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

US District Court for the Western District of Missouri - 541 F. Supp. 922 (W.D. Mo. 1982)
January 7, 1982

541 F. Supp. 922 (1982)

Sydell SHAYER, Linda Claire McDaniel, Shirley Albert, Andi Cenedella, Esther Myers, and Ann Reed, Plaintiffs,
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.

Nos. 81-4144-CV-C, 81-4180-CV-C, 81-4196-CV-C and 81-4184-CV-C.

United States District Court, W. D. Missouri, C. D.

January 7, 1982.

*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.

I. Facts

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[1] 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.
*927 ....
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.[2]

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 
1. Population

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.[3] 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.[4]

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[5] 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.

2. Race

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.[6] 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.[7] 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.[8] 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.[9]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,[10] 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.[11] 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.[12]

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.[13]

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.

D. Summary

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.

VI. Conclusion

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:

                                            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%
                                            VARIANCE FROM IDEAL DISTRICT
DISTRICT             POPULATION              POPULATION          PERCENT
   8                    546,112                  186               .03%
   9                    546,171                  127               .02%
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.


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:


Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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
     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
     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

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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
     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

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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
     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
             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

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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
                    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

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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
    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
     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

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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
Stone County                                              15,587
Taney County                                              20,467
Webster County                                            20,414
Wright County                                             16,188
TOTAL                                                    545,921

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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

Comprised of the following counties, townships, places, census tracts, block groups, blocks, and/or enumeration districts:

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[1] 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 *951


[1] 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.

[2] For the entire floor debate, see 113 Cong.Rec. 31718-20, 34032-39, 34364-70 (1967).

[3] 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).

[4] 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.

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] The requirement of population equality is subsumed in the requirement of the United States Constitution.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[1] 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.

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