
    Peggy J. CONNOR et al., Plaintiffs, v. Paul B. JOHNSON et al., Defendants.
    Civ. A. No. 3830.
    United States District Court S. D. Mississippi, Jackson Division.
    March 3, 1967.
    Judgment Affirmed March 27, 1967.
    See 87 S.Ct. 1174.
    
      Alvin J. Bronstein, Jackson, Miss., and Peter Marcuse, Waterbury, Conn., for plaintiffs.
    Joe T. Patterson, Atty. Gen. of Mississippi, and Martin R. McLendon, Asst. Atty. Gen., Jackson, Miss., for defendants.
    Before COLEMAN, Circuit Judge, and COX and RUSSELL, District Judges.
   OPINION OF THE COURT

COLEMAN, Circuit Judge.

This Court in this cause has heretofore found it necessary to hold unconstitutional the reapportionment of both the House of Representatives and the Senate in the Mississippi Legislature as it was attempted in 1962, see 256 F.Supp. 962, July 22, 1966. By reference, we now incorporate that opinion into (and make it a part of) what is now about to be written and done.

Under the 1962 Reapportionment, as declared unconstitutional, the membership in the House of Representatives varied, either over or under, in excess of ten per cent of the norm in sixty-five of the eighty-two counties. In thirty-eight instances the variation was more than twenty-five per cent. In the forty-nine senatorial districts there were thirty-five which varied in excess of ten per cent. Obviously, under the one man one vote rule, this could not stand.

Rather than undertaking the exercise of equity powers and ourselves reapportioning the House and Senate, we expressly requested the Legislature to do so, 256 F.Supp., at 968.

The Governor called the Legislature into special session on November 9, 1966. Senate Bill No. 1504 was passed by both houses of the Legislature and approved by the Governor on December 1, 1966.

Tables showing in detail the apportionment of the 52 Senate seats and the 122 House seats as attempted by Senate Bill No. 1504 will be attached to and made a part of this opinion as Appendix 1.

An examination of Appendix 1 will show that under this statute twenty-five of the forty-one senatorial districts, established for the election of 52 senators, varied from the norm (41,887) by more than ten per cent, either over or under. There were such glaring variations as 32.55% and 30.02%, as well as ten others in excess of fifteen per cent.

A similar examination as to the House of Representatives reveals that of the seventy-two districts set up for the election of 122 representatives, thirty varied from the norm (17,854) by more than ten per cent, either over or under. There were such widespread margins as 41.60%, 34.87%, 33.81%, and 30.46%.

After requiring briefs of the parties, this Court convened on January 9, 1967, to consider the validity of these plans. On that very day the Supreme Court of the United States decided Swann v. Adams, No. 136, October Term, 1966, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501.

To obtain and study a copy of that decision before proceeding further, the Court adjourned until the next day. An examination of the decision made it crystal clear that Senate Bill No. 1504 was fatally defective unless the variations above described could be explained on the basis of rational state policy, such as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts, or the recognition of natural or historical boundary lines.

We then entered a formal order giving the State an opportunity to offer such explanations. Since the Mississippi Legislature keeps no stenographic report of its debates and requires no formal committee reports other than recommendations as to passage or rejection, it was impossible for the Attorney General to file such an explanation.

Therefore, under the standards required by Swann v. Adams, supra, we hereby find Senate Bill 1504 to be unconstitutional on its face, null and void.

The primaries for the nomination of candidates for the House and Senate for the 1968-1972 term are scheduled by law for August 8, 1967, with the general election to follow on November 7. There is no alternative now to doing that which we have tried so hard to avoid. The equity powers of this Court must be exercised and we must proceed to order a reapportionment which will meet constitutional standards. To do otherwise could leave the Government of the State of Mississippi in what could be, or could become, chaos.

We expressly point out that the exercise of this unavoidable judicial duty cannot, does not, and will not in any way tie the hands of the Legislature at any time to adopt and enact any plan of its own for the reapportionment of its membership so long as it complies with Constitutional requirements.

We have dismissed as utterly impractical any idea of requiring the election to be held state-at-large. Any effort to reapportion by Congressional Districts would suffer the same disadvantages or difficulties, even if on a less acute scale.

After exhaustive deliberation, including the consideration of all reasonable alternatives which have occurred to us, we now proceed to lay out districts for the election of Senators and Representatives in the Mississippi Legislature so that the 2,178,141 inhabitants will as nearly as possible be equally represented in compliance with the one man one vote rule as enunciated by Swann v. Adams, supra.

In doing this we simply consider the State of Mississippi as a “big house” which must, in one instance be divided into 52 rooms containing substantially the same number of occupants and, in the other must be divided into 122 rooms. This has to be done, of course, within immovable exterior boundaries and within permissible tolerances.

This can be done only through the use of county boundaries and county population figures. Being predominantly a rural state, Mississippi has no other useful population measuring stick. We recognize also that counties are frequently divided from each other by natural boundaries, such as the considerable number of rivers and other large streams within our borders, as the map will verify. We have also taken into consideration the location and courses of state highways as means of communication between the people of one county and the people of other counties placed in the same district. We have consulted county groupings as to judicial districts as giving some evidence of the convenience of the public in the effective exercise of the elective process.

The overpowering consideration, however, has been to make the elective districts as nearly equal as possible in population, without discrimination or favoritism of any kind. We hereby find and adjudicate as a fact that this has been accomplished, considering that it primarily had to be done within the context of county boundaries and county population figures.

Pursuant to this approach it is hereby determined that the Districts for the election of the 52 Senators and the 122 Representatives in the Mississippi Legislature shall be and they are established as follows:

For the Election of Senators

As previously noted, allocating 52 Senators to a total population of 2,178,141 fixes the population norm per Senator at 41,887. We hereto attach and make a part of this opinion as Appendix 2 a detailed table of population by counties and districts as affected by this apportionment. It is noted that only six districts vary from the norm in excess of ten percent. These are as follows:

District 5, 12.011% over the norm.
District 8, 10.325% over the norm.
District 12, 11.345% over the norm.
District 18, 12.546% over the norm.
District 19, 10.270% over the norm.
District 29, 10.266% over the norm.

From 1890 to 1962, District 5 stood as we now constitute it. The people of that District are accustomed to electing their Senator as a unit.

Districts 8, 12, and 18 are single county Districts. These counties clearly have more than enough inhabitants to elect a Senator within and of themselves without being combined with another county or other counties. Since 4,188 people are enough to cause a variation of 10% and since none of these variations is as much as 13 % we have concluded that the best interests of these people would be served by allowing them to elect their own Senators. Moreover, in a total statewide plan it is impossible to avoid these variations at some point in the State.

Districts 19 and 29 are contiguous, have similar economic interests, and especially comply with the rule of compactness.

The Order of the Court will provide, in keeping with prior Mississippi statutes on the subject, that in Districts electing more than one Senator, the same will be nominated and elected by POSTS as to each member.

It is further noted that in the 16th Senatorial District the County of Bolivar and the County of Washington each have a population in excess of the norm for one Senator, but not enough for two. It will therefore be further ordered that the Senator for Post 1 shall be nominated and elected from Washington County, the Senator for Post 2 shall be nominated and elected from Bolivar County, and for Post 3 from the District at large.

The Districts for the election of 122 Representatives in the Mississippi Legislature shall be and they are established as follows:

As previously noted, allocating 122 Representatives to a total population of 2,178,141, fixes the population norm per Representative at 17,854. We hereto attach and make a part of this opinion as Appendix 3 a detailed table of population by counties and districts as affected by this apportionment. It is noted that only two districts vary from the norm in excess of ten per cent. These are as follows:

District 13, Calhoun County, 10.715% under the norm.

District 20, Grenada and Montgomery, 11.140% under the norm.

It will be noted that 179 people will vary the Representative norm by one per cent. The variations here involve 126 people in excess of a ten per cent variation in Calhoun County and 292 people in excess of a ten per cent variation in the two counties of Montgomery and Grenada. Lacking any better alternative by possible combinations with adjoining counties (see map, appendix) we cannot allow these small numbers of people (126 in one instance and 202 in the other) to destroy a statewide plan of reapportionment.

Moreover, Calhoun County had to be placed in a four county Senatorial District to meet the standard. From 1890 to 1962, Montgomery and Grenada Counties shared a floater representative, so these counties are accustomed to a joint participation in the legislative elective process. They are closely bound together by Interstate Highway 55 and are in the same judicial district.

The Order of the Court will provide, in keeping with prior Mississippi statutes on the subject, that in Districts electing more than one Representative, the same will be nominated and elected by POSTS as to each Member.

Because Lee County has almost three times the population of Itawamba, we sought to avoid the combination of these two counties in the same district. We found it impossible to observe the norm unless this is done. Moreover, these Counties from 1890 to 1962 shared a floater representative, are closely linked by U.S. Highway 78, and enjoy an unusually close economic solidarity.

Similar considerations and compulsions were encountered in linking Covington with Jones, Lamar with Forrest, and Issaquena and Sharkey with Washington. It may not be amiss for the writer of this opinion to point out that his home County, Choctaw, had to be linked with a County which has more population and more votes. These counties do enjoy many similar interests, however, and indeed were the same County prior to 1874.

These things simply have to be done if we believe that Legislators should represent people and that people are entitled to substantially an equal voice in the selection of their representatives.

As Appendixes 4 and 5, we attach maps showing the geographical outlines of the Senatorial and House Districts, from which it will at once be observed that the districts herein established are contiguous and compact.

In the Seventh District we note that Coahoma County has enough population to meet the requirements for two Representatives on its own, while Quitman has enough for one. It will therefore be further ordered that in the Seventh District for the election of Representatives Posts 1 and 2 will be nominated and elected from Coahoma County, Post 3 will be nominated and elected from Quitman County, and Post 4 will be nominated and elected from the District at large.

Identical considerations require the following similar provisions as to the following Districts.

In the Eighth District, Post 1 will be filled from Lafayette County, Post 2 from Panola County, and Post 3 from the District at large.

In the Fifteenth District, Posts 1 and 2 will be filled from Leflore County, Posts 3 and 4 will be filled from Sunflower County, and Post 5 will be filled from the District at large.

In the Nineteenth District, Post 1 will be filled from Holmes County, Post 2 from Yazoo County, and Post 3 from the District at large.

In the Twenty Fourth District, Posts 1 and 2 will be filled from Lowndes County, Post 3 from Oktibbeha County, and Post 4 from the District at large.

This procedure insures each county of that representation to which the norm entitled it but also insures the entire district the extra representation which its population justifies.

The Court wishes to especially point out in making this apportionment it has not had before it and has not consulted or considered any population figures in any county or district as to the race of the inhabitants thereof, but it has been the deliberate purpose of this Court that this reapportionment shall be wholly devoid of any racial consideration whatsoever.

The parties to this suit may, within ten days, file one complete proposed plan for the reapportionment of both Houses of the Legislature for the entire State if such parties believe and are prepared to demonstrate that such plan more nearly complies than the one herein described with the one man one vote rule and Swann v. Adams. Such plan shall also, of course, take into consideration all appropriate matters of state policy permitted by Swann v. Adams. Such plan may be accompanied by short memoranda or briefs, at the option of the parties, after which the plan will be thoroughly considered by the Court.

Upon the completion of such consideration, this Court will then enter its interlocutory order implementing this opinion and change or changes, if any, considered advisable in light of the recommendations of the parties.

As provided by Fed.Rules Civ.Proc. rule 52, this opinion shall constitute our findings of fact in this cause and the Court concludes as a matter of law that the reapportionment herein devised complies with the one man one vote rule as required by the Constitution of the United States.

The Court expressly retains full jurisdiction of the parties hereto and the subject matter hereof in order that it may judicially act upon any plan of Reapportionment which may hereinafter be enacted by the Legislature of the State of Mississippi under either the United States Census of 1960 or 1970, it being the true function of the Legislature to make such reapportionment, subject only to Constitutional review by the Courts.

The order of the Court shall provide for a copy of this opinion and order implementing the same, duly certified by the Clerk of this Court, to be served upon the Governor, the Attorney General and the Secretary of State by the United States Marshal as due and sufficient notice hereof; and all Legislators in both Houses of the Mississippi Legislature shall be elected and hold office as herein provided, and not otherwise, until the further orders of this Court.

APPENDIX 1

APPENDIX 2

APPENDIX 3

APPENDIX 4 STATE SENATE

APPENDIX 5 HOUSE OF REPRESENTATIVES  