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GERMANO v. KERNER

July 30, 1963

JOSEPH GERMANO ET AL., PLAINTIFFS,
v.
OTTO KERNER, AS GOVERNOR OF THE STATE OF ILLINOIS AND CHAIRMAN OF THE STATE ELECTORAL BOARD, CHARLES F. CARPENTIER, AS SECRETARY OF THE STATE OF ILLINOIS AND SECRETARY OF THE STATE ELECTORAL BOARD, WILLIAM G. CLARK, AS ATTORNEY GENERAL OF THE STATE OF ILLINOIS AND MEMBER OF THE STATE ELECTORAL BOARD, WILLIAM J. SCOTT, AS TREASURER OF THE STATE OF ILLINOIS AND MEMBER OF THE STATE ELECTORAL BOARD, AND MICHAEL J. HOWLETT, AS AUDITOR OF PUBLIC ACCOUNTS OF THE STATE OF ILLINOIS AND MEMBER OF THE STATE ELECTORAL BOARD OF ILLINOIS, DEFENDANTS, AND CLYDE BEALS ET AL., DEFENDANTS-INTERVENORS.



Before Schnackenberg, Circuit Judge, Campbell, Chief Judge, and Austin, District Judge.

The opinion of the court was delivered by: Campbell, Chief Judge.

In the lexicon of the legal profession this is another apportionment case. Plaintiffs have sought and appropriately been granted the present three-judge court. Title 28 § 2281 and § 2284.

The instant complaint, which for all practical purposes is a prototype of the complaint in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, alleges that the plaintiffs, citizens, residents and qualified voters of the State of Illinois, have been denied equal protection and due process of the law by a 1954 Amendment to the Constitution of Illinois (Now Art. IV Section 6 of the Illinois Constitution, S.H.A.) which authorized a certain 1955 Act of the Illinois General Assembly (Ill. Rev. Stat. 1961, c. 46, § 158-1 et seq.) which, in turn, created the state's senatorial districts. More specifically, the complaint alleges that the method of electing state senators, which is set out in the above Act, is based primarily on a geographical basis — rather, than on what plaintiffs allege is the only proper basis — population. (The lower house of the Illinois bicameral legislature is elected, pursuant to the same Amendment and Act, primarily on a population basis.) The result, plaintiffs contend, is a grossly malapportioned state senate, an obvious debasement and diminution in the value of their vote and an invidious discrimination in violation of the Fourteenth Amendment of the Constitution of the United States.

Members of the Illinois Agricultural Association, by motion, sought and were granted leave to intervene in this action. They oppose the plaintiffs' complaint.

The plaintiffs' prayer for relief is best summarized by their brief which states their requests as follows:

  (a) "That Article IV, Section 6 of the
      Constitution of Illinois and the implementing
      statutes * * (be declared) void and
      invalid. * * *"
  (b) That the defendants be restrained "from
      certifying any candidates, proclaiming any
      election results, (etc.) * * * pursuant to
      Article IV, Section 6 of the Constitution of
      Illinois * * or of the statutes in
      implementation thereof * * * for the office
      of senator to the General Assembly. * * *"
  (c) That this Court "retain jurisdiction of this
      cause * * * until such time as the senate of
      the State of Illinois, freed from the fetters
      imposed by the Constitutional provisions
      invalidated by this Court has been
      reapportioned and redistricted to insure all
      voters * * * the rights guaranteed them by
      the Constitution of the United States."
  (d) That this Court "grant such other and further
      relief as to this Court may seem just and
      proper."

Defendants have filed a motion to dismiss predicated upon two alternative grounds, 1) lack of jurisdiction and 2) failure to state a claim upon which relief can be granted. Defendants also submitted an alternative motion asking the court to 3) forbear or abstain from taking further action on the case based on the doctrine of "Abstention". These motions were briefed by the parties and oral argument was heard by the court. On the basis of Baker v. Carr, W.M.C.A. Inc. v. Simon, 370 U.S. 190, 82 S.Ct. 1234, 8 L.Ed.2d 430 and Scholle v. Hare, 369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1 defendants' motions were denied.

At the suggestion of the Court and with the consent of the parties it was agreed that the case could properly be tried on the merits based on the facts well pleaded in the plaintiffs' complaint. Defendants, in the language of the common law, are therefore by their consent filed herein demurring to the complaint. In accordance with the Federal Rules of Civil Procedure we consider this as a motion for judgment on the pleadings in accordance with Rule 12(c), Title 28.

Generally the complaint, the only pleading before us, in addition to reviewing historical background outlines the present Illinois pattern for senate apportionment and includes a breakdown of the senate districts as to population and square mile area coverage.

Considering the complaint on its merits, necessarily, all of the facts well pleaded therein are accepted — however, the many conclusions of law also enwoven within the complaint are of course not accepted, but on the contrary, form the crux of the issues presently before the Court.

The facts show a clear picture of a bicameral legislature, similar in structure, if not necessarily in form or election method, to that of the federal government, the English Parliament and all of our individual sister states except Nebraska, which uniquely functions under a unicameral legislative body. Similarity continues with most of the above bicameral legislatures in that Illinois provides for the election of the members of one house, in this case the lower house, on the basis of population. What is here sought and intended is a realization of a one voter-one vote ratio. (In Illinois each voter votes for three members of the lower house.) Decennial reapportionment is provided to take into account possible shifts in the state's population. Plaintiffs do not raise issue with this plan, for that matter they contend that this plan or method of electing legislators is the only constitutionally acceptable one, and that any deviation therefrom by the use of weighted voting systems results in an invidious discrimination and violation of the Constitution.

The upper house or senate, on the other hand, is not elected on the basis of population. The 1955 Act created 58 senatorial districts on an arbitrary, clearly political compromise motivated, area basis. The result is obvious, the one voter-one vote ratio is neither sought or desired and of course is not attained. The figures, graphs and statistics set forth in plaintiffs' complaint correctly and unequivocally depict a clear picture of population disparities in state senatorial districts. Dividing the state's population, 10,081,133, by the number of senatorial districts, 58, we find that if such districts were to be based on population, there should be 173,812 voters (using this term as being synonymous with population for purposes of the present illustration) in each district. Such is not the case. By way of illustration the average district in the City of Chicago has some 196,994 voters; the remainder of Cook County excluding Chicago averages 263,000 voters per district. Moreover, within Chicago itself, as well as "down-state", discrepancies exist in relative district population figures. And finally, unlike the lower house no reapportionment or redistricting is provided for.

Plaintiffs' complaint alleges that the above discriminates against certain voters, particularly against those such as themselves who live in metropolitan as opposed to rural areas. This fact can hardly be denied. However, I am of the opinion that these conditions do not constitute, as contended by plaintiffs' complaint, even an unreasonable much less an invidious discrimination as prohibited by the Fourteenth Amendment.

We do not have before us any allegations that the State's Constitution or statutory provisions are not being complied with. We do not have before us and are not considering a situation wherein both houses of a bicameral legislature are elected on the basis of a weighted voting system which ignores population. We are not, in my considered judgment, considering an area apportionment system which creates a per voter-per vote ratio that would shock the conscience of the court. Nor are we considering, there being no such allegation in the complaint, a system gerrymandering the senatorial districts according to race, ethnic background or economic position. (See Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110). On the other hand we are considering a plan intended to somewhat counter-balance the relative political powers of the urban and agrarian voters. We are considering a plan intended to assure each group control in only one house of a bicameral legislature.

The actions of the State of Illinois are in conformity with the provisions of its Constitutional Amendment of 1954 and Act of 1955, which provide for a bicameral legislature wherein one house is truly based on population, vote for vote, with provisions for periodic changes to correspond to population changes, and the other house is based on the geographical locations of the voters who elect its members. This is precisely what the Amendment and Act here questioned were intended to do for Illinois. In this regard plaintiffs call the court's attention to wording of the 1954 Amendment which calls for the creating of senatorial districts based primarily upon area considerations. After showing major discrepancies to exist generally between Chicago and "downstate", in the number of square miles constituting the districts (7.3 square miles in the 23rd district which covers the least area, and 2,199 square miles in the 40th district which covers the greatest area), they suggest to the court that area, no less population, was not used as a basis in drawing the districts. This unfair interpretation of the word area is without merit, it being legal folly to contend that the Amendment intended to equate representation in the senate in proportion to square miles. Such a view would have our system of government retrogressing to a feudal arrangement where land ownership was synonymous with political power.

Prior to the 1954 Amendment and the 1955 Act, and since 1901, neither Illinois legislative house was reapportioned, notwithstanding the existence of provisions permitting, indeed calling for, such action. Dissatisfaction existed and a political solution was necessary. Unlike many of its sister states, Illinois took affirmative action. A solution took the form of this Amendment and the ensuing Act, the former being ratified by 87% of the voters of metropolitan Cook County in a public referendum. The Act clearly was a compromise in order to settle, apparently satisfactorily to both sides, some legislative equalization between voters in agrarian and rural areas on the one hand and urban or large city populations on the other. In adopting this political and practical compromise, Illinois has done no more and no less in my opinion than to follow the example of the founding fathers in the Constitutional Convention at Philadelphia. Having recognized the necessity for protecting minority voting rights and local sovereignty, the founding fathers adopted the system still in use providing for the election of our bicameral Congress. As in Illinois, election to the upper house is based on geographical area, or if you will, a weighted voting system. Election to the lower house is based on population similar to Illinois. Should that which is deemed proper when observed in the presence of the federal government be suddenly deemed improper when associated with a sovereign state? Must the subject be more royal than the king? Must the State be more democratic than the United States?

Necessarily, I am well aware of atypical distinctions between the federal government and the individual states. My reliance on this analogy is limited somewhat by these nuances. The states as sovereign pre-existing smaller units created the larger unit, the federal government. Contrastingly, in apportionment cases we view the states in a different perspective; as the larger unit creating the smaller. And further, the smaller unit in apportionment cases lacks the element of sovereignty possessed by the states in their relationship to the federal government. However, these distinctions do not render for naught this analogy. In both instances the purposes were similar, to protect minority rights and check unopposed majority control. The methods selected to achieve the desired purposes are similar, and by and large the results have been similar.

I might further observe that if as plaintiffs contend, both houses of a bicameral legislature were required to be elected on a similar population apportionment basis, one would be justified in seriously questioning the need or the wisdom in retaining a bicameral as opposed to a unicameral legislature.

I am not unmindful of the many cases wherein courts, for the most part three-judge federal courts similar to this, have held particular state apportionment methods invidiously discriminatory. Davis v. Synhorst, D.C., 217 F. Supp. 492; Sincock v. Duffy, D.C., 215 F. Supp. 169; Mann v. Davis, D.C., 213 F. Supp. 577; Thigpen v. Meyers, D.C., 211 F. Supp. 826; Sims v. Frink, D.C., 208 F. Supp. 431; Moss v. Burkart, D.C., 207 F. Supp. 885; Toombs v. Fortson, D.C., 205 F. Supp. 248; Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350. However, assuming arguendo their ability better to prognosticate subsequent and eventual action to be taken by the Supreme Court on this issue, in none of these cases were the facts identical, or in the semantics of the law "on all fours", with those of the instant case. For that matter in all but Scholle both houses were allegedly malapportioned. Moreover, in Toombs the court, although holding the apportionment method of the Georgia General Assembly to invidiously discriminate, (both houses were apportioned on an area basis) indicated its belief that only one house of a bicameral legislature need be elected on the basis of population apportionment.

My opinion on this issue is not without judicial support. Most recently, on June 12, 1963, a three-judge court sitting in the Southern District of Ohio decided Nolan v. Rhodes, D.C., 218 F. Supp. 953. In considering the Ohio apportionment scheme the court had before it a situation not too unlike that in Illinois, distinguishable in that the Ohio lower not the upper house was apportioned on an area basis. As in Illinois one house (the senate in Ohio) was apportioned on the basis of population. The court rejected plaintiffs' contention that both houses of a bicameral legislature must be apportioned on a strict population basis and held that Ohio representative districting did not constitute an invidious discrimination. In this regard see also Clark v. Carter, U.S.D.C.Ky., 218 F. Supp. 448; Sobel v. Adams, D.C., 214 F. Supp. 811; Wright v. Rockefeller, D.C., 211 F. Supp. 460; Jackman v. Bodine, 78 N.J. Super. 414, 188 A.2d 642; Maryland Committee For Fair Representation v. Tawes, 229 Md. 406, 184 A.2d 715, which is very similar factually to the instant case; also Donovan v. Holzman, 8 Ill.2d 87, 132 N.E.2d 501 which had occasion to consider the same apportionment act presently before the court. See also: Lisco v. McNichols, D.C., 208 F. Supp. 471; Westberry v. Vandiver, D.C., 206 F. Supp. 276; State of Wisconsin v. Zimmerman, D.C., 205 F. Supp. 183; Mikell v. Rousseau, 123 Vt. 139, 183 A.2d 817.

Needless to say the divergent views found in the above cited opinions are a clear indication that this general issue has not yet been decided by the Supreme Court. Such a decision should be forthcoming in the relatively near future as most of the cases cited in this memorandum (I would hope and anticipate that this case will join them) are presently pending before the Court. However, I am of the opinion that a comparison of the Supreme Court opinions somewhat related to this issue does support the position I here have taken. In Baker v. Carr, the Court held that jurisdiction existed and that a complaint alleging the unconstitutionality of state legislative apportionment practice could state a valid claim of action. In W.M.C.A. v. Simon and Scholle v. Hare, the Court reaffirmed and reiterated this position. However, the Court did not hold that a system of apportionment not based solely on population would constitute per se invidious discrimination. Moreover, the Court did not have before it a complaint admitting that one house of a bicameral legislature was in fact apportioned on a population basis. As I interpret Baker v. Carr, the Court, limited by the narrow scope of the issues before it, instructed lower courts to scrutinize and review apportionment methods presented to them and in so doing determine the existence or nonexistence of a rational policy or plan as distinct from an irrational, no-policy, invidiously discriminatory system. In this regard, Justice Brennan writing for the Court majority stated 369 U.S. at p. 226, 82 S.Ct. at pp. 714-715, 7 L.Ed.2d 663:

  "Judicial standards under the Equal Protection
  Clause are well developed and familiar, and it
  has been open to courts since the enactment of
  the Fourteenth Amendment to determine, if on the
  particular facts they must, that a discrimination
  ...

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