Grills v. Branigin

*188CORRECTED AND SUPERSEDING DISSENTING OPINION

DILLIN, District Judge.

I respectfully dissent from so much of the majority opinion as purports to mandate the defendant members of the State Election Board of Indiana, and others not parties to this action, to conduct elections for the office of representative in the Congress of the United States from the State of Indiana from eleven districts created by them. I agree that the defendants should be instructed as to how such elections should be conducted, in accordance with their prayer, and I further agree that this court has jurisdiction to, and should do so. It is not, however, constitutionally permissible for this court to enter the political arena as the majority has done, and to impose upon the powers of a coordinate political department, the General Assembly of Indiana, by adopting a districting scheme of its own devising, bearing no reasonable relationship to the plan last adopted by the General Assembly.1

The plain error into which the majority has fallen is that it has misconceived the failure of the politically divided General Assembly to enact a new districting plan to have somehow given carte blanche to this court, or to a majority thereof, to usurp all legislative prerogatives, and to attack the problem as if Chapter 205 of the Acts of 1965 (hereafter “Chapter 205”) had never been enacted. But such is not the law. On the contrary, all courts which have spoken on the subject have unanimously held that the judicial power is limited to reviewing the last (albeit unconstitutional) legislative act, and to making such corrections as are necessary to bring it into conformity with the “one man, one vote” principle.2 This must be so, since it has long been the law that the courts have no power to perform administrative acts.3

I now consider the plan of the majority, to determine whether it exceeds the bounds of necessity. According to the districting adopted by Chapter 205, three districts contained less than the optimum population of 423,863, by a total of 111,629 persons;4 the other eight districts therefore had a similar total overage. It is apparent that if available census information is sufficiently detailed in its “building blocks” to enable the transfer of 111,629 persons from the eight larger districts to the three smaller districts in proper ratio, all districts may thus be made to conform completely to constitutional commandments. But the majority plan moves a total of 1,215,606 persons from districts created by Chapter 205 to other districts! 5 This gross de-1 viation of more than 1,000 per cent demonstrates beyond a doubt that the majority plan is not an objective one of necessary correction, but rather is an origi*189nal and novel plan conforming only to the subjective impulses of the majority.

It is true that the majority, after juggling approximately one-fourth of the total population of the State, has created eleven districts more balanced in population than those created by Chapter 205. But to do this, they have impermissibly taken what I shall call the “chain reaction” approach. Using this method, they have moved whole counties from districts already in close balance as created by Chapter 205 to other districts already overpopulated. This, of course, magnifies the problem already existing in the overpopulated districts, and requires the majority to remove from such districts more population than would have been required in the first instance. This goes on in chain reaction form until the aforementioned total of 1,215,606 people and 26 out of 92 whole counties have been rearranged. As an example, the 5th District, as created by Chapter 205, was overpopulated by only 2,247 persons; to correct this district to perfection, therefore, would have required only that 2,247 persons be moved to an adjoining, underpopulated district, such as the 10th, and that no population be added. But the majority has completely reconstituted the 5th District by moving out of it the whole counties of Adams, Wells, Jay, Madison and Huntington,6 and by moving into it the counties of Wabash, Fulton, Carroll, Cass, Clinton, Boone, Tipton and Hamilton. Of the original Chapter 205 district, only the counties of Miami, Howard, Grant and Blackford (total population 198,042) remain constant!

The census figures are in sufficient detail to enable a court to correct the districting adopted by Chapter 205 to within approximately 100 votes per district, and in fact I have done so.7 8My corrected plan has a maximum deviation of plus 118 in the 4th District and minus 93 in the 2d District. The ratio of the largest to the smallest district in terms of population may thus be computed as 1.00056 to 1. Of equal importance, all corrections have been made in a constitutional rather than a random fashion in that the shifts invariably go from overpopulated districts to underpopulated districts, with one unavoidable exception, so as to disturb Chapter 205 boundaries by the absolute minimum.

In accomplishing this result, I of course commence with the districts as laid out by Chapter 205.® The 1st District is overpopulated by 30,345, and must be corrected by the removal of approximately this number. The 1st District is contiguous only to the 2d District, so that the movement must be to that district, although it is already overpopulated by 7,201. This is the one unavoidable exception referred to in the preceding paragraph, wherein population is moved into an already overpopulated district. It is for this reason that it must be corrected first. By inspection of the census tracts and enumeration districts in the 1st District, I find a bloc of 30,297 persons in a geographic area contiguous to the 2d District,9 and correct the 1st District by moving such bloc to the 2d District, which now becomes overpopulated by a total of 37,498. All further movements will be direct from overpopulated to underpopulated districts.

The 2d District adjoins two underpopulated districts, the 3d and the 7th. Looking ahead, we perceive that the 4th District is overpopulated, and adjoins the overpopulated 2d, 5th and the underpopulated 3d. The 4th may, therefore, only move its surplus into the 3d, whereas the 2d may move either to the 3d or to the 7th. We therefore first correct the 4th, *190by moving an area in Elkhart County,10 population 26,956, into the 3d. The 3d is still underpopulated, so we correct it completely and correct the 2d in part by moving townships in Porter, Jasper, Pulaski and Fulton Counties,11 population 12,760, into the 3d. We now complete the correction of the 2d by moving townships in Benton and Tippecanoe Counties,12 population 24,831, into the 7th. Correction of the 7th is continued, and at the same time the 8th is corrected completely by moving Martin County and townships off of the north part of Knox County,13 total population 19,277, from the 8th to the 7th. Correction of the 7th is completed by the transfer to it of certain townships of Hendricks and Morgan Counties,14 population 10,196, from the overpopulated 6th. Correction of the 6th is completed by transfer of a population of 4,921 out of Warren Township of Marion County15 to the underpopulated 10th. Finally, the 5th,16 9th,17 and 11th18 are each corrected by transfers into the 10th, which is finally corrected thereby.

The corrections above set out are the only proper ones. It is immaterial whether the adjustments are made in the precise order in which I have listed them for illustrative purposes, or in some other order. It is required that the 1st District be adjusted first, to avoid impermissible and unnecessary “chain reaction” transfers. But once this correction is made, it is absolutely immaterial whether the next district adjusted is the 8th, the 11th, the 5th, or any other district. If the rule of avoiding unnecessary transfers is observed, the results must be the same.19

The majority adopts the argument found wanting on the first appeal of this case,20 to the effect that their new plan is better than the one it would supersede. But they can not prevail on this basis, as their maximum variance between overpopulated and underpopulated districts is 11,039 — or approximately fifty times higher than my variance of 235. However, I do not argue the numbers game; I simply point out the figures. They attempt the further justification that they do not split counties. But there is nothing sacred about a county, or for that matter a township or a city. These political subdivisions of the State exist purely for its convenience for the purpose of assessing and collecting ad valorem *191taxes, and performing various administrative chores. The constitutionality of splitting political subdivisions has been established by the decision of the Supreme Court of the United States affirming such a plan;21 hence the excuse advanced by the majority for their plan is not a satisfactory explanation for their curious moving from district to district of approximately 25 per cent of the population of the State.

I must therefore dissent from that which I firmly believe to be the unconstitutional assumption of a power vested exclusively in the General Assembly by Article 1, Section 4 of the Constitution by a court which further lacks the jurisdiction to do so by reason of the limited powers granted to it by Article 3, Section 2 of the Constitution. The action of the majority is thus doubly unconstitutional, if such a thing be possible.

My dissenting opinion, filed February 14, 1968, contained an error in my suggested correction of the 3d District. I have therefore revised the townships to be transferred from the 2d to the 3d District, and the appropriate tables. The corrected opinion is published in its entirety, in the interest of clarity, and therefore supersedes completely the original opinion.

*192APPENDIX

[Containing Table I (with map), Table II (with map), Table III (with map), and Table IV, Parts 1 and 2]

TABLE I

SHOWING POPULATIONS OF THE VARIOUS CONGRESSIONAL DISTRICTS OF INDIANA AS ESTABLISHED BY CHAPTER 205, ACTS OF THE INDIANA GENERAL ASSEMBLY OF 1965, AND VARIANCES THEREIN

Variance from Average

District Population Overpopulated Underpopulated

1 454,208 + 30,345

2 431,064 + 7,201

3 384,079 — 39,784

4 450,937 + 27,074

5 426,110 + 2,247

6 438,961 + 15,098

7 369,663 — 54,200

8 443,252 + 19,389

9 424,933 ■ + 1,070

10 406,218 — 17,645

11 433,073 + 9,210

4,662,498 +111,634 -111,629

NOTES

1. Total Population, 1960 Census = 4,662,498

2. Ideal District Population = 4,662,498/11 = 423,863

(Since the indicated division leaves a remainder of 5, the overpopulated district total population exceeds that of the underpopulated total by this amount.)

3. Configuration of Districts is as shown graphically on attached outline map. All Districts contain complete counties, as indicated, except as follows:

(a) The 1st District consists solely of North, Calumet, and Hobart Townships of Lake County.

(b) The 2d District consists of complete counties as indicated on the map, plus all of Lake County except North, Calumet, and Hobart Townships.

(c) The 6th District consists of complete counties as indicated on the map, plus Pike, Washington, Decatur, Perry, Franklin, and Warren Townships of Marion County.

(d) The 10th District consists of complete counties as indicated on the map, plus Lawrence Township of Marion County.

(e) The 11th District consists solely of Center and Wayne Townships of Marion County.

*193

*194TABLE II

SHOWING COUNTIES AND PARTS OF COUNTIES SHIFTED BY THE MAJORITY REDISTRICTING PLAN FROM ONE CHAPTER 205 DISTRICT TO ANOTHER, THE RESPECTIVE POPULATIONS THEREOF, AND THE POPULATION AMOUNTS REQUIRED TO HAVE BEEN MOVED TO HAVE ACHIEVED NECESSARY CORRECTIONS TO THE DISTRICTING PLAN CONTAINED IN CHAPTER 205, ACTS OF THE 1965 GENERAL ASSEMBLY OF INDIANA

1,2. Include the 30,345 transferred by-necessity from the overpopulated 1st District to the overpopulated 2d District, thus requiring a re-transfer out of the 2d District.

Note: A map showing the congressional district lines established by Chapter 205, and also the lines established by the majority of this court is attached hereto.

*195

I, 2. Include the 30,345 transferred by-necessity from the overpoplated 1st District to the’ overpopulated 2d District, thus requiring a re-transfer out of the 2d District.

Note: A map showing the congressional district lines established by Chapter 205, and also the lines established by the majority of this court is attached hereto.

*196

*197TABLE III

SHOWING THE PARTS OF COUNTIES (INCLUDING ONE COMPLETE COUNTY) SHIFTED BY MY CONSTITUTIONAL CORRECTIONAL PLAN FROM ONE CHAPTER 205 DISTRICT TO ANOTHER, THE RESPECTIVE POPULATIONS THEREOF, AND THE POPULATION AMOUNTS REQUIRED TO HAVE BEEN MOVED TO HAVE ACHIEVED NECESSARY CORRECTIONS TO THE DISTRICTING PLAN CONTAINED IN CHAPTER 205, ACTS OF THE 1965 GENERAL ASSEMBLY OF INDIANA

1, 2. See Notes 1, 2 on Page 198.

*198

1,2. Include the 30,297 transferred by-necessity from the overpopulated 1st District to the overpopulated 2d District, thus requiring a re-transfer out of the 2d District.

Notes: 1. Where Table IV, Part 2 is referred to in the above summary, the metes and bounds descriptions of areas transferred which do not follow county or township lines are set out in full in the written description of corrected districts contained in such table.

2. A map showing the congressional district lines established by Chapter 205 and also the necessary corrections thereto made by myself is attached hereto.

*199

*200TABLE IV - Part 1

SHOWING POPULATIONS OF THE VARIOUS CONGRESSIONAL DISTRICTS OF INDIANA AS ESTABLISHED BY CHAPTER 205, ACTS OF THE INDIANA GENERAL ASSEMBLY OF 1965, AS CORRECTED IN A CONSTITUTIONAL MANNER

Variance from Average

District Population Overpopulated Underpopulated

1 423,911 + 48

2 423,770 - 93

3 423,795 — 68

4 423,981 + 118

5 423,814 — 49

6 423,844 - 19

7 423,967 + 104

8 423,975 + 112

9 423,862 - 1

10 423,780 — 83

11 423,799 - 64

4,662,498 + 382 - 377

NOTES

1. Total Population, 1960 Census = 4,662,498

2. Ideal District Population = 4,662,498/11 = 423,863 (Since the indicated division leaves a remainder of 5, the over-populated district total population exceeds that of the under-populated total by this amount.)

TABLE IV-Part 2

SETTING OUT THE DESCRIPTIONS OF THE VARIOUS ELEVEN CONGRESSIONAL DISTRICTS IN INDIANA AS CORRECTED IN A CONSTITUTIONALLY PERMISSIBLE MANNER

FIRST DISTRICT

Calumet, North and Hobart Townships of Lake County, save and except a part of said Hobart Township more particularly described by metes and bounds as follows: Beginning at the southwest corner of said township, and running thence north to 29th Avenue, thence running east to Deep River, thence in an easterly direction, along and with said Deep River to Grand Boulevard, thence north to the right of way to the Michigan Central Railroad, thence in a northeasterly direction along and with said railroad to Union Street, thence south to Central Avenue, thence east to the township line, thence south along said township line to the southeast corner of said Hobart Township, thence west to the place of beginning.

SECOND DISTRICT

The counties of Carroll, Cass, Kosciusko, Newton, Wabash and White; also, that part of Hobart Township of Lake County described as follows: Beginning at the southwest corner of said township, and running thence north to 29th Avenue, thence running east to Deep River, thence in an easterly direction, along and with said Deep River to Grand Boulevard, thence north to the right of way to the Michigan Central Railroad, *201thence in a northeasterly direction along and with said railroad to Union Street, thence south to Central Avenue, thence east to the township line, thence south along said township line to the southeast corner of said Hobart Township, thence west to the place of beginning; also, the townships of Cedar Creek, Center, Eagle Creek, Hanover, Ross, St. John, West Creek, and Winfield in Lake County; also, the townships of Boone, Center, Liberty, Portage, Porter, Union and Westchester in Porter County; also, Union Township in Benton County; also, the townships of Fairfield, Perry, Tippecanoe, Wabash and Washington in Tippecanoe County; also, the townships of Barkley, Carpenter, Gillam, Hanging Grove, Jordan, Keener, Marion, Milroy, Newton, Union, Walker, and Wheatfield in Jasper County; also, the townships of Beaver, Harrison, Indian Creek, Jefferson, Monroe, Salem, Van Burén, and White Post in Pulaski County; also, the townships of Henry, Liberty, Newcastle, Richland, Rochester, Union and Wayne in Fulton County.

THIRD DISTRICT

The counties of LaPorte, Marshall, Starke, and St. Joseph; also, Baugo and Cleveland Townships in Elkhart County; also, a part of Concord Township in Elk-hart County described as follows: All that part of the City of Elkhart lying in Concord Township and being north of the right of way of the New York Central Railroad Company, and also a part thereof beginning at the intersection of Oakland Avenue and the right of way of the said New York Central Railroad Company, and running northeasterly along and with said right of way to South Main Street, thence southeasterly along and with said street to Hickory Street, thence southwesterly along and with Hickory Street to South 6th Street, thence south to West Indiana Avenue, thence east to Benham Avenue, thence south to Wolf Avenue, thence west to 8th Street, thence south to Lusher Avenue, thence west to Oakland Avenue, thence north to the place of beginning; also, the townships of Jackson, Morgan, Pleasant, Pine, and Washington in Porter County; also, Kankakee Township in Jasper County; also, Cass, Franklin, Rich Grove, and Tippecanoe Townships in Pulaski County; also, Aubbeenaubbee Township in Fulton County.

FOURTH DISTRICT

The counties of Allen, DeKalb, La-Grange, Noble, Steuben and Whitley; also, the townships of Benton, Clinton, Elkhart, Harrison, Jackson, Jefferson, Locke, Middlebury, Olive, Osolo, Union, Washington and York in Elkhart County; also, all of Concord Township in Elkhart County except that part described as follows : All that part of the City of Elkhart lying in Concord Township and being north of the right of way of the New York Central Railroad Company, and also a part thereof beginning at the intersection of Oakland Avenue and the right of way of the said New York Central Railroad Company, and running northeasterly along and with said right of way to South Main Street, thence southeasterly along and with said street to Hickory Street, thence southwesterly along and with Hickory Street to South 6th Street, thence south to West Indiana Avenue, thence east to Benham Avenue, thence south to Wolf Avenue, thence west to 8th Street, thence south to Lusher Avenue, thence west to Oakland Avenue, thence north to the place of beginning.

FIFTH DISTRICT

The counties of Adams, Grant, Jay, Huntington, Madison, Miami and Wells; also, the townships of Harrison, Licking and Washington in Blackford County; also, the townships of Center, Clay, Ervin, Harrison, Honey Creek, Howard, Jackson, Liberty, Monroe and Taylor in Howard County.

SIXTH DISTRICT

The counties of Boone, Clinton, Johnson and Montgomery; also, the townships of Brown, Center, Eel River, Guilford, Liberty, Lincoln, Marion, Middle, Union and Washington in Hendricks County; also, the townships of Baker, Brown, Greene, Harrison, Jackson, Madi*202son, Monroe, Ray and Washington in Morgan County; also, the townships of Pike, Washington, Decatur, Perry and Franklin in Marion County; also, Warren Township in Marion County except a part thereof beginning at the northwest corner of said township and running thence south to 25th Street, thence east to Hawthorne, thence south to 21st Street, thence east to Ritter Avenue, thence north to the right of way of the C. C. C. & St. L. Railroad, thence northeasterly along said railroad right of way to Arlington Avenue, thence north to the township line of said Warren Township, thence west to the place of beginning.

SEVENTH DISTRICT

The counties of Brown, Clay, Daviess, Fountain, Green, Martin, Monroe, Owen, Parke, Putnam, Sullivan, Vermillion, Vigo, and Warren; also, the townships of Bolivar, Center, Gilboa, Grant, Hickory Grove, Oak Grove, Parish Grove, Pine, Richland and York in Benton County; also, the townships of Jackson, Lauramie, Randolph, Sheffield, Shelby, Union, Wayne and Wea in Tippecanoe County; also, the townships of Clay and Franklin in Hendricks County; also, the townships of Adams, Ashland, Clay, Gregg and Jefferson in Morgan County; also, the townships of Widner, Vigo and Steen in Knox County.

EIGHTH DISTRICT

The counties of Crawford, Dubois, Floyd, Gibson, Harrison, Perry, Pike, Posey, Spencer, Vanderburgh and War-rick; also, the townships of Busseron, Decker, Harrison, Johnson, Palmyra, Vincennes and Washington in Knox County.

NINTH DISTRICT

The counties of Bartholomew, Clark, Dearborn, Fayette, Franklin, Jackson, Jefferson, Jennings, Lawrence, Ohio, Orange, Ripley, Scott, Shelby, Switzerland and Washington; also, the townships of Adams, Clay, Clinton, Jackson, Marion, Salt Creek, Sand Creek and Washington in Decatur County.

TENTH DISTRICT

The counties of Delaware, Hamilton, Hancock, Henry, Randolph, Rush, Tipton, Union and Wayne; also, Fugit Township in Decatur County; also, Lawrence Township in Marion County, also, a part of Warren Township in Marion County described as follows: Beginning at the northwest corner of said township and running thence south to 25th Street, thence east to Hawthorne, thence south to 21st Street, thence east to Ritter Avenue, thence north to the right of way of the C. C. C. & St. L. Railroad, thence northeasterly along said railroad right of way to Arlington Avenue, thence north to the township line of said Warren Township, thence west to the place of beginning; also, a part of Center Township in Marion County described as follows : Beginning at the northeast corner of said township, and running thence west on 38th Street to Dearborn Street, thence south to 34th Street, thence east to Gale Street, thence south to 33d Street, thence in a southeasterly direction along 33d Street to Sherman Drive, thence south to 30th Street, thence east to Emerson Avenue, thence north to the place of beginning; also, Jackson Township of Blackford County; also, Union Township of Howard County.

ELEVENTH DISTRICT

Wayne Township of Marion County; also, Center Township of Marion County, except a part of said Center Township described as follows: Beginning at the northeast corner of said township, and running thence west on 38th Street to Dearborn Street, thence south to 34th Street, thence east to Gale Street, thence south to 33d Street, thence in a southeasterly direction along 33d Street to Sherman Drive, thence south to 30th Street, thence east to Emerson Avenue, thence north to the place of beginning.

All references are to existing lines as the same were established and fixed on December 31, 1960.

. “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker v. Carr, 1962, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663, 686.

. Maryland Citizens Committee for Fair Cong. Redist. v. Tawes, D. Md., 1966, 253 F.Supp. 731, aff’d sub nom. Alton v. Tawes, 384 U.S. 315, 86 S.Ct. 1590, 16 L.Ed.2d 586; Klahr v. Goddard, D. Ariz., 1966, 250 F.Supp. 537; People ex rel. Scott v. Kerner, 1965, 33 Ill.2d 460, 211 N.E.2d 736.

. O’Donoghue v. United States, 1933, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356; Old Colony Trust Company v. Commissioner of Internal Revenue, 1929, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918.

. Table I, Appendix.

. Table II, Appendix.

. Map attached to Table H, Appendix.

. Table III, Appendix.

. Map attached to Table I, Appendix.

. The geographic area is in the southern part of Hobart Township, as follows: Census Tract HOT 56, population 16,934; Census Tract HOT 58, population 8,752; Census Enumeration Districts 16-N, 16-P, and East Gary 2, 3, 7 and 8 in Census Tract HOT 57, total population 4,611. (Metes and bounds descriptions set out in Table IV, Part 2, for areas other than counties and townships).

. Cleveland and Baugo Townships, combined population 7,206, and Census Enumeration Districts 8-N, 9-N, 10-19, inclusive, 29, 34, 35, 36 and 38-N, all in Concord Township in the City of Elkhart, containing a population of 19,750.

. For townships see Table III.

. All of Benton County, except Union Township thereof, population 11,372; Townships of Jackson, Lauramie, Randolph, Sheffield, Shelby, Union, Wayne and Wea of Tippecanoe County, total population 13,459.

. Widner, Vigo and Steen Townships.

. Franklin and Clay Townships of Hendricks County, total population 2,977; Adams, Ashland, Clay, Gregg and Jefferson Townships of Morgan County, total population 7,219.

. The geographic area transferred is a part of Warren Township of Marion County, being Census Enumeration Districts 137-P, 138-P, 138-R, 427, 428-N, 428-Pa and 428-Pb, all in Census Tract 601, and containing a total population of 4,921.

. Jackson Township of Blackford County, population 1,527, and Union Township of Howard County, population 769.

. Fugit Township of Decatur County, population 1,071.

. The geographic area transferred is a part of Center Township of Marion County, contained in Census Tract 506, Census Enumeration District 194 of Census Tract 523, and Census Enumeration District 123 of Census Tract 507, containing a total population of 9,274.

. e. g., Assume starting with the overpopulated 8th: the transfer must be to the 7th, because the other adjacent district, the 9th, is also overpopulated; the only underpopulated district touched by the overpopulated 5th and 11th is the 10th, so their transfers must be to it, etc.

. Duddleston v. Grills, 385 U.S. 455, 87 S.Ct. 611, 17 L.Ed.2d 508, vacating and remanding Grills v. Branigin, S.D. Ind., 1966, 255 F.Supp. 155; cf. Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501.

. Alton v. Tawes, 384 U.S. 315, 86 S.Ct. 1590, 16 L.Ed.2d 586, affirming Maryland Committee for Fair Cong. Redist. v. Tawes, D.Md., 1966, 253 F.Supp. 731.