Grills v. Branigin

HOLDER, District Judge (dissenting).

The action was commenced March 2, 1964. Mr. Grills’ action contested the congressional apportionment in Indiana as created by Chapter 174 of the 1941 Acts of the Indiana General Assembly. The Supreme Court had just spoken in the congressional districting case of Wesberry et al. v. Sanders, 376 U.S. 1, 84 S.Ct. 526,11 L.Ed.2d 481, which had been decided February 17, 1964. It was decided:

“ * * * that the constitutional test for the validity of congressional districting schemes was one of substantial equality of population among the various districts established by a state legislature for the election of members of the Federal House of Representatives.”

This Court abstained from action in 1964 for the many reasons listed in an abstention order. Chief among them was the avoidance of political disorder in the conduct of the congressional elections. The election calendar was already in motion with candidates already announced and no legislature was then in session. We further stated in that order that the Court had confidence that the Indiana General Assembly of 1965 would heed the *160new judicially stated principles governing congressional districting of a state by the constituted legislature of Indiana.

Thereafter, the Supreme Court spoke again on June 15, 1964 in the case of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362,12 L.Ed.2d 506, following Wesberry v. Sanders, and I quote therefrom as follows:

“In that case (referring to Wesberry v. Sanders) we decided that an apportionment of congressional seats which ‘contracts the value of some votes and expands that of others’ is unconstitutional, * *

The 1965 Legislature has met and by Chapter 205 created new congressional districts which do not follow the teachings of these Supreme Court Opinions. The majority of the states have substantially complied with the law and those who have not are for the most part now engaged in legal actions or legislative corrective action is under way.

It is unfortunate that the motives in redistricting creep into the issues on both sides of litigation and becloud the issues. If the legislature would but follow the teachings of the judicial interpretation of these cases the motives for the passing or opposing of the legislation by the majority and minority parties may be tolerated.

The facts are that the 1960 census places the population of Indiana at 4,-622,498 which makes the perfect district for the allotted eleven for Indiana at 423,863 inhabitants. The districts created had the following population contractions and expansions from such perfect constitutional district:

Examination of these districts when compared with the rule of “one vote— one man” and a substantial compliance therewith leaves no other rational conclusion but that a substantial number of the inhabitants of Indiana are paying with usurious votes in the selection of their congressmen and another substantial number are obtaining more voting power with their vote.

It may be judicially noticed that the seventh district was in a greater state of imbalance when the 1965 districting Act was passed over the 1960 census. Stating it another way the legislation was based on the 1960 census and the majority opinion and dissent opinion are also so based on 1960 population records.

It is gerrymandering. It is unnecessary to examine the gerrymandering motives of the minority and majority parties and influential factions in both very deeply. One sees that two minority congressmen are placed in completely new districts with only their home county retained from the old district in which the people had repetitively chosen them as their congressmen. In one instance a narrow strip of land was used to provide contiguous geography and circumvention *161of the Indianapolis water reservoir which provided a natural barrier.

It is further evidenced by the casting of one minority congressman against another and thus reducing the minority delegation to Congress by one more without the voters’ choice being exercised in enriching the majority by another. Gerrymandering is referred to in this opinion only to show the effect and thus point up the unconstitutional districting which my colleagues of the bench have countenanced. The gerrymander was at the expense of upholding the mandate of the Supreme Court.

The correction of the outsized and undersized districts to constitutional sized districts will of necessity change some of the other districts and will prevent unlawful gerrymandering and still permit room for lawful “politicing”. If the Courts permit this then we do not have elections governed by fair rules and we unleash the forces of retaliation in political organizations of the kind we should abhor in organized society. The Attorney General of Indiana would have us return to the rule of the “political thicket”. This trial court must follow the rule of law established by the Supreme Court.

The unquestioned facts before this Court are that Indiana and its legislature could and should have reapportioned Indiana by one of countless combinations by realigning of counties in groupings and/or townships in groupings. Any one of such combinations would have been constitutional and in accord with the teachings of the Supreme Court. Indiana then would be in the class of the majority of the states of the United States instead of resisting the clear mandate of the United States Constitution. The voters of the seventh district with 54,200 votes (based on the 1960 census) enjoy the privileges of a small district to the detriment of others. In order to keep it small and why it was so gerrymandered, the counties around its perimeter must be examined to ascertain why they were not annexed. What would have been the districting if they were removed from the surrounding districts? Thus, gerrymandering was extended to those districts. There is a place for gerrymandering but not at the expense of the rule of law governing the right of the inhabitants to equal voting power. The majority of this Court strongly recommends that the 1967 Session of the Indiana Legislature eliminate the abnormalities whereas it should be done now before the 1966 Congressional Election. Indiana should commence and maintain the ten year cycle of the Federal census and the many valid long enduring benefits to the established districts’ peoples. The awaiting of a new legislature only compounds the unsettled state of Indiana’s districts and permits another malapportioned Indiana Congressional Election in 1966.

I would find that the plaintiff and intervening plaintiffs had maintained their burden of proof of this action and declare Chapter 205 of the 1965 Acts of the Indiana General Assembly unconstitutional.