated October 11th and October 17, 1967 (copies to Judge Collinson and me) that he desired to produce witnesses at the hearing. The Attorney General did not state in either letter, or in any other communication within my knowledge that he would attempt to justify the greater variations. In view of my basic position, this matter is of no great significance. In fairness, however, to the Attorney General, my comprehension of what transpired should be recorded. . “Nor does the legislature’s adopted plan conform to standards of population equality when compared to the available alternatives. The difference between the largest and the smallest district under the plan adopted is 28,-061; the same figure for the Revised Delta Plan is 13,672, less than half. The greatest deviation from the norm in the adopted plan is 15,332; in the Revised Delta Plan, it is 7,572. The average deviation of all five districts in the adopted plan is 11,547; in the Revised Delta Plan it is 3,767. Clearly, the desire to achieve mathematical population equality was not decisive for the Mississippi legislature in its choice of plans.” P. 8, appellants’ jurisdictional statement filed in the Supreme Court. . Toombs v. Fortson, 241 F.Supp. 65 (N.D. Georgia, 1965), affirmed without opinion, 384 U.S. 210 , 86 S.Ct. 1464 , 16 L.Ed. 2d 482 (1966), teaches that a departure figure of 15% is permissible. I am mindful that Toombs involved reapportionment of the Georgia General Assembly. This does not dilute the strength of the pronouncement of the Toombs court. The Supreme Court has held, by implication if not expressly, that the standards for testing the validity of a state apportionment plan are applicable in determining whether a Congressional redistricting scheme satisfies the mandate of the Constitution. Huddleston v. Grills, 385 U.S. 455 , 87 S.Ct. 611 , 77 L.Ed.2d 508 (1967); Wells v. Rockefeller, supra, aff’d sub nom., Rockefeller v. Wells, 389 U.S. 421 , 88 S.Ct. 578 , 19 L.Ed.2d 651 (Dec. 19, 1967). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756831. Public record. Not legal advice.