Preisler v. Secretary of State of Missouri, 341 F. Supp. 1158 (W.D. Mo. 1972)
June 6, 1972
SECRETARY OF STATE OF MISSOURI et al., Defendants.
United States District Court, W. D. Missouri, C. D.
*1159 Paul W. Preisler, St. Louis, Mo., and Irving Achtenberg, Achtenberg, Sandler & Balkin, for plaintiffs.
Gene E. Voights, and Charles B. Blackmar, Ass't Att'y Gens., for the State of Missouri, for defendants.
J. Anthony Dill, St. Louis, Mo., Harold L. Volkmer, Hannibal, Missouri, for amici curiae.
James Millan, Bowling Green, Mo., for The Honorable William L. Hungate, U. S. Representative and Hon. Bill D. Burlison, U. S. Representative.
Edward Welch, Welch and Wheadon, East St. Louis, Ill., for The Hon. William L. Clay, U. S. Representative.
Before GIBSON, Circuit Judge, BECKER, Chief District Judge, and WANGELIN, District Judge.
FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT ADOPTING JUDICIAL PLAN FOR CONGRESSIONAL DISTRICTS
This is an equitable action filed on July 6, 1971, by nine citizens of the *1160 United States and of the State of Missouri against the Governor, the Secretary of State and the Attorney General of Missouri, in their official capacities.
The plaintiffs seek (1) a judgment declaring the 1969 Missouri statutes dividing the State of Missouri into ten Congressional districts to be unconstitutional, (2) an injunction restraining the defendant Secretary of State from authorizing and permitting electoral processes including future primary and general elections for Congress of the United States from the districts established by the 1969 Act and (3) a judicial redistricting of the State of Missouri into ten constitutional Congressional districts for the preliminary election processes and for the primary and general elections beginning in 1972. (The injunction sought presumably would continue until the General Assembly of Missouri enacts a constitutionally permissible plan of Congressional redistricting.)
The District Judge before whom the action was pending determined the necessity for convening a Three-Judge Court as required by § 2281, Title 28, United States Code, and requested that the Chief Judge of the United States Court of Appeals for the Eighth Circuit convene this court pursuant to § 2284, Title 28, U.S.C. On August 12, 1971, in response to this request the Honorable M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit convened this Three-Judge Court.
Venue and jurisdiction to hear and determine this action on the merits exists under § 1391(b), § 1343(3), § 2201, Title 28, U.S.C., and under § 1983 and § 1988, Title 42, U.S.C.
In April 1969, the Supreme Court of the United States affirmed a district court decision holding the 1967 Missouri Congressional Redistricting Act unconstitutional. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519. Following this decision the Missouri General Assembly in 1969 enacted the Congressional Redistricting Act under attack in this action. Section 128.204 to Section 128.306, inclusive, Chapter 128 RSMo. In 1970 Congressional elections were held under this 1969 Act.
When the results of the 1970 decennial census became available it was readily apparent that the districts created by the 1969 Act had become constitutionally impermissible in 1971. See Congressional District Data, Districts of the 92d Congress, Missouri, CDD-92-93, June 1971 (a United States Department of Commerce Publication). The facts underlying this conclusion have been verified as a result of the pretrial and trial proceedings herein. Because of population growth and shifts between 1960 and 1970 the disparities between Congressional districts in Missouri, and the variations from the ideal are illustrated by the following uncontroverted tabulation from the currently available 1970 census figures:
Number of Congressional Seats: 10 Total Population: 4,677,399 Ideal Population for Each Congressional District: 467,740 Actual Population for Each District Created by 1969 Act: Actual Population Per Variation District 1970 Census from Ideal First 377,097 -90,643 Second 508,745 +41,005 Third 376,211 -91,529 Fourth 527,990 +60,250 Fifth 379,619 -88,121 Sixth 462,024 - 5,716 Seventh 481,313 +13,573 Eighth 604,525 +136,785 Ninth 551,132 +83,392 Tenth 408,743 -58,997
None of the minor corrections in the preliminary 1970 census data substantially affects these figures.
On the basis of these 1970 census population figures, we conclude, without disagreement by any formal party, amicus curiae or any other interested person, that the 1969 Missouri Congressional Redistricting Act, supra, is unconstitutional and that no present or future Congressional preliminary election processes or primary or general elections may be held thereunder.
*1161 In early recognition of this inevitable conclusion the 76th General Assembly of Missouri at its regular session in 1971 considered legislation calculated to create in time for the 1972 elections ten new constitutionally permissible Congressional districts. Until November 22, 1971, we refrained from further judicial action with the hope that the Missouri General Assembly would be called into special session and would cause to be enacted into law, in time for the 1972 election processes a constitutionally permissible Congressional redistricting plan.
On November 22, 1971, we held a plenary evidentiary hearing to secure a basic record for action on the merits of this case when a decision was required. To give the Missouri General Assembly further time to act, action herein was stayed until January 31, 1972, when final hearings herein were held and the cause submitted. Unfortunately, no new Missouri Congressional Redistricting Act has been enacted into law as of mid-February 1972, the latest practicable time for legislative action. Now most formal and interested parties agree that we must render a decision in this case on the basis of the pretrial and trial.
So left with no alternative, reluctantly we proceed to establish by judicial action a constitutionally permissible Congressional redistricting plan for Missouri under which future primary and general elections for Congressional seats must be held until there is enacted into law by the General Assembly of Missouri a constitutionally permissible Congressional redistricting act. In doing so we will give effect as far as is practicable and legal to what we believe to be the will of the majority of the people of Missouri, as far as it can be discerned.
The federal law requires, and we willingly follow the federal standard that Article I, § 2 of the Constitution of the United States requires that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's". This rule was enunciated in Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481, and further defined in Kirkpatrick v. Preisler, supra.
In addition to this federal standard, Section 45 of Article III of the Missouri Constitution, V.A.M.S., requires that the Congressional districts "... be composed of contiguous territory as compact and as nearly equal in population as may be." In devising a judicial plan of Congressional redistricting we respect and follow this state standard, as a matter of law and comity.
Some evidence of the will of the people of Missouri in some respects is found in the alignment of Congressional districts in the now obsolete 1969 Missouri Congressional Redistricting Act. To the extent practicable we give consideration to the salvageable portions of that Act.
Imperfect and to some extent inconsistent indicia of the will of the people of Missouri and their elected representatives are found in the two 1971 Congressional redistricting bills, each of which was passed by one branch of the Missouri General Assembly. Neither bill passed both branches of the Missouri General Assembly. The Missouri House of Representatives passed House Committee Substitute for Senate Committee Substitute for Senate Bill No. 370 containing a plan of Congressional redistricting. The Missouri Senate passed Senate Committee Substitute for Senate Bill No. 370 containing a substantially different plan. Neither bill passed both branches of the Missouri General Assembly, which remain in disagreement up to the present time.
Giving consideration to all factors and arguments advanced by the parties and amici curiae we have decided to establish the attached judicially devised constitutionally permissible plan for creating ten new Congressional districts from which the ten members of the United States House of Representatives from Missouri shall be elected in 1972 and in subsequent years unless and until there *1162 shall be timely enacted a new constitutionally permissible Missouri Congressional Redistricting Act. The judicial plan is appended hereto marked "Exhibit A" and made a part as if fully set out herein in words and figures.
In this plan an effort has been made to avoid splitting counties except where necessary. Furthermore an effort has been given to retaining counties in present districts as far as practicable and legally permissible. Compactness of districts, in the degree required by state law, has been achieved.
According to figures certified at our request by the System's Specialist, Andrew S. Loebl of the Administrative Services, Division of Budget and Comptroller of the State of Missouri, the 1970 census population figures of the judicially approved Congressional districts are as follows:
Number of Congressional Seats: 10 Total Population: 4,677,399 Ideal Population for Each Congressional District: 467,740 Actual Population for Each District Created by 1972 Judicial Plan: Percent Actual Population Variation Variation District Per 1970 Census from Ideal from Ideal First 468,056 + 316 + .0675% Second 468,808 + 1,068 + .2283% Third 467,544 - 196 - .0419% Fourth 466,940 - 800 - .1711% Fifth 467,457 - 283 - .0605% Sixth 469,642 + 1,902 + .4066% Seventh 466,699 - 1,041 - .2225% Eighth 467,532 - 208 - .0444% Ninth 467,990 + 250 + .0534% Tenth 466,731 - 1,009 - .2157% Population deviation from highest to lowest populated district is 2943. Percent deviation from highest to lowest populated district is .6291%. Most populated district is District Number 6. Least populated district is District Number 7.
The minor variations from the ideal are constitutionally permissible under the Constitution of the United States.
We express our gratitude to the State of Missouri, and in particular to the Division of Budget and Comptroller, and the members of the Missouri General Assembly and others who assisted as amici curiae. In this connection we note that the plan established hereby was devised solely by us, and we accept full responsibility therefor.
For the foregoing reasons, it is hereby
Ordered and adjudged and declared that the 1969 Missouri Congressional Redistricting Act, Section 128.203 to and including Section 128.306 of Chapter 128, RSMo., is unconstitutional. It is further
Ordered and adjudged that the defendant Secretary of State of Missouri be, and he is hereby, permanently enjoined and restrained from holding or permitting any primary or general election or administering any preliminary election processes thereunder. It is further
Ordered and adjudged that Congressional election processes and Congressional primary and general elections in 1972 and thereafter be conducted in and from the Congressional districts established in this judgment and by Exhibit A appended hereto and made a part hereof unless and until the State of Missouri enacts a timely and constitutionally permissible new Congressional Redistricting Act and such new act is timely submitted to and approved by this Court. It is further
Ordered and adjudged that this Court retain jurisdiction to implement, enforce and amend this judgment and to make such other orders and judgments as in the premises shall be meet and just.
EXHIBIT A The 1972 Judicial Congressional Redistricting Plan for Missouri is set forth in words and figures. CONGRESSIONAL DISTRICT NUMBER 1 St. Louis County (Part) Normandy Township 35,800 Washington Township 18,427 Hadley Township 23,025 Lincoln Township 21,850 Jefferson Township 31,970 Clayton Township (Part) Census tracts or portions of census tracts within Clayton Township as listed: Census Tract 2164 6,544 Census Tract 2189 7,266
*1163 Gravois Township (Part) Census tracts or portions of census tracts within Gravois Township as listed: Census Tract 2196 2,034 Creve Coeur Township (Part) Census tracts or portions of census tracts within Creve Coeur Township as listed: Census Tract 2159 6,458 Census Tract 2162 6,745 St. Louis City (Part) Census tracts or portions of census tracts within St. Louis City as listed: Census Tract 1051 4,538 Census Tract 1052 6,731 Census Tract 1053 6,730 Census Tract 1054 5,358 Census Tract 1055 7,850 Census Tract 1061 9,939 Census Tract 1062 7,210 Census Tract 1063 8,325 Census Tract 1064 6,436 Census Tract 1065 7,337 Census Tract 1066 7,162 Census Tract 1067 7,589 Census Tract 1071 1,385 Census Tract 1072 2,553 Census Tract 1073 6,640 Census Tract 1074 5,891 Census Tract 1075 5,480 Census Tract 1076 4,168 Census Tract 1077 6,727 Census Tract 1081 3,952 Census Tract 1082 2,876 Census Tract 1083 2,814 Census Tract 1084 1,078 Census Tract 1085 1,778 Census Tract 1091 6,918 Census Tract 1092 401 Census Tract 1093 3,910 Census Tract 1094 2,613 Census Tract 1095 3,073 Census Tract 1101 7,446 Census Tract 1102 7,103 Census Tract 1103 7,324 Census Tract 1104 6,923 Census Tract 1105 6,209 Census Tract 1111 9,109 Census Tract 1112 7,878 Census Tract 1113 6,674 Census Tract 1114 7,357 Census Tract 1115 5,914 Census Tract 1121 7,128 Census Tract 1122 6,085 Census Tract 1123 6,166 Census Tract 1124 5,261 Census Tract 1192 5,533 Census Tract 1201 4,576 Census Tract 1202 3,908 Census Tract 1203 7,509 Census Tract 1212 6,752 Census Tract 1213 11,124 Census Tract 1214 984 Census Tract 1252 6,080 Census Tract 1254 1,350 Census Tract 1261 5,707 Census Tract 1262 1,347 Census Tract 1263 3,897 Census Tract 1264 2,280 Census Tract 1265 2,851 468,056 CONGRESSIONAL DISTRICT NUMBER 2 St. Louis County (Part) St. Ferdinand Township 72,022 Airport Township 108,477 Midland Township 55,790 Creve Coeur Township (Part) Except for 47,097 census tracts or portions of census tracts within Creve Coeur Township as listed: Except (-) Census Tract 2159 -6,458 Census Tract 2162 -6,745 Clayton Township (Part) Except for census 43,792 tracts or portions of census tracts within Clayton Township as listed: Except (-) Census Tract 2164 -6,544 Census Tract 2189 -7,266 Gravois Township (Part) Except for census 26,391 tracts or portions of census tracts within Gravois Township as listed: Except (-) Census Tract 2196 -2,034 Census Tract 2197 -6,878 Census Tract 2198 -9,052 Census Tract 2208.01 -7,031 Census Tract 2208.02 -5,265 Census Tract 2208.03 -5,670 Census Tract 2212.01 - 214 Ferguson Township (Part) Census tracts or 24,402 portions of census tracts within Ferguson Township as listed: Census Tract 2127 8,555 Census Tract 2124 2,986 Census Tract 2125 5,945 Census Tract 2126 6,720 Census Tract 2128 (Part) 196 Census Tract 2137 (Part) 0 Bonhomme Township (Part) Except for census tracts or portions of census tracts within Bonhomme Township as listed: Except (-) Census Tract 2216 -1,190 Census Tract 2178.01 -2,032 Census Tract 2178.02 -7,797 Census Tract 2178.03 -11,224 468,808 CONGRESSIONAL DISTRICT NUMBER 3 St. Louis County (Part) Concord Township 58,576 Lemay Township 60,559 Gravois Township (Part) Census tracts or portions of census tracts within Gravois Township as listed: Census Tract 2197 6,878 Census Tract 2198 9,052 Census Tract 2208.01 7,031 Census Tract 2208.02 5,265 Census Tract 2208.03 5,670 Census Tract 2212.01 214
*1164 St. Louis City (Part) Census tracts or portions of census tracts within St. Louis City as listed: Census Tract 1011 4,166 Census Tract 1012 4,436 Census Tract 1013 5,836 Census Tract 1014 4,138 Census Tract 1015 4,516 Census Tract 1016 1,345 Census Tract 1017 4,441 Census Tract 1017.99 36 Census Tract 1021 3,564 Census Tract 1022 8,274 Census Tract 1023 2,771 Census Tract 1024 3,174 Census Tract 1025 2,514 Census Tract 1031 4,419 Census Tract 1032 4,857 Census Tract 1033 1,209 Census Tract 1034 2,967 Census Tract 1035 1,049 Census Tract 1036 2,145 Census Tract 1037 3,743 Census Tract 1041 4,439 Census Tract 1042 5,716 Census Tract 1043 2,829 Census Tract 1044 668 Census Tract 1131 6,256 Census Tract 1132 3,079 Census Tract 1133 1,178 Census Tract 1134 1,420 Census Tract 1141 11,028 Census Tract 1142 6,534 Census Tract 1143 7,620 Census Tract 1151 4,612 Census Tract 1152 3,804 Census Tract 1153 7,177 Census Tract 1154 3,999 Census Tract 1155 7,447 Census Tract 1156 6,368 Census Tract 1157 5,021 Census Tract 1161 4,083 Census Tract 1162 7,011 Census Tract 1163 8,597 Census Tract 1164 6,519 Census Tract 1165 6,230 Census Tract 1171 3,052 Census Tract 1172 10,877 Census Tract 1173 7,283 Census Tract 1174 7,554 Census Tract 1181 3,815 Census Tract 1182 4,757 Census Tract 1183 591 Census Tract 1184 1,703 Census Tract 1185 3,623 Census Tract 1191 7,937 Census Tract 1193 6,164 Census Tract 1221 2,737 Census Tract 1222 270 Census Tract 1224 7,043 Census Tract 1231 8,097 Census Tract 1232 4,430 Census Tract 1233 6,289 Census Tract 1234 5,576 Census Tract 1235 50 Census Tract 1241 7,528 Census Tract 1242 5,715 Census Tract 1243 7,522 Census Tract 1244 637 Census Tract 1245 2,595 Census Tract 1251 2,397 Census Tract 1253 587 Census Tract 1211 4,235 467,544 DISTRICT FOUR Barton County 10,431 Cass County 39,448 Bates County 15,468 Vernon County 19,065 St. Clair County 7,667 Henry County 18,451 Johnson County 34,172 Lafayette County 26,626 Saline County 24,837 Pettis County 34,137 Benton County 9,695 Hickory County 4,481 Morgan County 10,068 Cooper County 14,732 Howard County 10,561 Jackson County (Part): Blue Township 186,188 Less Kansas City -64,596 121,592 Fort Osage Township 4,193 Prairie Township 18,369 SniABar Township 15,244 Van Buren Township 3,602 Blue Township (Part) Census tracts or portions of census tracts within Blue Township as listed: Census Tract 107.01 1,517 Brooking Township (Part) Census tracts or portions of census tracts within Brooking Township as listed: Census Tract 142 156 143 2,780 144 824 145 41 125.01 4,192 125.02 3,316 125.03 1,480 127.01 6,559 127.02 594 128.02 2,642 466,940 CONGRESSIONAL DISTRICT NUMBER 5 Jackson County (Part) Kaw Township 276,992 Blue Township (Part) Kansas City City (Part) Except for census 63,079 tracts or portions of census tracts within Kansas City City as listed: Except (-) Census Tract 107.01 -1,517 Washington Township 85,713 Brooking Township (Part) Except for census 41,673 tracts or portions of census tracts within Brooking Township as listed: Except (-) Census Tract 142 - 156 Census Tract 143 -2,780 Census Tract 144 - 824 Census Tract 145 - 41 Census Tract 125.01 -4,192 Census Tract 125.02 -3,316 Census Tract 125.03 -1,480 Census Tract 127.01 -6,559 Census Tract 127.02 - 594 Census Tract 128.02 -2,642 467,457
*1165 DISTRICT SIX Adair 22,472 Atchison County 9,240 Nodaway County 22,467 Worth County 3,359 Harrison County 10,257 Mercer County 4,910 Holt County 6,654 Andrew County 11,913 Gentry County 8,060 Daviess 8,420 Grundy County 11,819 Sullivan County 7,572 Buchanan County 86,915 Clinton County 12,462 Caldwell County 8,351 Livingston County 15,368 Linn County 15,125 Platte County 32,081 Clay County 123,644 Ray County 17,599 Carroll County 12,565 Chariton County 11,084 DeKalb County 7,305 469,642 DISTRICT SEVEN Jasper County 79,852 Newton County 32,901 McDonald County 12,357 Dade County 6,850 Lawrence County 24,585 Barry County 19,597 Polk County 15,415 Dallas County 10,054 Laclede County 19,944 Greene County 152,929 Webster County 15,562 Wright County 13,667 Christian County 15,124 Douglas County 9,268 Stone County 9,921 Taney County 13,023 Ozark County 6,226 Cedar County 9,424 466,699 DISTRICT EIGHT Howell County 23,521 Oregon County 9,180 Texas County 18,320 Shannon County 7,196 Dent County 11,457 Pulaski County 53,967 Crawford County 14,828 Washington County 15,086 Franklin County 55,116 Gasconade County 11,878 Maries County 6,851 Miller County 15,026 Cole County 46,228 Osage County 10,994 Boone County 80,911 Camden County 13,315 Moniteau County 10,742 Phelps County 29,567 St. Louis County (Part): Meramec Township 11,106 Bonhomme Township (Part) Census tracts or portions of census tracts within Bonhomme Township as listed: Census Tract 2216 1,190 Census Tract 2178.01 2,032 Census Tract 2178.02 7,797 Census Tract 2178.03 11,224 467,532 DISTRICT NINE Callaway County 25,950 Putnam County 5,916 Macon County 15,432 Schuyler County 4,665 Scotland County 5,499 Clark County 8,260 Knox County 5,692 Lewis County 10,993 Shelby County 7,906 Marion County 28,121 Randolph County 22,434 Monroe County 9,542 Ralls County 7,764 Audrain County 25,362 Pike County 16,928 Montgomery County 11,000 Lincoln County 18,041 St. Charles County 92,954 St. Louis County (Part): Spanish Lake Township 40,905 Florissant Township 78,551 Ferguson Township (Part) Except for census 16,376 tracts or portions of census tracts within Ferguson Township as listed: Except (-) Census Tract 2127 -8,555 Census Tract 2124 -2,986 Census Tract 2125 -5,945 Census Tract 2126 -6,720 Census Tract 2128 (Part) - 196 Census Tract 2137 (Part) - 0 Warren County 9,699 467,990 DISTRICT TEN Dunklin County 33,742 Pemiscot County 26,373 New Madrid County 23,420 Mississippi County 16,647 Butler County 33,529 Ripley County 9,803 Stoddard County 25,771 Scott County 33,250 Carter County 3,878 Reynolds County 6,106 Wayne County 8,546 Bollinger County 8,820 Cape Girardeau County 49,350 Iron County 9,259 St. Francois County 36,818 St. Genevieve County 12,867 Jefferson County 105,248 Perry County 14,393 Madison County 8,641 466,731
WILLIAM H. BECKER, Chief District Judge (specially concurring):
The plan approved by the per curiam opinion and judgment is constitutionally sound and permissible. It also has many meritorious features from a high level political standpoint, even though it obviously will not please everyone. Indeed it is impossible to devise a plan which will please everyone.
My initial proposal was to adopt with minor improvements the plan contained in the House Committee Substitute for Senate Bill No. 370. It was statistically the better of the two plans of the Missouri House and Senate. As a matter of principle this initial proposal would have given life to the best of the two proposals of the Missouri General Assembly. Thereby the representatives of *1170 the people of Missouri would have participated in the formulation of the judicial plan to the fullest extent possible under the circumstances. And the inclusion of this permissible judicial technique would in the future provide a motive for healthy competition between the branches of state legislatures in approaching the ideal in case agreement between the two branches again becomes impossible.NOTES
 One of whom, Paul W. Preisler, Esquire, has since died.