Case for District Court Management of the Reapportionment Process

[Vol.114 THE CASE FOR DISTRICT COURT MANAGEMENT OF THE REAPPORTIONMENT PROCESS Supreme Court Guidelines Three judge district courts sitting in reapportionment cases have been put to the task of fashioning complex equitable remedies to insure that state governments will be "representative" ' in the literal sense required by the equal protection clause. That the district courts have had difficulty in implementing this constitutional mandate is attributable not only to the inherent complexities of reapportionment, but also to the courts' failure to explore the nature of their remedial powers. This latter deficiency may be traced both to a similar lack of exploration by the Supreme Court and to the unwillingness of that tribunal to give more than marginal guidance on the question of the proper remedial devices available to the district courts.2 In Reynolds v. Sims3 the Court said that if malapportionment is found, it would be "unusual" for a court not to take "appropriate action to insure that no further elections are conducted under the invalidated plan," although the imminence of an election might justify the delay of effective relief.4 As to the allocation of primary responsibility for the formulation of an apportionment plan, the Court said: "[L]egislative reapportionment is primarily a matter for legislative consideration and determination, and . judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requi- sites in a timely fashion after having had an adequate opportunity to do so." 5 As to the timing of relief, the Court said: I The constitutional requirement is that substantially equal quantums of people be represented by equal quantums of legislators. Reynolds v. Sims, 377 U.S. 533, 560-61 (1964); see Holt v. Richardson, 238 F. Supp. 468, 240 F. Supp. 724 (D. Hawaii), review granted sub twin. Burns v. Richardson, 34 U.S.L. W=EK 3101 (U.S. Oct. 12, 1965) (Nos. 318, 323); Ellis v. Mayor, 234 F. Supp. 945 (D. Md. 1964). 2From the threshold reapportionment decision in Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court refused to articulate precisely what remedial powers resided in the federal courts, and simultaneously denied that the courts were entering the political arena. Id. at 198, 226. This latter assertion was inaccurate both because of the necessity for the district courts to coddle legislators and because the area is rampant with partisan spoils. While the decisions in Gray v. Sanders, 372 U.S. 368 (1963), and Wesbury v. Sanders, 376 U.S. 1 (1963), clearly reinforced jurists' assumptions regarding what the Court's decision would be on the issue of equal repre- sentation in state legislatures, and thereby induced the district courts to announce the right and implement a remedy in advance of a firm decision by the Supreme Court, see Butterworth v. Dempsey, 229 F. Supp. 754, 773-74 (D. Conn.) (appended opinion of Clark, J., then deceased), aff'd per curiam sub norn. Pinney v. Butterworth 378 U.S. 564 (1964), it left the district courts with little more than aphorisms to guide the remedial process. 3 377 U.S. 533 (1964). 4 Id. at 585. 5Id. at 586. (504) DISTRICT COURT REAPPORTIONMENT In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely on general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requir- ing precipitate changes that could make unreasonable or embar- rassing demands on a state in adjusting to the requirements of a court's decree.6 While the Court's tack is consistent with traditional equity analysis 7 at first glance, its conservative approach to the remedial process is incon- sistent with the practical implications of the reapportionment cases on the merits. For example, while reapportionment may ordinarily be a matter for "legislative consideration," it is not clear that it is a matter for consideration by a legislature which by force of the finding of malapportionment is "unrepresentative." 8 Furthermore, apart from the abstract problem of whether the finding of malapportionment in effect invalidates the present legislature, there is a serious problem of a conflict of interests when a legislator is asked to undermine the security of his seat. This conflict suggests that reapportionment cannot safely be allotted to the present legislators.9 And while the Supreme Court placed a high value on mini- mum disruption of state governmental processes, it did not visualize that reluctant interference by federal courts would result in lengthy, frustrat- ing, and at least equally disruptive experiences in the process of reapportioning the state legislatures."0 The Remedial Pattern in the District Court Despite these problems district courts, drawing from each other's experience have adopted a generally consistent course of action. Typically, a district court will first enjoin the holding of elections under the invalidated plan; 11 if the election is imminent, however, the court will often abstain from action or delay the effective date of its order until after the 6 d. at 585. 7 The approach outlined is strikingly similar to that in Brown v. Board of Educ., 349 U.S. 294, 300-01 (1954) ; cf. 113 U. PA. L. Ray-. 587, 602 (1965). 8 See text accompanying notes 39-44 infra. 9 See text accompanying notes 66-73 infra. 10 See, e.g., 54 NAT'L Civic REv. 320 (1965). As might be expected, numerous legislative programs were neglected while the state legislators were preoccupied with reapportionment. See Toombs v. Fortson, 241 F. Supp. 65, 71 (N.D. Ga. 1965) (per curiam). 11See, e.g., Ellis v. Mayor, 234 F. Supp. 945, 959 (D. Md. 1964) (municipal elections) ; Butterworth v. Dempsey, 229 F. Supp. 754, 790 (D. Conn.) (appended opinion of Clark, J., then deceased), aff'd and rentanded per curiazrn sub nom. Pinney v. Butterworth, 378 U.S. 564 (1964). 506 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Voi.114:504 election. 2 Positive judicial relief, on the other hand, has never been granted on the first challenge to the apportionment scheme. Without exception the courts have deferred to the legislature for at least one session, either with a profound expression of confidence that the legislature will take prompt action,13 or less confidently on the simple assertion that apportionment is primarily a legislative responsibility.14 In pursuing such a course of action, the court will sometimes make an attempt to spell out the requirements of equal protection as they apply to the particular state.15 In addition, the court's order occasionally appears to take the form of a mandatory injunction directed toward either the legislature ' 6 or toward an administrative body charged with the duty of formulating election laws.' 7 A more demanding court may couple this initial deference with a deadline '8 for legislative action and a warning that legislative default will result either in apportionment under a court made plan 19 or in an election at large.20 More often these threats will be reserved for the court's second exhortation to the legislature, after the latter has failed to act. 21 If the 1 See, e.g., Davis v. Cameron, 238 F. Supp. 462 (S.D. Iowa 1965); Stout v. Hendricks, 228 F. Supp. 568, 570 (S.D. Ind. 1964). But see Butterworth v. Dempsey, 237 F. Supp. 302 (D. Conn. 1965); Reynolds v. State Election Bd., 233 F. Supp. 323 (W.D. Okla. 1964) (per curiam); Lucas v. Forty Fourth Gen. Assembly, 232 F. Supp. 797, 799 (D. Colo. 1964), aff'd per curiam, 379 U.S. 693 (1965). 13 See, e.g., Davis v. Cameron, supra note 12, at 466; Honsey v. Donovan, 236 F. Supp. 8, 21 (D. Minn. 1964). '4 See, e.g., Petuskey v. Clyde, 234 F. Supp. 960, 964 (D. Utah 1964). 15 See, e.g., Butterworth v. Dempsey, 229 F. Supp. 754, 766 (D. Conn.) (appended opinion of Clark, J., then deceased), aff'd per curiain sub nom. Pinney v. Butterworth, 378 U.S. 564 (1964). But see Petuskey v. Clyde, supra note 14, where the court refrained from particularizing to avoid advocacy of its suggestions as "court approved" or criticism as "court dictated." 16 See, e.g., Silver v. Jordan, 241 F. Supp. 576, 586 (S.D. Cal. 1964), aff'd per curiam, 381 U.S. 415 (1965). Although the language may seem to be that of a mandatory injunction, no court has ever suggested the availability of a contempt sanction upon noncompliance. Such a sanction would be entirely inappropriate, for a court clearly could not order a legislator to vote for any one of many possible plans, much less enforce agreement sufficient for a majority. See Friedelbaum, Baker v. Carr: The New Doctrine of Judicial Intervention and Its Implications for American Federalism, 29 U. CHi. L. REv. 673, 699-702 (1962) ; McKay, Political Thickets and Crazy Quilts: Reapportionment and Equal Protection, 61 MicH. L. REv. 645, 700-05 (1963) ; Note, 15 RuTGEs L. Ruv. 82, 90-96 (1960). The actual sanction is that the defaulting legislature may be denied a role in reapportioning the state. See note 26 infra. '7 See, e.g., Yancey v. Faubus, 238 F. Supp. 290 (E.D. Ark. 1965) ; Reynolds v. State Election Bd., 233 F. Supp. 323 (W.D. Okla. 1964) (per curiam). 18 See, e.g., Mann v. Davis, 238 F. Supp. 458 (E.D. Va. 1964), aff'd per curiam sub nora.

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