
    Tommy DANIEL, Thomas M. Lockwood, Edward J. Lundin, Wilford H. Thomas, Plaintiffs, v. James H. DAVIS et al., Defendants.
    Civ. A. No. 2760.
    United States District Court E. D. Louisiana, Baton Rouge Division.
    June 28, 1963.
    
      J. D. DeBlieux, Ralph Brewer, Baton Rouge, La., for plaintiffs.
    Jack P. f. Gremillion, Baton Rouge, La., Harry J. Kron, Jr., Thibodaux, La., Thomas W. McFerrin, Frank L. Dobson, Baton Rouge, La., Floyd J. Reed, New Orleans, La., for defendants.
    Before WISDOM, Circuit Judge, and WEST and ELLIS, District Judges.
   WISDOM, Circuit Judge.

In this class action, filed March 15, 1963, four Louisiana citizens, registered voters in the Parish of East Baton Rouge, ask for a declaratory judgment and for a decree ordering reapportionment of the House of Representatives of the State of Louisiana. A three-judge court was constituted under Section 2284 of Title 28, U.S.C. The Court has original jurisdiction under Sections 2281 and 1343, Title 28 U.S.C., and Section 1983, Title 42 U.S.C., the Civil Rights Act. Jurisdiction over the subject matter rests on the Court’s determining that the apportionment of the Louisiana House of Representatives provided in Section 35 of Title 24 of the LSA-Revised Statutes of 1950, under Section 5 of Article 3 of the LSA-Constitution, has the effect of debasing the voting rights of the plaintiffs and the class they represent. Malapportionment of representation in the legislature amounting to “invidious discrimination” violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Sanders v. Gray, D.C.Ga.1962, 203 F.Supp. 158; Sobel v. Adams, D.C.Fla.1962, 208 F.Supp. 316; Sims v. Frink, D.C.Ala. 1962, 208 F.Supp. 431.

May 16, 1963, the Court heard argument on the defendants’ “Motion to Dismiss and Motion for Stay of Proceedings”. At the time, the Louisiana legislature was then holding its regular 1960 session. Accordingly, after hearing argument on the motions, the Court issued the following order:

“The Court will defer action on these motions in order to give the Louisiana Legislature an opportunity to do its own apportionment. Should it develop that the Legislature has no intention to act promptly, then the Court will decide these motions and fix the case for an early hearing. We are, therefore, deferring any action at this time. We are not applying the doctrine of abstention.”

The legislature adjourned without taking action on reapportionment. May 28 the Court denied the defendants’ motion and fixed the hearing on the application for a preliminary injunction for June 18, 1963. Before the date of the hearing, the Governor of Louisiana called the legislature to meet in special session to consider emergency legislation on reapportionment. The hearing therefore was continued. June 22 the legislature enacted House Bill 12, Act 2 of the First Special Session of 1963, “to amend and re-enact ‘Section 35 of Title 24 of the Louisiana Revised Statutes of 1950, relative to the membership of the House of Representatives of the Louisiana Legislature’.” On the same day Governor James H. Davis approved and signed the bill.

The statute reads, in substantial part, as follows:

“The House of Representatives of the Legislature of Louisiana shall be composed of one hundred and five (105) members.
“Ward 9 of the Parish of Orleans shall have three (3) representatives; Ward 7 of the Parish of Orleans shall have two (2) representatives, and the remaining wards of said Parish each shall have one (1) representative.
“The parish of East Baton Rouge shall have six (6) representatives; the parishes of Caddo and Jefferson ■each shall have five (5) representatives; the parishes of Calcasieu and Rapides each shall have three (3) representatives; the parishes of Lafayette, Ouachita, St. Landry, Tan-gipahoa and Terrebonne each shall have two (2) representatives, and ■each of the remaining parishes of the state shall have one (1) representative.”

The defendants have now filed an answer in the nature of a general denial. Further answering, they allege that the Legislature has reapportioned the membership of the House as provided in Act 2 of 1963, a certified copy of which was attached to and made part of the answer.

Section 5 of Article 3 of the Louisiana Constitution and Section 35 of Title 24 of the LSA-Revised Statutes of 1950 are the pertinent controlling provisions on apportionment of the House. The constitutional provision reads as follows:

“§ 5. House of representatives; number; apportionment
“Section 5. The House of Representatives of the Legislature shall be composed of one hundred members, unless increased as herein provided.
“Wards 3, 7 and 11 of the Parish of Orleans shall have two representatives, and the remaining wards of said parish shall each have one representative.
“The Parish of Caddo shall have four representatives; the parishes of Rapides and St. Landry shall each have three representatives; the parishes of Acadia, Avoyelles, Cal-casieu, East Baton Rouge, Lafayette, Lafourche, Natchitoches, Ouachita, St. Mary and Tangipahoa shall each have two representatives; and each of the remaining parishes of the State shall have one representative. (As amended Acts 1942, No. 362, adopted Nov. 3,1942; Acts 1944, No. 311, adopted Nov. 7, 1944.)” (Emphasis added.)

The statutory provision, before its recent amendment, is identical with the constitutional provision except that it omits the words underscored in the quotation from the Constitution.

As to the first paragraph, which fixes the number of representatives, we find no constitutional infirmity.

As to the second and third paragraphs of Section 5 of Article 3 of the Louisiana Constitution and the corresponding statutory provisions of LSA-R.S. 24:35, before adoption of Act 2 of 1963, we find, considering the pleadings and the affidavits and upon taking judicial notice of the United States census figures, that the prescribed apportionment invidiously discriminates against persons and voters in certain parishes in Louisiana. Those two paragraphs of Section 5, Article 3 of the' Constitution and of LSA-R.S. 24:35 are therefore unconstitutional.

Article 3 of the Louisiana Constitution of 1921 requires the legislature to reapportion itself after every federal census. But, except for the assignment of a second house seat to Jefferson Parish in 1954 and the assignment of two additional house seats to East Baton Rouge and Jefferson Parish in 1960 the House of Representatives has not been reapportioned since 1920.

The irregular growth of Louisiana’s population since 1920 has resulted in lopsided legislative representation. Taking the 1960 census figures and dividing the population of Louisiana by the number of representatives, we obtain the ratio of one representative to 31,019 persons. Representation in fact ranges from the ratio of one to 6,909 in Cameron Parish to one to 120,205 in Ward 9 of Orleans Parish. Eight parishes of the state, each with a population of more than 75,000 but less than 300,000, have a total population of 1,187,323 or 36.45 per cent of the state’s population. These parishes have a total of 24 representatives or 22.85 per cent of the House. The nine most heavily populated parishes in the state have a total population of 1,814,848 or 52.72 per cent of the state’s population. These parishes have 44 representatives or 41.90 per cent of the House. Louisiana is unlike some states in that the largest city is not discriminated against: New Orleans, taking the 17 wards as a whole, has its fair share of seats in the House. New Orleans, with 19.27 per cent of the state’s population, has 20 representatives or 19.05 per cent of the House. Within the City, Wards 3 and 11 are over-represented and Wards 7 and 9 are grossly under-represented. The table attached to this opinion as an appendix, showing the allotment of representatives to the parishes and the population of the parishes in 1920 and 1960, plainly demonstrates the imbalance of House representation as it existed on the day this action was filed.

For a reapportionment suit, the question for decision is an extremely narrow one. The Louisiana Constitution imposes geographic limits as well as numerical limits. Section 2 of Article 3 ties'80 of the 105 seats in the House to geographic units by the requirement that each of the 63 parishes outside of Orleans Parish and each ward in New Orleans shall have at least one representative in the House. Thus, in spite of the language in Section 2, “Representation in the House of Representatives shall be equal and uniform, and shall be based upon population,” there are only 25 seats available for equitable allocation according to population. The plaintiffs, however, do not question the validity of apportioning 80 seats in the House according to geographic units. Nor do they question the apportionment in the Senate. These issues therefore are not before us.

The reapportionment of the House under Act 2 is identical with the apportionment plan recommended by the Louisiana Legislative Council in its Report to the Council No. 29, June 1961, prepared in compliance with House Concurrent Resolution No. 57 of the 1960 Regular Session of the Louisiana Legislature. This plan is recommended by the Public Affairs Research Council of Louisiana, a non-partisan organization engaged in research in Louisiana public affairs. See PAR Leg. Bull. vol. 10, No. 1, May 18, 1962; Vol. 11, No. 3, June 18, 1963. In its report the Legislative Council describes the method of apportionment in these terms i

“The Method of Equal Proportions is said to be the only method which willl apportion a given number of legislative seats among the several areas of the state so that the ratios of population to representatives and also the ratios of representatives to population are as equal’ as possible. To apply this method to-the Louisiana House of Representatives, it is necessary first to assign' one Representative to each of the 63 parishes (exclusive of Orleans) and one to each of the 17 wards of the city of New Orleans, since this initial assignment is required by the Constitution. Such constitutional assignment accounts for a total of 80' representatives. Next, the population of each parish and of each ward of New Orleans is multiplied by a series of multipliers from the table of multipliers which has been worked out by Dr. Huntington. The resulting products are then arranged in. order of magnitude, beginning with, the largest, to form a priority list.. This list indicates the order in which, representatives in excess of the 80' assigned by constitutional directive shall be allocated. Using this list, representatives are then assigned, in order of priority, until the total permissible number has been distributed. For example, suppose the allocation is made on the basis of 105-seats. After first assigning 63 to-the parishes and 17 to the wards of the City of New Orleans, as required by the Constitution, 25 seats remain to be assigned according to the results determined by applying the method of equal proportions. Thus, the 25 seats will go to the first 25 parishes and/or wards of the City of New Orleans listed in the priority list.”

The table attached as an appendix shows the imbalance as it affects the entire state. The following table compares the old representation with the new representation and the plaintiffs’ plan, with regard to the particular parishes and wards which are affected. We note that the reapportionment the plaintiffs propose is the same as the “equal proportions” plan on which Act 2 is based, except that the plaintiffs would give one more seat to Caddo and Cal-casieu and one less to Tangipahoa and Terrebonne Parishes.

The Supreme Court has not yet fixed boundaries for the role of courts in legislative apportionment. Nor has it established the standard courts must use in testing the constitutionality of apportionment. Federal judges should tread lightly on ground historically within the province of state legislatures. Nevertheless we must fashion some test giving recognition to the right of the state’s electorate to have adequate representation in state government. We conclude that legislative apportionment complies with the Equal Protection Clause if the apportionment plan, considered as a whole, has a rational basis and gives importance to population as a major factor. In applying the test the Court will not weigh with exactitude the legislative plan against a plan based on perfect equality. This is as far as we need go at this time in this case, which presents only the narrow question of the apportionment of the twenty-five allocable seats in the Louisiana House of Representatives. The method of “equal proportions” adopted in Act 2 provides a rational basis for the apportionment. The method gives primary importance to population. Act 2 adjusts overrepre-sentation in some slow-growing areas: (Acadia, Assumption, Lafourche, Natchi-toches, St. Landry, St. Mary and in Wards 3 and 11 of Orleans Parishes). It corrects underrepresentation in fast-growing urban areas: Caddo (Shreveport), Calcasieu (Lake Charles), East Baton Rouge, Jefferson, and Wards 7 and 9 in New Orleans.

On these findings and limiting our holding to the issue before us in this action, we hold that the apportionment of the twenty-five allocable seats in Louisiana House of Representatives provided in Act 2 of the Special Session of 1963 meets the Court’s constitutional test and substantially meets the plaintiffs’ demands. Accordingly, the plaintiffs’ prayer for relief is denied.

APPENDIX  