Motion — DeWitt v. Foley

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In The ie ; .

Supreme Court of the United States

October Term, 1992

TIMOTHY A. DeWITT, et al., 4

Appellants,

Vv.

THOMAS S&S. FOLEY, et al.,

: Appellees.

On A From The United States | :

~ 'BEST AVAILABLE COPY

QUESTION PRESENTED

Is the requirement of 2 U.S.C § 2c that Representa-

tives be elected in single-member districts a valid exercise

of Congress’ authority to prescribe the “times, places and

manner of holding elections” for its members under Art.

I, § 4, of the Constitution?

TABLE OF CONTENTS

QUESTION PRESENTED . .i.5s0csuenucteedess gedua

MOTION OF APPELLEES GOVERNOR OF CALI-

FORNIA PETE WILSON AND SECRETARY OF

STATE MARCH FONG EU TO AFFIRM .........

STATEMENT OF THE CASE... .......ccscecesccsses

A. Summary of Material Facts... ..4....0cescieces

B. Summary of Procedural History................

STATEMENT .........<ie.s0000eneeeeeee en eee ees

ARGUMENT ... ...2402 55s es oh 5 een ie eee

I. DEFENDANTS ARE BOUND BY CONGRESS’

DETERMINATION THAT ELECTIONS BE HELD

IN SINGLE-MEMBER DISTRICTS..............

II. CONGRESS HAS AUTHORITY TO REQUIRE

ELECTION BY SINGLE-MEMBER DISTRICTS...

A. The Founders Intended That Congress Have

Authority To Ensure Its Members Are

Elected By (0G ...5<<0ciasansasecensces

B. Congress Has Exercised Its Power To

Require District Election For 150 Years With-

Gut CROROGOS... 0 ives cereuneeeenaienbess

CONCLUSION ....0..000000keuemees eee ene

iii

TABLE OF AUTHORITIES

Page

Cases

Colegrove v. Green, 328 U.S. 549, 555 (1945) ..... 11, 12

Ex Parte Yarbrough, 110 U.S. 651, 660 (1883)..... Bi, f2

Ex Parte Siebold, 100 U.S. 371, 384 (1879)........ 12, 14

Karcher v. Daggett, 462 U.S. 725 (1983) .............. 7

Legislature v. Reinecke, 6 Cal.3d 595, 603 (1972)...... 7

Members of Democratic Cong. Delegation v. Eu,

790 F. Supp. 925, 932 (N.D. Cal. 1992)........ 3, 6, 7

Montano v. Lefkowitz, 575 F.2d 378, 385 (2nd Cir.

DP stietokhanedsékuvasseseved hehe eiecasuai 11, 13

Oregon v. Mitchell, 400 U.S. 112, 120, n. 2 (1970)

Saeue chad dead edGAl wk kb be 4 ved onineecneamly 10, 14, 15

Scott v. Germano, 381 U.S. 407, 409 (Per Curiam)

hi 6 6 bE dddi nbs 04 nb0vaseee 6 dae enameled est 6

Shayer v. Kirkpatrick, 541 F. Supp 922, 927 (W.D.

Se PPPrrrrrrrrrrerrerrrerrr rr rrr) Tyr rere 13

Urivied States v. Gadwell, 243 U.S. 476, 482 (1916) .... 11

Wesberry v. Sanders, 376 U.S. 1 (1963)............ 7, 13

Whitcomb v. Chavis, 403 U.S. 124, 158, n 39 (1970) .... 11

Wilson v. Eu, 1 Cal.4th 707 (1992)..............000- a

Wilson v. Eu, 54 Cal.3d 471 (1991)................05- 2

Wood v. Brown, 287 U.S. 1, 6 (1932) ............005: 13

TABLE OF AUTHORITIES - Continued

Page

Copes

DN Gann deucadsesuace oso snes biewaseas 3, 6, 13

ee le Oe I oa 5 0d sce sek apinstutesedouuabenwus 5

i EG i nacga ca nccaeunan saben ctexuuaa 4

Oe ED os ci riccescsabevearueasawinds 4

Federal Rules of Civil Procedure, Rule 12(b)......... ~

Rules of the Supreme Court, Rule 18.6............... 1

CONSTITUTIONAL PROVISIONS

nm. 1, & 2, @. 3, 2 Ome a, Ast. TY, BG. onc cccccsscess 4

ENS oach ese Nersneeeneebhakuenseunernd ct passim

I Nh Lod da ee 44 nan kk owe badd eka dae sane 8

California Constitution, Art. XXI, § 1(a).............. 4

OTHER AUTHORITIES

2 J. Elliott’s Debates on the Federal Constitution 27

SENG & bban 5 bd Os SAR a eek oak 0% 10

“Brutus” Essay IV, to the People of the State of

New York, November 29, 1787, The Anti-Federal-

ist Papers (Ketcham ed. 1986) at p. 329............ 10

Madison, Notes of Debates in the Federal Conven-

tion of 1787 (Norton 1987) at p. 85................ 9

Rev. Stats. of 1873-74, §§ 5506 to 5532 .............. 12

“Speech of Patrick Henry to the Virginia Ratifying

Convention,” The Anti-Federalist Papers (Ket-

cham ed. 1986) at p. 329; June 7, 1788, p. 215..... 10

The Federalist, No. 59 (Mentor 1961) at p. 363....... 9

No. 92-805

In The

Supreme Court of the United States

October Term, 1992

TIMOTHY A. DeWITT, et al.,

Appellants,

THOMAS S. FOLEY, et al.,

Appellees.

On Appeal From The United States

District Court For The

Northern District Of California

MOTION OF APPELLEES GOVERNOR OF

CALIFORNIA PETE WILSON AND SECRETARY OF

STATE MARCH FONG EU TO AFFIRM

Appellees Pete Wilson, Governor of the State of Cali-

fornia, and Secretary of State March Fong Eu hereby

move this Court, pursuant to Rules of the Supreme Court,

Rule 18.6, to affirm the judgment of the United States

District Court for the Northern District of California on

the grounds that the question presented by this appeal is |

without merit and needs no further briefing or argument.

STATEMENT OF THE CASE

A. Summary of Material Facts

As stated in the opinion below:

“Plaintiffs are three residents of California’s

seventh congressional district, and one resident

of the state of Virginia. In the 1990 primary and

general elections, the California plaintiffs

attempted to vote for candidates outside the

seventh district by writing different district

numbers on their ballots and writing in the

names of candidates in those districts. They

allege that they want to associate with like-

minded voters across the state to elect congres-

sional representatives. The Virginia plaintiff

wants to associate with like-minded Latino

voters across state lines by voting in California’s

congressional elections.” Slip opinion, Appen.

A, infra, pp. 2-3; emphasis in original.

The Congressional redistricting plan which appel-

lants challenge was ordered by the California Supreme

Court in January of 1992. Wilson v. Eu, 1 Cal.4th 707

(1992). The Court accepted and adopted, as modified, a

redistricting plan proposed by three special masters

appointed by the Court four months earlier in light of the

failure of the Legislature of California to adopt a plan for

the 1992 primary and general elections. Wilson v. Eu, 54

Cal.3d 471 (1991).' The redistricting plan allocates

' The masters held six days of public hearings in Los

Angeles, Sacramento, San Diego and San Francisco. Wilson v.

Eu, supra, 1 Cal.4th at 713. Oral and written testimony was

received on a number of topics relating to redistricting, as well

as 22 separate redistricting plans proffered by various inter-

California’s Congressional Representatives into 52 single-

member districts.

B. Summary of Procedural History

On January 29, 1992, appellants filed a complaint

challenging the redistricting plan for California’s con-

gressional delegation. Specifically, appellants alleged that

2 U.S.C § 2c?, which requires election of Representatives

ested parties. Id., at p. 742. The masters additionally reviewed

transcripts from 12 public hearings on redistricting held by the

California Senate between December 1990 and September 1991.

Ibid. Appellants failed to participate in any of these hearings.

Upon presentation of the masters’ report, the California

Supreme Court itself then accepted additional written com-

ments and amici curiae briefs from interested parties before

adopting the masters’ plan, as modified. Id., at p. 720. Again, no

comment was received from appellants.

Following adoption of the California Supreme Court's plan,

a three-judge panel of the District Court dismissed a challenge

to the plan unrelated to appellants’ action on the grounds of

abstention, stating: “We have no doubt that the state proceed-

ings here provided the required due process for the adjudication

of the federal issues.” Members of Democratic Cong. Delegation v.

Eu, 790 F. Supp. 925, 932 (N.D. Cal. 1992).

2 Section 2c, enacted in 1967, provides in relevant part:

“In each State entitled . . . to more than one Rep-

resentative . . . there shall be established by law a

number of districts equal to the number of Represen-

tatives to which such State is so entitled, and Repre-

sentatives shall be elected only from districts so

established, no district to elect more than one Repre-

sentative....”

— = EH ai

— CCT

by single-member districts, and the implementing provi-

sions of the California Constitution, Art. XXI, § 1(a)°, and

Elections Code § 250004, are unconstitutional. The com-

plaint alleged seventeen separate claims for relief, con-

tending, inter alia, that election by single-member

districts violates Art. I, § 2, cl. 1, 2, and 3, Art. IV, § 4, and

the First, Fourteenth, Fifteenth, Nineteenth, and Twenty-

Sixth Amendments to the Constitution, as well as the

federal Voting Rights Act, 42 U.S.C. § 1971 et seq. The

court below summarized:

“The gravamen of these claims is that

minority groups (whether by race, sex, age or

political orientation) are unable to obtain repre-

sentation in proportion to their numbers;

because while they may have enough votes

state-wide to elect a representative, they rarely

constitute a majority within a congressional dis-

trict. This allegedly perpetuates a House of Rep-

resentatives composed of predominantly white

male incumbents, in an increasingly hetero-

geneous society.” Appen. A at p. 4.

On March 16, 1992, state defendants Governor

Wilson and Secretary of State Eu moved to dismiss the

complaint pursuant to Federal Rules of Civil Procedure,

3 Article XXI, § 1(a) provides in relevant part: “Each mem-

ber of .. . Congress . . . shal’ be elected from a single-member

district.”

* Section 25000 states in relevant part: “At each general election

there shall be elected to the Congress of the United States: (a) One

Representative for each congressional district. . . . ”

Rule 12(b), for, inter alia, failure to state a claim upon

which relief may be granted.®

The motion was argued on May 5, 1992, before a

three-judge panel of the District Court for the Northern

District of California pursuant to 28 U.S.C § 2284(a). On

August 31, 1992, the court granted defendants’ motion,

dismissing the action without leave to amend. Appen. A.

Notice of Appeal was filed on September 11, 1992.

On September 15, 1992, appellants applied to Justice

O’Connor, as Circuit Justice for the Ninth Circuit, to stay

the opinion below and enjoin defendants from either

administering the November 3 general election or giving

effect to the June 2 primary election of California’s Con-

gressional delegation. The application for stay and

injunctive relief was denied by Justice O’Connor on Sep-

tember 22.

On October 2, 1992, appellants “renewed” their

application for stay and injunctive relief, this time direct-

ing the application to Justice Scalia. The application was

denied by Justice Scalia on October 13.

Appellants’ Jurisdictional Statement was then

received on November 5, 1992, prompting this Motion To

Affirm.

5 Defendants also moved to dismiss on the basis of plain-

tiffs’ laches in waiting to file their challenge until the eve of

California’s primary election. The court held that in view of its

judgment dismissing the action for failure to state a claim upon

which relief may be granted, it need not address the question of

laches. Appen. A at p. 19.

LOL

STATEMENT

This case involves the sole issue of whether Congress

has the authority under Art. I, § 4, of the Constitution to

prescribe the “times, places and manner of holding elec-

tions” for its members include the power to require that

election be by single-member district as provided in 2

U.S.C § 2c.6

Clearly, it does. As detailed below, Congress required

election by single-member districts over 150 years ago;

this Court has recognized the validity of single-member

districts since 1879. In dismissing appellants’ complaint,

the district court aptly summarized, “Congress’ authority

to require that elections be held by single-member dis-

tricts can no longer be seriously questioned.” Appen. A at

p- 17. This appeal presents no issue requiring further

briefing, argument or consideration by this Court.

6 Appellants also challenge the authority of the California

Supreme Court to order redistricting in the face of failure by the

California Legislature to enact a plan in time for the state’s

primary and general elections. The same argument was raised

below and dismissed by the court in one sentence: “” ... there is a

long history of court participation in redistricting when the

elected branches do not do so. See authorities cited in Members

of California Congressional Delegation v. Eu, 790 F. Supp. 925 (N.D.

Cal. 1992).” Appen. A at p. 19.

Almost 30 years ago this Court declared: “The power of the

judiciary of a State to require valid reapportionment or to for-

mulate a valid redistricting plan has not only been recognized

by the Court but appropriate action by the State in such cases

has been specifically encouraged. [citations.]” Scott v. Germano,

381 U.S. 407, 409 (Per Curiam) (1964). This issue requires no

further attention from the Court.

Accordingly, the judgment of the District Court should be

affirmed.

ARGUMENT

DEFENDANTS ARE BOUND BY CONGRESS’ DETER-

MINATION THAT ELECTIONS BE HELD IN SINGLE-

MEMBER DISTRICTS ‘

The role of state appellees Governor Wilson and Sec-

retary of State Eu in this action is merely “formalistic,”

arising solely from their responsibility to conduct Califor-

nia’s Congressional elections using the single-member

districts adopted by the California Supreme Court. Mem-

bers of California Democratic Cong. Delegation v. Eu, supra,

790 F. Supp at 728.

In fashioning the instant redistricting plan, the Cali-

fornia Supreme Court was “guided by” its previous redis-

tricting decisions. Wilson v. Eu, supra, i Cal.4th at 713.

Those decisions in turn cite Congress’ mandate of single-

member districts as binding upon the State of California.

Legislature v. Reinecke, 6 Cal.3d 595, 603 (1972).7

7 In creating the Congressional districts here at issue the

California Supreme Court’s masters were primarily guided by

this Court’s directions in Karcher v. Daggett, 462 U.S. 725 (1983).

Wilson v. Eu, supra, 1 Cal.4th at 717. Karcher directs:

“Article I, § 2, establishes a ‘high standard of

justice and common sense’ for the apportionment of

congressional districts: ‘equal representation for

equal numbers of people.’ Wesberry v. Sanders, 376

Congress’ mandate of election by single-member dis-

tricts is the supreme law of the land and binding upon

the state defendants. Art. VI, § 2.

CONGRESS HAS AUTHORITY TO REQUIRE ELEC-

TION BY SINGLE-MEMBER DISTRICTS

Appellants acknowledge at the outset that there is no

~—case expressly upholding Congress’ authority to prescribe

election by single-member districts. Thus plaintiffs,

defendants and the court below have each had to make

an exhaustive search of the history of Art. I, § 4, cl. 1.*:

the drafters’ debates over its wording, the arguments for

and against ratification, the statutes Congress has enacted

pursuant to this authority over the past 150 years, and

this Court’s analysis of those enactments. The full histori-

cal record is detailed in the District Court’s opinion and

defendants original motion to dismiss. Appen. A and B,

respectively. For purposes of this motion to affirm, appel-

lants offer a more condensed version.

U.S. 1, 18 (1964). Precise mathematical equality, however, may

be impossible to achieve in an imperfect world; therefore the

‘equal representation’ standard is enforced only to the extent of

requiring that districts be apportioned to achieve equality ‘as

nearly as is practicable.’” Id., at 730; emphasis added.-

8 “The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in each State

by the Legislature thereof; but the Congress may at any time by

Law make or alter such Regulations, except as to the Places of

chusing Senators.”

A. The Founders Intended That Congress Have

Authority To Ensure Its Members Are Elected

By District

Alexander Hamilton termed Art. I, § 4, the most

“completely defensible” provision of the entire Constitu-

tion: “Its propriety rests upon the evidence of this plain

proposition, that every government ought to contain in

itself the means of its own preservation.” The Federalist,

No. 59 (Mentor 1961) at p. 363; emphasis in original.

From inception through ratification, those ‘who

drafted, debated, supported or opposed the Constitution

all recognized that Congress would have authority to

require that Representatives be elected by single-member

districts. ;

The drafters’ initial debate was whether Representa-

tives should be elected directly by the people in districts,

or indirectly by state legislatures.? Once it was concluded

that election should be directly by the people, the debate

turned to whether Congress or the states should control

the holding of these elections. Madison supported shared

authority between Congress and the states over the

“time, places and manner” of elections — including the

authority to require election by district.!°

9 George Mason and James Wilson of Virginia proposed

direct “ ... election by the people in large districts which would

be most likely to obtain men of intelligence and uprightness;

subdividing the districts only for the accommodation of

voters.” Madison, Notes of Debates in the Federal Convention of

1787 (Norton 1987) at p. 85; emphasis added.

10 “These were words of great latitude. It was impossible to

foresee all the abuses that might be made of the discretionary

eRe

The Constitution presented for ratification contained

Art. I, § 4, in its present form, giving Congress the “wide

latitude” over election of its members which Madison

had argued for. This power - particularly the possibility

that Congress would require election at-large as

requested by appellants - was one of very the arguments

raised in opposition to ratification.11 Those supporting

ratification countered that Congress must have this

authority to correct unequal districts created by the

states. 2 J. Elliott’s Debates on the Federal Constitution 27

(1876); Oregon v. Mitchell, 400 U.S. 112, 120, n. 2 (1970).

power. Whether the electors should vote by ballot or via voce,

should assemble at this place or that place; should be divided

into districts or meet all at one place; should all vote for all the

representatives; or all in a district vote for a number allotted to

the district; these and many other points would depend on the

Legislatures, and might materially affect the appointments. . . .

What danger could there be in giving a controlling power to the

National Legislature? Of whom was it to consist?” Id. at 423;

emphasis added.

11 “The proposed Congress may make the whole state one

district, and direct that the capital (the City of New York, for

instance) shall be the place for holding the election. . . . They

may declare that those members who have the greatest number

of votes, shall be considered as duly elected; the consequence

would be that the people, who are dispersed in the interior parts

of the state, would give their votes for a variety of candidates,

while any order, or profession, residing in the populous places,

by uniting their interests, might procure whom they pleased to

be chosen - and by this means the representatives of the states

may be elected by one-tenth part of the people who actually

vote.” “Brutus” Essay IV, to the People of the State of New York,

November 29, 1787, The Anti-Federalist Papers (Ketcham ed.

1986) at p. 329; See also “Speech of Patrick Henry to the Virginia

Ratifying Convention,” June 7, 1788. Id. at p. 215.

Thus in both the drafting and ratification debates,

each side recognized Congress’ ultimate authority to

decide if elections would be by districts. The question

was only whether placing this power in Congress was the

best way to in fact assure election by local districts - a

goal shared by both sides.

B. Congress Has Exercised Its Power To Require

District Election For 150 Years Without Chal-

lenge : :

Congress took no action regarding district elections

for the first 50 years following ratification, resulting in

great diversity among the states in the manner of choos-

ing Representatives. Colegrove v. Green, 328 U.S. 549, 555

(1945). Some states did in fact elect all their Representa-

tives on a siogle state ticket. Linited States v. Gadwell, 243

U.S. 476, 482 (1916).

In 1842 Congress enacted its first law requiring elec-

tion of Representatives in single-member districts. Act of

June 25, 1844, § 2, 5 Stat. 491; Whitcomb v. Chavis, 403 U.S.

124, 158, n 39 (1970). Congress acted to eliminate at-large

elections because it concluded that the “general ticket

system” worked an injustice both to other states which

did not use it and to minority voters in those states which

did. Ex Parte Yarbrough, 110 U.S. 651, 660 (1883). Con-

gress’ action in 1842 “signalled is belief that Representa-

tives should be representative.” Montano v. Lefkowitz, 575

F.2d 378, 385 (2nd Cir. 1978).

There is no history of any challenge to Congress’

decision in 1842. However, 37 years later this Court

would cite Congress’ action in a series of cases during the

1870’s and 1880’s dealing with various election reforms

enacted to protect newly-freed black voters and imple-

ment the Fourteenth and Fifteenth Amendments. “Crimes

Against the Elective Franchise and Civil Rights of Citi-

zens,” Rev. Stats. of 1873-74, §§ 5506 to 5532.

This Court sustained enactment of these statutes as

within Congress’ authority to prescribe the “times, places

and manner” of elections pursuant to Art. I, § 4. Citing as

precedent Congress’ action 37 years earlier requiring sin-

gle-member districts, this Court explained:

“Congress has partially regulated the sub-

ject heretofore. In 1842, it passed a law for the

election of representatives by separate districts;

and, subsequently, other laws fixing the time of

election, and directing that the elections shall be

by ballot. No one will pretend, at least at the

present day, that these laws were unconstitu-

tional because they only partially covered the

subject.” Ex Parte Siebold, 100 U.S. 371, 384

(1879); emphasis added.

This Court characterized Congress’ authority under

Art. I, § 4, as “plenary,” Id. at 388, explaining: “The power

of Congress, as we have seen, is paramount, and may be

exercised at any time, and to any extent which it deems

expedient. ...” Id. at 392. See also Ex Parte Yarbrough,

supra, 110 U.S. 651, following and citing Ex Parte Siebold

in upholding other convictions under the Civil War elec-

tion reforms.

The requirement of single-member districts contin-

ued, with minor interruption, from 1842 until 1929. Cole-

grove v. Green, supra, 328 U.S. at 555. In 1929, however,

Congress omitted the requirement in implementing the

Fifteenth Census. 46 Stat. 21, c. 28. Although Congress

did not expressly repeal the previous express require-

ment of single-member districts, this was the result of its

action. Wood v. Brown, 287 U.S. 1, 6 (1932).

Elimination of single-member districts of equal popu-

lation led again to disparity and malapportionment

between districts, this time forcing the Court itself to

intervene. Wesberry v. Sanders, 376 U.S. 1 (1963).

Although Congress’ authority pursuant to Art. I, § 4,

was not directly in issue in Wesberry, it was cited by both

the majority and dissent. The majority pointed to the

Founders’ debates as clear intent that Congress was to

have the power to ensure equal representation, including

by districts. Id., at 16. Justice Harian’s dissent argued that

Congress’ authority under Art. |, : ~. was the very reason

why the Court should not act. Id., at 30. Following the

Founders’ debates of a century before, both sides

accepted as given Congress’ authority to act. Now the

question was the Court’s responsibility should Congress

fail to do so.

Four years after Wesberry, Congress enacted the pre-

sent 2 U.S.C. § 2c, again expressly requiring election by

single-member districts. Courts have characterized the

debates over this provision in 1967 as “echoing the views

of their predecessors of 1842 with respect to the represen-

tative nature of representatives,” Montano v. Lefkowitz,

supra, 575 F. 2d at 385, and having “made clear their

distaste for at-large elections.” Shayer v. Kirkpatrick, 541 F.

Supp. 922, 927 (W.D. Mo. 1982).

As with Congress’ initial decision in 1842 requiring

single-member districts, there was no direct challenge to

re-enactment of the requirement in 1967. However, just as

this Court cited the 1842 statute as precedent for the

election reforms of the 1870’s, Ex Parte Siebold, supra, 110

U.S. 651, so too did this Court cite the 1967 re-enactment

as precedential authority for the Voting Rights Act

Amendment of 1970, which lowered the voting age to 18.

Oregon v. Mitchell, supra, 400 U.S. 112 (1970). In his lead

plurality opinion upholding Congress’ power, Justice

Black explained: |

“The breadth of power granted to Congress

to make or alter election regulations in national

elections . . . is demonstrated by the fact that the

Framers of the Constituticn and the state legis-

latures which ratified it . cended to grant to

Congress the power to lay out or aiter the

boundaries of congressional districts. . . . And

in Colegrove v. Green, 328 U.S. 549 (1946), no

Justice of this Court doubted Congress’ power

to rearrange the congressional districts accord-

ing to population; the fight in that case revolved

about the judicial power to compel redistricting.

“Surely no voter qualification was more

important to the Framers than the geographical

qualification embodied in the concept of con-

gressional districts. The Framers expected Con-

gress to use this power to eradicate ‘rotten

boroughs,’ and Congress has in fact used its

power to prevent States from electing all Con-

gressmen at large. There can be no doubt that

the power to alter congressional district lines is

vastly more significant in its effect than the

power to permit 18-year-old citizens to go to the

polls and vote in all federal elections.” Id. at

121-122; emphasis partially added.

Oregon was this Court’s last occasion to address Art.

I, § 4, and it was consistent with all of the Court’s

previous comments. For 150 years Congress has exercised

its power pursuant to Art. I, § 4, to require election by

single-member districts. For 100 years this Court has

recognized Congress’ power, citing it as authority for

other election laws premised upon Art. I, § 4.

CONCLUSION

Interesting as this historical review is, and much as

appellants would enjoy rearguing the debates of James

Madison and Patrick Henry, nothing in this case warrants

further attention by the Court. Analysis of over 200 years’

worth of drafters’ intent, Congressional implementation

and judicial review merely returns us to Hamilton’s basic

premise:

“A newly created national government

could hardly have been expected to survive

without the ultimate power to rule itself and to

fill its offices under its own laws.” Oregon v.

Mitchell, supra, 400 U.S. at 123.

Article I, § 4, gives Congress plenary authority over

the procedures to be followed in electing its members,

including the power to require that elections be by single-

member districts. The court below correctly concluded

that “Congress’ authority to require that elections be held

by single-member districts can no longer be seriously

questioned.” Appen. A at fp. 17.

For the foregoing reasons, appellees respectfully sub-

mit that this challenge to 150 years of precedent is so

unsubstantial as to need no further argument. The judg-

ment of the District Court for the Northern District of

California should be affirmed.

Respectfully submitted,

Danie. E. Luncren, Attorney

General of the State of California

Froyp D. SHIMOMURA

Assistant Attorney General

Linpa A. Casatic Supervising

Deputy Attorney General

ALLEN SUMNER

Assistant Attorney General

Attorneys for Appellees California

Governor Pete Wilson and Secretary

of State March Fong Eu

DATED: December 3, 1992

Sw “a * . a oes is “= ae - 7 yy i‘ — _— i ee

App. 1

UNITED STATES DISTRICT COURT*

NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY A. DeWITT,

PAMELA R. DeWITT-CARTER,

DOROTHY S. BALDWIN,

RENE A. RIVAS,

Plaintiffs,

THOMAS S. FOLEY, Speaker

of the U.S. House of

Representatives; PETE WILSON,

Governor of the State

of California; MARCH

FONG EU, Secretary of

State of the State of California,

Defendants.

ee ee

No.

C-92-0510-CAL

(Three Judge

Court)

OPINION AND

(Filed

AUG 31 1992)

Before NOONAN, Circuit Judge, LYNCH and LEGGE,

District Judges.

LEGGE, District Judge:

Defendants have moved to dismiss this action pur-

suant to Federal Rules of Civil Procedure 12(b)3 and

12(b)6. The motion was opposed, heard and submitted for

decision. The court has considered the moving and oppo-

sing papers, the record, the arguments, and the applicable

authorities.

*Any typographical and/or incorrect punctuation found in the

following Appendix pages were left intentionally to show

accurately how the original documents appeared.

App. 2

The court concludes that plaintiffs’ challenges to dis-

trict elections are not supported by the United States

Constitution, federal statutes, the California Constitution,

California statutes, or case law. The court therefore con-

cludes that the action should be dismissed.

II.

Title 28 U.S.C. § 2284(a) provides for a three-judge

court “when an action is filed challenging the constitu-

tionality of the apportionment of congressional districts.”

Defendants argue that plaintiffs are not entitled to this

three-judge court because they are challenging the consti-

tutionality of pre-established districts, rather than the

allocation of representatives among those districts.

Defendants cite Members of California Congressional Delega-

tion v. Eu, 790 F.Supp. 925, 926 n.1 (N.D. Cal. 1992), for

the proposition that “’reapportionment’ describes the

process of allocating representatives among pre-estab-

lished districts.”

The statute refers to “apportionment,” not “reappor-

tionment.” Plaintiffs here challenge the fact of apportion- —

ment among districts, rather than the manner in which

those districts have been drawn. This is sufficient to bring

them within the ambit of the statute.

If.

Plaintiffs are three residents of California’s seventh

congressional district, and on resident of the state of

Virginia. In the 1990 primary and general elections, the

App. 3

California plaintiffs attempted to vote for candidates out-

side the seventh district by writing different district

numbers on their ballots and writing in the names of

candidates in those other districts. They allege that they

want to associate with like-minded voters across the state

to elect congressional representatives. The Virginia plain-

tiff wants to associate with like-minded Latino voters

across state lines by voting in California’s congressional

elections.

The complaint attempts to allege seventeen claims for

relief. The first through ninth and eleventh through fif-

teenth are that § 100 of the California Elections Code

violates a number of provisions of the U.S. Constitution?!

and the federal Voting Rights Act, 42 U.S.C. § 1971 et seq.

The tenth claim is that the creation of special minority

districts, which was done in California under the Voting

Rights Act, violates the Fourteenth, Nineteenth, and

Twenty-Sixth Amendments. The sixteenth claim is that 2

U.S.C. § 2(c), Article XXI, § 1 of the California Constitu-

tion, and § 2500 of the California Elections Code, which

require the establishment of single-member congressional

districts, violate the same provisions of the U.S. Constitu-

tion and the Voting Rights Act. Finally, the seventeenth

claim is that the recent redistricting by the California

Supreme Court, which was considered by this court in

Congressional Delegation v. Eu, supra, violated Article I, § 4

of the U.S. Constitution, because such redistricting must

1 Art. I, § 2, cl. 1, 2, and 3; Art. IV, § 4; and the First,

Fourteenth, Fifteenth, Nineteenth, and Twenty-Sixth Amend-

ments.

ee ee ee ee wt OS Seen ee eee wet ae ee sali cove eae oe

App. 4

be done by Congress or state legislature, and not by the

courts.

The gravamen of these claims is that minority groups

(whether by race, sex, age or political orientation) are

unable to obtain representation in proportion to their

numbers; because while they may have enough votes

state-wide to elect a representative, they rarely constitute

a majority within a congressional district. This allegedly

perpetuates a House of Representatives composed of pre-

dominantly white male incumbents, in an increasingly

heterogeneous society.

IV.

Plaintiffs’ complaint concerns both federal and Cali-

fornia law.

The U.S. Constitution contains the qualifications for

voters and candidates for Congress. Article I, § 2, clause 1

of the United States Constitution sets forth the require-

ments for persons entitled to vote for representatives as

follows (the “Voter Qualifications” clause):

[T]he Electors in each State shall have the Quali-

fications requisite for Electors of the most

numerous Branch of the State Legislature.

Clause 2 of thai same section sets forth the qualifica-

tions for representatives themselves (the “Candidate

Qualifications” clause):

No Person shall be a Representative who shall

not have attained to the Age of twenty five

years, and been seven Years a Citizen of the

United States, and who shall not, when elected,

App. 5

be an Inhabitant of that State in which he shall

be chosen.

The Constitution also empowers both Congress and

the state legislatures to make rules governing the time,

place and manner of holding these elections. Section 2 of

the Fourteenth Amendment amended the third clause of

Article I, § 2 (the “Apportionment” clause) to provide

that

Representatives shall be apportioned among the

several States according to their respective

numbers... .

Article I, § 4 provides that

The Times, Places and Manner of holding Elec-

tions for .. . Representatives, shall be prescribed

in each State by the Legislature thereof; but the

Congress may at any time by Law make or alter

such Regulations... .

Congress’ authority here is paramount. Congress has

enacted legislation requiring the states to establish single-

member districts, 2 U.S.C. § 2(c). That statute requires

each state entitled to more than one representative to:

establish{] 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 Representa-

tive. ..

California’s Constitution also requires that the legis-

lature establish, and that representatives by chosen from,

single-member districts. Article XXI, § 1, is entitled

“Reapportionment,” and provides that after each decen-

nial national census, “the Legislature shall adjust the

App. 6

boundary lines of the . . . Congressional . . . districts.” The

districts shall be “reasonably equal” in population, and

“[eJach member of the . .. Congress shall be elected from

a single-member district.” Id. at § 1(b), 1 (a).

The California Elections Code also provides for sin-

gle-member districts, and allows voters to vote only in

the “territory” in which they reside. California elections

Code § 25000(a) states that “[o]ne Representative [shall be

elected to the Congress of the United States] for each

congressional district.” Section 100(a) provides that oth-

erwise qualified persons “may vote at any election held

within the territory within which he or she resides and

the election is held.” Neither § 100 nor its relatives pur-

port to define “territory.” Plaintiffs argue that this section

imposes a voter residency requirement not found in any

other constitutional or statutory provision.

Defendants Governor Wilson and Secretary of State

Eu move to dismiss the complaints, primarily on the

ground that Article I, § 4 of the U.S. Constitution, which

gives Congress the authority to prescribe the “times,

places and manner” of holding elections for representa-

tives, gives it the power to require that representatives be

elected by district. Congress exercised that power in

eni.-ting 2 U.S.C. § 2(c), which is binding on the states.

Assembly v. Deukmejian, 30 Cal.3d 638, 662; 180 Cal.Rptr.

297, 311 (1982) (2 U.S.C. § 2(c) “forbids the use of state-

wide elections to fill congressional seats”).

App. 7

There are no cases squarely defining Congress’

power under Article I, § 4 to require that representatives

be elected by district. However this court concludes that

this power is supported by case law and by documents

which are part of the “legislative history” of that article.

As will be discussed below, Congress first exercised

that constitutional power in 1842, requiring election by

single member districts. In 1879 the U.S. Supreme Court

assumed, without discussion, that this exercise of power

was constitutional. Congress effectively repealed the

requirement that representatives be elected from single

member districts in 1929, and reenacted it in 1967. In

1970, a Justice of the Supreme Court concluded that “the

Framers of the Constitution and the state legislatures

which ratified it intended to grant to Congress the power

to lay out or alter the boundaries of Congressional dis-

tricts.” Oregon v. Mitchell, 400 U.S. 112, 121 (1970) (opin-

ion of Black, J.).

At the Constitutional Convention of 1787, the Com-

mittee of Detail proposed draft language similar to the

final version of Article I, § 4:

The times and places and manner of holding the

elections of the members of each House shall be

prescribed by the Legislature of each State; but

their provisions concerning them may, at any

time be altered by the Legislature of the United

States.

App. 8

Madison, Notes of Debates in the Federal Convention of 1787

(Ohio Univ. Press 1966) at 387.

Two delegates opposed giving Congress any power

over such matters, contending that the states could and

must be relied upon. Madison addressed the Convention:

[T]he legislatures of the States ought not to have

the uncontrolled right of regulating the times

places and manner of holding elections. These

were words of great latitude. It was impossible

to foresee all the abuses that might be made of

the discretionary power. Whether the electors

should ... be divided into districts or all meet

at one place, should all vote for all the repre-

sentatives; or all in a district vote for a number

allotted to the district. ...

Id. at 423-24 (emphasis added).

Three other delegates agreed that Congress should

have the ultimate authority over the time, place, and

manner of choosing representatives, and the debate was

at an end. The draft was adopted unanimously. Id. at

424-25. That is clear evidence that the power to prescribe

the “places and manner” of elections, reposed in the first

instance in the several States and ultimately in the Con-

gress, includes the power to prescribe that they be held

by district. See Wesberry v. Sanders, 376 U.S. 1, 33-34 (1964)

(Harlan, J., dissenting) (“These remarks of Mad-

ison... [s]upported by others at the Convention, and not

contradicted in any respect . - . indicate as clearly as may

be that the Convention understood the state legislatures

to have . . . the power to district well or badly, subject

only to the supervisory power of Congress. .. . The

App. 9

debates in the ratifying conventions, as clearly as Mad-

ison’s statement . . . indicate that under § 4, the State

legislatures, subject only to the ultimate control of Con-

gress, could district as they chose”).

This conclusion is bolstered by the U.S. Supreme

Court’s observation that:

Madison in The Federalist described the system

of division of States into congressional districts,

the method which he and others assumed states

probably would adopt: “The city of Philadelphia

is supposed to contain between fifty and sixty

thousand souls. It will therefore form nearly two

districts for the choice of Federal Representa-

tives.”

Wesberry v. Sanders, 376 U.S. 7, 15 (1964) (quoting The

Federalist, No. 57 (Cooke ed. 1961), at 389). See also, The

Federalist No. 56 (dividing large states into districts pro-

motes knowledge of local interests); Oregon v. Mitchell,

400 U.S. 112, 120 n.2 (1970) (“[The states legislatures]

might make an unequal and partial division of the states

into districts for the election of representatives. .. .

Without these powers in congress, the people can have no

remedy; but the 4th section provides a remedy” (quoting

Mr. Parsons of the Massachusetts ratifying convention)).

It is true, as argued by plaintiffs, that six or seven of

the conventions of the thirteen ratifying states proposed

that Congress’ power to modify the regulations adopted

by the states be limited to situations where the states

“shall neglect, or refuse or be unable” to make such

regulations. See Cong. Globe, 27th Cong., 2d Sess., 465-66

(remarks of Sen. Wright). However, as the Supreme Court

App. 10

has noted, “Such an amendment was never adopted.”

Oregon v. Mitchell, 400 U.S. at 119 n.2.2

After considering the history of Article I, § 4, Justice

Black concluded that:

the Framers of the Constitution and the state

leyzislatures which ratified it intended to grant to

Congress the power to lay out or alter the

boundaries of the congressional districts. In the

ratifying conventions speakers argued .. . that

Congress would “most probably lay the state off

into districts.” And in Colegrove v. Green, 328

U.S. 549 (1946), no justice of this Court doubted

Congress’ power to rearrange the congressional

districts according to population; the fight in

that case revolved about the judicial power te

compel redistricting.

Oregon v. Mitchell, 400 U.S. 112, 121 (1970) (opinion of

Black, J.).

hos

Congress did noi exercise its power to require that

states elect representatives by district until 1842. 5 Stats.

491. Congress’ efforts in that regard were summarized by

the Supreme Court in Colegrove v. Green, 328 U.S. 549

(1946):

2 Even among these states, New York observed that “noth-

ing contained in the said Constitution is to be construed to

prevent the Legislature of any State from passing laws. . . to

divide such State into convenient districts, and to apportion its

Representatives to and amongst such districts.”

Remarks of Sen. Wright, supra, at p. 466 (emphasis added).

App. 11

Until 1842 there was the greatest diversity

among the states in the manner of choosing

Representatives because Congress had made no

requirement for districting. Congress then pro-

vided for the election of Representatives by dis-

tricts. Strangely enough, the power to do so was

seriously questioned; it was still doubted by a

Committee of Congress as late as 1901. In 1850

Congress dropped the requirement. The Reap-

portionment Act of 1862 required that the dis-

tricts be of contiguous territory. In 1872

Congress added the requirement of substantial

equality of inhabitants. This was reinforced in

1911. But the 1929 Act . . . dropped these

requirements.

Id. at 555 (citations omitted). In Wood v. Broom, 287 U.S. 1

(1932), the Court held that Congress’ omission of the

compactness, contiguity, and equality of population

requirements from the 1929 Act effectively repealed these

requirements. Id. at 6-7. Congress took no further action

to require election by single member districts until it

passed the statute presently in force, 2 U.S.C. § 2(c), in

1967. 81 Stat. 581.

This long and continuous interpretation of Congress’

powers under Article I, § 4 is persuasive.

In Smiley v. Holm, 285 U.S. 355 (1932), the Supreme

Court stated:

The practical construction of Article I, sec-

tion 4, is impressive. General acquiescence can-

not justify departure from the law, but long and

App. 12

continuous interpretation in the course of offi-

cial action under the law may aid in removing

doubts as to its meaning. This is especially true

in the case of constitutional provisions govern-

ing the exercise of political right and hence sub-

ject to constant and careful scrutiny. Certainly,

the terms of the constitutional provision furnish

no clear and definite support for a contrary

construction as to justify disregard of the estab-

lished practice in the States.

Id. at 369 (citations omitted).

Congress’ exercise of its power to require elections

by single-member districts over the past 150 years, cou-

pled with the Supreme Court's tacit approval, in Ex Parte

Siebold, 100 U.S. 371 (1879); Ex Parte Yarbrough, 110 U.S.

651 (1884); United States v. Gradwell, 243 U.S. 476 (1917);

Smiley v. Holm; United States v. Classic, 313 U.S. 299

(1941);4 Oregon v. Mitchell, and Buckley v. Vallejo, 424 U.S.

3 “Whatever doubt may at one time have existed as to the

extent of the power which Congress may exercise under this

constitutional sanction in the prescribing of regulations for the

conduct of elections for Representatives in Congress or in

adopting regulations which States have prescribed for that pur-

pose has been settled by repeated decisions of this court.” Id. at

482 (citations omitted).

* “[T]he states are authorized by the Constitution, to legis-

late on the subject as provided by § 2 of Art. I, to the extent

Congress has not restricted state action by the exercise of its

powers to regulate elections under § 4 and its more general

power under [the Necessary and Proper clause].” Id. at 315

(citations omitted).

App. 13

1 (1976),5 constitute a “long and continuous interpreta-

tion” that such action is constitutional.

We also note two recent decisions of the Court which

have upheld congressional discretion, U. S. Department of

Commerce v. Montana, __ U.S. __, 112 S.Ct. 1415 (1992),

and state discretion, Burdick v. Takushi, __ U.S. __, 112

S.Ct. 2059 (1992) in voting rights limitations.

Plaintiffs argue that whatever Congress’ power

under Article 1, § 4, it cannot exercise that power in a way

that alters the qualifications of candidates and voters.

They contend that limiting voters to the districts in which

they live imposes a “qualification” on them not autho-

rized by the U. S. Constitution. As Alexander Hamilton

stated in The Federalist, No. 60:

[Congress’] authority would be expressly

restricted to the regulation of the times, the

places, and the manner of elections. The quali-

fications of the persons who may choose or be

chosen, as has been remarked upon another

occasion, are defined and fixed in the constitu-

tion; and are unalterable by the legislature.

(quoted with approval in Powell v. McCormack, 395 U.S.

486, 539 (1969) (“immutability of qualifications set forth

in [Article I, § 2, cl. 2 of] the Constitution”).

5 “The constitutional power of Congress to regulate federal

elections is well established. . . . ” Id. at 13 (citations omitted).

App. 14

The Powell Court approved the decision of Congress

in the 1807 election case of William McCreery of Mary-

land. Maryland had enacted a law requiring one of the

two representatives from Baltimore County to be a resi-

dent of Baltimore City. Mr. McCreery was duly elected,

but his residence was questioned. The House Committee

of Elections recommended that he be seated, because it

considered the qualifications of members to

have been unalterably determined by the Fed-

eral Convention, unless changed by an authority

equal to that which framed the Constitution at

first; that neither the State nor the Federal Legis-

latures are vested with authority to add to those

qualifications, so as to change them... .

Powell, 395 U.S. at 542-43 (quoting 17 Annals of Cong. 872

(1807)).

The Committee concluded that the local residency

requirement was an attempt by the state of Maryland to

impose an additional qualification on members, and was

therefore unconstitutional. 1 A. Hinds, Precedents of the

House of Representatives of the United States § 414 (1907).

However, even those who urged this position were of the

opinion that:

The States might establish districts, but they

might not prescribe that Representatives should

be confined to the districts.

Id. at p. 383.

Similarly, Article I, § 2, clause 1 of the Constitution

prescribes the qualifications for voters in congressional

contests in the states, which the states may not alter:

App. 15

The States in prescribing the qualifications

of voters for the most numerous branch of their

own legislatures, do not do this with reference

to the election for members of Congress. Nor

can they prescribe the qualifications of voters

for those eo nomine. They define who are to vote

for the popular branch of their own legislature,

and the Constitution of the United States says

the same persons shall vote for members of

Congress in that State. It adopts the qualifica-

tion thus furnished as the qualification of its

own electors for members of Congress.

Yarbrough, 110 U.S. at 663. And in Oregon v. Mitchell, 400

U.S. 112, (1970), Justice Black opined that:

Surely no voter qualification was more important

to the Framers than the geographical qualification

embodied in the concept of congressional dis-

tricts. The Framers expected Congress to use

this power to eradicate “rotten boroughs,” and

Congress has in fact used its power to prevent

States from electing all Congressmen at large.

Id. at 122 (opinion of Black, J.) (emphasis in original).

Plaintiffs argue the following analogy: just as impos-

ing a residency requirement on candidates violates the

candidate qualifications clause, imposing a residency

requirement on voters violates the voter qualifications

clause. So long as a candidate is a resident of the state, he

or she may run for any seat in the state; so long as a voter

resides in the state, he or she may vote for any candidate

running in any congressional contest in the state. But

plaintiffs’ analogy is artificial and is not consistent with

the language of Article I, Section 2.

App. 16

The candidate qualifications clause states that “[n]Jo

person shall be a Representative who shall not .. . when

elected, be an Inhabitant of that State in which he shall be

chosen.” U.S. Const. Atr. I, Sec. 1, cl. 2. The clause pre-

scribes a closed-universe of “qualificaitons” for represen-

tatives, which may not be added to, subtracted from, or

altered. One of the “qualifications” enumerated is resi-

dency within the state.

The voter qualifications clause, on the other hand,

states that representatives shall be chosen by electors

who “shall have the Qualifications requisite for Electors

of the most numerous branch of the State Legislature.”

U.S. Const. Art., I, Sec. 1, cl. 1. In California, that branch

is the state Assembly, whose members are elected in

single-member districts. Thus, if the geographic location

of electors within a state were deemed a “qualification,”

voters could only vote for representatives by Assembly

district, resulting in a congressional delegation either

larger or smaller than that prescribed by Congress under

Article 1, Sec. 2, cl. 3.

The requirement that voters reside within the con-

gressional district in which they vote is therefore more

properly understood as a restriction on the “place” or

“manner” of election, which both Congress and the state

legislature are empowered to prescribe.

This distinction is also implicitly recognized in Cali-

fornia Elections Code § 100(a), challenged by plaintiffs,

which provides that:

Every person who qualifies under Section 2 of

Article II of the Constitution ... may vote at any

App. 17

election within the territory within which he or

she resides.

(Emphasis added.) Article II, Section 2 of the California

Constitution provides that “A United States citizen 18

years of age and resident in this state may vote.” These

are the only “qualifications” imposed on voters.

Congress’ authority to require that elections be held

by single-member districts can no longer be seriously

questioned. The “antiquated states-rights doctrine” relied

upon by those who originally opposed Congress’ exercise

of this power has been discredited, as noted by the major-

ity in Parsons v. Sanders [full cite]. And it is settled law

that the Framers intended to give Congress and the states

the power to draw congressional districts as a part of the

“manner” of elections.

The states’ power to regulate the “time, place and

manner” of congressional elections within its borders is

coextensive with that of Congress, although Congress’

authority is paramount. The power is conferred by the

same words, in the same section of the same instrument.

Therefore, since 2 U.S.C. § 2(c) is constitutionally valid, so

are the California constitutional and statutory provisions

challenged by plaintiffs.

VI.

Plaintiffs argue that Article I, § 4 does not answer

their claims based on subsequent amendments to the

Constitution--the First, Tenth, Fourteenth, Fifteenth,

App. 18

Nineteenth and Twenty-Sixth amendments, the violation

of which is alleged in their fourth and sixth through

thirteenth claims. Specifically, plaintiffs argue that district

elections discriminate in favor of incumbent candidates

in violation of the First Amendment, and that the estab-

lishment of special minority districts under the Voting

Rights Act violates the prohibition against “separate but

equal” in the Fourteenth end Fifteenth amendments, and

articulated by the Supreme Court in Brown v. Board of

Education, 347 U.S. 483 (1954). Plaintiffs argue that these

subsequent amendments “trump” whatever power was

conferred by Article I, § 4, and that Article | power

cannot be exercised inconsistently with those amend-

ments. In view of the authorities cited above in section V

above, we need discuss only two specific claims made by

plaintiffs.

Plaintiffs’ fourth claim is that the residency require-

ment violates the one-person, one-vote principle of the

Voter Qualifications clause and the Equal Protection

clause of the Fourteenth Amendment, because of the

_ “physical impossibility of ensuring” that the districts will

contain “exactly equal numbers of people.” However, the

U. S. Supreme Court recently reaffirmed the holding of

Wesberry v. Sanders, 376 U.S. 1 (1964) that those provisions

only require states to “make a good-faith effort to achieve

precise mathematical equality.” United States Dept. Com-

merce v. Montana, 112 S.Ct. 1415, 1418 (1992) (quoting

Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969)). Exact

equality is not required.

Plaintiffs’ ninth claim is that the residency require-

ments result in winner-take-all contests that “deprive

racial minority groups of even the opportunity to obtain

App. 19

representation in proportion to their voting strength,” in

violation of the Voting Rights Act, 42 U.S.C. § 1971 et seq.

The basic objective of the Voting Rights Act is to protect

-minority voting opportunities, which objective has been

pursued in the reapportionment of California’s congres-

sional districts. Even if that objective were not, as plain-

tiffs allege, fully accomplished, a later statute cannot

“trump” the original provisions of the Constitution. The

Constitution must be superior.

District elections are so fundamental to the political

system devised by the Framers in the Constitution that

none of the amendments to the Constitution should be

construed to alter it by inference.

VIL.

Certain additional arguments of the parties need be

answered only briefly.

Plaintiffs’ seventeenth claim is that the California

Supreme Court had no authority to draw congressional

districts, and that “[i]f the people and their elected repre-

sentatives fail to establish congressional districts desired,

but not established, by Congress, Congress’s remedy

under the elections clause lies not in the courts but in

itself.” However, there is a long history of court participa-

tion in redistricting when the elected branches do not do |

so. See authorities cited in Members of California Congres-

sional Delegation v. Eu, 790 F.Supp. 925 (N.D. Cal. 1992).

Defendants argue that venue in this district is

improper and that plaintiffs are guilty of laches. In view

of the conclusions which this court reaches above, no

further consideration of these arguments is necessary. For

the same reasons, the motions which have been filed by

plaintiffs and by defendant Thomas S. Foley after the

submission of this motion to dismiss are denied.

IT IS THEREFORE ORDERED that defendants’

motion is granted and the action is dismissed. Because

the infirmities of the complaint are matters of law and

could not be corrected by amendment, the dismissal is

without leave to amend. A judgment of dismissal is

hereby entered.

Dated: August 31, 1992.

/s/ Charles A. Legge

CHARLES A. LEGGE

UNITED STATES

DISTRICT JUDGE

/s/ John T. Noonan, Jr.

JOHN T. NOONAN, JR.

CIRCUIT JUDGE

/s/ Eugene F. Lynch

EUGENE F. LYNCH

UNITED STATES

DISTRICT JUDGE

APPENDIX B

- eS)

am,

App. 21

DANIEL E. LUNGREN, Attorney General

of the State of California

LINDA A. CABATIC, State Bar No. 87483

Supervising Deputy Attorney General

ALLEN H. SUMNER, State Bar No. 72862

Assistant Attorney General

1515 K Street, Suite 511

P.O. Box 944255

Sacramento, California 94244-2550

Telephone: (916) 324-5468

Attorneys for State Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY A. NO. C-92-0510-CAL

)

DEWITT, et al., ) THREE JUDGE COURT

Plaintiffs, ) NOTICE OF MOTION TO

) DISMISS FOR FAILURE FOR

) IMPROPER VENUE, LACHES

AND FAILURE TO STATE A

CLAIM UPON WHICH

RELIEF CAN BE GRANTED

(FRCP 12 (B)(3) AND (6) AND

MEMORANDUM OF POINTS

AND AUTHORITIES IN

SUPPORT THEREOF

Date: April 24, 1992

Time: 9:30 a.m.

Courtroom: 10

(Filed

March 16, 1992)

THOMAS S. FOLEY,

et al.,

)

Defendants.

)

App. 22

Table of Contents

Page

MEMORANDUM OF POINTS AND AUTHORITIES

p aRee 066s wdmwee < 604 Seale hese Oeil ee Mee din ced Ghee 3

STATEMENT OF TRGUBS onc ccc ccicccccscesccenes 3

PRELIMINARY STATEMENT OF THE CASE....... 3

pM eS PPerrrrr errr ee ere Peer Te tres 5

I. PLAINTIFFS HAVE SELECTED THE

oo 8 | errr rT reer rere TT eee 5

I]. PLAINTIFFS’ ACTION SHOULD BE

DISMISSED ON THE GROUNDS OF LACHES

ob ReSESS SES aN ed h 000 cehenb eee es 6066 REh00 64000: 6

III. CONGRESS HAS AUTHORITY TO REQUIRE

REPRESENTATIVES BE ELECTED BY

is ee SPO, Tee te eT eee - 8

A. The Founders Intended For Congress To

Ensure That Representatives Be Elected By

| PRR OE PO OES CEE CET OT TT TTETT Te 9

B. Congress Has Exercised Its Power To Require

District Elections For 150 years Without

CHE Web weet < CEN a ewig aneeesins cncvnee ss 13

C. Elections At-Large Are Disfavored........... 18

The Court Should Honor Congress’

Determinations Pursuant To Article I, section

Oia ica cOls pmaRMaGs gs Wes saNercedeenseces 20

App. 23

Table of Authorities

Cases

Assembly v. Deukmejian, 30 Cal.3d 638 (1982) ..... 19, 20

Buckley v. Valeo, 424 U.S. 1 (1975)............ boneaen 21

California Democratic Congressional Delegation v.

Eu, __ FSupp. _~ [No. C-91-3383 FMS]

(N.D. Cal. March 3, 1992) ...........-.2206- 3, 6-8, 21

Chapman v. Meier, 420 U.S. 1 (1974) .............. 19, 20

Citizens, Etc. v. Secretary, U.S. Dept. of Energy,

683 F.2d 1171 (Oth: Cir. 1962). oo. oc ewe cncceees 7,8

Colegrove v. Green, 328 U.S. 549 (1945)............ 13-15

Connor v. Williams, 402 U.S. 690 (1970).............. 19

Ex Parte Siebold, 100 US 371 (1879)........... 15, 17, 20

Ex Parte Yarbrough, 110 U.S. 651 (1883)........... 14, 15

Exon v. Tiemann, 279 F.Supp. 603 (D. Neb. 1967)..... 16

Gruca v. United States Steel Corporation, 495 F2d +

1282 ad Cle. S008 i visi ccca i ee 7

Karcher v. Daggett, 462 U.S. 725 (1983).............- 4,5

Legislature v. Reinecke, 6 Cal.3d 595 (1972)...... 4, 8, 19

Lucas v. Colorado Gen. Assembly, 377 U.S. 713

Vc, |) PPPeEe PP Orr eres or rors er ru pers 18

Middlesex County v. Garden State Bar Assoc., 457

U.S. 423 (1962) ois o3 6s dss w¥sicakiisteass Akh Bete 6

Montano v. Lefkowitz, 575 F.2d 378 (2nd Cir

1978)... 0b dvads deckodebesvatgdakeiass ensipeeee 14, 17

App. 24

Oregon v. Mitchell, 400 US 112 (1970)......... 12, 18, 21

Shayer v. Kirkpatrick, 541 F.Supp. 922 (W.D. Mo.

GOOD. cv ccccccccdccennscepsaneenvaseduetneesesan 5, 17

Simpson v. Mahan, 185 S.E. 2d 47, 212 Va. 416

CIOTED oo cccnccdccdccueneasen apeereueednanasedsanun 20

Smiley v. Holm, 285 U.S. 355 (1931)...........eeeeees 20

Thornburg v. Gingles, 478 U.S. 30 (1985) ..........--- 19

United States v. Classic, 313 U.S. 299 (1940).......... 20

United States v. Gradwell, 243 U.S. 476 (1916) .13, 14, 20

Wesberry v. Sanders, 376 U.S. 1 (1963) ........ 12, 16, 17

Whitcomb v. Chavis, 403 U.S. 124 (1970)....... 13, 14, 18

Wilson v. Eu, 1 Cal.4th 707 (1992)............... 3, 4, 6

Wilson v. Eu, 54 Cal.3d 471 (1991)............... 3, 4, 8

Wood v. Broom, 287 U.S. 1 (1932).........--.-0 ee eeee 16

Younger v. Harris, 401 U.S. 37 (1971). ......-..0.esees 6

Constitutional Provisions

California Constitution, art. III, § 1 .................- 5

California Constitution, art. V, [s}]................45- 3

California Constitution, art. XX], § 1................. 4

California Constitution, art. XXI, § 1(a)............... 4

United State Constitution, art. I, § 4

+ o6bend ech ees '..3, 4, 8-13, 15-18, 20, 21

United States Constitution, art. I, § 4, cl. 1.......... 22

United States Constitution, art. VI, § 2............ 5, 22

App. 25

Statutes.

2 United States Code § 2c.................. 3-5, 17, 22

5 Statutes 491, § 2, Act of June 25, 1844............ 13

28 United States Code § 1391(b)(2)............ eececes 5

28 United States Code § 2284(a) .................... 21

GF TE ts OD oc A wadncnesscccaccacacadswanaie 15

GS GREED Ah cc dacerkshccnnccacedotssdceaaaiea 7,17

OA SOUPS SHG, Fe. b FOGIB.. nc ccccccccccsccduawe 18

Rgetions Cote, BGs «dis coud’ cad <utives aposd<taunnet 3

Govemmmmant Cote © BGG so osc cdiccccckivcdcusecssuul 5

Court Rules

Federal Rule of Civil Procedure, rule 12(b)(3) ........ 3

Federal Rules of Civil Procedure, rule 12(b)......... 23

Federal Rules of Civil Procedure, rule 12(b)(6) ....3, 23

Other Authorities

“Additions Proposed By the Vi

Convention: A Proposed Bill of Rights,” June

“Brutus” Essay IV, to the le of the State of

new York, November 29, 1727, The Anti-

Federalist Papers (Ketcham ed. 1986)............... 11

“Cato” Letter VII to the Citizens of the State of

New York, January 3, 1788 20.62. .ccccccdsccccsece 11

“Centinel” No. I to the Freemen of

Pennsylvania, October 5, 1787 ..............-000- 11

App. 26

“Crimes Against the Elective Franchise and

Civil Rights of Citizens.” Rev. Stats., §§ 5506

$0 BIRR. vccccccccssccces Sip UWebuddsbisisacsasccecs 14

Be eo of Patrick Henery to the Virginia

tifying Convention,” June 7, 1788.........--..-. 11

“The Address and Reasons of Dissent of the

Minority of the Convention of Pennsylvania

to their Constituents,” December 18, 1787......... 11

1 Kent, Commentaries (12th ed., 1873) 230-231........ 14

2 J. Elliot’s Debates on the Federal Constitution 27

IRE PE IR 5 GE SES EC PAE OR ay 12

113 Cong. Rec. 34365-66 (Nov. 30, 1967).........--.. 17

Madison, Notes of Debates in the Federal

Convention of 1787 (Norton 1987)...........++++. 9, 10

The Federalist, No. 59 (Mentor 1961)........... 9, 11, 12

App. 27

DANIEL E. LUNGREN, Attorney General

of the State of California

LINDA A. CABATIC, State Bar No. 87483

Supervising Deputy Attorney General

ALLEN H. SUMNER, State Bar No. 72862

Assistant Attorney General

1515 K Street, Suite 511

P.O. Box 944255

Sacramento, California 94244-2550

Telephone: (916) 324-5468

Attorneys for State Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY A. DEWITT,

et al.,

Plaintiffs,

NO. C-92-0510-CAL

THREE JUDGE COURT

NOTICE OF MOTION TO

DISMISS FOR FAILURE

FOR IMPROPER VENUE,

LACHES AND FAILURE

TQ STATE A CLAIM

UPON WHICH RELIEF

CAN BE GRANTED

(FRCP 12(B)(3) AND (6)

AND MEMORANDUM

OF POINTS AND

AUTHORITIES IN SUP-

PORT THEREOF.

Date: April 24, 1992

Time: 9:30 a.m.

Courtroom: 10

THOMAS S. FOLEY,

et al,

Defendants.

App. 28

TO TIMOTHY A DEWITT, PAMELA R. DEWITT-

CARTER, DOROTHY S. BALDWIN, and RENEE A.

RIVAS, Plaintiffs and TIMOTHY A DEWITT and ARLO

HALE SMITH, their attorneys of record:

PLEASE TAKE NOTICE that on April 24, 1992, at 9:30

a.m., or as soon thereafter as the matter may be heard in

the above-entitled court, located at 450 Golden Gate Ave-

nue, San Francisco, defendants in this action, Pete Wilson,

Governor of the State of California, and March Fong Eu,

Secretary of State, will move, and hereby move, this court

to dismiss this action pursuant to FRCP 12(b)(3) and (6)

because plaintiffs’ have filed their complaint in an

improper venue, the complaint is barred by laches, and

the complaint fails to state a claim upon which relief can

be granted.

This motion is based on this Notice of Motion and

Motion, the Memorandum of Points and Authorities filed

concurrently herewith, the pleadings and papers filed

herein, and the record in this matter.

DATED: March13, 1992.

DANIEL E. LUNGREN

Attorney General of the State of

California

LINDA A. CABATIC

Supervising Deputy Attorney

General

Illegible

ALLEN SUMNER

Assistant Attorney General

Attorneys for Defendants

a ee ‘ab Kain

: App. 29

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF ISSUES

Defendants’ motion to dismiss this action pursuant to

Federal Rule of Civil Procedure 12(b)(3) and (6) presents

three issues to be decided:

(1) Is Congress’ direction in 2 United States Code

section 2c that Representatives be elected in single-mem-

ber districts an appropriate exercise of Congress’ author-

ity under article 1, section 4 of the Constitution

prescribing the “times, places and manner of holding

elections” for its Members?

(2) Have plaintiffs brought this action in the proper

venue?

(3) Should plaintiffs’ action be dismissed based

upon the doctrine of laches?

PRELIMINARY STATEMENT OF THE CASE

Plaintiffs challenge the redistricting for California’s

52 congressional Representatives recently ordered by the

California Supreme Court. Wilson v. Eu, 1 Cal.4th 707

(1992).? Specifically, plaintiffs attack the plan’s basic

premise of allocating the state’s Representatives into 52

1 The Court accepied and adopted, as modified, redistricting

_ plans proposed by three special Masters appointed four months

earlier in light of the failure of the Governor and Legislature to

adopt plans for the 1992 Primary and General Elections. Wilson v. Eu

(1991) 54 Cal.3d 471. We note that this court recently dismissed

another challenge to the California Supreme Court's order. California

Democratic Congressional Delegation v. Eu, __ F. Supp. __ [No.

C-91-3383 FMS] (N.D. Cal. March 3, 1992).

ee ee ee er en

a ee

App. 30

single-member districts. Instead, plaintiffs assert that Cal-

ifornia’s entire congressional delegation should be

elected at-large.

The role in this case of defendants Pet Wilson, Gover-

nor of the State of California, and March Fong Eu, Secre-

tary of State is “formalistic,” arising solely from their

responsibility to apply the districts adopted by the Cali-

fornia Supreme Court and conduct elections using those

districts. California Democratic Congressional Delegation v.

Eu, supra, slip, opn. at p. 5; Cal. Const., art. V, § 1; and

Cal. Elec. Code § 55.

Plaintiffs present their challenge by way of nine sepa-

rate claims. However, the gravamen of the claims - indi-

vidually and collectively - rests upon the question as to

whether or not Congress acted within its authority when

it enacted 2 United States Code section 2c, requiring

election of Representatives by district. Section 2c, enacted

in 1967, provides in relevant part:

“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 enti-

tled, and Representatives shall be elected only

from districts so established, no district to elect

more than one Representative. ... ”

This provision was adopted by Congress pursuant to

article I, section 4, clause 1, of the United States Constitu-

tion:

“The times, places and manner of holding

elections for Senators and Representatives, shall

be prescribed in each State by the Legislature

thereof; but the Congress may at any time by

App. 31

law make or alter such regulations, except as to

the places of choosing Senators.”

In fashioning its plan, the California Supreme Court

was “guided by,” inter alia, federal law, article XXI, sec-

tion 1 of the California Constitution,? and the-standards

established by that Court’s previous redistricting deci-

sions. Wilson v. Eu, supra, 54 Cal.3d at 473. Those deci-

sions had expressly cited Congress’ mandate of single-

member districts as binding upon the State of California.

Legislature v. Reinecke, 6 Cal.3d 595, 603 (1972).3

2 Article XXI, section 1(a) of the California Constitution

reads in relevant part: “Each member of ... Congress . .. shall be

elected from a single-member district.”

This provision is implemented by California Elections Code

section 25000, which provides in relevant part:

“At each general election there shall be elected to

Congress of the United States: (a) One Representative

for each congressional district... . ”

° In creating the congressional districts challenged by

plaintiffs, the Masters were primarily guided by the United

States Supreme Court's directions in Karcher v. Daggett, 462 U.S.

725 (1983). Wilson v. Eu, supra, 1 Cal. 4th at 717. Karcher, in turn,

directs:

“Article I, § 2, establishes a ‘high standard of

justice and common sense’ for the apportionment of

congressional districts: ‘equal representation for

equal numbers of people.’ Wesberry v. Sanders, 376

U.S. 1, 18 (1964). Precise mathematical equality, how-

ever, may be impossible to achieve in an imperfect

world; therefore the ‘equal representation’ standard

is enforced only to the extent of requiring that dis-

tricts be apportioned to achieve population equality

‘as nearly as is practicable.’ ” (Id. at 730; emphasis

added.)

oS bem 0 oe a ee ee re"

PO a tr te

App. 32

Defendants submit that section 2c is a valid exercise

of Congress’ power to determine the “times, places and

manner” of congressional elections, and therefore bind-

ing upon them. U.S. Const., art. VI, § 2; Cal. Const., art.

lll, § 1. Thus since defendants are bound by both federal

and state law, plaintiffs’ complaint fails to state a claim

upon which relief can be granted. Additionally, plaintiffs’

action should be dismissed on the grounds of laches.

Finally, plaintiffs have selected an improper venue in

which to bring their action.

ARGUMENT

PLAINTIFFS HAVE SELECTED THE IMPROPER

VENUE

Plaintiffs allege that venue lies in the Northern Dis-

trict of California pursuant to 28 United States Code

Section 1391(b)(2) because a substantial part of the acts

complained of occurred in this district. However, defen-

dants maintain their offices and perform their auties

relating to elections in the City of Sacramento, the capital

of the State of California. (Cal. Gov. Code, § 1060.) Any

claim based upon defendants’ election duties occurred,

and must be heard, where those duties are performed.

Shayer v. Kirkpatrick, 541 F.Supp. 922, 925 (W.D. Mo. 1982).

Accordingly, this action should be transferred to the East-

ern District of California.

App. 33

II.

PLAINTIFFS’ ACTION SHOULD BE DISMISSED ON

THE GROUNDS OF LACHES

This court recently dismissed a challenge to the redis-

tricting plan at issue here on the grounds of abstention.

California Democratic Congressional Delegation v. Eu, supra,

___ FSupp. __ [C-91-3383 FMS]. Specifically, the court

ruled that under application of Younger v. Harris, 401 U.S.

37 (1971) and Middlesex County v. Garden State Bar Assoc.,

457 U.S. 423 (1982), it was required to abstain, as a

balance of constitutional federalism, to the previously-

filed proceeding before the California Supreme Court,

Wilson v. Eu. supra, 1 Cal.4th 707. The court noted that the

parties in California Democratic Congressional Delegation

had raised their contentions under the United States Con-

stitution and the Voting Rights Act in the proceedings

before both the California Supreme Court and its masters.

Slip opn. at -17.

In contrast, plaintiffs here delayed the filing of this

action or any other action, until after the California

Supreme Court had issued its order adopting the Mas-

ters’ redistricting plan.* Plaintiffs were well aware of the

4 Since September of 1991, plaintiffs were on notice that the

congressional plan would require single-member districts. The

Masters held six days of public hearings in Sacramento, San

Francisco, San Diego and Los Angeles. Wilson v. Eu, supra, 1

Cal.4th at 713. Oral and written testimony was received on a

variety of topics, as well as 22 separate plans proffered by

various interests. Id. at 742. The Masters stated that “we were

uniformly impressed by the sense of responsibility and good-

will exhibited by these witnesses and their belief that the Mas-

ters would attempt to address their concerns, fairly and

equitably.” (Id. at 743.)

App. 34

fact that following the 1990 census, the State was manda-

ted to adjust the boundary lines of its voting districts for

representatives to Congress by the federal constitution

and state constitution. (Id. at p. 2.) Yet, they did nothing

to prevent that from occurring, until it was too late.

Additionally, the Masters reviewed transcripts of 12 public

hearings held by the California Senate from December 1990 to

September 1991 on legisiative and congressional redistricting.

(Id. at 742.) Plaintiffs failed to participate in these hearings

either. The summary of these hearings from California Senate

Committee on Elections and Reapportionment is attached as

Exhibit A. Defendants request that the court take judicial notice

of the California Legislature’s report pursuant to rule 201 of the

Federal Rules of Evidence.

Following presentation of the Masters’ Report, the Califor-

nia Supreme Court itself then accepted additional written com-

ments and amici curiae briefs from any interested party on the

districts proposed in the report. (Id. at 720.) Again, there was no

comment from plaintiffs.

Plaintiffs thus had ample notice that California intended to

comply with Congress’ mandate of single-member districts in

developing the State’s redistricting plan and failed to do any-

thing to preserve their interests. The California Legislature and

the Supreme Court’s Masters conducted numerous public hear-

ings around the state from December of 1990 through December

of 1991, accepting oral or written testimony from all interested

parties. Once the Masters’ report was released, the California

Supreme Court itself accepted direct comment from any inter-

ested party. “We have no doubt that the state proceedings here

provided the required due process for the adjudication of the

federal issues.” California Democratic Congressional Delegation v.

Eu, supra, slip. opn. at 17.

Yet nowhere in this process of public hearings and comment

did plaintiffs every once raise any objection to the developing

plan of election by single-member district. Rather, plaintiffs

waited until the California Supreme Court had adopted the

redistricting plan before filing the present action.

App. 35

Accordingly, their action praying for equitable relief set-

ting aside the California Supreme Court’s order should be

dismissed on the grounds of laches.

Laches is an equitable defense, Citizens, Etc. v. Secre-

tary, U.S. Dept. of Energy, 683 F.2d 1171, 1174 (8th Cir.

1982), consisting of two elements: (1) inexcusable delay in

instituting suit, and (2) prejudice resulting to the defen-

dant from such delay. Gruca v. United States Steel Corpora-

tion, 495 F.2d 1252, 1258 (3rd Cir. 1974). Relief is

addressed to the sound discretion of the trial court. Ibid.

Here, on September 6, 1991, defendant Wilson filed a

petition with the California Supreme Court, alleging the

failure of the State Legislature process to produce a redis-

tricting plan following the 1990 census and requesting the

California Supreme Court to assume jurisdiction. (Id. at p-

3.) Plaintiffs did nothing to prevent this from occurring.

Here, Congress has required election by district since

1967. 81 Stat. 581. Pursuant to Congress’ directive, and

the implementing provisions of state law, in September of

1991 the California Supreme Court instructed its Masters

to prepare recommendations for, inter alia, “ ... 52

single-member congressional district... .” Wilson v. Eu,

supra, 54 Cal.3d at 473. Moreover, as a result of plaintiffs’

inexcusable delay, defendants have been prejudiced.

This court has already recognized that “speed was

important” in resolving California’s redistricting because

defendant Secretary of State could not hold the June 1992

elections “unless all judicial decisions on redistricting

were completed by the end of January.” California Demo-

cratic Congressional Delegation v. Eu, supra, slip. opn. at p.

7. But here, plaintiffs did not even file their action until

ie <~. i > ia

eed Sh te bee TD, ae OY See ee eee. _tiess dees. ie bes aed ah

App. 36

January 29, 1992. Additionally, the California Supreme

Court has specifically declared that the relief plaintiffs

seek — elections at-large - would tremendously increase

the burdens and expenses of effective campaigning” and

“seriously impede the casting of uniformed ballots.” Leg-

islature v. Reinecke, (1972), sura, 6 Cal.3d at 603.

Plaintiffs’ delay in filing this suit, seeking elections

at-large of the 52-member congressional delegation

would thus prejudice not only the named defendants who

must conduct the election, but also all candidates for

Congress and California’s entire electorate. Accordingly,

the court should exercise its discretion to dismiss plain-

tiffs’ actions based upon laches:

“In determining whether the doctrine of

laches should bar a lawsuit, all the particular

circumstances of each case must be considered,

including the length of delay, the reasons for it,

its effect on the defendant, and the overall fair-

ness of permitting the plaintiff to assert his or

her action.” Citizens, Etc. v. Secretary, U.S. Dept.

of Energy, supra, 683 F.2d at 1174.

CONGRESS HAS AUTHORITY TO REQUIRE REPRE-

SENTATIVES BE ELECTED BY DISTRICT

This case turns entirely upon construction of article,

I, section 4, clause 1, of the United States Constitution.

Specifically, does Congress’ authority to prescribe the

“times, places and manner” of elections for its Members

give it the power to require election by district?

App. 37

While defendant find no decision specifically

addressing this question, the legislative history of article

I, section 4, Congress’ long exercise of its powers there-

under, and the recognition by the United States Supreme

. Court of Congress’ actions for more than 150 years, all

evince the clear intent, understanding and recognition

that Congress does in fact have the authority to require

Representatives to be elected by district.

A. The Founders Intended For Congress To Ensure

That Representatives Be Elected By District

Alexander Hamilton, in The Federalist, termed article

I, section 4, the most “completely defensible” provision of

the entire Constitution: “Its propriety rests upon the evi-

dence of this plain proposition, that every government

ought to contain in itself the means of its own preserva-

tion.” (The Federalist, No. 59 (Mentor 1961), at p. 362;

emphasis in original). From initial conception through

final ratification, those who debated, drafted, supported

and opposed the Constitution all recognized that it gave

Congress the power to require Representatives to be

elected by district.

James Madison’s Notes of Debates in the Federal Con-

vention of 1787 chronicle that once the Great Compromise

had been achieved, whereby the Senate would be elected

by and represent the States and the House elected by and

represent the People, the Federal Convention still had to

determine the specifics of how the House should be

elected. One view, advanced by George Mason and James

Wilson of Virginia, was for direct “ . . . election by the

people in large districts which would be most likely to

App. 38

obtain men of intelligence and uprightness; subdividing

the districts only for the accommodation of voters.”

(Madison, Notes of Debates in the Federal Convention of 1787

(Norton 1987), at p. 85; emphasis added.) Others, such as

Elbridge Gerry of Massachusetts and Roger Sherman of

Connecticut, “ . . . opposed elections by the people in

districts, as not likely to produce such fit men as elec-

tions by the State Legislatures.” (Notes, supra, at p. 86;

emphasis added.) Ultimately, it was concluded that the

States had been given adequate deference through their

selection of Senators; Representatives were to be elected

directly by the People.

The Committee of Detail then submitted draft lan

guage to the Convention very similar to the final wording

of the present article I, section 4:

“The times and places and manner of hold-

ing the elections of the members of each House

shall be prescribed by the Legislature of each

State; but their provisions concerning them may,

at any time be altered by the legislature of the

United States.” (Notes, supra at p. 387.)

This language was amended to limit Congress’ power

over State legislatures in their selection of Senators. (/d. at

423.)

Charles Pickney and John Rutledge of South Carolina

then proposed amendments to remove Congress’ power

over elections altogether. “The States they contended

could and must be relied on in such cases.” (/bid.)

Madison himself led the fight to maintain Congress’

authority:

App. 39

“The policy of referring the appointment of

the House of Representatives to the people and

not to the Legislatures of the States, supposes

that the result will be somewhat influenced by

the mode. This view of the question seems to

decide that the Legislature of the States ought

not to have the uncontrolled right of regulating

the times, places and manner of holding elec-

tions. These were words of great latitude. It

was impossible to foresee all the abuses that

might be made of the discretionary power.

Whether the electors should vote by ballot or

viva voce, should assemble at this place or that

place; should be divided into districts or all

meet at one place, should all vote for all the

representatives; or all in a district vote for a

number allotted to the district; these and many

other points would depend on the Legislatures,

and might materially affect the appointments.

Whenever the State Legislatures had a favorite

measure to carry, they would take care so to

mould their regulations as to favor the candi-

dates they wished to succeed. . .. What danger

could there be in giving a controlling power to

the National Legislature? Of whom was it to

consist?” (Ibid; empahsis added.)

Pickney’s amendments failed. The Constitution which the

Convention presented to the States for ratification con- |

tained article |, section 4, in its present form, giving

Congress the “great latitude” fought for by Mason. Con-

gress would have the power to determine, among other

things, whether Representatives shall be elected by dis-

trict.

App. 40

With completion of the Convention's drafting, atten-

tion shifted to the debates. Ironically, much of the oppo-

nents’ attack against article I, section 4, raised the fear

that Congress would abuse its power by requiring the

very at-large election of Representatives which plaintiffs

pray for:

“The proposed Congress may make the

whole state one district, and direct, that the

capital (the city of New York, for instance) shall

be the place for holding the election . . . They

may declare that those members who have the

greatest number of votes, shall be considered as

duly elected; the consequence would be that the

people, who are dispersed in the interior parts

of the state, would give their votes for a variety

of candidates, while any order, or professioii,

residing in the populous places, by uniting their

interests, might procure whom they pleased to

be chosen - and by this means the representa-

tives of the states may be elected by one-tenth

part of the people who actually vote.” (“Brutus”

Essay IV, to the People of the State of New York,

November 29, 1787, The Anti-Federalist Papers

(Ketcham ed. 1986) at p. 329.

See also “Speech of Patrick Henry to the Virginia Ratify-

ing Convention,” June 7, 1788 (id. at 215); “Centinel” No.

I to the Freemen of Pennsylvania, October 5, 1787 (Id. at

p. 235); and “Cato” Letter VII to the Citizens of the State

of New York, January 3, 1788 (id. at p. 323).

The opponents demanded that Congress’ power to

regulate election of Representatives be totally eliminated,

“The Address and Reasons of Dissent of the Minority of

the Convention of Pennsylvania to their Constituents.”

| December 18, 1787, (id. at 240), or at least be limited to

App. 41

instances “ .. . when the legislature of any state shall

neglect, refuse, or be disabled, by invasion or rebellion, to

prescribe the same.” “Additions Proposed By the Virginia

Convention: A Proposed Bill of Rights,” June 27, 1788 (id.

at 224).

The Federalists, of course, defended Congress’

power. Hamilton maintained that article |, section 4, pro-

vided essential “discretion power” over elections allow-

ing Congress to modify procedures as necessary to meet

any “change in the situation of the country.” The Federal-

ist, No. 59, supra at p. 363.

Madison in turn described the division of States into

congressional districts, the method which he and others

assumed would be adopted.® “The city of Philadelphia is

supposed to contain between fifty and sixty thousand

souls. It will therefore form nearly two districts for the

choice of federal representatives.” The Federalist No. 57,

supra at p. 355; emphasis added. He believed this

approach would assure that each Representative was

acquainted with the interests of his own constituents, and

that the House collectively would have the necessary

breadth of knowledge: “Divide the largest State into ten

or twelve districts and it will be found that there will be

no peculiar local interests in either which would not be

within the knowledge of the representative of the dis-

trict.” The Federalist No. 56, supra at 347; emphasis added.

Congress’ power under article I, section 4, was also

cited as a check against abuses by State legislatures. As

5 See Wesberry v. Sanders, 376 U.S. 1, 15 (1963).

App. 42

Mr. Parsons, delegate to the Massachusetts convention,

explained:

“They might make an unequal and partial

division of the states into districts for the elec-

tion of representatives, or they might even dis-

qualify one third of the electors. Without these

powers in Congress, the people can have no

remedy; but the 4th section provides a remedy, a

controlling power in a legislature, composed of

senators and representatives of twelve states,

without the influence of our commotions and

factions, who will hear impartially, and preserve

and restore to the people their equal and sacred

rights of election.” 2 J.Elliot’s Debates on the Fed-

eral Constitution 27 (1876); Oregon v. Mitchell, 400

U.S. 112, 120 (1970).

The Constitution was, of course, eventually ratified with

the language of article I, section 4, unchanged.

The evolution of article I, section 4, as well as the

supporting and opposing arguments, demonstrate that

Congress’ authority to prescribe the “times, places and

manner” of electing Representatives included, and still

includes, the power to require election by district. Indeed,

election by district was at the center of all debates:

Should election by district be direct or indirect through

the State legislatures? Should the power to set districts be

given to the States or to Congress? And, would Congress

abuse its power by imposing elections at-large instead of

by district? One constant throughout the debates was the

fact that article I, section 4, gave Congress the power to

require election by district.

App. 43

B. Congress Has Exercised Its Power To Require

District Elections For 150 Years Without Chal-

lenge

For the first 50 years following ratification of the

Constitution Congress took no action, resulting in great

diversity among the States in the manner of choosing |

Representatives. Colegrove v. Green, 328 U.S. 549, 555

(1945). Some states elected all of their Representatives on

a single state ticket. United States v. Gradwell, 243 U.S. 476,

482 (1916). Then in 1842 Congress enacted its first law

requiring election of Representatives by single-member

districts. Act of June 25, 1844, § 2, 5 Stat. 491; Whitcomb v.

Chavis, 403 U.S. 124, 158, n. 39 (1970); Colegrove v. Green,

supra, 243 U.S. at 555 (1945); United States v. Gradwell,

supra, 243 U.S. at 482.

Congress acted to eliminate what was then known as

the “general ticket system,” whereby every elector voted

for as many names as the State was entitled to Represen-

tatives in Congress. Congress concluded that the general

ticket system worked an injustice to other States which

did not use it, and within States using the system gave

undue power to the majority political party by submerg-

ing minority voters. Whitcomb v. Chavis, supra, 403 U.S. at

6 Representative Campbell, sponsor of the act, explained

that “(I)n this, the popular branch of the Legislature, the true

principle of the Constitution was, that minorities as well as

majorities should be represented; but where the general ticket

system prevailed, the voice of the minority was suppressed. Mr.

Q’s motive in contending for this amendment, was a desire. to

preserve the influence of the small States. Georgia, New Jersey,

and Alabama, now elected by general ticket; comparatively

small numbers of Representatives, yet, on all party questions,

App. 44

157, fn. 13; Ex Parte Yarbrough, 110 U.S. 651, 660 (1883).

Earlier commentators explained that Congress’ move to

single-member districts:

“Was recommended by the wisdom and jus-

tice of giving, as far as possible, to the local

subdivisions of the people of each state, a due

influence in the choice of representatives, so as

not to leave the aggregate minority of the peo-

ple in a state, through approaching perhaps to a

majority, to be wholly overpowered by the com-

bined action of the numerical majority, without

any voice whatever in the national councils.” 1

Kent, Commentaries (12th ed. 1873) 230-231, n.

(c).; Colegrove v. Green, supra, 328 U.S. at 553.

Modern observers have simply said that Congress’ action

in 1842 “signalled its belief that Representatives should

they had a stronger voice than the largest states, who went on

the district plan. While New Jersey, in such a case, made her

voice tell as six, the voice of New York, numerous as was her

delegation, told but as two. The large States, feeling this, would

soon resort to the plan of a general ticket; and then what became

of the influence of the small States? They must be lost, and

swallowed up. Should New York, for example, resort to that

system, though her population might be so equally divided that

one party exceeded the other but by a single man, the prepon-

derance of that one man would give to the State forty votes on

that floor in favor of his side of the question; a power equal to

one sixth of all the rest of the Union. On all the questions

peculiar to Southern interests, the Northern States, owing to the

district system, were now divided. While the Southern voted in

solid phalanx; but let the general ticket prevail, and they would

overwhelm the South. He had once doubted the constitu-

tionality of the amendment; but, on fuller examination, his

doubts had been removed - the constitutional objection was

wholly technical.” 11 Cong. Globe 445 (April 26, 1842); 27th

Cong. 2d Sess. 1842.

App. 45

be representative.” Montano v. Lefkowitz, 575 F.2d 378, 385

(2nd Cir. 1978).

There was no challenge to Congress’ decision in 1842

requiring election by single-member districts. However,

35 years later the United States Supreme Court did com-

ment upon Congress’ action in a series of cases during

the 1870’s and 1880’s dealing with election reforms

enacted following the Civil War.

Culminating in the United States Statutes of 1873-74,

“Crimes Against the Elective Franchise and Civil Rights

of Citizens,” Rev. Stats., §§ 5506 to 5532, Congress

enacted a number of election reforms to protect the

newly-freed black voters and implement the Fourteenth

and Fifteenth Amendments. These provisions addressed

abuses such as false registration, bribery, false returns

and neglect of election duties by state and local officials.

United States v. Gradwell, supra, 243 U.S. at 483. The

United States Supreme Court sustained enactment of

these laws as within Congress’ authority to prescribe the

“times, places and manner” of elections pursuant to arti-

cle I, section 4. The Court specifically cited as precedent

Congress’ action 35 years’ earlier requiring single-mem-

ber districts.

In Ex Parte Siebold, 100 U.S. 371 (1879), several elec-

tion judges who had been convicted of violating the new

voting procedures challenged Congress’ authority to

enact such laws. The Court upheld Congress’ action,

explaining:

“Congress has partially regulated the sub-

ject heretofore. In 1842, it passed a law for the

election of representatives by separate districts;

App. 46

_ and, subsequently, other laws fixing the time of

election, and directing that the elections shall be

by ballot. No one will pretend, at least at the

present day, that these laws were unconstitu-

tional because they only partially covered the

subject.” (Id. at 384; emphasis added.)

The Court characterized Congress’ power under article I,

section 4, as “plenary” (Id. at p. 388), stating: “The power

of Congress, as we have seen, is paramount, and may be

exercised at any time, and to any extent which it deems

expedient... .” (Id. at p. 392) Following and citing Ex

Parte Siebold, the Court in Ex Parte Yarbrough, supra, 110

U.S. 651, upheld other convictions under the Civil War

election reforms. Again, the Court cited article I, section

4, and the action of Congress’ in 1842, requiring single-

member districts:

“But when, in the pursuance of a new

demand for action, that body, as it did in the

cases just enumerated, finds it necessary to

make additional laws for the free, the pure, and

the safe exercise of this right of voting, they

stand upon the same ground and are to be

upheld for the same reasons.” (Id. p. 662)

Thus, by the 1870’s the validity of Congress’ action in

1842 requiring single-member districts was unquestioned

and the Court dismissed the idea anyone would pretend

“at the present day” that Congress had exceeded its

authority 35 years before.

The requirement of single-member districts contin-

ued, with minor interruption, from 1842 until 1929. Cole-

grove v. Green, supra, 328 U.S. at 555. Then, in the Act of

June 18, 1929, Congress omitted the requirement that

ie es on

ah i nis =

App. 47

districts be compact, contiguous and equal in population

as to the new districts created under the Fifteenth

Census. 46 Stat. 21, ch. 28. Although Congress did not

expressly repeal the previous single-member district

requirement of the Act of 1911, the Court ruled that this

was the intent and result of Congress’ action in 1929.

Wood v. Broom, 287 U.S. 1 (1932).

Elimination of single-member districts of equal popu-

lation inevitably led to disparity and malapportionment

between districts.7 By 1963, some districts contained two

to three times the population of others, forcing the Court

to intervene and require equal representation. Wesberry v.

Sanders, supra, 376 U.S. 1. Although the authority of Con-

gress pursuant to article I, section 4, was not directly at

issue in Wesberry, it was discussed at length by both the

majority and dissent.

The majority cited the Founders’ debates as clear

intent that Congress was to have the power to assure

equal representation:

7 Courts addressing redistricting plans during the hiatus in

federal legislation requiring single-member districts acknowl-

edged that election by district was “desirable,” “historically

contemplated by the framers of the Constitution,” Norton v.

Campbell, 359 F.2d 608, 611-612 (10th Cir. 1966), and “the better

practice.” Exon v. Tiemann, 279 F.Supp. 603, 605 (D. Neb. 1967).

States, of course, were free to adopt election by district, Norton

at page 611, but federal courts could not order it:

“It would be improper for this court to order the

Legislature to provide for election by districts in the

absence of an Act of Congress so requiring... . ”

Exon, supra, at p. 605; emphasis added.

App. 48

“Congress’ power, said John Steele at the

North Carolina convention, was not to be used

to allow Congress to create rotten boroughs; in

answer to another delegate’s suggestion that

Congress might use its power to favor people

living near the seacoast, Steele said that Con-

gress ‘most probably’ would ‘lay the State off

into districts’ and if it made laws ‘inconsistent

with the Constitution, independent judges will

not uphold them, nor will the people obey

them’ ” (Wesberry, supra, at 16; emphasis added.)

The majority did not question Congress’ authority to

require election by districts as one means to guarantee

equal representation. Rather, the issue in Wesberry was

the Court’s role given Congress’ failure to act.

Justice Hanlan, in his dissent, argued that the author-

ity of Congress under article I, section 4, was the very

reason the Court should not act: “There is nothing to

indicate any limitation whatsoever on this grant of plen-

ary initial and supervisory power” (id. at 30). Justice

Hanlan cited the same words by the Founders:

“The debates in the ratifying conventions,

as clearly as Madison’s statement at the Phila-

delphia Convention [cite] indicate that under

§ 4, the State legislatures, subject only to the

ultimate control of Congress, could district as

they chose” (id. at 34).

Disagreeing as to what role the Court should play, both

the majority and dissent recognized that Congress had

plenary authority under article I, section 4, to compel

election by districts.

Four years after Wesberry, Congress re-enacted the

requirement of election by single-member districts in

App. 49

1967 via the present 2 United States Code section 2c. 81

Stat. 581. Courts have characterized Congress’ debate in

1967 as “echoing the views of their predecessors of 1842

with respect to the representative nature of representa-

tives,” Montano v. Lefkowitz, supra, 575 F.2d at 385, and

having “made clear their distaste for at-large elections.”

Shayer v. Kirkpatrick, supra, 541 F.Supp. at 927.

Senator Howard Baker, one of the sponsors,

explained on the Senate Floor, that single-member dis-

tricts afford “maximum protection of the rights of all

people and maximum responsiveness to their needs,” 113

Cong. Rec. 34365-66 (Nov. 30, 1967). He noted, “The

concept of single-member districts for a unique and spe-

cial reason has been a nonpartisan undertaking by Mem-

bers on both sides of the aisle.® Ibid.

As with Congress’ initial decision in 1842 requiring

single-member districts, there was no direct challenge to

re-enactment of single-member districts in 1967. How-

ever, just as the United States Supreme Court cited Con-

gress’ action in 1842 as precedent for the later election

reforms of the 1870's. Ex Parte Siebold, supra, 110 U.S. 651,

so too did the Court cite re-enactment of single-districts

in 1967 as precedential authority for the Voting Rights

Act Amendments of 1970. Pub. L. 91-285, 84 Stat. 314.

The issue in Oregon v. Mitchell, supra, 400 U.S. 112,

was Congress’ authority, pursuant to article I, section 4,

8 “The passages from the floor debate . . . indicate opposi-

tion to at-large elections, rather than opposition to at-large elec-

tions prompted by Wesberry.” Shayer v. Kirkpatrick, (1982) supra,

541 F.Supp. at 927.

App. 50

to lower the voting age to 18. In his lead plurality opinion

upholding Congress’ power, Justice Black explained:

“The breadth of power-granted to Congress

to make or to alter election regulations in

national elections . . . is demonstrated by the

fact that the Framers of the Constitution and the

state legislatures which ratified it intended to

grant to Congress the power to lay out or alter

the boundaries of congressional districts

... and in Colegrove v. Green, 328 U.S. 549 (1946),

no Justice of this Court doubted Congress’

power to rearrange the congressional districts

according to population; the fight in that case

revolved about the judicial power to compel

redistricting.

“Surely no voter qualification was more

important to the Framers than the geographical

qualification embodied in the concept of con-

gressional districts . . . There can be no doubt

that the power to alter congressional district

lines is vastly more significant in its effect than

the power to permit 18-year-old citizens to go to

the polls and vote in all federal actions.” (Id. at

121-122; emphasis added.)

Oregon was the Court's last occasion to address arti-

cle I, section 4, and it was consistent with all of the

Court’s previous comments. For 150 years Congress has

exercised its power pursuant to article I, section 4, to

require election of Representatives by district. For 100

years the Court has cited Congress’ enactment of district

voting as precedent for other election laws premised

upon article I, section 4.

App. 51

C. Elections At-Large Are Disfavored

Courts have long disfavored at-large elections, citing

the same factors which moved Congress to require single-

member districts: winner-take-all elections submerge

minorities by overrepresenting the winning party, Whit-.

comb v. Chavis, supra, 403 U.S. at 159; a preference for

reflecting community interests as closely as possible, ibid;

long and cumbersome ballots making intelligent choices

difficult, Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 731

(1963); residents have no representative specifically

responsible to them, ibid; and block voting by residents in

multi-member districts results in undue representation

relative to voters in single-member districts. Chapman v.

Meier, 420 U.S. 1, 16 (1974); see also Thornburg v. Gingles,

478 U.S. 30, fn. 13 (1985). These problems would increase

in a state the size of California:

“[to] conduct statewide elections to fill

. .. Congressional seats in a state of California’s

geographical size and large population would

not only tremendously increase the burdens and

expenses of effective campaigning but, by

increasing the choices confronting the elec-

tors . . . would seriously impede the casting of

informed ballots.” Legislature v. Reinecke, supra, 6

Cal.3d at 603; Assembly v. Deukmejian, 30 Cal.3d

638, 664 (1982).

This long-standing preference for single-member

elections has now been incorporated into the Court’s

constitutional guidelines for apportioning congressional

seats:

“... the command of Art. I, § 2, that States

create congressional districts which provide

App. 52

equal representation for equal numbers of peo-

ple permits only limited population variances

which are unavoidable despite a good-faith

effort to achieve absolute equality, or for which

justification is shown.” Kirkpatrick v. Preisler

(1968), supra, 394 U.S. at 531 (emphasis added);

Wells v. Rockefeller (1968) 394 U.S. 542, 546; and

White v. Weiser (1973), supra 412 U.S. at 790.

And Congress may, pursuant to its authority under to

article |, section 5, for judging qualifications of its own

members, reject a delegation of Representatives-at-large.

Colegrove v. Green (1945), supra 328 U.S. at 553.

Finally, for the same reasons that congressional elec-

tions must be by single-member districts, primary elec-

tions to select the nominees must also be by single-

member district:

“If could not be seriously contended that a

primary to chose nominees for the various con-

gressional districts in a general election could

validly be held on a statewide basis or, when a

country contains several congressional districts,

even on a countywide basis, with the victors

assigned to the districts in some arbitrary fash-

ion which might result . . . in the nominee’s

being unresponsive to the desires of the voters

in the district.” (Montano v. Lefkowitz (1978),

supra, 575 F.2d at 385.)

As to election of state legislatures, the Court has

expressed the same disfavor for at-large elections. At-

large elections are not unconstitutional per se under the

Fourteenth and Fifteenth Amendments. Thornburg v. Gin-

gles, supra, 478 U.S. at 48. However, single-member dis-

tricts are “preferable,” Connor v. Williams, 402 U.S. 690,

App. 53

692 (1970), and federal courts required to fashion state

reapportionment plans are directed to use single-member

districts “absent insurmountable difficulties.” Chapman v.

Meier, supra. 420 U.S. at 18.

D. The Court Should H _Dete ina-

Tee Patent te Aa Pee

Again, Alexander Hamilton characterized ealsiaa?

authority under article I, section 4, as one of the most

fundamental provisions of the entire Constitution — the

means of Congress’ own preservation. State courts are

bound by Congress’ determinations under this provision.

Assembly v. Deukmejian, supra 30 Cal.3d at 662; Simpson ov.

Mahan, 185 S.E.2d 47, 212 Va. 416 (1972). So too have

federal courts honored the historic exercise by Congress

of a power essential to the very existence of that co-equal

branch. Some 60 years ago the Court admonished:

“The practical construction of Article |,

tion 4, is impressive. General

oat justi dapasinny thee the lacten inane

continuous interpretation in the course of offi-

cial action under the law may aid in removing

doubts as to its meaning. This is especially true

in the case of constitutional provisions govern-

ing the exercise of political rights and hence

subject to constant and careful scrutiny.”

Smiley v. Holm, 285 U.S. 355, 369, (1931).

Has there been “long and continuous” interpretation of

Congress’ authority to require election by single-member

districts? Clearly - 150 years’ worth.

Congress ordered election by district in 1842, and by

1879 Congress’ action was so accepted that the Court

App. 54

would comment “No one will pretend, at least at the

present day, that these laws were unconstitutional. .. . ”

Ex Parte Siebold (1879), supra, 100 U.S. at 384. The “present

day” which the court spoke of was under President

Rutherford B. Hayes and Chief Justice Morrison R. Waite.

Thirty-eight years later, the Court remarked that

“any doubt” as to Congress’ power under article I, sec-

tion 4, “has been settled by repeated decisions of this

court,” United States v. Gradwell, supra, 243 at 482, citing

Ex Parte Siebold and its progeny. The same result was

reached again in 1931, Smiley v. Holm, supra, 285 U.S. at

366-67; and in 1940, United States v. Classic, 313 U.S. 299,

315 (1940); and in 1970: “ . . . a long line of decisions in

this Court [have held] that Congress has ultimate super-

visory power over congressional elections.” Oregon v.

Mitchell, supra, 400 U.S. at 122; And again in 1975: “The

constitutional power of Congress to regulate federal elec-

tions is well established. ...” Buckley v. Valeo, 424 U.S. 1,

13 (1975).

Analysis of almost two hundred years’ worth of

debates from the Founders, the drafting evolution of

article |, section 4, arguments in support and opposition

to its ratification, its application by Congress, and the

Court’s review of Congress’ actions all returns to Ham-

ilton’s simple, basic premise:

“A newly created national government

could hardly have been expected to survive

without the ultimate power to rule itself and to

fill its offices under its own laws.” (Oregon v.

Mitchell, supra, 400 U.S. at 112.

App. 55

Article |, section 4, gives Congress plenary authority

over the procedures to be followed in its Members,

including the power to require that elections be by single-

member districts.

IV.

PLAINTIFFS ARE NOT ENTITLED TO THREE JUDGE

COURT

Plaintiffs in this case claim they are entitled to a

three-judge court, pursuant to 28 United States Code

section 2284(a). Plaintiffs are mistaken. 28 United States

Code section 2284(a), provides:

“A district court of three judges shall be

convened when otherwise required by act of

Congress, or when an action is filed challenging

the constitutionality of the apportionment of con-

gressional districts or the apportionment of any

statewide legislative body.”

As this court has already recognized, the term “reappor-

tionment” describes the process of allocating representa-

tives among pre-established districts. California Democratic

Congressional Delegation v. Eu, supra, slip. opin., p. 1, fn. 1:

The term “redistricting” refers to the process of f liz-

ing the boundaries of the districts. Id.

Here, plaintiffs are not challenging the allocation of

representatives among-pre-established districts, but

rather, the constitutionality of pre-established districts,

which has been discussed in Argument III.

Consequently, plaintiffs are not entitled to a three-

judge court.

App. 56

CONCLUSION

Congress’ direction in’‘2 United States Code section

2c that Representatives be elected in single-member dis-

tricts is an appropriate exercise of Congress’ authority

under article I, section 4, clause 1, of the Constitution

prescribing the “times, places and manner of holding

elections” for its own Members. Congress has exercised

this authority for 150 years and the Supreme Court has

recognized the validity of Congress’ action for over 100

years. As the supreme law of the land, Congress’ deter-

mination is binding upon defendants Governor and Sec-

retary of State of California. U.S. Const., art. VI, § 2.

Plaintiffs pray for injunctive orders from this court

barring defendants from implementing Congress’ direc-

tion in the election of California’s congressional delega-

tion. However, plaintiffs’ request for equitable relief is

made with unclean hands. Plaintiffs sat moot through

more than a year of public hearings and debate con-

ducted by both the California Legislature and Supreme

Court, soliciting comment from all interested parties in

fashioning the State’s redistricting plan. Plaintiffs were

on notice from the inception that the California Supreme

Court would follow Congress’ requirement of single-

member districts. Plaintiffs nevertheless waited to raise

their objection until after the California Supreme Court

had adopted the redistricting plan and the practical dead-

line had passed for defendant Secretary of State to imple-

ment the June 1992 elections. Plaintiffs can hardly argue

that they were taken by surprise that district elections

would be used, and their unreasonable and unjustifiable

delay in bringing this action would work a severe harm

to California’s entire electorate.

App. 57

Plaintiffs have selected the wrong venue for bringing

this action. Defendants’ official acts in carrying out their

election duties are performed in Sacramento, in the East-

ern District. Finally, plaintiffs are not entitled to a three-

judge court.

For these reasons defendants respectfully request

that their motion be granted under Federal Rules of Civil

Procedure 12(b) and (6) and that this complaint be dis-

missed.

DATED:

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General of the State of

California

LINDA A. CABATIC

Supervising Deputy Attorney

General

ALLEN SUMNER

Assistant Attorney General

Attorneys for Defendants

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