Shayer v. Kirkpatrick, 541 F. Supp. 922 (W.D. Mo. 1982)
January 7, 1982
Honorable James C. KIRKPATRICK, Secretary of State of Missouri, Defendant.
City of St. Louis, Vincent C. Schoemehl, Jr., and Geraldine Osborn, Intervenors.
St. Louis Regional Commerce and Growth Association, James M. O'Flynn, and John H. Poelker, Intervenors.
William OVERSCHMIDT, Adolph Schatzle, Brian Hall, Mickey Brown, George Engelback, Earl Heitmann and Cecil Crutchfield, Plaintiffs,
Hon. James C. KIRKPATRICK, Secretary of State of Missouri, Defendant.
MISSOURI STATE CONFERENCE OF BRANCHES OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, INC., St. Louis Branch, NAACP, St. Louis County Branch, NAACP, Cape Girardeau Branch, NAACP, Festus-Crystal City Branch, NAACP, Hannibal Branch, NAACP, Malden Branch, NAACP, Mexico Branch, NAACP, Portageville Branch, NAACP, St. Charles Branch, NAACP, Fredda Witherspoon and James DeClue, Plaintiffs,
Honorable Christopher BOND, Governor, and Honorable James C. Kirkpatrick, Secretary of State of the State of Missouri, Defendants.
MISSOURI STATE CONFERENCE OF BRANCHES OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, INC., Kansas City Branch, NAACP, St. Joseph Branch, NAACP, Jefferson City Branch, NAACP, Columbia Branch, NAACP, Chillicothe Branch, NAACP, Kennett-Dunklin, NAACP, Marshall Branch, NAACP, Joplin Branch, NAACP, Dr. Fredda Witherspoon and Mr. Ommie L. Nelms, Plaintiffs,
Honorable Christopher BOND, Governor, and Honorable James C. Kirkpatrick, Secretary of State of the State of Missouri, Defendants.
United States District Court, W. D. Missouri, C. D.
*923 *924 Harold L. Fridkin, Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke, Kansas City, Mo., for plaintiffs.
John W. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, Mo., for defendant.
James J. Wilson, Asst. City Counselor, Carroll J. Donohue, St. Louis, Mo., for intervenors.
Before FLOYD R. GIBSON, Senior Circuit Judge, WANGELIN, Chief District Judge, and SCOTT O. WRIGHT, District Judge.
FLOYD R. GIBSON, Senior Circuit Judge, joined by SCOTT O. WRIGHT, District Judge.
This is an action in which the court is being asked to redistrict the State of Missouri into nine congressional districts. Missouri is currently divided into ten districts pursuant to the congressional allocation of 1972 and as set forth in Preisler v. Secretary of State, 341 F. Supp. 1158 (W.D.Mo. 1972), aff'd mem. sub nom. Danforth v. Preisler, 407 U.S. 901, 92 S. Ct. 2440, 32 L. Ed. 2d 678 (1972). Because of the population count disclosed by the 1980 decennial census, Missouri is now entitled to only nine members in the United States House of Representatives. In accordance with federal constitutional requirements, appropriate federal legislation, and pertinent Missouri statutes and constitutional provisions, Missouri is obligated to divide the state into nine congressional districts. It has failed to enact an apportionment plan.
Shortly after the Missouri General Assembly adjourned its regular session on June 15, 1981, without passing a congressional redistricting bill, actions seeking a court-ordered apportionment plan were filed in both the Eastern and Western Districts of Missouri.
*925 The parties challenged the constitutionality of the existing apportionment (now outdated by the new population figures and decreased allocation of congressional districts); therefore, three-judge courts were established pursuant to 28 U.S.C. § 2284(a) (1976). The same judges were named to each panel. The allegations of an unconstitutional apportionment provide the jurisdictional basis. This court has jurisdiction under 28 U.S.C.A. § 1331 (1981 Supp.) (federal question) and 28 U.S.C. § 1343(a) (3) (Supp. III 1979) (deprivation of constitutional rights). The parties also alleged a violation of 42 U.S.C. § 1983 (Supp. III 1979), which provides for liability for deprivation of constitutional rights.
We determined that according to 28 U.S.C. § 1391(b) (1976) venue was proper only in the Western District. Section 1391(b) allows a claim to be brought only where all defendants reside or where the claim arose. A claim arises where the complained-of acts or omissions of a defendant occur. 92 C.J.S. Venue § 80. The defendant, Honorable James C. Kirkpatrick, Secretary of State, has his offices in the Western District (Jefferson City, Missouri), and his actions relating to elections would occur in the Western District. Therefore, a claim based on his conduct would accrue where his election duties are performed, i.e., the Western District of Missouri. The two cases filed in the Eastern District were transferred to the Western District and consolidated with the actions that were filed in the Western District. All motions to intervene were granted.
We held a hearing on September 28, 1981. Interested persons, both parties and non-parties, were allowed to present plans and suggestions for redistricting. Other plans and suggestions were subsequently filed with the clerk of the court.
In November 1981, the Governor called a special legislative session to consider the congressional redistricting issue. To prevent speculation on the plans of the court from affecting legislative action, we held no hearings and issued no orders while the General Assembly was in session. The General Assembly adjourned its extraordinary session on December 17, 1981, without passing an apportionment plan. Thus, this court is left with the task of providing an apportionment remedy.
II. Propriety of the Three-Judge Court
According to 28 U.S.C. § 2284(a) (1976): "A district court of three judges shall be convened when ... an action is filed challenging the constitutionality of the apportionment of congressional districts ...." The parties alleged a violation of their rights under Article I, § 2 of the United States Constitution. Paragraph 3 of that section reads: "Representatives ... shall be apportioned among the several States which may be included within this Union, according to their respective Numbers ...." Paragraph 1 states: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ...." Missouri has not enacted a redistricting law consistent with paragraph 3, and failure to do so could result in a deprivation of the right to select representatives, a violation of paragraph 1. Therefore the constitutionality of the present, ten-district apportionment is called into question. It is apparent that the present apportionment plan (based on the 1970 census figures and subsequent allocation of congressional seats) is unconstitutional.
III. The Constitutional Violation
The General Assembly's failure to provide a means for congressional representation would, if unremedied, result in an unconstitutional deprivation of the Article I, § 2, ¶ 1 right of the people to select representatives. Indeed, one authority has called a legislature's failure to reapportion in light of new census figures "patently and obviously unconstitutional." Wright, Miller, and Cooper, Federal Practice and Procedure, § 4235, at 400; see Ryan v. Board of Elections, 661 F.2d 1130, 1135 (7th Cir. 1981). The apportionment ordered in Preisler v. Secretary of State, 341 F. Supp. 1158 (W.D.Mo.1972), is now outmoded and is unconstitutional because it fails to provide a *926 means by which Missouri can choose its nine representatives.
Our next task is to determine the proper remedy.
IV. The Remedy
In formulating the proper remedy, we first note that a declaratory judgment is one permissible remedy. Under 28 U.S.C. § 2201 (Supp. II 1978), that remedy is available in cases of "actual controversy," and 28 U.S.C. § 2202 (1976) allows for further relief based on a declaratory judgment. We are also aware that 42 U.S.C. § 1988 (1976) requires use of the common law when necessary to furnish suitable remedies. That section is applicable to the instant case because it applies to actions brought under 42 U.S.C. § 1983 (Supp. III 1979). See section I, supra.
Beyond these general considerations, we perceive two possible remedies. First, we could draw a court plan. Second, we could have elections at large, either by court order or by dismissal of the actions.
The first option was adopted by the three-judge court in Preisler v. Secretary of State. There the court also found an apportionment unconstitutional. In that case, population shifts disclosed by the 1970 census showed population variances between districts so great as to be unconstitutional. 341 F. Supp. at 1160. To remedy the situation the court invalidated the then-existing apportionment and drew a map which substantially achieved population equality.
A second option would be to order an election at large, or to dismiss the court actions with the assumption that an election at large would be held. The basis for this option would be 2 U.S.C. § 2a(c) (5) (1976), passed in 1929, which reads: "Until a State is redistricted in the manner provided by the law thereof after any apportionment, ... if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large."
On the other hand, a statute subsequently enacted in 1967, 2 U.S.C. § 2c (1976), appears to prohibit at-large elections. It reads: "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 entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ...." The difficulty results from the fact that neither section 2c nor its legislative history makes any reference to repealing section 2a(c) (5). Nevertheless we conclude that the later statute, section 2c, repealed section 2a(c) (5) by implication. We base this conclusion on several factors. First, nothing in section 2c suggests any limitation on its applicability. Second, the floor debate on section 2c indicates that Congress intended to eliminate the possibility of at-large elections, including those in situations where the legislature had failed to enact a plan. The following comments, made by Senators Bayh and Baker, are enlightening:
MR. BAKER: [2 U.S.C. § 2c] strictly provides in a straightforward manner that when there is more than one Member of the House of Representatives from a State, the State must be districted, and the Members may not run at large.
MR. BAYH: ... Suppose a State legislature does not do it [redistrict]. Does the Senator not think that, to be consistent, we should say that the Federal court should not be permitted to reapportion a State and let all the legislators run at large?
MR. BAKER: With respectful deference to my colleague, I think not; because I believe that you are then running afoul of the very problem that is created by occasional failure of State legislatures to adhere to the provisions of article I of the Constitution.
MR. BAYH: ... I just wish to make one brief comment in summary, in light of the colloquy.
This will make it mandatory for all Congressmen to be elected by single-Member districts, whether the reapportionment is done by the State legislatures or by a Federal court.
MR. BAKER: That is my understanding.
113 Cong.Rec. 31718-20 (1967). Furthermore, the Senators made clear their distaste for at-large elections. Senator Bayh said: "[W]e know that if [Hawaii and New Mexico] are excluded from the overall coverage, it can pass the House and we can get a prohibition of at-large elections, which we all believe is necessary." Id. at 31719. Senator Baker said: "The concept of single-Member districts for a unique and special reason has been a nonpartisan undertaking by Members on both sides of the aisle." Id. at 34365.
We realize that the court decisions which prompted Congress to enact section 2c were not based on the statute at issue here, section 2a(c) (5). Rather, those court decisions were based on section 2a(c) (1), which provides a remedy when a state fails to redistrict and there is not a change in the number of representatives. However, that remedy, maintenance of the old districts, would usually violate the one man-one vote rule of Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), because of population inequalities. See section V.A.1., infra. Nevertheless, we can see no reason to limit section 2c to the situation where there is a failure to reapportion but there is no change in the number of representatives. The plain language of section 2c suggests no such limitation. Furthermore, there is no reason to think that had Congress considered the situation where the number of representatives is decreased, it would have favored at-large elections in that context. The passages from the floor debate quoted above indicate opposition to at-large elections, rather than opposition to at-large elections prompted by Wesberry.
We also realize that "repeals by implication are not favored." Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 193, 89 S. Ct. 354, 358, 21 L. Ed. 2d 334 (1968). Nevertheless, such repeals are not unprecedented. See Gordon v. New York Stock Exchange, 422 U.S. 659, 685, 95 S. Ct. 2598, 2613, 45 L. Ed. 2d 463 (1975). It is well settled that when a later statute is inconsistent with an earlier statute, the later one repeals the earlier. United States v. Yuginovich, 256 U.S. 450, 463, 41 S. Ct. 551, 554, 65 L. Ed. 1043 (1921); United States v. Tynen, 78 U.S. (11 Wall.) 88, 92, 20 L. Ed. 153 (1870); see United States v. California, 297 U.S. 175, 188, 56 S. Ct. 421, 426, 80 L. Ed. 567 (1936). Here, the plain language of section 2c is inconsistent with section 2a(c) (5), warranting a finding of repeal by implication.
Therefore, the only appropriate remedy is a court-ordered apportionment. The plan we have adopted is set forth in "Appendix A." We now explain the criteria we used in formulating the plan.
V. Reapportionment Criteria
In drawing the district boundaries we are guided by the United States Constitution, the State of Missouri Constitution, state law, and sound judicial discretion. An explanation of the criteria we have used is in order.
A. Federal Constitutional Requirements
Our first obligation is to follow the requirements of the United States Constitution. The only requirement that has expressly been found by the Supreme Court in congressional apportionment is that the population of the districts must be as equal as practicable.
The population standard for congressional districts was announced in Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964). The Court said: "We *928 hold that, construed in its historical context, the command of Art. I, § 2, that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Id. at 7-8, 84 S. Ct. at 529-30 (footnotes omitted). Five years later the Court elucidated the "as nearly as practicable" standard in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969). The Court declared: "[T]he command of Art. I, § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." Id. at 531, 89 S. Ct. at 1229. See also White v. Weiser, 412 U.S. 783, 790-91, 93 S. Ct. 2348, 2352-53, 37 L. Ed. 2d 335 (1973). The Court expressly rejected a de minimis standard for population deviation. The Court has called population equality "the preeminent, if not the sole, criterion on which to adjudge constitutionality" in congressional reapportionment. Chapman v. Meier, 420 U.S. 1, 23, 95 S. Ct. 751, 764, 42 L. Ed. 2d 766 (1975) (dictum).
The command of the Supreme Court is that there must be a reason for every deviation; the deviation must be either unavoidable with the available data, or there must be a permissible policy strong enough to justify the deviation.
The Court in Preisler specifically considered policies offered to justify deviations from the ideal. The following proffered justifications for population variances were found inadequate: (1) avoiding the fragmentation of political subdivisions, including counties and municipalities, (2) avoiding the fragmentation of distinct economic and social interests, (3) the give and take of the legislative process, and (4) compactness of districts. 394 U.S. at 533-36, 89 S. Ct. at 1230-31. The Court said projected population shifts would justify variances, but these projections must be capable of precise documentation. The Court assumed without deciding that districts could be based on the eligible voter population rather than the total population. If that method is chosen, however, it must be applied throughout the state and not be based on haphazard adjustments.
In Weiser, the Supreme Court left open the possibility that a district court could deviate from the ideal population in an attempt to implement as much as possible a plan passed by the legislature. 412 U.S. at 795-97, 93 S. Ct. at 2354-55. There the Court ordered a district court to explain why it had not adopted an apportionment plan based on one passed by the legislature. Id. at 796-97, 93 S. Ct. at 2355-56. The plan adopted by the legislature had been found unconstitutional because the districts were not as equal in population as practicable. Id. at 788, 93 S. Ct. at 2351. The plan adopted by the court disregarded the one passed by the legislature. Id. at 787, 93 S. Ct. at 2351. However, the plan adopted by the court did not achieve population equality as well as the one based on the legislature's plan. Id. at 796, 93 S. Ct. at 2355. Therefore, Weiser does not stand for the proposition that implementation of a legislative plan is more important than population equality. Furthermore, four Justices concurred solely on the population equality issue. Id. at 798, 93 S. Ct. at 2356 (Powell, J., concurring, joined by Burger, C. J., and Rehnquist, J.), id. (Marshall, J., concurring in part.)
In applying the "one man-one vote" rule, we have concentrated solely on population equality. The 1980 decennial census shows *929 that Missouri has a population of 4,916,686, making the mathematical ideal for each district 546,298. We drew boundaries which give the districts populations as close as possible to equal, and we received assistance from demographic experts to bring the population even closer to the ideal. Only one district deviates from the ideal by more than one-tenth of one percent. The variance between the largest and smallest districts is 0.18%. The average variance is 0.054%. We did not consider possible justifications for a population variance because of the lack of reliable data to show population shifts and uncertainty as to what other policies can justify variance.
The plan we are adopting achieves population equality better than any plan submitted to this court and, so far as we can determine, better than any plan proposed in the legislature. The plan suggested by the dissent has a variance between the largest and smallest districts of 1.17%, more than six times as great as that in the plan we have adopted. The average variance is 0.34%, also more than six times as great as in the court plan. Only two of the districts in the dissent's plan (Sixth and Seventh) have a variance smaller than that in the district with the greatest deviation in the majority plan (Fifth). Unless there is a justification for these deviations, the dissent's plan is not constitutional because it does not create districts with populations as equal as is practicable.
The dissent does not address this constitutional requirement, but two possible justifications for the population variances can be read into the dissenting opinion. The first is that the variances resulted from an attempt not to split counties. See p. 948, par. 2, post. Although we agree that this is desirable, at least in rural counties, because it contributes to the efficient administration of elections, see p. 933, infra, it must be secondary to achieving population equality. Kirkpatrick v. Preisler, 394 U.S. at 533-34, 89 S. Ct. at 1230. The other possible justification is that the variance resulted from implementing a legislative plan. See pp. 947-948, post. Even if Weiser would allow a variance for that reason, a proposition not at all clear, p. 928, supra; In re: Illinois Congressional Districts Reapportionment Cases, No. 81 C 3915, slip op. at 12 (N.D.Ill. Nov. 23, 1981), appeal docketed, Nos. 81-1068 and 81-1077 (U.S. Dec. 9 and 10, 1981), it would not apply to the dissent's plan. Weiser dealt with a plan approved by the legislature and later found to be unconstitutional. The dissent's plan is a proposal that was not adopted by either the House or the Senate in the General Assembly. Such a plan can hardly be said to demonstrate any legislative intent other than a rejection of the plan.
The constitutional requirement is that population be as nearly equal as is practicable, and we have achieved this better than any other plan that has been presented to the court or considered by the General Assembly. Because of the population equality requirement, discussion of rewards or punishments for population changes in the old districts is irrelevant.
The Supreme Court has also discussed the requirements of the Fourteenth and Fifteenth Amendments regarding minority voting rights. Although these cases have usually dealt with noncongressional apportionment, the questions they raise might be applicable to congressional apportionment, and therefore they deserve our consideration.
The Supreme Court has held that only purposeful discrimination or abridgment of the vote violates the Fifteenth Amendment or the equal protection clause of the Fourteenth Amendment. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. *930 1490, 64 L. Ed. 2d 47 (1980). Although the opinion of the Court was only a four-justice plurality, Justice Stevens concurred on the basis that even invidious discrimination would not necessarily be unconstitutional, id. at 94, 100 S. Ct. at 1514, and Justice White dissented on the grounds that purposeful discrimination was not proved. Id. at 103, 100 S. Ct. at 1520. Only two Justices, Brennan and Marshall, felt that discriminatory impact would make out a constitutional violation. Id. at 94, 100 S. Ct. at 1514 (Brennan, J., dissenting), 103, 100 S. Ct. at 1520 (Marshall, J., dissenting). Thus it is clear that we are under no constitutional duty to draw a black-majority district. This explanation of our criteria dispels any notion that a possible adverse impact on blacks is based on a discriminatory motive.
On the other hand, race can constitutionally be considered. This principle can be discerned from the opinions in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S. Ct. 996, 51 L. Ed. 2d 229 (1977). Justices White, Stevens, and Rehnquist said that districts with black majorities can deliberately be drawn so long as white voting strength is not unfairly cancelled out. Id. at 165-68, 97 S. Ct. at 1009-11. Justices Stewart and Powell, concurring in the judgment, said that a racial criterion is not unconstitutional per se. Id. at 179-80, 97 S. Ct. at 1016-17. Although lacking a majority opinion, a majority of the Justices in U.J.O. rejected the idea that the Constitution requires color-blind redistricting.
Three months after the U.J.O. decision was announced, the Court suggested in dicta the extent to which a district court must consider race in redistricting. In Connor v. Finch, 431 U.S. 407, 97 S. Ct. 1828, 52 L. Ed. 2d 465 (1977), the Court remanded a state legislative apportionment to a three-judge court because of population variances. The plan was also challenged as diluting black voting strength. The Supreme Court said in dicta that a court must explain departures from neutral guidelines if the departures have an adverse impact on black voting strength. In order to dispel any notion of invidious discrimination, we have not departed from neutral guidelines.
The bottom line as to our duty regarding black voting strength is that we cannot intentionally dilute it, we canbut need notintentionally preserve it, and we probably cannot intentionally enhance it to the detriment of other groups' voting strength.
We have not attempted to divide Missouri's present black-majority district (the First). Instead, we have increased its geographic size to bring the population to the required amount. We drew a compact district by extending it to natural boundaries (the Missouri River/St. Louis County line on the north and Interstate Highway 44 on the south, connected by a line on the west that runs north-south which generally follows municipal boundaries or census tracts). This neutral approach achieves maximum compactness in the First district and also makes the Second district more compact by not wrapping it around the First district. *931 This neutral approach comports with constitutional requirements.
3. Other Constitutional Criteria
Finally, there is a question as to whether it is constitutional to intentionally discriminate against nonracial voting groups such as religious, ethnic, economic, or political groups. See City of Mobile v. Bolden, 446 U.S. at 86, 100 S. Ct. at 1510. (Stevens, J., concurring); Bush v. Martin, 224 F. Supp. 499, 510 (S.D.Tex.1963), aff'd, 376 U.S. 222, 84 S. Ct. 709, 11 L. Ed. 2d 656 (1964), and cases cited therein. We need not resolve the question of the constitutionality of discrimination against these groups because we are not deviating from neutral standards.
B. Missouri Constitutional Requirements
The next legal standard is that imposed by the Missouri Constitution: "[Congressional] districts shall be composed of contiguous territory as compact and as nearly equal in population as may be." Mo.Const. art. 3, § 45. We respect the additional standard of compactness as a matter of law as well as of comity.White v. Weiser, 412 U.S. at 795, 93 S. Ct. at 2354; Preisler v. Secretary of State, 341 F. Supp. at 1161; see Reynolds v. Sims, 377 U.S. 533, 584, 84 S. Ct. 1362, 1393, 12 L. Ed. 2d 506 (1964).
Determining whether a particular plan meets the state requirements can be difficult. No state appellate court has interpreted the words "compact" and "contiguous" in this section. We therefore look to the construction of those word in the sections of the constitution relating to apportionment of the Missouri House of Representatives, Mo.Const. art. 3, § 2, and the Senate. Id. at § 5. Although there are no appellate cases construing the words relating to the House, there are cases which have construed them regarding state Senate apportionment. The Missouri Supreme Court has read the words as prohibiting "gerrymandering," long and narrow strips, and "branches," while requiring districts to be composed of "closely united territory." Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427, 433-35 (1955). See also State v. Hitchcock, 241 Mo. 433, 146 S.W. 40 (1912). In both of these cases, apportionment plans were invalidated. 284 S.W.2d at 437; 146 S.W. at 65.
Neither of these cases, nor others construing the words, see, e.g., Preisler v. Kirkpatrick, 528 S.W.2d 422 (Mo. banc 1975); Preisler v. Hearnes, 362 S.W.2d 552 (Mo. banc 1962), gives us guidance as to the outer limits of compactness and contiguity, although they do indicate a willingness on the part of Missouri courts to invalidate plans for failure to meet these standards. Furthermore, we do not know whether those words would be given an identical meaning as related to congressional apportionment.
It is important that our plan adhere to the requirements of the Missouri Constitution; if it were to be invalidated by a state court because it failed to meet the compactness requirement, the state would be in a quagmire regarding the election of its congressional representatives. Just the existence of lengthy litigation on the issue would be harmful. While we cannot prevent litigation, we can endeavor to lessen the probability of legal challenges by adhering to state constitutional and legal requirements where such requirements do not intrude on the commands of the United States Constitution. In fact, we are obligated to do so. White v. Weiser, 412 U.S. at 795, 93 S. Ct. at 2354.
Therefore, we strived not simply for legally sufficient compact and contiguous districts; we drew the most compact and contiguous districts we could, given the considerations involved and the weight of the various factors that go to make up the equation. We drew compact districts by blocking a district out from each of the four corners of the state until the proper population *932 was reached, by concentrating one district in the Kansas City area, and by concentrating three districts in four counties in the St. Louis area, where there are 149,610 people more than enough for three districts. The last district is composed of the remaining area in the western part of the state. Complete compactness is lacking only because of our desire not to split rural counties, p. 933, infra, while achieving population equality.
On the other hand, the dissent's plan is not compact. A "finger" in the Eighth district probes into St. Louis County to secure approximately 144,000 of the required population. There are unnecessary irregular lines between the Ninth and Second districts as the Ninth dips into two separate parts of St. Louis County. We do not think it is proper for a federal court to give so little regard to the state constitutional requirement of compactness when that requirement does not conflict with federal law.
C. Policy Considerations
Within these legal constraints there are, of course, many plans which could be devised. We now set forth those criteria which we believe are most appropriate for a court.
1. Legislative Practices
Because reapportionment is primarily a legislative function, we must follow the policies and preferences of the state in fashioning an apportionment plan. Connor v. Finch, 431 U.S. at 414-15, 97 S.Ct. at 1833-34; White v. Weiser, 412 U.S. at 795, 93 S. Ct. at 2354, and cases cited therein. We did not want to intrude upon state policies any more than necessary to meet constitutional requirements. Whitcomb v. Chavis, 403 U.S. 124, 160-61, 91 S. Ct. 1858, 1877-78, 29 L. Ed. 2d 363 (1971). Adhering to state policies is a way in which we can give effect to the will of the majority of the people of Missouri. Preisler v. Secretary of State, 341 F. Supp. at 1161. Other than the state constitution's compact and contiguous requirements, state policies are difficult to discern. Following them is not required by state law, so we have given the compact and contiguous requirements preeminence over all other state policies.
The state legislature's own work on apportionment can be indicative of state policy. When a state enacts apportionment legislation which is later declared unconstitutional, a court which fashions a remedy by drawing its own plan should follow the legislature's version as much as is constitutionally possible. White v. Weiser, 412 U.S. at 795-97, 93 S.Ct. at 2354-55; Preisler v. Secretary of State, 341 F. Supp. at 1161. In the instant case, however, we are being asked to apportion because no bill has been passed.
As an alternative, we could look to legislative proposals to attempt to discern a state policy. The further a bill goes in the legislative process (e.g., out of committee, passed by one house, passed by both houses but vetoed) the more it evidences a legislative policy. See Skolnick v. State Electoral Board, 336 F. Supp. 839, 846 (N.D. Ill.1971). On the other hand, the failure of a bill to be enacted evidences a legislative policy that the bill is not desired by the legislature. Therefore, we cannot simply embrace as our own the bill that went the furthest or that experts believe would have or could have passed. Such action would be a massive intrusion into the legislative process. We would, in effect, be amending the rules for enacting legislation. Although political scientists may argue over the extent to which the legislative process reflects the will of the people, we must take the procedures as we find them.
*933 This does not mean that all legislative proposals are useless. To the extent the proposals which came closest to passing have common elements, we have tried to incorporate those elements into our plan. However, plans considered by the General Assembly were so different from one another that extracting common elements is difficult. Furthermore, even when some general common elements can be discerned, they are hard to apply. The specific application of these elements will often have ramifications on the entire plan, which caused the dispute and present stalemate in the General Assembly.
Another indication of a state policy is the state's historical practices regarding apportionment. See Connor v. Finch, 431 U.S. at 419, 424, 97 S. Ct. at 1836, 1838. We have adhered to these practices to the extent possible. However, these practices are not always easy to discern or apply.
Prior apportionments are of little help. Missouri was divided into ten districts under the 1970 census. Legislative debate has centered on where to eliminate a district. The old plan, therefore, is of little help. Furthermore, that plan was drafted by a court, reducing its usefulness for reflecting legislative intent.
One historical practice is that of not bisecting rural counties. Although this goal is secondary to population equality, Kirkpatrick v. Preisler, 394 U.S. at 533-34, 89 S. Ct. at 1230-31, we feel we can reasonably adhere to this practice. Respecting political subdivisions is a proper judicial approach to apportionment. Skolnick v. State Electoral Board, 336 F. Supp. at 843.
We are also mindful of the admonition of the Supreme Court in Kirkpatrick v. Preisler, 394 U.S. at 533-34, 89 S.Ct. at 1230: "[W]e do not find legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries." However, we have attempted to not disturb county boundaries except where necessary to achieve approximate equality of population, because all of the evidence adduced in the case was that the splitting of counties can cause innumerable administrative problems and additional costs in holding elections, along with confusion among voters in the split counties. While we read the Supreme Court cases as being basically concerned with population and as demanding a population distribution as near to the quotient as is practicably possible under the prevailing circumstances, we do believe that minor deviations based on preserving definitive county and political subdivisions are permissible within very narrow limits.
We also note that historically the City of St. Louis has been divided into two districts. We realize that until the 1980 census, the official population of the City of St. Louis was greater than that necessary for one congressional district. However, in the past both districts in the City of St. Louis extended into St. Louis County, indicating that more than numerical necessity caused the division. Legislative proposals conflicted on whether to divide the City of St. Louis. This is unfortunate, because whether or not the city is divided has almost no ramifications on the rest of the plan, and therefore if legislative proposals had been in agreement we could have adopted the approach in these proposals. Because the proposals conflict on this issue, we rely on the previous state policy of dividing the City of St. Louis. We chose as the dividing line a "natural" boundary, an interstate highway near the center of the city.
We realize that we could be criticized for dividing the City of St. Louis in light of its population. The city's population is 453,085, *934 which is 93,213 less than enough for one district. If the city were not divided, it would have 83% of the population of the district in which it is located. Dividing the City of St. Louis has given it a minority of the population in two districts (48% in the First and 35% in the Third). Arguably, its vote has been diluted. Nevertheless, we are not interested in preserving or diluting a particular area's strength. We have divided the City of St. Louis because of the prior state policy of doing so.
2. Other policies
Because state policies as to apportionment are largely inconclusive, we are guided primarily by equality of population and compactness.
We have given consideration to the expressions of political and civic bodies and individuals which have been brought to the attention of this court. Of course, sentiment may conflict within a community and between communities, limiting the usefulness of such expressions.
The divergent interests which are most directly reflected in geographic distributions are those between rural and urban areas. We do not mean to suggest that all rural interests are identical; rather, we believe that the differences among various rural interests are less than the differences between any rural interest and an urban interest. These varied interests are secondary to the compactness requirement of the Missouri Constitution. Indeed, grouping of urban interests is to some extent necessary to meet the compactness requirement.
Census figures show that the population of the St. Louis Standard Metropolitan Statistical Area is 1,788,504, or 149,610 more than enough to completely fill three districts. The population of the Kansas City Standard Metropolitan Statistical Area is 884,502, or 338,204 more than enough for one district, and 208,094 less than enough to completely fill two districts. There would be no reason to have fewer than four completely urban districts, or 44.4 percent of the districts. The urban population of Missouri is 54.4 percent of the state's population, and five urban districts would give the urban areas 55.6 percent of the representatives.
Our criteria in reapportionment are, in order of importance: (1) achieving population equality, (2) drawing compact and contiguous districts, and (3) implementing state policies on apportionment, including not bisecting rural counties.
We regret that we were unable to reach a unanimous decision. However, the plan espoused by our esteemed brother does not comport with the federal constitutional requirement of population equality and does not appear to comply with the Missouri constitutional requirement of compactness. We therefore adopt the plan appended to this opinion and marked "Appendix A." The 1980 census population figures of the judicially approved congressional districts are as follows:
UNITED STATES CONGRESSIONAL DISTRICTS VARIANCE FROM IDEAL DISTRICT DISTRICT POPULATION POPULATION PERCENT 1 546,208 90 .02% 2 546,039 259 .05% 3 546,102 196 .04% 4 546,637 339 .06% 5 546,882 584 .11% 6 546,614 316 .06% 7 545,921 377 .07%
*935 VARIANCE FROM IDEAL DISTRICT DISTRICT POPULATION POPULATION PERCENT 8 546,112 186 .03% 9 546,171 127 .02% _______ State Population 4,916,686 Ideal district population: 546,298 Largest district: District 5 546,882 Smallest district: District 7 545,921 Average percent variance of districts from ideal size: .05% Variance between smallest and largest district: .18%
For the foregoing reasons, it is ORDERED, ADJUDGED, AND DECLARED that the congressional apportionment set forth in Preisler v. Secretary of State, 341 F. Supp. 1158 (W.D.Mo.1972), is unconstitutional. It is further
ORDERED AND ADJUDGED that congressional election processes and congressional primary and general elections in 1982 and thereafter be conducted in and from the congressional districts established in this judgment and by Appendix A unless and until a timely new congressional redistricting act enacted by the State of Missouri takes effect. In the event there is a conflict in Appendix A between, on the one hand, the census tract and county descriptions, and, on the other, the boundary lines as shown on the appended maps, the maps shall control. In particular, the line between the First and Third districts is the middle of the present location of Interstate Highway 44, and after it reaches Interstate Highway 55 in the eastern part of the city, the center of Interstate Highway 55 is the dividing line. The State of Missouri Office of Administration shall provide the Secretary of State with maps which detail the maps set forth in Appendix A. It is further
ORDERED AND ADJUDGED that this court retain jurisdiction to implement, enforce, and amend this judgment as shall be meet and just and in accordance with the 1980 census figures.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION
In Civil Actions No. 81-4144, 81-4180, 81-4196, and 81-4184, the court's redistricting plan for Missouri is set forth in words and figures, as follows:
CONGRESSIONAL DISTRICT NUMBER 1
Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:
1980 POPULATION St. Louis County (part) Census Tract 2101 6,622 Census Tract 2102 6,899 Census Tract 2103 4,153 Census Tract 2104 4,191 Census Tract 2105 9,971 Census Tract 2106 7,513 Census Tract 2107 14,445 Census Tract 2108.02 14,620 Census Tract 2108.03 5,194 Census Tract 2108.04 7,065 Census Tract 2109.01 6,890 Census Tract 2117 4,559 Census Tract 2118 9,605 Census Tract 2119 5,593 Census Tract 2120 12,358 Census Tract 2121 9,279 Census Tract 2122 10,695 Census Tract 2123 5,627 Census Tract 2124 2,711
*936 1980 POPULATION Census Tract 2125 5,427 Census Tract 2126 5,066 Census Tract 2127 9,779 Census Tract 2136 6,088 Census Tract 2137 7,352 Census Tract 2138 8,847 Census Tract 2139 2,874 Census Tract 2140 1,183 Census Tract 2141 1,971 Census Tract 2142 4,236 Census Tract 2143 4,803 Census Tract 2157 7,733 Census Tract 2158 7,546 Census Tract 2159 9,120 Census Tract 2160 2,363 Census Tract 2161 6,966 Census Tract 2162 9,010 Census Tract 2163 5,577 Census Tract 2164 5,576 Census Tract 2165 3,408 Census Tract 2167 4,529 Census Tract 2168 4,103 Census Tract 2169 2,823 Census Tract 2170 3,810 Census Tract 2171 1,372 Census Tract 2172 2,955 Census Tract 2173 (part) Jefferson Township (part) Brentwood (part) Block Group 1 521 Block Group 2 797 Block Group 3 (part) Blocks 301-302 63 Blocks 307-312 293 Block Group 4 997 St. Louis City (part) Census Tract 1034 (part) Block Group 1 (part) Blocks 117-118 63 Block Group 3 (part) Block 320 17 Census Tract 1036 (part) Block Group 1 (part) Blocks 104-120 277 Census Tract 1038 (part) Block Group 5 (part) Block 522 0 Census Tract 1039 (part) Block Group 1 381 Block Group 2 407 Block Group 3 (part) Blocks 307-324 466 Blocks 344-348 87 Census Tract 1041 3,462 Census Tract 1042 4,325 Census Tract 1045 2,817 Census Tract 1051 4,286 Census Tract 1052 2,871 Census Tract 1053 4,013 Census Tract 1054 3,564 Census Tract 1055 6,296 Census Tract 1061 5,854 Census Tract 1062 4,129 Census Tract 1063 5,346 Census Tract 1064 4,863 Census Tract 1065 5,020 Census Tract 1066 4,353 Census Tract 1067 5,847 Census Tract 1071 1,272 Census Tract 1072 2,779 Census Tract 1073 8,902 Census Tract 1074 6,112 Census Tract 1075 5,550 Census Tract 1076 3,845 Census Tract 1077 5,700 Census Tract 1081 4,144 Census Tract 1082 3,154 Census Tract 1083 2,684 Census Tract 1084 1,348 Census Tract 1085 1,069 Census Tract 1096 5,846 Census Tract 1097 7,592 Census Tract 1101 5,619 Census Tract 1102 5,254 Census Tract 1103 5,092 Census Tract 1104 5,046 Census Tract 1105 4,103 Census Tract 1111 4,341 Census Tract 1112 4,517 Census Tract 1113 3,869 Census Tract 1114 4,625 Census Tract 1115 2,909 Census Tract 1121 4,055 Census Tract 1122 4,017 Census Tract 1123 4,345 Census Tract 1124 4,487 Census Tract 1135 (part) Block Group 2 (part) Block 209 91 Block Group 5 (part) Blocks 503-505 125 Block 521 186 Block Group 6 (part) Block 610 0 Blocks 620-623 98
*937 1980 POPULATION Census Tract 1171 (part) Block Group 1 (part) Blocks 101-102 242 Block Group 4 (part) Blocks 405-406 0 Census Tract 1172 (part) Block Group 1 (part) Blocks 101-105 1,098 Block 119 0 Block Group 7 (part) Blocks 705-706 515 Block 716 0 Census Tract 1173 (part) Block Group 1 618 Block Group 3 (part) Blocks 317-318 196 Block 320 23 Block Group 4 (part) Block 423 0 Block Group 6 1,443 Block Group 7 844 Census Tract 1181 2,872 Census Tract 1184 1,466 Census Tract 1185 1,437 Census Tract 1186 3,364 Census Tract 1191 6,303 Census Tract 1192 2,624 Census Tract 1193 3,829 Census Tract 1201 2,040 Census Tract 1202 2,193 Census Tract 1203 3,240 Census Tract 1211 4,806 Census Tract 1212 3,989 Census Tract 1213 2,702 Census Tract 1214 344 Census Tract 1221 1,469 Census Tract 1222 (part) Block Group 1 (part) Block 105 0 Block 114 3 Block 125 0 Blocks 127-140 5 Blocks 150-153 0 Block Group 2 4 Block Group 3 85 Census Tract 1224 (part) Block Group 2 13 Block Group 3 50 Block Group 4 2,487 Block Group 5 310 Block Group 6 2,032 Census Tract 1231 (part) Block Group 1 183 Block Group 2 78 Block Group 3 (part) Blocks 301-302 0 Block 317 178 Census Tract 1232 (part) Block Group 1 986 Block Group 2 (part) Blocks 202-203 31 Blocks 220-221 72 Block Group 3 (part) Blocks 305-306 116 Block 316 59 Block Group 4 419 Census Tract 1234 (part) Block Group 2 120 Block Group 3 (part) Block 301 7 Block 305 0 Block 331 0 Census Tract 1255 2,323 Census Tract 1256 1,127 Census Tract 1257 3,340 Census Tract 1266 4,620 Census Tract 1267 3,205 _____ TOTAL 546,208
CONGRESSIONAL DISTRICT NUMBER 2
Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:
1980 POPULATION St. Charles County (part) Census Tract 3102 4,744 Census Tract 3103 9,475 Census Tract 3104 2,667 Census Tract 3105 7,977 Census Tract 3106 7,941 Census Tract 3107 5,538 Census Tract 3108 4,959 Census Tract 3109 4,487 Census Tract 3110 5,074 Census Tract 3112 12,323 St. Louis County (part) Census Tract 2109.02 12,736 Census Tract 2109.03 9,427 Census Tract 2110 9,352 Census Tract 2111 12,883 Census Tract 2112 10,149 Census Tract 2113.01 8,330 Census Tract 2113.02 6,836 Census Tract 2113.03 14,978 Census Tract 2114.01 5,158 Census Tract 2114.02 2,019 Census Tract 2115 4,586 Census Tract 2116 7,800 Census Tract 2128 4,744 Census Tract 2129 5,539 Census Tract 2130 856 Census Tract 2131.01 8,798 Census Tract 2131.02 3,206
*938 Census Tract 2132.01 7,467 Census Tract 2132.02 7,459 Census Tract 2133 9,015 Census Tract 2134 8,654 Census Tract 2135 5,876 Census Tract 2144 6,148 Census Tract 2145 3,678 Census Tract 2146 9,898 Census Tract 2147 8,311 Census Tract 2148 6,578 Census Tract 2149 6,548 Census Tract 2150.01 3,016 Census Tract 2150.02 6,757 Census Tract 2150.03 4,662 Census Tract 2151.01 10,145 Census Tract 2151.02 5,194 Census Tract 2151.03 3,027 Census Tract 2151.04 9,553 Census Tract 2151.05 1,999 Census Tract 2152.01 6,533 Census Tract 2152.02 6,444 Census Tract 2152.03 9,994 Census Tract 2153.01 4,267 Census Tract 2153.02 3,463 Census Tract 2154 5,666 Census Tract 2155 5,055 Census Tract 2156 5,198 Census Tract 2166 2,884 Census Tract 2173 (part) Jefferson Township (part) Brentwood (part) Block Group 3 (part) Blocks 303-306 485 Census Tract 2174 4,523 Census Tract 2175 5,925 Census Tract 2176 7,786 Census Tract 2177.01 4,362 Census Tract 2177.02 7,231 Census Tract 2178.02 8,694 Census Tract 2178.04 9,775 Census Tract 2178.05 7,512 Census Tract 2178.06 5,955 Census Tract 2178.07 7,124 Census Tract 2179.02 10,567 Census Tract 2179.03 8,684 Census Tract 2179.04 7,042 Census Tract 2180.01 7,916 Census Tract 2180.02 5,361 Census Tract 2181 3,279 Census Tract 2182 4,505 Census Tract 2183 4,408 Census Tract 2184 9,080 Census Tract 2185 4,985 Census Tract 2186 2,848 Census Tract 2187 1,728 Census Tract 2188 6,035 Census Tract 2189 6,098 Census Tract 2193 (part) Jefferson Township (part) Webster Groves (part) Block Group 2 (part) Blocks 204-216 616 Block Group 3 699 Census Tract 2114.02 9,447 Census Tract 2215 8,777 Census Tract 2216 8,521 _____ TOTAL 546,039
CONGRESSIONAL DISTRICT NUMBER 3
Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:
1980 POPULATION Jefferson County 146,183 St. Louis County (part) Census Tract 2190 1,355 Census Tract 2191 4,417 Census Tract 2192 2,715 Census Tract 2193 (part) Jefferson Township (part) Webster Groves (part) Block Group 1 764 Block Group 2 (part) Blocks 201-203 186 Census Tract 2194 5,941 Census Tract 2195 6,538 Census Tract 2196 5,071 Census Tract 2197 6,502 Census Tract 2198 8,264 Census Tract 2199 6,655 Census Tract 2200 9,546 Census Tract 2201 9,200 Census Tract 2202 7,492 Census Tract 2203 1,743 Census Tract 2204.02 10,557 Census Tract 2204.03 9,885 Census Tract 2204.04 12,343
*939 1980 POPULATION Census Tract 2205 13,860 Census Tract 2206.01 5,440 Census Tract 2206.02 5,947 Census Tract 2207.01 3,111 Census Tract 2207.02 4,380 Census Tract 2207.03 3,269 Census Tract 2208.01 6,129 Census Tract 2208.02 5,628 Census Tract 2208.03 5,337 Census Tract 2209 2,934 Census Tract 2210 3,930 Census Tract 2211 1,851 Census Tract 2212.01 2,248 Census Tract 2212.02 5,955 Census Tract 2213.01 7,541 Census Tract 2213.02 6,742 Census Tract 2213.03 8,640 Census Tract 2214.01 5,748 St. Louis City (part) Census Tract 1011 3,270 Census Tract 1012 3,756 Census Tract 1013 4,966 Census Tract 1014 3,447 Census Tract 1015 4,116 Census Tract 1018 4,260 Census Tract 1018.99 50 Census Tract 1021 3,035 Census Tract 1022 7,127 Census Tract 1023 2,274 Census Tract 1024 2,648 Census Tract 1025 2,248 Census Tract 1031 3,621 Census Tract 1034 (part) Block Group 1 (part) Blocks 101-116 970 Block Group 2 963 Block Group 3 (part) Block 301 120 Block 319 156 Block 321 49 Census Tract 1036 (part) Block Group 1 (part) Block 121 96 Block Group 2 470 Block Group 3 864 Census Tract 1037 3,171 Census Tract 1038 (part) Block Group 1 795 Block Group 2 961 Block Group 3 749 Block Group 4 912 Block Group 5 (part) Blocks 506-521 684 Block 523 52 Block Group 6 316 Census Tract 1039 (part) Block Group 3 (part) Block 343 31 Census Tract 1131 4,385 Census Tract 1134 1,185 Census Tract 1135 (part) Block Group 1 142 Block Group 2 (part) Blocks 201-208 662 Block Group 3 716 Block Group 4 657 Block Group 5 (part) Blocks 509-511 179 Blocks 522-524 210 Block Group 6 (part) Blocks 607-608 87 Census Tract 1141 9,590 Census Tract 1142 5,569 Census Tract 1143 6,449 Census Tract 1151 3,942 Census Tract 1152 3,172 Census Tract 1153 6,358 Census Tract 1154 3,327 Census Tract 1155 6,331 Census Tract 1156 6,116 Census Tract 1157 4,390 Census Tract 1161 3,338 Census Tract 1162 5,937 Census Tract 1163 7,169 Census Tract 1164 5,379 Census Tract 1165 5,295 Census Tract 1171 (part) Block Group 1 (part) Blocks 103-109 624 Block Group 2 672 Block Group 3 764 Block Group 4 (part) Blocks 401-404 0 Census Tract 1172 (part) Block Group 1 (part) Blocks 108-109 439 Block Group 2 874 Block Group 3 954 Block Group 4 1,255 Block Group 5 1,406 Block Group 6 1,411 Block Group 7 (part) Blocks 701-702 223 Census Tract 1173 (part) Block Group 3 (part) Blocks 301-307 470 Block 319 30 Block 321 103 Block Group 4 (part) Blocks 407-422 606
*940 1980 POPULATION Block 424 171 Census Tract 1174 5,576 Census Tract 1222 (part) Block Group 1 (part) Blocks 102-103 0 Blocks 109-113 0 Blocks 116-124 0 Block 154 9 Census Tract 1224 (part) Block Group 1 0 Census Tract 1231 (part) Block Group 3 (part) Blocks 304-307 573 Blocks 318-320 278 Block Group 4 1,255 Block Group 5 270 Block Group 6 305 Block Group 7 1,280 Census Tract 1232 (part) Block Group 2 (part) Block 201 0 Block 205 0 Blocks 207-210 76 Block 219 0 Block Group 3 (part) Blocks 301-302 268 Block 317 2 Block Group 5 835 Census Tract 1233 3,672 Census Tract 1234 (part) Block Group 1 15 Block Group 3 (part) Blocks 312-321 289 Block 332 106 Block Group 4 469 Block Group 5 372 Block Group 6 524 Block Group 7 296 Block Group 8 238 Census Tract 1235 0 Census Tract 1241 6,287 Census Tract 1242 4,526 Census Tract 1243 5,209 Census Tract 1246 2,561 _____ TOTAL 546,102
CONGRESSIONAL DISTRICT NUMBER 4
1980 POPULATION Barton County 11,292 Bates County 15,873 Benton County 12,183 Camden County 20,017 Cass County 51,029 Cole County 56,663 Henry County 19,672 Hickory County 6,367 Jackson County (part) Census Tract 113 (part) Blue Township (part) Independence (part) Block Group 1 (part) Blocks 116-136 1,800 Census Tract 114.01 (part) Blue Township (part) Independence (part) Block Group 1 (part) Blocks 101-102 7 Blocks 115-117 241 Block Group 9 4,205 Census Tract 114.03 (part) Blue Township (part) Independence (part) Block Group 1 2,706 Block Group 2 942 Block Group 3 (part) Blocks 301-308 373 Blocks 313-324 2,730 Block Group 9 2,106 Census Tract 114.04 2,495 Census Tract 135 (part) Prairie Township (part) Remainder of Township 184 Census Tract 138 3,870 Census Tract 139 5,889 Census Tract 140 7,243 Census Tract 141.01 5,050 Census Tract 141.02 11,825 Census Tract 141.03 8,188 Census Tract 142.02 197 Census Tract 145 (part) Blue Township (part) Independence (part) Block Group 9 (part) Block 907 1 Block 918 45 Sni-A-Bar Township (part) 508 Census Tract 147 4,005 Census Tract 148.01 560 Census Tract 148.02 735 Census Tract 149 8,351 Census Tract 150 (part) Fort Osage Township (part) Buckner (part) 1,133 Levasy (part) 165 Census Tract 151 (part) Blue Township (part) Independence (part) Block Group 9 288 Sugar Creek (part) Block Group 9 (part) Block 901 28 Block 908 34
*941 1980 POPULATION Blocks 910-914 27 Block 984 0 Block 986 23 Remainder of Township (part) Block Group 2 46 Block Group 9 (part) Blocks 901-924 335 Blocks 926-954 3,872 Blocks 985-989 182 Johnson County 39,059 Laclede County 24,323 Lafayette County 29,925 Maries County 7,551 Miller County 18,532 Moniteau County 12,068 Morgan County 13,807 Pettis County 36,378 Pulaski County 42,011 St. Clair County 8,622 Texas County 21,070 Vernon County 19,806 ______ TOTAL 546,637
CONGRESSIONAL DISTRICT NUMBER 5
1980 POPULATION Jackson County (part) Census Tract 1 0 Census Tract 2 50 Census Tract 3 2,025 Census Tract 4 811 Census Tract 5.01 182 Census Tract 5.02 1,263 Census Tract 6 4,361 Census Tract 7 4,023 Census Tract 8 4,131 Census Tract 9 3,632 Census Tract 10 3,516 Census Tract 11 1,948 Census Tract 12 590 Census Tract 13 1,619 Census Tract 14 816 Census Tract 15 1,437 Census Tract 16 1,988 Census Tract 17 2,746 Census Tract 18 3,958 Census Tract 19 3,943 Census Tract 20 2,315 Census Tract 21 4,886 Census Tract 22 3,589 Census Tract 23 2,113 Census Tract 24 1,399 Census Tract 25 1,777 Census Tract 26 28 Census Tract 27 10 Census Tract 28.01 80 Census Tract 28.02 69 Census Tract 29 1,212 Census Tract 30 2,363 Census Tract 31 175 Census Tract 32 1,059 Census Tract 33 1,543 Census Tract 34 3,956 Census Tract 35.01 1,723 Census Tract 35.02 916 Census Tract 36.01 1,212 Census Tract 36.02 2,218 Census Tract 37 2,207 Census Tract 38 2,181 Census Tract 39 1,716 Census Tract 40 1,770 Census Tract 41 989 Census Tract 42 1,642 Census Tract 43 2,925 Census Tract 44 1,030 Census Tract 45 969 Census Tract 46 3,162 Census Tract 47 1,201 Census Tract 48 3,050 Census Tract 49 2,686 Census Tract 50 3,114 Census Tract 51 2,256 Census Tract 52 2,623 Census Tract 53 2,398 Census Tract 54 2,162 Census Tract 55 1,927 Census Tract 56.01 2,974 Census Tract 56.02 3,138 Census Tract 57 3,696 Census Tract 58.01 3,880 Census Tract 58.02 5,045 Census Tract 59.01 954 Census Tract 59.02 2,760 Census Tract 60 2,480 Census Tract 61 4,662 Census Tract 62 2,211 Census Tract 63 3,414 Census Tract 64 2,773 Census Tract 65 1,927
*942 1980 POPULATION Census Tract 66 2,185 Census Tract 67 2,928 Census Tract 68 1,004 Census Tract 69 1,891 Census Tract 70 3,209 Census Tract 71 3,178 Census Tract 72 2,149 Census Tract 73 4,270 Census Tract 74 4,678 Census Tract 75 4,363 Census Tract 76 4,307 Census Tract 77 2,862 Census Tract 78.01 1,094 Census Tract 78.02 3,071 Census Tract 79 5,682 Census Tract 80 4,388 Census Tract 81 3,418 Census Tract 82 3,219 Census Tract 83 2,721 Census Tract 84 3,010 Census Tract 85 3,581 Census Tract 86 5,871 Census Tract 87 3,963 Census Tract 88 5,523 Census Tract 89 2,828 Census Tract 90 5,623 Census Tract 91 4,269 Census Tract 92 3,137 Census Tract 93 2,794 Census Tract 94 5,134 Census Tract 95 3,885 Census Tract 96 2,019 Census Tract 97 1,140 Census Tract 98 3,954 Census Tract 99 2,714 Census Tract 100.01 1,626 Census Tract 100.02 2,973 Census Tract 101.03 2,832 Census Tract 101.04 777 Census Tract 101.05 2,815 Census Tract 101.06 2,715 Census Tract 102.01 2,178 Census Tract 102.03 5,084 Census Tract 102.04 4,022 Census Tract 103.01 655 Census Tract 103.02 4,221 Census Tract 104.01 1,441 Census Tract 104.02 771 Census Tract 105 5,835 Census Tract 106 3,428 Census Tract 107.01 1,402 Census Tract 107.02 2,415 Census Tract 108.01 1,405 Census Tract 108.02 4 Census Tract 109.01 2,583 Census Tract 109.02 900 Census Tract 110 5,847 Census Tract 111 4,170 Census Tract 112 3,891 Census Tract 113 (part) Blue Township (part) Independence (part) Block Group 1 (part) Blocks 102-109 1,475 Block Group 2 1,391 Block Group 3 542 Census Tract 114.01 (part) Blue Township (part) Independence (part) Block Group 1 (part) Blocks 104-114 984 Blocks 118-130 1,764 Census Tract 114.03 (part) Blue Township (part) Independence (part) Block Group 3 (part) Blocks 310-311 176 Census Tract 115 6,614 Census Tract 116 5,824 Census Tract 117 4,926 Census Tract 118 5,638 Census Tract 119 4,141 Census Tract 120 3,776 Census Tract 121 6,387 Census Tract 122 6,380 Census Tract 123 3,533 Census Tract 124 4,401 Census Tract 125.01 3,724 Census Tract 125.02 3,079 Census Tract 125.03 3,140 Census Tract 126 5,197 Census Tract 127.01 7,344 Census Tract 127.02 636 Census Tract 128.01 8,713 Census Tract 128.02 3,371 Census Tract 129.01 7,263 Census Tract 129.02 5,406 Census Tract 130.01 88 Census Tract 130.02 2,266 Census Tract 130.03 5,028 Census Tract 131 3,582 Census Tract 132.01 7,451
*943 Census Tract 132.02 3,011 Census Tract 133.01 4,404 Census Tract 133.02 7,751 Census Tract 133.03 5,168 Census Tract 134.01 3,065 Census Tract 134.02 5,629 Census Tract 134.04 113 Census Tract 134.05 1,369 Census Tract 134.06 4,146 Census Tract 135 (part) Prairie Township (part) Greenwood 1,315 Lee's Summitt (part) 1,743 Washington Township (part) 212 Census Tract 136 4,917 Census Tract 137.01 1,078 Census Tract 137.02 3,440 Census Tract 137.03 5,266 Census Tract 137.04 3,985 Census Tract 142.01 3,335 Census Tract 143 3,091 Census Tract 144 1,704 Census Tract 145 (part) Blue Township (part) Independence (part) Block Group 1 2,637 Block Group 9 (part) Blocks 902-906 103 Blocks 911-917 726 Blocks 987-989 1,038 Brooking Township (part) Kansas City (part) 28 Census Tract 146.01 6,486 Census Tract 146.02 7,197 Census Tract 151 (part) Blue Township (part) Independence (part) Block Group 1 0 Sugar Creek (part) Block Group 9 (part) Block 915 0 Blocks 919-920 16 Blocks 925-926 7 Remainder of Township (part) Block Group 9 (part) Block 925 4 Blocks 955-956 2 _ TOTAL 546,882
CONGRESSIONAL DISTRICT NUMBER 6
1980 POPULATION Andrew County 13,980 Atchison County 8,605 Buchanan County 87,888 Caldwell County 8,660 Carroll County 12,131 Chariton County 10,489 Clay County 136,488 Clinton County 15,916 Cooper County 14,643 Daviess County 8,905 DeKalb County 8,222 Gentry County 7,887 Grundy County 11,959 Harrison County 9,890 Holt County 6,882 Howard County 10,008 Jackson County (part) Census Tract 150 (part) Blue Township (part) 240 Fort Osage Township (part) Sibley 382 Remainder of Township 1,373 Linn County 15,495 Livingston County 15,739 Mercer County 4,685 Nodaway County 21,996 Platte County 46,341 Putnam County 6,092 Ray County 21,378 Saline County 24,919 Schuyler County 4,979 Sullivan County 7,434 Worth County 3,008 _____ TOTAL 546,614
CONGRESSIONAL DISTRICT NUMBER 7
1980 POPULATION Barry County 24,408 Cedar County 11,894 Christian County 22,402 Dade County 7,383 Dallas County 12,096 Douglas County 11,594 Greene County 185,302 Jasper County 86,958 Lawrence County 28,973 McDonald County 14,917 Newton County 40,555 Ozark County 7,961 Polk County 18,822
*944 Stone County 15,587 Taney County 20,467 Webster County 20,414 Wright County 16,188 _______ TOTAL 545,921
CONGRESSIONAL DISTRICT NUMBER 8
1980 POPULATION Bollinger County 10,301 Butler County 37,693 Cape Girardeau County 58,837 Carter County 5,428 Crawford County 18,300 Dent County 14,517 Dunklin County 36,324 Franklin County (part) Census Tract 8011 6,514 Howell County 28,807 Iron County 11,084 Madison County 10,725 Mississippi County 15,726 New Madrid County 22,945 Oregon County 10,238 Pemiscot County 24,987 Perry County 16,784 Phelps County 33,633 Reynolds County 7,230 Ripley County 12,458 St. Francois County 42,600 Ste. Genevieve County 15,180 Scott County 39,647 Shannon County 7,885 Stoddard County 29,009 Washington County 17,983 Wayne County 11,277 _______ TOTAL 546,112
CONGRESSIONAL DISTRICT NUMBER 9
1980 POPULATION Adair County 24,870 Audrain County 26,458 Boone County 100,376 Callaway County 32,252 Clark County 8,493 Franklin County (part) Census Tract 8001 5,495 Census Tract 8002 6,731 Census Tract 8003 6,131 Census Tract 8004 8,743 Census Tract 8005 5,407 Census Tract 8006 9,105 Census Tract 8007 7,883 Census Tract 8008 5,417 Census Tract 8009 7,182 Census Tract 8010 2,625 Gasconade County 13,181 Knox County 5,508 Lewis County 10,901 Lincoln County 22,193 Macon County 16,313 Marion County 28,638 Monroe County 9,716 Montgomery County 11,537 Osage County 12,014 Pike County 17,568 Ralls County 8,911 Randolph County 25,460 St. Charles County (part) Census Tract 3101 4,364 Census Tract 3111 16,045 Census Tract 3113 11,325 Census Tract 3114 7,050 Census Tract 3115 729 Census Tract 3116 4,380 Census Tract 3117 8,711 Census Tract 3118 5,153 Census Tract 3119 6,521 Census Tract 3120 4,192 Census Tract 3121 4,464 Census Tract 3122 5,988 Scotland County 5,415 Shelby County 7,826 Warren County 14,900 _______ TOTAL 546,171
WANGELIN, Chief District Judge, dissenting.
I respectfully dissent;
The 1980 census revealed that Missouri's population growth failed to keep up with national population growth and consequently Missouri's Congressional delegation was reduced from ten seats to nine. This failure to keep up with national population growth, and in some areas the actual decline in population, was most pronounced in the presently constituted first, second and third districts. I cannot concur with a redistricting plan that rewards areas for loss of population at the expense of areas that have not suffered such dramatic demographic declines. Rather, I would adopt the provisions of the First Extraordinary Session Senate Substitute for Senate Committee *948 Substitute for House Bill No. 1 [hereinafter the Plan], which is substantially the same as the Dirk Plan offered in the regular session, for the following reasons.
First, the Plan comports with the law as laid down in Preisler v. Secretary of Missouri, 341 F. Supp. 1158 (W.D.Mo.1972), and gives consideration to the salvageable portions of the districts created by that decision.
Second, the Plan splits only St. Louis and Jackson Counties and does not split the City of St. Louis. The majority plan not only splits these two counties and others, but also divides the City of St. Louisan area which has lost population and does not contain the requisite population to constitute even one congressional district. Efforts to give voters in the City of St. Louis input in representation of other areas in more than one district would amount to rewarding the City for its population decline.
The suggestion that St. Charles and Jefferson Counties are part of the St. Louis metropolitan area and should therefore be drawn into overwhelmingly urban districts ignores the fact that population increases in those counties were primarily the result of popular flight from the "St. Louis metropolitan area."
To award multiple representation to the City of St. Louis and one-third of Missouri's congressional delegation to the "St. Louis metropolitan area," is not only unjust political compensation for an area of dwindling population but confounds the principles of representative government and the common sense application of the legal precepts which bind this panel.
The first district shall be composed of all of St. Louis City and the following United States Census Tracts in St. Louis County: Nos. 2199, 2200, 2139, 2140, 2138, 2204.02, 2204.04, 2203, 2205, 2206.02, 2201 and 2202. Total population543,314.
The second district shall be composed of the following United States Census Tracts in St. Louis County: Nos. 2106, 2105, 2118, 2119, 2104, 2120, 2121, 2122, 2123, 2124, 2125, 2117, 2116, 2115, 2126, 2129, 2128, 2127, 2137, 2136, 2135, 2134, 2130, 2114.02, 2131.01, 2133, 2114.01, 2131.02, 2151.01, 2151.04, 2132.01, 2132.02, 2150.01, 2151.03, 2151.02, 2150.03, 2150.02, 2153.01, 2152.01, 2153.02, 2148, 2149, 2147, 2146, 2144, 2145, 2143, 2159, 2157, 2156, 2155, 2154, 2165, 2158, 2162, 2164, 2163, 2161, 2160, 2141, 2142, 2168, 2169, 2170, 2191, 2171, 2172, 2167, 2166, 2173, 2102, 2103, 2109.03, 2110, 2111, 2112, 2182, 2180.02, 2181, 2189, 2174, 2175, 2188, 2187, 2186, 2185, 2184, 2176, 2177.01, 2180.01, 2183 and 2190. Total population 543,053.
The third district shall be composed of the following counties: Jefferson, Ste. Genevieve, St. Francois, Perry, Madison, Iron, Bollinger, Cape Girardeau, Scott, Stoddard, Wayne, Carter, Ripley, Butler, Dunklin, Pemiscot, New Madrid, and Mississippi. Total Population547,819.
The fourth district shall be composed of the townships of Fort Osage, Sni-A-Bar, Van Buren, and Prairie in Jackson County, and the counties of Ray, Lafayette, Saline, Howard, Boone, Cooper, Pettis, Johnson, Cass, Bates, Henry, Benton, Morgan, Moniteau, Camden, Hickory, St. Clair, Vernon, and Barton. Total Population548,028.
The fifth district shall be composed of the Jackson County Townships of Kaw, Blue, Brooking, and Washington. Total Population 548,520.
The sixth district shall be composed of the following counties: Atchison, Nodaway, Worth, Harrison, Mercer, Putnam, Schuyler, Scotland, Adair, Sullivan, Grundy, Daviess, DeKalb, Gentry, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston, Chariton, Linn, Macon, Randolph, Carroll, Clay, and Platte. Total Population545,729.
The seventh district shall be composed of the following counties: Cedar, Polk, Dallas, Wright, Webster, Greene, Dade, Jasper, Lawrence, Christian, Douglas, Ozark, Taney, Stone, Barry, McDonald, and Newton. Total Population545,921.
*949 The eighth district shall be composed of the following United States Census Tracts in St. Louis County: Nos. 2215, 2214.02, 2214.01, 2213.03, 2204.03, 2197, 2198, 2210, 2209, 2194, 2195, 2196, 2193, 2192, 2211, 2212.01, 2212.02, 2208.03, 2208.02, 2207.03, 2207.02, 2207.01, 2206.01, 2208.01, 2213.01, 2213.02, and the counties of Cole, Osage, Gasconade, Franklin, Miller, Maries, Washington, Crawford, Phelps, Pulaski, Dent, Laclede, Taxas, Shannon, Reynolds, Howell, and Oregon. Total Population549,459.
The ninth district shall be composed of the following United States Census Tracts in St. Louis County: Nos. 2113.02, 2113.01, 2113.03, 2109.02, 2109.01, 2108.02, 2108.03, 2108.04, 2107, 2101, 2216, 2151.05, 2152.03, 2178.05, 2178.04, 2177.02, 2152.02, 2179.02, 2179.03, 2179.04, 2178.06, 2178.07, 2178.02, and the following counties: Clark, Lewis, Knox, Shelby, Marion, Monroe, Ralls, Pike, Audrain, Callaway, Montgomery, Lincoln, Warren, and St. Charles. Total Population 545,601. *950 *951NOTES
 Section 2c was attached as a rider to a private immigration bill. Act of December 14, 1967, Pub.L.No.90-196, 81 Stat. 581.
 For the entire floor debate, see 113 Cong.Rec. 31718-20, 34032-39, 34364-70 (1967).
 The Court has put state legislature apportionment schemes to a less exacting scrutiny. The unconstitutionality of population variances in state legislative districts is based on the equal protection clause of the Fourteenth Amendment, not Art. I, § 2. See, e.g., White v. Regester, 412 U.S. 755, 763, 93 S. Ct. 2332, 2338, 37 L. Ed. 2d 314 (1973).
 We note that the finding by the Preisler Court, that proffered justifications for population deviation were inadequate, did not imply that these considerations were illegitimate. The Court did not suggest that political subdivisions or economic and social interests cannot be considered; rather, these factors must be secondary to population equality.
 The demographers of the State of Missouri Office of Administration, Division of Budget and Planning, and in particular Mark R. Reading, Project Director for Reapportionment, and T. Ryan Burson, Planner.
We are indebted to these gentlemen and the state agency they represent for their technical assistance in checking the population figures of the 1980 decennial census and the boundary locations of the various districts.
 In City of Mobile, the plaintiffs alleged that Mobile's at-large elections with multi-member districts for city commissioners prevented the election of blacks. We can discern no reason why discriminatory impact would make out a constitutional violation in the context of congressional apportionment.
 In the instant case, there is no danger of cancelling out white voting strength. If one black-majority district were drawn, it would give 11.1 percent of the Missouri congressional districts a black majority. Blacks comprise 10.5 percent and all nonwhites comprise 11.6 percent of the Missouri population. A comparison of the percentage of black-majority districts to the percentage of the black population is a proper way of determining whether use of racial criteria has cancelled out a group's voting strength. See United Jewish Organizations v. Carey, 430 U.S. at 166, 97 S. Ct. at 1010.
 Justices Brennan and Blackmun felt that a racial criterion in U. J. O. was permissible because of the applicability of the Voting Rights Act of 1965. They joined the part of Justice White's opinion relying on the Voting Rights Act, 430 U.S. at 155-65, 97 S. Ct. at 1004-09, but they did not join the part which said that race could be considered absent the Act. Id. at 168-79, 97 S. Ct. at 1011-17 (Brennan, J., concurring). Justice Marshall took no part in the case, and Chief Justice Burger was the lone dissenter.
 The requirement of population equality is subsumed in the requirement of the United States Constitution.
 The population of the five counties in the Missouri portion of the Census Bureau's Standard Metropolitan Statistical Area for Kansas City is 884,502, which is more than enough for one district.
 The population of the five counties in the Missouri portion of the Census Bureau's Standard Metropolitan Statistical Area for St. Louis is 1,788,504, while 1,638,894 people are needed to completely fill three districts. One of the counties in the SMSA, Franklin County, is not included in any of the St. Louis area districts.
 The court did, however, base its plan on one which had been enacted by the legislature but was found unconstitutional. Preisler v. Secretary of State, 341 F. Supp. at 1161.
 It is ironic that the dissent bases its plan on a desire to salvage the present districts, p. 948, par. 1, post, but it does not salvage that part of the plan which divides the City of St. Louis.
 These are the only two counties in Missouri that must be split since their individual population exceeds the population total necessary (546,298) to make one congressional district.