Oregon Advisory Opinions November 12, 1970: OAG 70-96 (November 12, 1970)
Collection: Oregon Attorney General Opinions
Docket: OAG 70-96
Date: Nov. 12, 1970
Advisory Opinion Text
OAG 70-96.
In view of recent decisions of the Supreme Court of the United States, to what extent may the legislature follow the Oregon constitutional mandate of observing county boundaries in creating legislative districts based on the 1970 federal census?
ANSWER GIVEN
Each legislator must represent as nearly as possible exactly the same population as every other legislator in the same house; any deviation from exact population equality must be justified by legally acceptable reasons. An attempt to follow county lines and to comply insofar as possible with the Oregon Constitution, and other acceptable policy or practical considerations, may be sufficient to justify minor deviations from exact population equality. Multi-member districts are constitutionally suspect. "Floterial" districts are clearly impermissible if any part of the district lacks other representation in the same house.
The Oregon Constitution requires the legislature to
reapportion the legislative districts of the state every ten years, following the decennial federal census, in accordance with the population principle but subject to limitations which require some substantial deviations from it. Or. Const . art. IV, § 6. Since Oregon's last reapportionment, numerous rulings by the United States Supreme Court and other federal and state courts, indicating that the population principle must be followed very strictly, with little or perhaps no room for deviations based on other considerations, have cast doubt upon the extent to which the legislature may follow the requirements of the Oregon Constitution in its 1971 apportionment. A comprehensive review of these authorities is therefore appropriate for the guidance of the 1971 legislature.
The formula for apportioning senators and representatives in Oregon is provided in Article IV, Section 6 which reads in part as follows:
"The number of senators and representatives shall . . . be fixed by law and apportioned among the several counties according to the population in each. The ratio of senators and representatives, respectively, shall be determined by dividing the total population of the state by the number of senators and by the number of representatives. The number shall be determined by dividing the total population of each county or district by such representative ratios; and when a fraction exceeding one-half results from such division, such county or district, shall be entitled to a member for such fraction. In case any county does not have the requisite population to entitle it to a member, then such county shall be attached to some adjoining county or counties for senatorial or representative purposes."
Article IV, Section 7, Oregon Constitution, provides in part:
"A Senatorial district, when more than one county shall constitute the same, shall be composed of contiguous counties, and no county shall be divided in creating such senatorial districts. Senatorial or representative districts comprising not more than one county may be divided into sub-districts from time to time by law."
Thus, apportionment is intended to be by county, and the term "district" as it appears in these and other relevant constitutional provisions must be taken to mean a geographical area consisting of an entire county or two or more entire counties.
These provisions have been interpreted to prohibit division of any county to form a representative district or part of a representative district, (although the express prohibition in Article IV, Section 7 applies only to senatorial districts,) and to prohibit the formation of any multi-member district containing more than one county.
Application of these requirements to the 1960 census figures resulted in wide population deviations in Oregon's current legislative apportionment, with population of single-member senatorial districts ranging from a low of 29, 917 (Josephine County) to a high of 73,962 (Jackson County), a ratio of 1:2.5. Residents of Yamhill County share their only state senator with Washington County in a "floterial" district with a population of 124,715, each of them having less than one-fourth the senatorial representation of Josephine County residents. Similarly, population of single-member representative districts ranges
from 18,955 (Tillamook County) to 39,660 (Deschutes, Crook and Jefferson Counties), and residents of Curry County share their only state representative with Coos County in a floterial district with a population of 68,938, each of them having slightly more than one-fourth the representation of Tillamook County residents.(fn1)
We must first observe that without any question the formula of apportionment set forth in Article IV, Section 6 of the Oregon Constitution must be considered invalid insofar as it permits such wide deviations from population equality. The Oregon court has already recognized that the formula cannot always be followed literally, since it could provide for a larger or smaller number of senators or representatives than specified in the Oregon Constitution. In Re Legislative Apportionment , 228 Or. 562, 364 P.2d 1004 (1961).
Rigid adherence to the requirement that districts be composed of entire counties and groups of entire counties is impossible, since unacceptably large population variations between districts would inevitably result. The legislature should nevertheless follow the mandate of the Oregon Constitution to the extent possible, by creating districts which do not divide counties except when essential to avoid excessive population variations. However, as will be seen, the courts have not provided a clearcut answer to the question of just how much deviation from exact population equality, resulting from use of county boundaries as
district boundaries, will be permitted. We will review here some of the leading decisions involving state legislative reapportionment.
Until 1962, state and federal courts almost uniformly refused to consider the validity of apportionment plans adopted by the states, whether for the election of Congressmen or state legislatures, principally on the grounds that legislative apportionment was a purely legislative and political function, not subject to judicial review. Colegrove v. Green , 328 U.S. 549 (1946).(fn2) This was changed by the landmark decision of Baker v. Carr , 369 U.S. 186 (1962), popularly called the "one man - one vote" case, which held that the right of a citizen to adequate representation in his state's legislature is protected by the Fourteenth Amendment to the United States Constitution, and that this right is enforceable by the courts.
In 1964, the United States Supreme Court required that state legislators be so elected as to represent substantially equal numbers of a state's population. On June 15th of that year, six cases so holding were handed down, the leading case being Reynolds v. Sims , 377 U.S. 533 (1964). This case involved the apportionment of the Alabama legislature, where the court found that there was a high degree of variance of population in legislative districts. The court reviewed prior cases involving voting rights,
and reasoned that inequality in population between voting districts had an effect similar to allowing persons in one part of the state to cast more ballots in electing the legislature than could persons in other parts of the state. The court said:
Accordingly, the court held:"Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands, no less." 377 U.S. at 565.
The court held that both houses of a bicameral legislature must be apportioned on a population basis as far as is "practicable". The court said:"The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races." 377 U.S. at 568.
The court went on to suggest that:"We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." 377 U.S. at 577.
The court said that a total disregard of pre-existing boundaries" . . . it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting while still affording adequate representation to all parts of the State. . . . Somewhat more flexibility may therefore be constitutionally feasible with respect to state legislative apportionment than in congressional districting. . . ." 377 U.S. at 578.
of political subdivisions might create "an open invitation to gerrymandering." Yet representation based upon area rather than population could not be considered valid. The court then added:
However, the court qualified this by saying:"A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions." 377 U.S. at 580.
Where a state's own constitutional apportionment provisions are concerned (as in Oregon) the court said:"But if, even as a result of a clearly rational state policy of according some legislative representation to political subdivision, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all of the State's citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired." 377 U.S. at 581.
See also Maryland Committee for Fair Representation v. Tawes , 377 U.S. 656 (1964)."Clearly, courts should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as it is possible." 377 U.S. at 584.
In WMCA, Inc. v. Lomenzo , 377 U.S. 633 (1964), decided the same day, the court said, commenting on apportionment provisions in the New York Constitution:
"However complicated or sophisticated an apportionment scheme might be, it cannot, consistent with the Equal Protection Clause, result in a significant
undervaluation of the weight of the votes of certain of a State's citizens merely because of where they happen to reside." 377 U.S. at 653.
In this case the court found that the Constitution contained a built-in bias against voters in the more populous counties of the state.
In Roman v. Sincock , 377 U.S. 695 (1964), also decided the same day, the court said that a formula which would be applicable to all legislative apportionment would be neither practicable nor desirable:
"Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." 377 U.S. at 710.
In Swann v. Adams , 385 U.S. 440 (1967), the court commented that Reynolds v. Sims , supra , did not require mathematical exactness in state reapportionment plans, and that deviation could be permitted where based on rational state policy:
"Thus that opinion went on to indicate that variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines." 385 U.S. at 444.
In Kilgarlin v. Hill , 386 U.S. 120 (1967) the court made clear, however, that the burden is upon the state to show justification for any population variance between legislative dis
tricts. In this case, involving the apportionment of the Texas legislature, the court refrained from passing upon the question of whether or not population deviation would be justified by a state policy of following county lines in establishing legislative districts, because in the court's view there had been no showing that any deviation from such policy would be necessitated if the best possible attempt were made to attain equality of population in legislative districts. See also Lucas v. 44th General Assembly of the State of Colorado , 377 U.S. 713 (1964).
In 1969, the United States Supreme Court decided the case of Kirkpatrick v. Preisler , 394 U.S. 526 (1969). This case (and a companion case, Wells v. Rockefeller , 394 U.S. 542 (1969)) involved congressional districting, and there has been some disagreement among other courts as to what affect this decision may have upon state legislative apportionment. The court cited Wesberry v. Sanders , 376 U.S. 1 (1964), a case involving congressional districting, as requiring "that the State make a good-faith effort to achieve precise mathematical equality." 394 U.S. at 530-531. The court then added "see" Reynolds v. Sims , supra , (which dealt with state legislative apportionment) and said:
The court went on to hold:"Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance no matter how small ." 394 U.S. at 531. (emphasis supplied)
"[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 . . ." 394 U.S. at 553-534.
The Kirkpatrick decision held invalid an apportionment in which maximum variations in population ranged from 3.13% above to 2.83% below average. In Wells the deviation ranged from 6.6% above to 6.8% below average.
In Klahr v. Williams , 303 F. Supp. 224 (D. Ariz. 1969), a federal district court specifically held Kirkpatrick v. Preisler and Wells v. Rockefeller to be controlling in holding an Arizona state legislative apportionment plan invalid, saying:
A different view was taken by the New York Court of Appeals in Abate v. Mundt , _____ N.Y.2d _____, 253 N.E.2d 189 (1969), in which it is said:" Kirkpatrick and Wells have now expounded what is required of a legislature if its redistricting and reapportioning work is to be constitutionally acceptable." 303 F. Supp. at 227.
(The case itself dealt not with state legislative apportionment, but with apportionment of a county legislative body.) See also Jackman v. Bodine , 55 N.J. 371, 262 A.2d 389 (1970)."Decisions dealing with apportionment of State Legislatures tend to reflect a broader scope for permissible deviations and a more tolerant attitude toward the practical justification for deviations." 253 N.E.2d at 192.
In
Opinion of the Justices
, _____ Me.
_____, 255 A.2d 886 (1969), the Main Supreme Court said that
under the
Kirkpatrio
decision it is doubtful whether the holding together of political subdivisions could any longer be considered a justifiable basis for population variance in state legislative districting.
In Skolnick v. Illinois State Electoral Board , 307 F. Supp. 691 (N.D. Ill. 1969), the court held a legislative apportionment plan unacceptable on the grounds that it did not comply with the decisions of the United States Supreme Court in the Kirkpatrick and Wells cases. Here, the senate districts (which the court itself had judically adopted in 1965) ranged from 7.7% above to 7.0% below average population; the house districts varied from 8.6% above to 8.3% below average population. The court said:
"The Supreme Court has not in express terms withdrawn its suggestion . . . [in Reynolds v. Sims , supra ] that, 'Somewhat more flexiability may therefore be constitutionally permissible with respect to state legislative apportionment than in congressional districting.' The Court has, however, said that the standard in both situations is 'as nearly as practicable,' and has defined the standard, in Kirkpatrick (394 U.S. 531, 89 S. Ct. 1229), as permitting, 'only the limited population variances which are unavoidable despite a goodfaith effort to achieve absolute equality, or for which justification is shown.' " 307 F. Supp. at 694.
In re Legislative Districting of General Assembly , _____ Iowa _____, 175 N.W.2d 20 (1970) held invalid a legislative apportionment where house districts ranged from 7.3% above average to 5.7% below average population, and senate districts varied from 6.6% above average to 5.5% below average population. The court said that the variation was more than that which would be unavoid
able, and noted that it detected instances of districts being created to facilitate keeping present members of the legislature in office and other instances of providing boundaries to avoid having present members contest with each others at the polls. The court also said that a requirement of keeping precincts intact was one of the factors which brought about constitutionally invalid apportionment.
We conclude that the criteria established in the Kirkpatrick and Wells decisions of the United States Supreme Court apply to state legislative apportionment and that any variation from mathematical equality of population in legislative districts must be justified by acceptable policy or practical considerations. It must be pointed out that under recent decisions, no "acceptable" policy consideration has been found valid per se . The courts thus far, under the Kirkpatrick and Wells criteria, have only pointed out what is unacceptable -- e.g., political considerations facilitating enactment of an apportionment plan, and establishing districts so as to protect incumbents from contesting with each other.
Logic compels the conclusion that when the variation is extremely small, a court would be more inclined to find the variation acceptable so long as based upon a policy or practical consideration, such as observing county lines, rather than some consideration which the court found to be invidious. It is doubtful whether any substantial variation in population between districts would be upheld no matter what basis the state would advance as the justification for such variation.
We conclude that the legislature must make a good faith attempt to achieve exact mathematical equality in population of legislative districts in the forthcoming reapportionment and that the burden will be upon the state to justify any deviation from this equality, no matter how small, but that if such deviation is extremely small, then a court will be more likely to uphold the apportionment as enacted as long as the reason for such small deviation is not seen by the court to be one which is invidious. We further conclude that in attempting to achieve zero population variance between legislative districts, the legislature should attempt to follow county lines where practicable. We are of the opinion that a court would not look with disfavor upon such an attempt so long as the paramount consideration of the legislature has been to achieve as nearly as possible exact population equality between legislative districts.
Where county lines are not followed, it is recommended that division of legislative districts where possible follow the lines of tracts established for enumeration of population in the recent United States Census, because at this time such tracts afford the best available evidence for establishing regional population.
We recognize that it is possible to achieve substantial equality of population for legislative districts without violating county lines if enough counties are joined together to form multi-member districts. For example, at the extreme, if every
state legislator ran at-large within the state, the entire state would constitute one huge "district" and no voter could claim that his vote counted for any less than another voter residing in another part of the state.
Such a plan would, of course, violate the basic concept of Oregon's Constitution that representation in the legislature be established on a regional basis and also the implicit requirement of Article IV, Section 6, that a multi-member district not include more than one county. It is necessary, however, at this point to discuss the validity of multi-member districts in general.
While such districts have been termed "extremely objectionable" ( Lucas v. 44th General Assembly of the State of Colorado , supra , 377 U.S., note at 727) they have not been ruled invalid per se . In Fortson v. Dorsey , 379 U.S. 433 (1965) the United States Supreme Court upheld multi-member districts in a Georgia apportionment plan. Under this plan, candidates for state senator were required to be residents of particular districts, but ran on a countywide, multi-member basis. The court said:
In Burns v. Richardson , 384 U.S. 73 (1966), the court upheld a multi-member district plan in Hawaii, saying:"It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated it will be time enough to consider whether the system still passes constitutional muster." 379 U.S. at 439.
"Where the requirements of Reynolds v. Sims are met, apportionment schemes including multi-member districts will constitute an invidious discrimination only if it can be shown that 'designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.' " [Citing Fortson v. Dorsey , supra.]
The court there held that the necessary factors had not been demonstrated on the record in order to warrant invalidating a multi-member district."It may be that this invidious effect can more easily be shown if, in contrast to the facts in Fortson , districts are large in relation to the total number of legislators, if districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district, or if such districts characterize both houses of a bicameral legislature rather than one. But the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record. . . ." 384 U.S. at 88.
In Chavis v. Whitcomb , 305 F. Supp. 1364 (S.D. Ind. 1969) a districting plan under which 15 state representatives and 6 state senators were elected at large from Marion County, Indiana, was held invalid. The court held that the Negro ghetto of Indianapolis was not validly represented under the existing apportionment plan, finding that most legislators lived in a part of the county containing small population, and were hesitant to speak for the interests of residents of the Negro ghetto. This was proved on the record to the court's satisfaction, and the decision is accompanied by several pages of charts and
graphs documenting the court's finding, that the apportionment minimized or cancelled out the voting strength of a cognizable racial element of the voting population.
It must be concluded that multi-member districts are constitutionally suspect and that a court could, for example, hold invalid the Multnomah County senatorial district on the basis of a finding that the election of all senators at-large cancels out the potential political voice of the black community of Albina.
It appears that, while multi-member districts are not unconstitutional per se , they will be held invalid if it is proved on the record that their existence results in invidious discrimination against any particular racial or political element of the voting population.
One method used in the 1961 Oregon apportionment to give representation to smaller counties adjacent to large counties was the creation of "floterial" districts. Such a district includes territory within another district, with its own representation, and other territory which may or may not be within another district. For example, Lane County, constituting the 13th representative district with five representatives, was combined with Benton County, constituting the 10th representative district with one representative, to form a "floterial" district, the 14th, with one additional representative running in both counties. It is to be noted that Lane County's population factor was 5.526; Benton's was 1.329. (These figures were
obtained from In Re Legislative Apportionment , supra .)
Another more typical example was the combination of Washington County, constituting the 9th senatorial district with one senator, with Yamhill County, not a part of any other senatorial district, to form the 8th senatorial district with one Senator. Thus Yamhill County shares its only senator with Washington County, which has more than three times its population, with the effective representation of Yamhill County residents in the state senate less than half the statewide average. Stated another way, the population of the 8th senatorial district is more than twice the average, yet only one senator is elected from that district. Yamhill County residents of that district, who have no other senatorial representation, are, therefore, grossly underrepresented.
The deviation from exact population-representation equality in the Benton-Lane district (-13.9% to +5.9%) is sufficient to render it probably invalid under the cases discussed above. However, it is quite possible that a valid floterial district could be created out of two or more other districts, each having representation of its own, if the total effective representation of each resident in each district which results does not deviate significantly from the statewide average. Such a district would not be invalid per se . Reynolds v. Sims , supra , at 579.
It is not possible to create a valid floterial district if any part of the district has no other representation of its own in the particular house of the legislature, since
residents of that part of the district would inevitably be grossly underrepresented. Kilgarlin v. Martin , 252 F. Supp. 404 (S.D. Tex. 1966), reversed in part on other grounds sub nom . Kilgarlin v. Hill , supra ; see Reuling, Apportionment in Oregon , 5 Willamette L. J . 203 at 210-213 (1969).
1. The guiding principle in apportionment of the Oregon legislature must be population, and each legislative district should have as nearly as possible exactly the same population as every other district.
2. Constitutional requirements that districts be constituted of whole counties and groups of counties must be subordinated to the population principle and cannot be followed if the result would be any substantial deviation from exact population equality.
3. Exact equality is impossible to achieve, and some degree of deviation is of course permissible. It is impossible to state any specific degree of permissible deviation, except to say that the cases indicate it will be slight.
4. Any deviation, no matter how small, must be justified by the state, and if it is for an improper reason it will be held invalid.
5. Slight deviations occurring for practical reasons, such as the following of a natural, political or census tract boundary, may be permissible.(fn3)
6. The requirements and philosophy of the Oregon Constitution should nevertheless be followed to the fullest extent possible, consistent with the necessity for population equality. Thus, district boundaries should follow county lines whenever possible.
7. In case of counties with small population, districts should ideally consist of whole counties, plus, if necessary, a portion of one or at most two additional counties. In case of counties with population sufficient to entitle them to one or more representatives or senators, the major part of the county should constitute a district, with the remaining portion added to one, two, or as few additional districts as possible.
8. Multi-member multi-county districts should be avoided as inconsistent with the philosophy of the Oregon Constitution. However, it may be permissible to create a two-member two-county district as an alternative to dividing one of the counties in the formation of two separate districts.
9. Any multi-member district is constitutionally suspect, unless sub-districted pursuant to Or. Const. art. IV, § 7.
It may be held invalid on a showing that the effect of the failure to sub-district is to deprive any identifiable racial, political or geographical minority of representation. In case of sub-districting, it is likely that virtually exact population equality will be required.
10. Creation of floterial districts, in which one part of the district has additional representation in the same house and the remainder of the district does not, is clearly impermissible.
Footnotes:
1 1960 census figures for Oregon counties are set forth in convenient form in In Re Legislative Apportionment , 228 Or. 562, 565, 364 P.2d 1004 (1961).
2 Oregon was a rare exception only because of a provision in its constitution specifically providing for judicial review. Or. Const. art. IV, § 6.
3 For example, a senate district composed of Coos and Curry Counties, with a population of 68,131 according to preliminary 1970 census figures, would deviate from exact equality to the state-wide average by less than one percent, and would in all likelihood be held permissible without necessity of adding the handful of additional residents necessary for exact equality. A representative district composed of Josephine County, about 4% in excess of the ideal population for representative districts, might be held permissible. A deviation of 4% without such justification would probably not be held permissible. Any larger deviation, such as the 13% deviation that would result from constituting Yamhill County as a representative district, would be subject to the gravest doubts whatever the justification.