Merriam v. Secretary of the Commonwealth

Wilkins, J.

(dissenting). The plaintiffs have shown a constitutional violation in the formation of two representative districts each made up of portions of the town of Danvers and the city of Peabody.

It is clear that the Legislature must have a measure of discretion in performing its difficult task of forming representative districts. Certain municipalities may have to be divided, and precise numerical equality cannot be expected. Where, however, approximate numerical equality can be achieved without dividing a municipality and where an entire municipality can be kept in one district without a “ripple effect” on other defined districts, dividing that municipality is unconstitutional in the absence of some reason justifying the division.

In my view, the bifurcation of Danvers is “unnecessary and incompatible with reasonable effort to conform to the requirements of the Constitution.” See Brophy v. Suffolk County Apportionment Comm’rs, 225 Mass. 124, 126 (1916). Peabody must be divided in any event because its population is too large for a single representative district, and part of Peabody must be joined with other territory because Peabody’s population alone is too small for two representative districts. But Danvers need not be divided. It has a population of 24,947, slightly more than two-thirds of the population of an “ideal” district.1

*265On the undisputed facts, one method of avoiding a violation of the specific constitutional direction is self-evident, and I can conceive of no reason why the division of Danvers is either reasonable or necessary to conform with any other constitutional standard concerning the establishment of representative districts. The opinion of the court suggests no such reason. The defendant advances none. In my view, the people intended the words, “as nearly as may be,” to impose a higher standard than the court defines. I reject the court’s notion that a division of a municipality is unconstitutional only if it is so unreasonable as to be vicious in nature. Merriam v. Secretary of the Commonwealth, supra at 263 (1978).

It is an historical irony that the town of Danvers, which then included what is now the city of Peabody, was part of the salamander-shaped senatorial district from which was coined the word “gerrymander,” a combination of the word “salamander” and the name of Governor Elbridge Gerry. See St. 1812, c. 97; 3 Commonwealth History of Massachusetts 458-459 (A.B. Hart ed. 1929).