Appellees Brief — Kirkpatrick v. Preisler

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Preliminary Statement .......... poe esccescewsees 1

General Statement .......... Perr ipeabas inet Ag

. Argument i iaebanetladaes eabeun’ icedieedeuneteven 5

) Thé trial court did NOT adopt a rule holding

| that ‘‘districts are not as equal as practicable

a. . if any plan proposed ean result in districts with:

smaller population variances” .......... vivaes 4G

2. A. ‘The burden of proof is on those supporting

; an apportionment to justify it on rational

BTOURB. 20... co pecocevesiacccicceieve Hs..0: 7

B. The burden of proof i igen appellanfs ....... 9

3. The “‘de minimis’’ doctrine has | no relevance to

é redistricting matters ‘eewse eeeehs +6bapheneeeds 11

4. The ‘districts of the Act are NOT as. it negity

' equal as is practicable’, because transfer of

whole. counties between adjacent districts: ‘would ;

_ create districts more nearly equal ............ 13

5. ‘*Legislative interplay’? is NOT a constitu-

tionally: acceptable basis for variances from -

equal population districts ............. ice.

_ 6. Compactness is NOT a. defense for unbalanced ~

I Fiipiaeuia inn cnekeeeeee guiied Riis apices +. 24

ae Percentage. or numeric comparisons with. other

decisions are of no significance in testing good: .

faith efforts or’ compliance with leet asiane. di ,

SemderGs | 26.6 poscccccany obss 66th escke idees 24

- Conelusion ral eoeeeeese 4 b dadedwelgekitehabaesiaaunee 99 .

4. . ° Ps . F . ‘ “ = » s \

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; ‘

‘

| Baker v. Carr, 369 U. 8. 186, TL. Ed. 2d 663, 82 §.

MME soscietsucsnciscsricsssces peepee AQ, 18

Black’s ‘Legal ‘Dictionary, “4th enya rare 11,18 ©

Cedillo v. Standard Oil Co. of Texas, 291 F' 2d 246 «

(C.-A. Tex. 1961), certiorari denied 368 U. 8. 955,

3) 82 8. Ct. 397,.7 L. Ed. 387 (1962) ... pragbvbahases ye

‘Commissioner v. Duberstein, 363 U. 8. 278, 4LEa

- 2d 1218, 80 8. Ct. 1190 (1960) .....2..... Ae 10

Connor’ v. Johnson, 279 F. Supp. 619. ccgtae aff’d. ”

curiam, 386 U. Dy We CRED hc ete cshenveinveck 25

>

Exon v. Tiemann, 279, F. Sopp. 609, 612 (D. Cc Nebr.

WN Wii on 5 cg oa Sak hdcnehcad kamedica dnobedienan’s 6

' Gong y. Kirk, 278 F. Supp. 133 1967), ¢ aff'd. sub

nom. Kirk v. Gong, 389 U. S. 574, 88 S. Ct. 695, 19

L. Rd. 4d 784 (1968) phaehddeeeuedaciadeiese a's 24, 25

Kilgarlin v. Hill, Secy. of State of Texas, 386 U. S.

120, 87 S. Ct. 820, 17 L. Ed. 2d 771 (1967) « Sas ie J

Kilgarlin v. Martin, Secy. ‘of’ State of Texas, 252 F.

Supp. 404 (S. D. Tex. 1966), aff’d. sub nom. Kil-

* garlin v. Hill, Secy. of State of Texas, 396-U. 8.

Be GE ik fn ihc eee i hate id onecukec, cook 8

Kirk v. Gong, 389-0. 8. 574, 88 8. Ct. 695, 19 L. Ba.

‘2d 784 (1968), affirming Gong v. Kirk .......... 24, 26

‘Teeny: Colorado General Assembly, 377 U. 8. 713, 84

8. Ct. 1450, 12 L. Wid. 2d 683 (1964) ... seeee Seis. 13

’ Manning v. Jones, 349 F. ‘Supp. 992 (C. A. Mo. 1965) 11

- Maryland Citizens Comm. for Fair Cong. Redistr.. v

. Tawes, 253-F. Supp. 731 (D. Md. 1966), aff’d. sub .

nom. Alton v. Tawes, 384 U. 8. 315 (1966) ........ 8

Mentqveaty Ward and Co. v.@teele, 352 F. 2a 822 ;

ES GR oN eas n

_ Murphy v. Shelby, 253 F. 24 418 (C. A. Mo.\1965) .. 11

es a es

= ‘Preisler, II v. “eee. of State of Mo, 279 F. Supp.

952:to 1012 (W. D, Mo. 1968). This is the instant

| SND eh ita Khe BSE on eK cobs 0b ¥kaéants.cnas pont os

- Reynolds v. Sims, 377 U. 8. 533, 8 S. Ce. 1902, 12

L. Ed. 2d 506 (1964) . je Siwiteawns es 8, 25, 27

Schwartz v. Essex County Board of ‘Taxation, 129

NLS. E, 129, 28 A. 2d 482 (1942) ...0.0.. 02. eee 3

Swann v. Adams, ITI, 385 U. 8. 440, 87 8. Ct. 569, 1

L. Ed. 501 (1967) ween Beceepecsees Gh ienns 1,8, 2, 27

“United States v. United States Gypsum Co., 333 D. s. \ |

- 364, 92 L. Ed. 2d 746, 68 S.. Ct. 525 (1948) eotnais 10°

- Wesberryav. Sanders, 376,U. 8, 1, 84 8. Ct. 526, 11 L.

Hd. 24 481 (1964) ....202...eeeeeeeeeageceeeeees 17

a elatsd: Casio Mot Olsed

Kirkpatrick v. Preisler, 385 U. 8. 450, 87 8. Ct. 613,

17 L: Ed. 2d 511 (1967), affirming Preisler, II.

. Preisler, I, v. Secy, of State of Mo., 238 F. tia 952

~. (W. D. Mo. 1965).

| Preisler, Il, v. Secy. of State. of » Mo. 257 F. Supp.

952 (W. D. Mo. 1966), aff’d. sub nom. Kirkpatrick

vy. Preisler, 385 U. 8. 450, 87 8. Ct. 613, 17 L. Ed. |

2d 511 yon) :

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- SUPREME COURT OFTHE ware STE.

ocr TERM, 1967.

"Nos. ius ‘“ uw. |

22

JAMES C. KIRKPATRICK, Secretary of State of Missouri, ‘and

NORMAN H. ls ee ‘Attorney General of Missour,

/ . Appellants,

ve and

F.,V. HEINKEL, R. j, ROSIER, W. W.- ‘BECKETT, AD. ‘SAPPINGTON,

LO. WALLIS, MILLER HERN, HERMAN HETLAGE, HERMAN KERTZ,

q : TURPIN YOUTSEY and GLEN MYERS, . - 17 oe

ie Lempaeineccsere shies

VS.

PAUL W. -PREISLER, Louise: ERBE, BOSTIC J. “FRANKLIN, LUCILE

4

— DOROTHY CHILDS, SARAH RIFKIN, and oo

pacer ot

On Appeal from n thé United ‘States District Court for the

-~ Western District of Missouri, Central Division.

“>

‘Seetedoany Shitement.

“In view - of ‘the extensive discussion, étblanation. asia :

dotetasiiteiion contained in the majority opinion ‘of the

me «

court below, Appellees will seek not to burden this Court

_ with — thereof but will refer to appropriate por:

A

ma

w

° tions. of the lower court’ 8 opinion ‘in’ answer ‘to much

what is presented in the barge raised in ee

argument. 3 .

-

“The attadtion of this, Court is direcied to is separate e

document. containing ‘the opinion, decision, and judgment

of the court below, filed as a sepamite document by Ap-

- pellants with their ‘‘JURISDICTIONAL STATEMENT,”’

_ and’ entitled ‘‘APPENDICES TO . JURISDICTIONAL

, STATEMENT” ‘Qlong with another separate document

entitled ‘(FOOTNOTES TO: APPENDICES A AND B OF

JURISDICTIONAL STATEMENT.’’ Because of the de-

_pendenee of these two decuments on eackother, they need

ether. This case is now reported in full in ©

279, F. Supp\ 952 to 1012 (1968). : |

References\to the opinion, decision, ‘and judgment will -

be read .

be by citatioh to the ‘“APPENDICES TO JURISDIC-

TIONAL STATKMENT”’ and designated. (A. J. 8. ...),

'., references to footnotes to the majority opinion by citation —

to ‘‘FOOTNOTES.TO APPENDICES AzAND B OF-

JURISDICTIONAL STATEMENT” i. idee @, ;

A.J. 8 oe.)

Sieh to the “ APPENDIX “(Rules 17 and 365”

are designated by (A. ::.) and’ by (A. BR. ...) when.

‘ - veferring to the trial reser’ portion of this "hamenilie.

References to the respective ‘“‘ APPELLANTS’ ‘BRIEF.

ON THE MERITS” of Kirkpatrick and Anderso*’ are

designated (App. Br. . --y and “BRIEF OF APPEL- -

. LANTS F. V: HEINKEL, ET.AL.” (App. H’s. Br.

tu

¥

The court below’ in its opinion, decision, and judgment,

properly found that the 1967 Missouri Congressional Re-_

‘districting Act does not comply with Article I, Section 2

of the Constitution of the United States — is unconsti-_

sik tational. and void... aay

*

eat — 3 :

‘ )

The shajority opinion | (A J. 8. 1-22) ‘and findings of ~

fact and discussion thereof (A. J. 8. 23-82) and the com-

- ments of concurring Jud Collinson : (A. J. 8. 97-98) and

as footnotes thereto (F. A.\R S. 1-412) extensively and gde-

> ‘quately present the law as applied toa the facts of the

instant case and the court reaches the appropriate deter-~

Inination and disposition of the issues in deciding that |

‘the Act is unconstitutional and void for violation of the

_aforesaid Article I, Section 2.

_ Appellees ‘contend that the diff -between several

‘ adjacent districts, such as 25,802 and 21,655 inhabitants,

are gross and excessive and NOT ‘‘minor’’ or ‘‘de mini-

mis” as Appellants “ claim. When many’ whole countiés of

from. 4,516: to 10,850 inhabitants are situated on the.

. boundary lines of adjacent districts and are thereby avail-

able for transfers ‘between districts, -which ffansfers *

- would significantly diminish thesdifferences between dis-

'. triets, the aforesaid differences 8f the Act cannot be

. aegally justified under the constitutional requirements

~-aforesajd. The population of a whole county cannot be

considered ériVial, ‘minor’, or “de minimis.”’ :

Official United States Census Bureau population . data

for Missouri are and have }een available for-counties and

townships. of counties, and. for wards, precincts, and

blocks in the more densely populated areas, which data

could have and should have been utilimed for thé con-

struction of districts of lower on differences than

_ those: of the Act. re A , to

The majority opinion-in 1 its findings of fact ( idem, pages v

23 to 41) shows that the General Assembly had before it

bills whose maximum district population differences were

significantly smaller than the differentes of the Act.: Such ”

bills served to bring to the attention of the legislators that

districts of\smaller @ifferences could be easily made and

hat the districts of the “Act were not as a nearly equal as

. 18 practicable. - _-

-_——-

4

ae | |

The constitutionality of the Act must be /determined —

upon the population of the districts created , ‘by the Act.

Difficulties inherent in the legislative process of: the én-

actment of legislation do not excuse the failure to produce

a eonstitutionally valid act. A citizen’s constitutional

rights cannot be abrogated nor violated for political ex-

pedieney in the enacting process. *

‘Unwarranted and unjustified population differences be-

tween adjacent districts, which differences can readily

and easily be significantly diminished’ by the: transfer of

whole: counties or other political ‘subdivisions | from one

district to an adjacent district, conclusively prove that

the districts have not been created as réqnired by the

aforesaid Article I, Section: 2.

Applies contend that: the’ table of district iliiliaee

and the map of the districts clearly demonstrate that the .

districts created by the Act are not as. nearly equal as is

practicable; because simple transfer of counties between

adjacent districts would have created distri ts of signifi-

cantly smaller population differences.: (See table and map,

pages 14 and 15, this Briel, for rig ae of such trans-

fers.) —

The position of. Apriieg is supported by: io com-

ments of Judge Collinson in his.clarification of his con-

currence in the opinion, decision, and ‘judgment of the —

court below (A. J.’S.:97). (Judge Collinson’s comment

also quoted on page 5, next page following, this Brief.)

| and on page 98,

“The Trial Court’ Did NOT Adopt a Rule Holding That:

“Congressional Districts Are Not as Equal as Practicable .

if Any Other Plan Proposed Osa Reqult in Districts Wik’

Smaller Population Variances.”

_ Appellants argue (App. Br. 44-49) that the lower court’s

ruling is based on a holding that congressional districts

are not as equal as practicable if any. other plans. pro-

posed to the legislature or to the court can result in dis-

‘tricts with smaller population variations. The court Focal |

NOT so hold.

Appellants misread the rules applicable to congres-

sional redistricting applied by the lower court.

Xppellants misconstrued evidentiary matters with rules |

of law. The trial court here considered the facts of other 3

proposed . plans along with all other evidence before it.

Judge Collinson’s comment in concurring with the ma-

_ jority opinion (A. J. 8. 97-98) makes _ — clear when

he says:

“No. one can believe | or -eatihliia that the Supreme

Court has said that the ‘one-man one-vote’ doctrine

requires that Congressional districts be exactly equal

in population; certainly the majority opinion does not —

so state. But ‘neither has the Supreme Court said —

| that there is a mathematieal formula for inequality .

| (within a certain percentage) which will 7 the

| ‘nearly equal as practicable’ rule.” x

| “J ao not condemn the 1967 Act besinne there were

‘more equal plans defeated in ‘the Legislature; nor do

I condemn it because it divides St. Louis County be- _

tween a number of districts. I believe the plan is

Nine: . ae “a

id

soiaiiietsiiil: Apiinaen inn ih Sinks te aloe ton

undisputed evidence it is not an attempt to divide the

- State of Missouri in Gongressional districts that are

as nearly equal in population as is practicable. And

this for the ‘reason that it isobvious that entire coun-

'. ing substantial decrease in the variances of popula-

tion in the present, Act and because there is no

evidence in this record that can be said to explain or

. justify why this was not done.” (Emphasis supplied.)

“In short, the proponents of the 1967 act have

failed’ to earry the burden of proof imposed on them

by law.” :

The Appellants’ ‘argument . takes out of context —

statement of the majority opinion (A. J. S. 10-12) which

rejects the overly broad concept of “de minimis” and com-

pletely. ignores the full discussion of the burden of proof

(A. J.-S. 7-9) and the court’s rejection of the ee

expediency argument (A. J. 8. 6-7).

In citing. language from Exon v. Tiemann, 279 F. Supp.

| 609, 612 (D:'C, Nebr. 1968), appellants neglect to point

out that: in Exon no issue was presented and no evidence

heard on the point of non-rational grounds or. improper

motives. The same situation pertains in each of the cited ©

eases (App. Br. 47-48). Either no evidence of non-ra-

* tional grounds was presented, or if presented, was re-

_ jected by the lower court.

Appellees do not argue that the ection: must adopt

the most precise plan mathematically possible, but that a

plan which deviates from attainable precision cannot be

' justified upon grounds.or upon motives which . are not —

| constitutionally acceptable for variance.

Appellees further point out, as did the trial court at the

hearing of the case (A. 70), that the Missouri legislature

kept no report of its debates’ and proceedings and no

formal committee reports other than mere. recommenda-

ties can be moved to adjoining districts with a result-

—

Seiiliaaehas

2 Z . w

tions as to passage. Consequently, neither the trial court

nor this Court has, any basis for justification, on rational

_ grounds, of the variances between district Populations . :

found in the 1967 Act. |

Contrary to the Appellanis’ inaccurate: : sianplifiention of

the trial court’s ruling, ‘it is clearly stated in its opinion ee

(A. J. S. 17) as follows:

“This Court obviously has no- iniaiihss other than

to deny defendants’ pending motion for the reasons.

that (1) we must find that the-1967 Act does “not in -

‘fact’ divide the population of Missouri into districts ©

as nearly equal as is practicable; and (2) because the

. obviously avoidable population variances in the 1967

Act cannot be satisfactorily justified on any legally

‘acceptable ground supported by any evidezice in this

record. It is. therefore totally impossible for this

Court, on the basis of any substantial evidence, to

_ relate any ‘declared justification to any specific in-

equalities among the districts’ or to ‘articulate any

. Satisfactory grounds for rejecting . . . other plans

“presented (both) .to the court (and to the 74th Gen- —

eral Assembly of Missouri) which would have pro-

duced substantially smaller deviations than those cre-

ated by the 1967 Act.’ Kilgarlin v. Hill, supra, at .

page 124. Defendants have simply failed to carry

the burden of proof imposed on them by. Swann v.

. Adams, ITI, a case decided before Senate Bill No. -182

was introduced in the 1967 Missouri Legislature. We

80 find and determirte.” (Emphasis supplied.) .

2.

A.

‘The Burden of Proof Is on Those Supporting An Ap-

» portionment Plan to Justify It on Rational Grounds.

The rule and authorities are concisely stated by the

trial court’s opinion (A. J. 8. geod

Ne }

Rs —8— |

‘‘The principle is firmly.settled that the proponents. .

of a redistricting plan must sustain the burden of

justifying any deviation from practicable equality of

population. Swann v. Adams, supra, at 445; Reynolds

-v. Sims, supra, at 577-80; Maryland Citizens Commit-

tee for Fair Cong. Redistr. v. Tawes, 253 F. Supp.

731, 733. (D. Md. 1966), aff’d sub nom. Alton -v.

“Tawes, 384 U. 8.315 (1966). This Court must also

‘ follow and apply Kilgarlin v. “Hill’s express require-

———tnerrt-that. before a particular plan may be approved |

as constitutional the District Court must be able, from

the evidence adduced by the defendant, to articulate

legally acceptable reasons for the specific variations

in population between districts that have been shown

to exceed the ‘as nearly as is practicable” standard

of “ahs I, § 2"?

Appibdite argue ( App. Br: 49- 50) that ‘‘minor’’ vari-

ations in population are permissible without substantial

evidence justifying the variances. Appellants thus seek

a variation. of the burden of proof formula proposed in

Kilgarlin v. ‘Martin, Secy. of State of Texas (S. D. Tex.),

282 F.Supp. 404, which was reversed (sub nom. Kilgarlin

v. Hill, Secy..of State of Texas, 386 U.S. 120) by this

Court which retained its basi asic standard. enunciated in

Swann v. Adams, III, 385 U. S. 440 (1967). To lay down

so fixed a formula as proposed in Kilgarlin v. Martin

~ would be to produce the disorder which inevitably results -

from an.attempt to lock legal concepts into mathematical

formulae. Kilgarlin (which was reversed). ponent to

establish three zones of consideration: . ;

-(1) ‘De, minimis’’ variations which are per se con-

stitutionally permissible,

(2) “Per se’? variations. at the other extreme

which are not constitutionally permissible, and

iGo

(3) All situations in -between, in which the burden

is on the proponent to justify variations on consti-

tutional grounds.

The obvious weakness in jl” a formula is that it

_ must be applied to situations totally dissimilar to each

other. What might be a minor variation under the cir-

cumstances of one state might well be a gross deviation

- in another. While ‘‘mathematical exactitude’? may be

unattainable, it certainly is capable of clear definition

_ and, as a goal, it establishes a clear target at which to_

ghoot. But.the same cannot be said of ‘‘minor’’ or ‘‘de

_ minimis’’ as standards of -clarification.. Each court must

still decide on the basis of the particular facts and -

ures.

The formula fails for another reason. This Court has

made it clear that state legislatures may not toy with the

right-of the voter to an equal vote. Good faith efforts are

required. The concept of ‘‘one man—one vote’’ leaves no >

room for bad faith within a limited range. There must

ee not be established any safety zone in which constitu--.

| tionally unacceptable grounds may operate. To do so

would be to take us back to the pre-Baker morass in

| which the deviations became progressively ‘worse from

ane year to year to the point where the responsiveness 6f

| state government to the will of the majority was not

| only threatened but frequently subverted. The court must

not create any haven of refuge for those who resist the

concept of voter equality.

B.

¢

| Jonge? | The Burden of Proof Is on Appellants

The trial court, upon the testimony. and the witnin be-

| _. fore it, found that the*legislature employed standards in»

| redistricting which are not justifiable as constitutionally

| | |

a 10 =

acceptable grounds for variance from a population basis.

The court said (A. J.8. 7):

| “©We find that the defendants’ svidiiies leads to the

' ®evitable conclusion that a majority of the members

of the legislature -were motivated by considerations

other than the constitutional objective of ‘practicable

equality’ 7

. Under time honored rules of appellate review, where a

trial has been by a court without a jury, the court findings

must stand unless ‘‘clearly erroneous’’. Fed. Rules Civ.. °

Prac. 52 (a). Findings of fact in actions tried without a

' jury shali not be set aside unless clearly erroneous. A.

_ finding is only clearly erroneous, when, although there is .

evidence to support it, e reviewing court on the entire

evidence is left with a definite and firm conviction that a

mistake has been committed. United States v. United.

States Gypsum Co., 333 U. '8. 364, 395, 92 L. Ed. 746, 68

S. Ct. 525. This rule also OS to factual references

from undisputed facts. Idem. 333 U. S. at 394.

~ ‘Te rule is particularly applicable in situations which

are matters basically of fact, for determination on a case- —

by-case basis. In Commissioner v. Duberstein, 363 U. S.

278, 289, 4 L. Ed..2d 1218, sau 80 8. Ct. 1190. this Court

said: )

“Decision of » the issue male: in ‘these cases

-. must be based ultimately on the application of the

fact-finding tribunal’s experience. with the main-

springs of human conduct to the totality of the facts

of each case. The nontechnical nature of the statutory

standard, the close relationship of it to the data of prac-

tical human experience, and the- multiplicity of rele-

vant factual elements, with their various combina-

tions, creating the necessity of ascribing the proper

force to each, confirm us in our conclusion that pri-

mary weight in this area must. be given to the conclu- .

sions of the trier of fact. Baker v. Texas & P. R..Co.,

; —iu— - | .

359 U. S. 227, 3 L, Ed. 2d 756, 79 §. Ct. 664; Commis-

sioner v. Heininger, 320 U. S. 467, 475, 88 L. Ed. 171,

177, 64 S. Ct. 249; United States v. Yellow Cab Co.,

338 U. S. 338, 341, 94 L. Ed. 150, 153, 70 8. Ct. 177;

‘Bogardus v. Commissioner, supra (302 U. S. at 45)

_ (dissenting opinion). '

“This conclusion may not satisfy an sicademie de-

sire for tidiness, symmetry and precision in this area,

any more than a system based on the determinations

of various fact-finders-ordinarily does.” _

The burden is on appellants to show that the findings of

fact of the trial court upon which its judgment is based

are clearly erroneous. Murphy v. Shelby, 353, F. 2d 418,

421 (C. A. Mo. 1965); Montgomery Ward & Co. v. Steele,

352 F. 2d 822, 826 (C. A. Mo. 1965) ; aera v. Jones,

349 F. 2d 992, 995 (C. A. Mo. 1965).

In order for the reviewing court to set aside the find-

ings of fact by the trial court sitting: without a jury, ‘it:

must be clearly demonstrated that such findings were with-

out adequate evidentiary support in the record, or wefe

induced by an erroneous view of the law, and the burden

of showing that the findings are .clearly erroneous is on

the one attacking them. Oedillo v. Standard Oil Go. of

Texas, 291,F. 2d 246, 248 (C. A. Tex. 1961), certiorari de-

nied 368 U. S. 955, 82 S. Ct. 397, 7 L. Ed. 387 (1962).

3 m ee

‘Tho ‘“De Minimis"” Doctrine Has No Relevance to Re- Rd

| districting Matters.

Appellants attempt to start with the de minimis doctrine

“and to arrive at a formula for shifting of the burden of

proof on a question of population variances.

- Let us. examine the doctrine. Black’s Legal Dictionary,

Fourth Edition, says:

‘‘DE MINIMIS NON CURAT LEX. The law does not

care for, or take notice of, very small or trifling mat-

oe 3

, a :.

_ ters. The law does not concern itself about trifles.

‘ Cro. Eliz. 353. Thus, grror in calculation of a frac-

‘ tional part of a penny will not be regarded. Hob. 88.

So, the law will not, in general, notice ‘the fraction

Of a day. Broom Max. 142.”

It is a long jump from calculating’ a fractional part of

&@ penny, to determining the extent to which the right of -

'. @ voter to an equal vote may be devaluated. The cases

in point are quite limited.. In Schwartz v. Essex County

Board of Taxation, 129 N. J. L. 129, 28 A. 2d 482, 484,

' the Supreme Court of N ew Jersey sxamining a coe ~

suit, said:

“Respondents next assert ‘that saneuneial as the

prosecutor’s assessment for the year 1940 was on a

total valuation of $600, resulting in a tax to him of

$29.10, that, applying: the: maxim de minimis non

curat lex, the court should not burden itself with this

problem.’ It is true that the pecuniary ‘interest of

+ the prosecutor is small. However, the constitution-

- ality of a-legislative act is called in question by the

assertion that ‘the legislature has exceeded its juris-

diction.. An attack upon the constitutionality of a

. legislative act is never unimportant, and the ‘standing

of one otherwise qualified to question the legislation

is not to be determined by the. mere matter of dollars

and cents involved. Cf. Cooley. on Constitutional

Limitations, 4th Ed., c.-14, pp. 60, _ 647”” (Emphasis

supplied). = aN aer .

Since Baker v v. Carr the right of the individual voter to

pursue legal action against inequitable redistricting has

been clear. The right of voter’ franchise i is never 4 trivial |

‘matter. rh

As pointed out by ¢ the lower court the use of the con-

cept of ‘‘de minimis” in apportionment decisions-can only

be used to’ a: toh minor variations from exact equality

—13—

where the variances . result despite the Em . 2 of |

proper constitutional. principles. It may not be used to’

excuse the violation of those principles. “There is no ‘‘de

~ minimis’’ doctrine. ee a plan which is ‘‘a lit-

tle bit unconstitutional’.

Appellees believe the lower’ eourt -has commented on \

a every reported use of the phrase ‘‘de minimis” in appor- °[— \

tionment cases (A. J. 8. 9-11).

Variances which result from constitutionally ‘dininliy

able standards are*not ‘‘de mmimis’’. Paraphrasing this

. court’s statement i in Lucas v. Colorado General Assembly,

377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632, 646, Appel-

lees believe the rule should be ‘that disparities from — S

population based representation, though minor, may ren-

‘der the apportionment scheme constitutionally suspect if

only justified on a non-rational basis. Variations: to be

constitutionally acceptable must be slight and nased on, oy

enon justifiable grounds. ; IL

»

a a

oe

“The Districts 6f the Act Are NOT as Neary Equal

as Is Practicable’’, Because Transfer of Whole Counties: '

Between Adjacent Districts Would Create Districts Hoge

Nearly Equal. ; oot.

The districts pawn ~~ the 1967 Act are NOT as

. hnearly equal as is practicable, because simple transfers

of even whole counties from the higher to the lower of

adjacent districts could ‘have been made which would

have resulted in caatstet populations significantly closer

‘to equality. : |

_ An inspection of the table and - map which follows will

reveal how many of such transfers could easily be made;

the table offers a-choice of counties for transfer; — .

possible transfers are spparent,-

e

a’ -

° ~ = & . 4: x f. 8 : z

| = e

“a 132 8 i. ee —e\s. E;

an | | ag? » “, ‘

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— © sd Ls "ww z§ _ @~ o

Th = |:8 ; 3 \is fig \ 0}. -¢ i i

»> z = 3 “ * nS . = ba 3

2 . = :.$ $ _f& '

<.@ x @ fom S a =

2 ¢$ 128 io 7 a 74 5 3

3 |" © . #8 71) 8 & | ie 31. |:

QQ: si S x vd 5 3 6 4 : = (fe 35

) s | & HES. at, 8 a. Sou

? a 3 p 4 . a ba 3 —>, 4

“8 7 es 3 ¢ x —a- es $ + 5 y

; ar: +i OS an . :

Pe ee | "= *if 2 8 e@ 2

23 |. z& 3 wo yee | ee 4 2 ys

2&1: S |z:2 |28 = ® s8i|F se

giete ae ol « 2 ° “, & : oe a |

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- . Nn es 5 2 :

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BF 8 | -1ES les peoii (is |b 8 SUES (3 HE

fs | ~ ef z= = 2 eo . WAR : x .: 7 ¥

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&- mJ se —_ . ~

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‘(496) 24) 03 (puz) 40 (3ST) ay? Ut JUasasd Ssooxa Sulsajsues hq soyiny isnfpy %

6Ir's — o6z'zer (m9) TAT’ » (096)

(W3L)

13a. — ZI9'os+ (M01) . sz0‘OEs

. 90r'9 — Tes'esr- (qi0t) 9TT'Lzr

* |) 9108 + Lesser (aH) © Bae'zeF

Bett + 906'8ey (1) = WBS" LZF

199° + Leo'eer (m9) 999'F8P

oss'9 + LeT‘ess (mF) 40984

30) + “O8soer (43h) $99°KEF:

GOL +! BTS Eh «(TI0T) «820/984

eulogy = ti‘

|” MON

%

(432)

(432)

(a3)

(498)

(498)

(498)

(498)

Jopsussy’ poysoBEng sexy suoeindod

z90'9 *** «deténgog |

weL'g © *3°""" HIBzO

999.6 =. « SBIZN0G

gts» ‘''* AMOHOH

gst’é, ‘°"°** aBpe .

‘ggs‘0T °*'' puemoxz.

g1y'6 **** -mBBI0;

" gos‘ot **'* - paemoy

oPr'or reeeees gmeg

Jojsuery, 4}0n0p :

peysesang

2

oo

ose‘. + sezsey (499) s22'szr (496)

TO6'st + sos‘szr (U20T) 69L'9eh- (WIZ)

Toe'st. + - sgs‘sey (mI0T) e9z‘9ee (422)

SPO'LT + I2L'eTe- (mI) 69L'osh (UIL»

—BYOLT + = TeL'ete (a) ~=— 6 9498 (92)

- gga'se + Bes'ese (q19) — gaa'ane- (199)

zos’sz + Tex‘ers (a3y) © ses'are (098)

5

“STATE TOTAL 4

4

gos'sz + 7eL‘et (uaF) + gza‘ony (ms)

+0 + twee,’

gog'tg + sps‘ezr (G30T) - szo‘art (a8)

‘eousegia SI rorneTa 4

JOMOT fo 101

WV L961 4epun sudjzeindog —

SLOINLSIO NB3IMLAG SAONSUASsIC NOILVINdOd | —

. .

. . , * \

a

s

.

BR /

By

? 5

>

oe 5

Se:

Sr ae

Baas

“—

AERP erty,

ae ad

4 6484 | 8725

suLtivan 33 . iii ’ :

meee eee RE | - MISSOURI

68S | ears a ae POPULATION - OF COUNTIES

| a neces 1960 — ;

—e j acon My MONROE - RALLS

Seen yy i 9= 428, 225

i 16706

: BOONE | 26079 : — ; \

5148 = me _ i J) s <)

“a | cer |= 439,746

120 sonia 8750 52870 2= 436,448

wowrea feascon) NAY A, 20383 CITY OF ST. LOUIS

aoe cat, a te | : - 750026 32 436 099

rn oes 0867 | & | 44ses m

7 — o 66377 Be 445,523

ona ~ ean , , arrecarson ed

rm. te Pweies 12647 | 14346 126

= - 25396 agen

: | | 8 Gen staal _ 4642 aes

ease scan Texas, “3 erveouee peri pa 102 423, 868

_ e. = si6l my f 42020 Rae |

3753 | 4103 | 17758 | 10 =e cok

_ ‘9638 ‘ee — em *

ree a ~ —— 3973 " guTLen eoced . Seok

ce | ep | me [oom eee yi

: é c ; . satiated

STATE TOTAL 4,319,813 32098

| | | 39139 |

The Congressional Representative Districts of Missouri

Created by the 1967 Redistricting Act.

The official district population data prepared by the.

Bureau of the Census (Item 13 of “Stipulation of Evi-

dence”) is as follows:

District . Population District Population |

oa § 422,238

2. . 436,448 ee 436,769

ie 436,099 ae 445,523

4 © 419721 .- 9 498,293

5 431,178 - 10 . 423,868

State total population: 4,319,813

District average population: 431,981

| | 2

The City of St. Louis (a city not within.a county) con-

tains a part.of District 1 and a part of District 3.

The. County of St. Louis contains all of District 2. and

a part of each of Districts 1, 3, 8, and - |

- e

Jackson County contains all of District 5 and 4 cart

of District ae

Keeton City contains all of District 5 and a part of

District 4.. One ward of Kansas City — is in Clay .

“County is in District 6.

f

~Chowbe approach to le: of district populations can .

-; also be attained by utilizing smaller political subdivisions,

such as townships of the counties, and also wards and pre-

| cinets, particularly in the more populous areas.

The heavily populated First, Second, and Third dis-

tricts, situated in the populous areas of St. Louis County -

and the City of St. Lonis, could have been easily adjusted.

among themselves. The Ninth district which is in need of

adjustment by addition ‘of population, particularly after.

the suggested transfer of Schuyler County to the Sixth,

could have attained this additional :population from the —

First or Second, each of which has an excess. of populs-

tion. ¢.

The changes suggested indicate that the thik As-

sembly did not create districts as nearly equal in popula-

tion as it might have easily created by a few obvious

_ shifts of existing political units between adjacent districts.

Sufficiently close and easily attainable population equality

of the districts has not been accomplished by’ the 1967

D.

‘Legislative Interplay’”. Is NOT a Constitutionally Ac-

ceptable Basis for Variances From Equal Population Dis-

tricts.

Appellants argue that allowance can be made for. ‘‘leg-

islative interplay’’, ‘‘political compromise’? and ‘‘prac-

tical political problems’’ (App. Br. 38-44). Appellees urge

the court to reject this argument, as did the trial court,

which said (A. J. S. 7):

‘‘In other words’ defendants would bis this court

hold that their definition of ‘practicable’ is legally

equivalent to ‘acceptable to a majority of the —

lature’. ‘We — that argument.’’

| Ps .

No good purpose, in judicial efforts to define constitu-

tional standards for district line-drawing, would be served ,

by adding to the redistricting lexicon: phrases so subject to.

broad interpretations. The courts are already plagued

with confusion over the use of the terms ‘‘ political ques-

tion’’ and ‘‘political thicket’, ie

Certainly if Appellants are suggesting that partisan

political considerations, »r the interests of individual leg-

islators- in favorably structured districts, are acceptable

reasons for unequal districts, this court should clearly

state that such standards for variance are not constitu- ;

‘tionally permissible. ee :

; Fai /

Numerous federal decisions, including those of this |

_Court, refer to the responsibility for congressional redis-

itricting, as a function of the state legislatures. One some-

times sees the ‘language employed that the job of

redistricting is a political matter. Perhaps a closer exam- —

ination of the terms is in order. | .

The power and authority to establish congressional dis-

tricts within a state is derived from Article I,of the Con-

stitution. Section 2 provides ‘‘The House of Representa- .

- tives shall be composed of Members chosen every second

Year by the People of the several States’’. Section 4 says

“The Times, Places and Manner of holding elections for

Senators and Representatives shall be prescribed in each

state by The Legislature Thereof.”’ In Wesberry v. San-

ders, 376 U. S. 1, 6, 11 L.. Ed. 2d 481, 486. (1964), this

court made it. clear*however that . .

6s @ @

nothing in the language of that Article gives .

support to a construction that would immunize -state

congressional apportionment law which debase a cit-

izen’s right to vote from the powers of courts to pro- ”

tect the constitutional rights of individuals from leg-

islative destruction * * *”’ ee ,

ERY NE cn LIRR IND ee Oy Lt YMG? © ey o> SAO T OT TA TR OTR FOS RET Be Fa gr 8 eer terre © ce

—18— *

The terms. ‘‘political question’’ ,and ‘*nolitical thicket”?

hhave ceased to be a barrier to proper judicial action since

‘Baker v, Carr yet the idea still: seems to pervade some

legislative halls that there is a range within which political

considerations may be acceptable in. causing variations

from districts of equal population.

Probably some hundred or more federal decisions, 2°.

_ score or more of them by this Court, have made it clear

that equal weighting of all persons’ votes is the standard;

however, the significance of Baker and its progeny seems

not yet to have been fully accepted by the legislatures of

the several states. So we see it necessary for the federal ©

| — courts to repeatedly point out that legislatures are bound .

- by certain constitutional limitations in the exercise of

; - _ these’ duties. Why is it that in state after state the legis- —

lature cannot achieve a constitutidnally acceptable plan

until it has made the trip to the federal court. at least

once and frequently twice? :

In truth the balancing of districts by sendliation is not .

and never was a ‘political question’’. Black’s Law Dic-

| tionary, Fourth Edition, defines “political questions’” as:

“Questions of which the courts of justice will.

refuse to take cognizance, or to decide, on account

of their purely political character; or because their

determination would involve an encroachment upon ~

the éxecutive.or legislative powers; e. g., what sort

of government exists, whether a foreign country has

become an independent state, ete. Kenneth v. Cham-

_ bers, 14 How. 38, 14 L. Ed. 316.” :

, ‘Certainly the language of Article I and of this Court

makes it clear that-in performing the function of .con-

gressional district line-drawing the legislature is acting

as a surrogate for the people, in whom the constitutional

power to elect ‘congressmen ultimately rests.

“i weer ee

" ‘What we are concerned with is the right of the in-

dividual voter. The confusion arises, it seems to Appel-

lees, from thinking of the legislature’s task as a pre- —

rogative or power rather than a legislative inst, duty,

_. and responsibility to the people.

The lower court. found on the facts that the Jegislature

; failed in its duty to the people by permitting | considera-

tions of ~‘‘political compromise’’ and ‘‘legislative inter-

play”’ to enter into its structuring of the district lines.

The ‘edstent court specifically said (A: J. 8. 7):.

‘*We find that defendants’ evidence leads to the’

inevitable conclusion that a majority of the members.

of the Legislature were motivated by other ,con-

siderations than the constitutional hk Sabie of ‘prac-

ticable equality’.’’ -

As Judge Collinson stated (A. J. s, 98):

_ «* *.* on its face and under the: undisputed evi-

dence it.is not an attempt to divide the State of -

Missouri in Congressional districts that are as nearly .

equal in population as is practicable.”’

The goal is mathematical equality. Perfection may

not be obtainable by mortal man. But it shoul ught.

_ The obligation of the legislature is to

effort to meet the constitutional stanc rd, unharhpered

‘by personal or partisan politjcal considerations. The ob-

jective is riot to-meet a minimum standard. but to. come

_ * as close as possible to a solution which ’ ‘treats each voter

on an equal basis. The federal courts will only cease

to be flooded with reapportionment litigation when state

legislatures cease to conceive of the task of redistricting

_ “as one which permits them. to engage in poreee) games-

manship. .

It is perhaps appropriate to point out : that there are .

_ real differences between a.state’s role in structuring: legis-

lative districts for state representatives and state senators

y — 20—-

® ; , i

as /oppoeed to-a. . state legislature’ 8 vale in ‘rwwing con-

_Sressional district lines.- ..

: Ja the first instance iuare is an area for political judg-

“ment, Should the body be elected at large or from dis-

tricts? Should there be one or two houses of the legisla-

. ture? How many members should there be in each house?

Must legislators reside in a particular district? Should

ay some legislators be elected at large and others from dis-

tricts? Should at large legislators reside in specific dis-

' fricts? These are * political questions which the people

of a state may deterniine and later change, subject to

federal constitutions! limitations - — equal protec-

tion of the laws. » ;

On the other nnd ‘he state "s watt | in sicialitiesl

. redistricting is much more restricted. The number of

_ congressmen is set by federal-law. Under. present federal

statute they may not be elected at lar The only spe-

cific power given the state legislatures~is the right to

_determine ‘‘The time, place and manner of holding eon-

gressional elections’? (Art: I, § 4). %

The legislature in addition has the duty of Vedrawing

‘the congressional district lines after each federa] census.

That duty is a largely. mechanical one, arising solely

from the necessity for change arising from changes in

a state’s relative population. Such ¢ s do not present

political questions and° the duty. is ‘confined within_a

- Narrow scope by. constitutional limitations. It is not in-

tended to create opportunities for oppression of racial

or political minorities by the majority, nor the oppor-

tunity: for creating favorable districts to a party, class

or interest. ~

The history of legislative line-drawing prior to Baker

teaches that the will of the people is progressively sub-

verted and deviations from equal’ representation become

epic cmt, A worse, unless - the legislatures are told in

© ‘

24 past, \ 21 a

, clear language what theirline-drawing duty is; and, what

' they may not do. When there is a ‘‘political thicket’, it

arises not because there is a *‘ ‘political question’’, but be- . ‘i

cause the constitutional limitations vand the democratic :

ideal of equality are ignored.

. Appellants by their argument that political, or legisla-

. tive interplay: is a constitutionally acceptable and rational

basis for variance from a population \formula impliedly

and perhaps expressly concede that such interplay oc- -

curred in the Missouri legislature in the adoption of the

1967. Act. Some quotations from the tfanseript wil make

clear that the trial court’s ‘finding was based on substan- “-

tial evidence and further explain appellants’ arguing and:

attempting to establish -‘‘ political expedieney”” as a con-

stitutionally acceptable ground.” . |

_ Appellees start with the premise which ; is not atapdea

by Appellants, namely, that numerous shifts of whole

counties from one congressional district to another would

have resulted in the 1967 Act achieving a much closer ap-

proximation of equality of population between districts..

What then was the evidence presented which intended

to rationally excuse the adoption of a less adequate plan?

The answer came quite clearly — the legislators who ©

testified. . :

_ Mr.- Richard J. Rabbitt, the maiiclty floor leader, testi-

fiéd (A. R. 72): :

‘We are Pn with men, and those i men represent |

people at home,‘and I think they have to follow those

people’s wishes, so we had to try to adopt a plan that

could get 82 votes, in the House and 18 votes in the

Senate.’’

and (A. R. 72-73):

«<* * * we tried to, if possible, stick to historical

usage of thesé counties in districts * * *’’

| ~~ .

| ae

and (A. BR. 76): 3 |

“I think that it is a. reasonable legislative com- —

promise.’’

and (A. BR. 77)+

**T will say this, that there srobably 1 were changes

that could be made that would do what you are say-

‘ing [i e., reduce the variances], but I don’t think a

pill like that could have passed”.

\Senator William Baxter Waters, majority leader of the’

State Senate, similarly testified (A. BR. 83):

“Q, Now, Senator, you have testified that popula- —

tion was your prime consideration in considering

this legislation, but you have also testified that you

gave recognition fo the necessity of enacting an act? ,

_A. Passing a bill, yes, sir.’’ |

- He also admitted that the legislature ‘took historical -

factors into account (A. R. 83-84).

State Senator Thomas G. Woolsey stated (A. R. 91-92)

‘that his concérn was with seeking to establish districts,

where possible, which would be politically balanced and

thought the bill as passed was unfavorable to his (the Re-

publican) party. He recognized the bill as a political com-

promise (A. R. 93). Similar: testimony. was given by the

House minority floor leader, R. J. King, Jr. (A. R. 95-97).

He conceded that’ the legislature was working with er-

roneoys population figures and they didn’t have a good op-

portunity to look at the bill.

- 9, * * * do you have an opinion as to whether

or not the 1967 Congressic districting Act is a

reasonable and fair: compromise? A. I believe, in

‘retrospect, that it is ‘a fair compromise. I would say

that most of our opposition to the House Substitute

[the Act] ¢ame from, one, the fact that we did not

ms i

have a real good opportunity to see this. bill, this sub-

stitute, we really didn’t know what it did, and I think ©

this is evidenced by the fact that the errors in the

_ population showed a." .

State Senator Omer H. Avery, chairman of the cil

_ tionment Committee, testified (A. R. 116):

««* © © Tt was also’ the desire of the committee that

the districts, the ten districts, be changed only as

much as would be necessary to make them come

within the population limitations and not try to make

any political complexion changed [sic] designedly as”

to any particular district.’’

Senator: Avery’s testimony made it ieee that his com-

mittee took a 2% variation as an acceptable variance

_ within which to make en accommodations (A. R.

116-120). / ‘ \

The trial court ‘hes fully igensepd ‘the other ‘leenih :

able considerations: (1) the use by the legislature of in-

accurate figures not based on the 1960 census; (2) that the

legislature’s district figures were in error and the use of

the correct figures produced greater variations than those

contemplated by ‘that body in adopting the 1967 Act;

(A. RB. 99), and (3) the ease with which shifts. of whole

counties and convenient political subdivisions could have

produced more equal districts.

. , 7

. The foregoing illustrates some of the so-called widite- 7

tive interplay. ‘The attempt was to barely. come under the

wire of possible constitutional acceptance and not a good

. faith effért to achieve the. best possible plan from a popu-

lation standpoint. Certainly there was substantial evidence

to support the trial court’s ee

. oes it

6.

- Compineen Is NOT & Defense to’ Unbalanced Districts.

Appellants argue that. by shifting counties to achieve

_ closer balancing of district populations, the districts. might

- . ‘become leas compact. Appellees find it strange to justify

Ce ~palapportionment by claiming to seek compactness. The

—_—

‘compact. and contiguous?’ concept | of the ideal district °

is a doctrine - seeking to pone gerrymandering. | Gerry- al

e - -mandering itself is- but. a' device ‘by which | improper po-

<» * litieal” ‘objectives (distriets | unjustifiably favorable to a

candidate, party or interest)’ are, gought,. ‘without, violat-

ing. the doctrine of equality of population.

See geographic compactness was a conedra of. the General ":

Re Assembly, this objective: certainly was not attained in

_.. the-Act;' the: sprawling i i

pais trict,” in ‘two-ihstances ly one county ‘wide, wandering |

ir irregularly across. neaply two-thirds . of the width of the

a entixe state does not — with any definition of ‘‘eom-

pact” ee ) ea ‘

a ce

F aa eee The changes: senile by” ‘Appélleds, of aaiditen

CRS. several. counties | from a district of higher. population to

sam adjacent district with. lower population (discussed

~. pages 13-16-this brief), do -not make the Eighth Distriet

any. less compact: nor: affect ees the. ici a

* of any: other districts.” |

a a e Hie Near me 5 < 4. |

es Si ‘Berotahage or ‘Numeric 5 Odeapazinonia ‘With Other Deci-

A gions Are of-No Significance in Testing Good Faith Efforts _ ;

‘or Compliance: ‘With Acceptable Standards. ee

See ** Appellants; i and ‘particularly Appellants: Heinkel, et “. ie

2 oh “seek. to’ justify the1967 Act by comparison with the

as ‘ : mathematies of: other ‘decisions and particularly, Gong v.

7 278 F. — 133; affirmed, sub nom. Kirk | v. ‘Sie

egular shape of the Eighth Dis-

| and Connor v. J

95 —

389 U. S. 574, 88 8. Ct. 695, 19 L. ed. 2d 784, and Connor :

v. Johnson, 279 F. fate 619, affirmed per curiam, 386

U. S. 483. | |

‘In Swann v. Dae, TI, 985 U. s. 440, 445, 87 S. Ct.

659, 17 L. Ed. 2d 501 (1967) this Court stated that. the

approval of a variance in one state has little bearing on

. a similar variance in another state. Logically each case

must be considered on the basis of its particular facts.

‘See also Reynolds’ v. Sims, 377 U. 8: 533,. 578: *

‘*What is marginally permissible in one state may

be unsatisfactory in another depending on the par-

- ticular’ circurstarices of the case.’’

Looking beyond the rule of Swann v: ‘Adams, III, Pisive

_are further reasons for discarding Gong v. Kirk, supra,

n, supra, as comparable precedents.

ch cae the lower court itself either made

the distficts (Gong) or upheld a redistricting act (Con-

nor) and each was ‘affikmed by this Court on appeal. Con-

sequently the heavy burden of overcoming the weight of ee es

| the trial court’s findings was not placed upon this Court,’ . -

whereas in the instant case this Court must find that there

is no substantial evidence to: support the trial court’s

fact findings to justify a reversal. Secondly, the records -

and decisions in both Gong and Connor do not disclose

that there was evidence in either case to indicate that the

_respective court or the legislature based their actions ‘on

constitutionally unacceptable grounds.

The trial court has fully covered the untenable reliance

of Appellants on Connor v. Johnson (A. J.: 8. 65-68).

The*issue presented to this Court in sfid case was golely - |

the question of racial discrimination under the Fourteenth

and Fifteenth Amendments. No issue was framed or ne:

/ sented based’ on Article B

In Gong v. Kirk, 278 F. Supp. 138, 135 - (19879, the

three-judge court ‘itself redistricted the state of Flofida,

‘@ —

: resulting in Weta varying 8,027° from ‘the largest ‘to

the smallest. Populations of voting precincts: were calcu- ?

lated by the court from registration — as stated by

- the court:

“Since federal census figures are not available by

presently established precincts, a calculation of the.

population of each relevant. voting precinct was made

by determining the ratio, based on the most recent

- voter registration figures, of the registered voters in

each voting precinct to the total of the registered —

voters of the particular county and applying that

ratio to the county population as shown by the 1960

‘decennial census, i. e. county registration«is to county

population as precinct registration is: to precinct .

' population. This formula was suggested by both

. plaintiffs.and defendants®”’ (Emphasis supplied).

. Defendants, upon: receiving an official Census Bureau

calculation of the populations of the districts which dif-

' fered by 48,824, moved for reconsideration of the judg-

ment and firial order, which was denied. Since all parties

to the suit had agreed upon the use of registration figures

_ as a basis of calculation of the populations, the official

_ census figures came too late for consideratiog. This Court

_ Subsequently affirmed, in sub nom. ‘Kirk v. Gong, 389

U.S. 574 (1968).

_Appellaints throughout their ilies aie to cre-

ate an impression that the differences are much less by -

: calculating, or quoting differences in. percentages or ratios.

The apparent differences are thus reduced by, a hundred- *

fold when percentage is stated and are apparently re-

duced further by quoting the percentage as plus or minus »

from the average. Quoting the district difference as. a

ratio or. fraction .of. the’ average creates a similar false

impression. Population is the true’ measure of district

size, not percentages or ratios; people vote, not percent: -

ages. 1

ii iat 8

— 27 —

Appellants’ extensive table (App.. Br. 29-84) purports

to show the pépulation of the highest and lowest district

_ of a state and the maximum difference. Only states are

-. shown ‘where litigation resulted from the dissatisfaction

of some citizen voters with the districting acts. Appellees

do not vouch for the accuracy of: this table but cite it.

for. the sake of argument only. - ° | .

Appellants state their purpose in submitting the table

is as follows (App..Br. 34): = .

“ +" 66@ © © Tt has been appellants’ purpose to demon-

strate the constitutional validity of the Missouri Act

by citation of cases before this court as well as cases

. before lower courts. Appellants recognize that’ what

- is constitutionally perntissible in congressional. dis- ‘

tricts in one state is not conclusive upon the con-

stitutional validity. of a’ congressional plan in another

state. However, where # pattern had been established

by learned members of lower courts throughout the

country and where a pattern is. developing among

the cases which have been summarily affirmed by

this court, comparisons become persuasive.’’ |

This Court, in Reynolds v. Sims, 377 U. 8. 533, 577

(1964), established the following principle, which, the.

Court has ‘repeatedly reaffirmed, the latest time being in

Swann v. Adams, III, 385 U. S. 440, 445, 87 S. Ct. 569,

572, 17 L. ed. 2d 501 (1968). | |

- “What is marginally permissible in one State may

be unsatisfactory in another, depending on the par- -

_, ticular circumstances of the case.”’ Rahat

' This Court in these cases was discussing districting or

apportioning of state. legislative districts but the same

principle applies to congressional representative district-

ing, with the added requirement of. a closer approach

to population equality for congressional representative

districts, concerning which this Court ‘baid, Reynolds y.

Sims, at page 577:

Pa aes cee

we

ee Se

set aE

a

«Somewhat more "flexibility may therefore be con-

stitutionally permissible with ‘respect to state’ legis-

‘lative Stee eanara on, in eer district-

ing. 9 b : a

“A mated’ survey ana. analysis of the data of the above

cited table (App. Br. 29-34) does not show that the pre-

dominating number of cases decided in the several states

. significantly favor districting which had greater maxi-

‘mum differences than the Missouri Act. The total number °

of states listed is 26. Of these there are eleven (11)

states hav.ng higher population ‘differences than Mis-

souri (Ala., Ariz., Calif., Ga, IL, Ky., N. H., N. Y., Tex., -

Va., and Wash. )sand nine (9) states have lower differ-

ences (Ark., Ind., Md.; ~Mass., »Mich., Mont., N. C., Ohio,

~ and Tenn.) and two (2) states (Fla. and Kans.) have

‘lower differences but these used other than. federal popu- |

lation data for their calculations and have higher dif-

ferences only when federal data is estimated and .com-

pared. Mississippi has nearly the same difference (26,265

Miss. and. 25,802. Mo.) but the emphasis placed by the

plaintiffs therein was upon alleged racial discrimination

in the making of the districts and tthe appeal .to this

"pean Court was solely on that question.

Thus an examination of the. cases linted is ‘not ¢ as per-

suasive as ‘Appellants. would like, f° ‘have this Court

_ believe. ‘Furthermore, why the litigants in the respective

cases did not pursue their litigation to higher courts

cannot be ascertained; many were undoubtedly personally

_ satisfied with the districts which had been made by the

‘legislature upon order of the court or made by the court

itself, although further litigation, had it -been pursued,

_ might have resulted in the districting act’s invalidation.

The latest judicial determination of a districting act is *

only persuasive if that determination is made by this ~

Court, because the litigation is begun and pursued ‘and

| —— for so many reasons irrelevant to -the issues j

9

Is . é - . -

reo

involved therein. Even if determined by. this Court, the

decision may probably be ‘only persuasive and not con- —

clusive, because the conditions encountered - ‘in each state

‘are 80 Gitferent. -

: CONCLUSION.

The cougt below in its opinion, decision, and judgment .

properly found that the 1967 Missouri Congressional Re-

districting Act does not comply . with Article I, Section 2

of the Constitution of the United States and is uncon-

stitutional and void. .

Population differences: between ‘the districts created by:

the Act are gross and .excessive (NOT ‘‘de minimis’”’ or

‘‘minor’’ as Appellants contend) and violate the judi-

. - @ially established requirement and principle ‘‘that as

-- nearly as practicable one, man’s vote in a congressional

election i is to be worth as much as another’s’’.

Unwarranted and unjustified population iia be-

. tween adjacent districts, which differences can readily

and easily be significantly diminished by the transfer of

whole counties or other political subdivisions from one

_ district to an adjacent district, conclusively prove that

. the districts have not been created as rane by the

aforesaid Article I, Section 2. I

eer submitted,

PAUL W. ‘PREISLER,

4274 Shenandoah Avenue,

-St. Louis, Missouri 63110, —-

IRVING ACHTENBERG,

Balen, 7 531 Walnut Street, — .

Se Svcs era fies _ Kansas City, Missouri 64106,

aie aii ec eee Attorneys for Appellees.