APPORTIONMENT OF LAPEER COUNTY BOARD OF COMMISSIONERS 1972
Docket No. 13848.Michigan Court of Appeals.
Decided April 19, 1972.Martin E. Clements, Lapeer County Prosecuting Attorney, for apportionment commission.
Before: T.M. BURNS, P.J., and R.B. BURNS, and FITZGERALD, JJ.
*667 PER CURIAM.
On petition of registered elector Roy L. Spencer,[1] we have reviewed the apportionment plan of the Lapeer County Board of Commissioners adopted by the Lapeer County Apportionment Commission and duly filed with the county clerk. Our review discloses that of the seven commissioner districts provided in the plan, only four have their population wholly determined by the latest official published figures of the United States official census. The county apportionment commission has split Mayfield Township's enumeration district 17 and Lapeer Township's enumeration districts 35 and 36 among the remaining three in a manner not permitted by applicable statutes.
In the answer to this petition, the county apportionment commission has described the procedure it employed as follows:
"The total number of registered voters as certified by the Township Clerks of Mayfield and Lapeer Townships, as reported under date of April 10, 1970 showed 491 voters in Mayfield precinct two and 741 voters in precinct one, 522 voters in Lapeer Township precinct one, and 493 voters in precinct 2.
"Total Federal census population for the aforesaid townships were 3,645 for Mayfield Township and 2,574 for Lapeer Township."Mayfield Township 741 + 491 registered voters = 1232 3645 ÷ 1232 = pro rata factor 2.958 741 x 2.958 = 2193 491 x 2.958 = 1452 2193 + 1452 = 3645, total Federal census for township *668 "Lapeer Township 522 + 493 registered voters = 1015 2574 ÷ 1015 = pro rata factor 2.535 522 x 2.535 = 1324 493 x 2.535 = 1250 1324 + 1250 = 2574, total Federal census for township"
In this manner, precinct two of Lapeer Township and precinct one of Mayfield Township were assigned to commissioner district #3; precinct one of Lapeer Township was assigned to commissioner district #5; and precinct two of Mayfield Township was assigned to commissioner district #6.
In MCLA 46.404(a); MSA 5.359(4)(a) the Legislature required the county apportionment commission to use the "latest official published figures of the United States official census" in drawing commissioner districts. The Legislature has further provided in said section that "in cases requiring division of official census units to meet the population standard", the county apportionment commission may make an actual population count;[2] it has not authorized the use of registered voters on a proportional basis. The formula used by the Lapeer Apportionment Commission is identical to that used by the Muskegon Apportionment Commission in 1968 and expressly held statutorily invalid by this Court in Apportionment of Muskegon County Board of Supervisors 1968, 13 Mich. App. 697, 699 (1968). The purpose of the legislative mandate is to provide an accurate and objective standard with which to evaluate the distribution of actual population among commissioner districts. No citizen or court can evaluate *669 the instant plan for constitutionality when the population figures are based on guesswork. Consequently, the apportionment plan of the Lapeer County Board of Commissioners is invalid for noncompliance with statutory requirements.
The Lapeer County Apportionment Commission previously rejected the plan submitted by the petitioner Spencer, although based solely on Federal census data, because it split 6 of the 18 townships and one of the two cities in Lapeer County. This reason is not sufficient to justify any deviation from population equality.[3]
Having found the plan adopted to be invalid, we remand to the Lapeer County Apportionment Commission for purposes of drawing a statutorily and constitutionally valid plan based on 1970 official *670 census data. The apportionment commission shall have ten days from date hereof in which to draw and file with the clerk of this Court and the Secretary of State, a plan which comes as close to population equality as is possible. Upon the commission's failure to file any plan or upon the filing of a plan which fails to meet constitutional and statutory requirements, this Court shall order that the primary and general election in 1972 for the board of commissioners shall be held under the plan which best meets constitutional and statutory guidelines.[4]
NOTES
[1] MCLA 46.406; MSA 5.359(6).
[2] See Apportionment of Cass County Board of Commissioners 1972, 39 Mich. App. 671 (1972), for an example of the proper use of the alternative provided in MCLA 46.404(a); MSA 5.359(4)(a).
[3] In Apportionment of Muskegon County Board of Commissioners 1970, 23 Mich. App. 156, 160, 161 (1970), Judge McGREGOR spoke specifically to this question and stated:
"Laudable as may be the efforts to avoid gerrymandering and the fragmenting of political subdivisions, these too have been rejected by the Supreme Court if they are used to avoid equal population.
"Justice Brennan speaking for the Court in Kirkpatrick v Preisler, [394 U.S. 526, 533, 534; 89 S. Ct. 1225, 1230; 22 L. Ed. 2d 519, 526, 527 (1969)] states:
"`Similarly, we 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. The state's interest in constructing congressional districts in this manner, it is suggested, is to minimize the opportunities for partisan gerrymandering. But an argument that deviations from equality are justified in order to inhibit legislators from engaging in partisan gerrymandering is no more than a variant of the argument, already rejected, that considerations of practical politics can justify population disparities.'
"He further states on [394 U.S. 536; 89 S. Ct. 1231; 22 L. Ed. 2d 528]:
"`A state's preference for pleasingly shaped districts can hardly justify population variances.'
"We adopt the principles laid down in Kirkpatrick v Preisler and determine that the Muskegon County Apportionment Commission has not justified the variances contained in the instant plan."
See also Apportionment of Ionia County Board of Commissioners 1972, 39 Mich. App. 676 (1972).
[4] Pursuant to the authority of MCLA 46.407; MSA 5.359(7).