CHAPMAN v. MEIER
Legal provision: Equal Protection
Argument of John D. Kelly
Chief Justice Warren E. Burger: We'll hear arguments first this morning in number 73-1406, Chapman and others against Meier.
Mr. Kelly you may proceed whenever you are ready.
Mr. John D. Kelly: Mr. Chief Justice, may it please the Court.
This is an appeal from a judgment from the United States District Court for the District of North Dakota, which established a permanent apportionment plan, that is permanent for 1970s, based on the 1970 decennial census.
The judgment involves a plan that establishes five large multimember districts involving both houses of the North Dakota Legislature and involves a -- in terms of population variances in excessive 20% and in overall average, I think in plus and minus 5% or an average of 10% variance.
The issues that we present, first of all, involve the issue of whether a court in fashioning a plan and absent any contrary state policy which support the establishment of multimember districts or unusual or unique circumstances, could deny the appellants the equitable remedy of single member districting.
Chief Justice Warren E. Burger: Now let me make sure I have one thing clear here in what differences may derive from it.
You are asking us to review not a plan enacted by the legislature of the state, but to review a plan mandated some five, six, seven years ago by a federal district court, is that correct?
Mr. John D. Kelly: That is correct Mr. Chief Justice except that the plan that we are asking for a review of today is a plan that was established as a permanent plan by a judgment that was entered in January of 1974.
Chief Justice Warren E. Burger: But it is a judgment of a court not of state legislature?
Mr. John D. Kelly: This is not a review of a plan that has been adopted by the North Dakota Legislature.
The facts basically are that following the 1970 census, the legislative assembly in North Dakota failed to adopt a plan.
We started this lawsuit in federal court, asking for a reapportionment, based on the substantial changes in population within in the state of North Dakota, basically a shift from rural to urban areas, under the Equal Protection Clause and the decisions of this Court and then we are also in that case requested pursuant to Connor v. Johnson, the application of the equitable remedy of single-member districts.
In North Dakota, the tradition was from statehood until the mid 1960s a tradition based on a constitutional provision, specifically Section 29, that Senatorial districts where to be represented by one senator and no more.
Justice Harry A. Blackmun: Is this all you are complaining about, senatorial districts?
You had a tradition, haven't you, of multimember house districts at all times?
Mr. John D. Kelly: We have had a tradition that is basically been one Senator and two house district members.
Now the Constitution, until these provisions were voided by decisions of the Federal Court in the mid 1960s, did provide, had a restriction on the establishment of Senate districts in that you couldn't break up a county attached part of one county to another county to form a Senate district.
You could take two, two counties and make one district, but you couldn't breakup a county.
You could also breakup county as long as no part of the county was attached to another.
Justice Harry A. Blackmun: All I am saying is, that your concern is on the Senate side, and you have always had on a house side a multimember districts?
Mr. John D. Kelly: Our concern is on the -- basically on the senate side.
We concede based on the traditions of North Dakota that it is not required.
We asked originally for a single-member districts for both houses, but there is a tradition of one Senator district.
Justice William O. Douglas: Wasn't there a constitutional amendment that was defeated?
Mr. John D. Kelly: There was a constitutional amendment that was defeated which established basically a --
Justice William O. Douglas: Single District.
Mr. John D. Kelly: Well, no the basic thrust of the amendment was not to establish single districts, it was to establish a constitutional apportionment commission and it was presented to the people of North Dakota as this was a -- going to provide a way of apportioning the state legislature taking this power from the state legislature.
And the Attorney General who was responsible for with the Secretory State for specifying what this constitutional amendment provided, that was the thrust of the amendment.
Now, the amendment also covered the establishment of single-member districts for both Houses of the legislature, but insofar as the people of North Dakota knew, it was only after the election that they were ever advised that they just rejected the concept of single-member districting.
Justice William J. Brennan: Incidentally Mr. Kelly, this is the so called Dobson plan, isn't it?
Mr. John D. Kelly: That's correct.
Justice William J. Brennan: And I gather he was chairman, was he, of a commission appointed by the court?
Mr. John D. Kelly: He was one of three members of the commission that was appointed by the court.
Justice William J. Brennan: But that's what it is, the court appointed the commission, isn't it?
Mr. John D. Kelly: Yes, that's correct.
Justice William J. Brennan: And was this -- is this -- that commission's plan or just Mr. Dobson's plan?
Mr. John D. Kelly: It's just Mr. Dobson plan.
There were other plans and Mr. Dobson's plan was first adopted by an order of the District Court in June of 1972 as an interim plan because they had, they reached the determination that the then existing apportionment plan was invalid under the Equal Protection Clause --
Justice William J. Brennan: And there was some expression was there if a perhaps constitutionally adopt some plan even as interim plan was perhaps constitutionally deficit?
Mr. John D. Kelly: Well, there were some reservations, majority of the court at that time said well we recognize some deficiencies, the substantial population variances, the fact that the plan does not provide for Single Member Senate Districts.
But they were faced with being in a time situation and much like the situation was in I think in Virginia under the Mahan v. Howell case where they were really faced with, and this is what was adopted as a interim plan originally.
Justice William J. Brennan: But now it has been adopted as permanent plan?
Mr. John D. Kelly: The reconstitute majority of the District Court adopted it as a permanent plan.
Justice William J. Brennan: What do you mean by a reconstituted majority?
Mr. John D. Kelly: Well, originally two members of the three-member court, Judge Van Sickle decided that adopted it only as an interim plan, saying after the 1972 elections the special masters were referred on a permanent plan.
They expressed substantial interest in what was called the Ostenson plan which was another plan that had been proposed by one of the Special Masters.
But then after the elections, there were some delays for the elections, that one of which Mr. Justice Douglas referred to.
I might point out that at that election where the proposed constitutional amendments were rejected by the core of the people, the people also rejected a legislative plan that had been passed by the North Dakota legislative assembly which provided for multimember districts much like the Dobson plan and that was voted down.
So, I don't think that you can work to the election results in North Dakota, the special elections that were conducted in December of 1973 and say this establishes a state policy in favor of multimember districts are really in opposition because the people voted no on both issues.
Justice William H. Rehnquist: If we were to reverse the judgment, as you ask us to do, well what sort of instructions are you suggesting that we give to the district or you wouldn't want us to draw a plan here, I take it?
Mr. John D. Kelly: We're not asking for that all Mr. Justice Rehnquist.
What we are asking for is, on this issue, is a reversal with corrections to follow the supervisory directive that this Court gave in -- first in Connor v. Johnson and has reiterated that when a court is called upon to fashion a reapportionment plan in the absence of some contrary state policy or specially in unique circumstances that you should do so on the basis of single-member districts.
Justice William H. Rehnquist: But of course that wasn't an inexorable rule in either of those cases?
Mr. John D. Kelly: Right, it is not -- we're not submitting this issue on the basis that it is a constitutional requirement, but it is the general rule.
Now in the Whitcomb case from Indiana there was an exception recognized based on a Indiana constitutional provision that said you're not going to break up counties to establish Senate Districts and as I understand the Whitcomb case, there was a recognition that the general rule which is an equitable remedy, had to give way in view of this legitimate state policy.
But in North Dakota we don't have any, either a constitutional or a statutory policy that would favor multimember districts.
The second exception which I think the court recognized in the Virginia case was that unique or unusual circumstances can justify multimember districts in a court fashioned plan.
And in this case we're not saying that there maybe unique circumstances that will require some type of multimember districts to handle the situation which is really quite equivalent to that involved in the Virginia case.
We have got substantial military personal at the Grand Forks Air Force Base and at Minot Air Force Base and if in fact based on an analysis which Dakota called upon the masters to make about how to proposals or as to how to handle a military personal.
If in fact that unique situation would justify an adoption of a plan that would provide for some type multimember districting to handle the military personal at the two bases then that's fine, we're not going to -- we're not arguing with that.
But what we were saying is, is that absent a state policy and absent special or unique circumstances, this Court should enforce the rule that it established not as a constitutional matter, but as a matter of superintending direction over the district courts and the inferior courts to give us what is the equitable remedy of the single-member districting.
Justice William H. Rehnquist: Well, do you say that the fact that the legislature adopted a plan that encompassed multimember districts even though it was ultimately defeated in a referendum, can't be used by the district court as any indication of a state policy?
Mr. John D. Kelly: I think not.
The governor vetoed it and it was passed over his veto and the people voted it down and I would think under those circumstances, that since the legislature is just the representative of the people, that and in North Dakota, we have the right to refer measures, the people have the right to refer measures that they are not satisfied with, that the legislature passed, that legislation was referred and it was defeated.
And I think under those circumstances, it would be unsound to draw an inference at this somehow represents a support as far as state policy goes for multimember districts.
I would think it quite to the contrary.
It shows reluctance by the people of North Dakota to accept a program in a situation that was not established in the first instance by the people of North Dakota or the politicians.
We never had this kind of districting in North Dakota until the mid 1960s at which time the court established large multimember districts and in doing so they said well if there is any problem, the legislature can handle it.
Well the legislature is been handling it and struggling with it for 10 years and they have never been able to resolve it because obviously the effect of this kind of districting is that one party tends to win all the seats, and 8 days ago there was somewhat of a changed situation and in terms of larger multimember districts, five senators from the one party were all lost to the other party.
But it seems to me that in terms of political fairness, and we're not talking about political fairness basically to the parties, but to the people.
You're talking about a situation where people are required to select 15 out of 30 candidates.
Well a conscious voter is really close to being rendered a basket case if he really is serious about trying to find out what individual qualifications are.
And these I think were the factors that this Court recognized back in as early as 1964 in the Colorado Assembly case where you enumerated defects in multimember districts, but saying you were not prepared to rule if they were unconstitutional per se.
Chief Justice Warren E. Burger: What was the largest number of senators in anyone district in the states?
Mr. John D. Kelly: There were five senators.
The 21st district consists of -- it's setup for five senators and ten representatives, so we are electing in a large -- in a party elections thirty --
Chief Justice Warren E. Burger: The illustration that you are using the people, the voters had to make --
Mr. John D. Kelly: That's right, there are two other --
Chief Justice Warren E. Burger: -- have formed on 15 different people?
Mr. John D. Kelly: 30 different people if they are going to have a kind of --
Chief Justice Warren E. Burger: 30 but they had the right to perform on 15 they were going to vote for?
Mr. John D. Kelly: Right.
In two of the other districts involved, four senators and eight representatives so it's --
Justice Harry A. Blackmun: Mr. Kelly, this maybe an unfair question.
What's your guess as to what if anything the legislature will do come the turn of the year, are they meeting in January?
Mr. John D. Kelly: They are meeting in January.
Justice Harry A. Blackmun: Is there any serious attempt to talk about reapportionment?
Mr. John D. Kelly: Mr. Justice Blackmun, this is not a veto-proof legislature this time and there is an executive branch and the majority party in the legislature are opposite sides of the fence.
And when I say that this is a dilemma or struggle that has been going on for 10 years, it is not going to be resolved at the next meeting of the legislative assembly for the reasons that it hasn't been resolved since this type of districting was first established back in 1965 because the Governor vetoes the multimember legislation and this time as distinguished from last time where they had to take it to the vote of the people, they are not going to be able to override this veto this time.
Justice Potter Stewart: Is this legislative assembly it was elected under this plan and presumably has a vested interest in the status quo.
Now it's been true since 1965?
Mr. John D. Kelly: I think that that's the reason that history has not borne out the observation by, I think Judge Vogel in 1965 case when he established multimember districting, that if there was a problem, the legislature would take care of it.
Well, the legislature has vested , really quite a vested interest in maintaining this type of districting.
And we're really faced with a situation where the constitutional provisions that really provide the state legislature with authority to reapportion have been declared invalid.
Justice William H. Rehnquist: Well --
Mr. John D. Kelly: There is also a substantial question as to whether the legislature really has the authority to reapportion itself.
Justice William H. Rehnquist: But really your troubles all stem from the federal courts having gotten into the thing in the first place, don't they?
Mr. John D. Kelly: They stem from -- right, from changing the traditions of our state and imposing this kind of legislative districting.
Now the reconstituted majority in this case said that, they justified the continuation of the multimember districting on the basis that it wasn't -- as a constitutional matter they were required to break up these large districts.
Justice William J. Brennan: Tell me what's the change in the plan from the – ordered?
Mr. John D. Kelly: Well, Judge Benson originally wanted to just adopt the Dobson plan permanently, that was back in 1972.
Judge Bright and Judge Van Sickle said just for the 72 elections, the decision -- on January 30, 1974, Judge Benson and Judge Van Sickle made up the majority and Judge Bright wrote a dissent.
Chief Justice Warren E. Burger: Which of these judges is from the state of North Dakota?
Mr. John D. Kelly: All three judges reside in North Dakota.
Judge Bright is of course on the circuit court of appeal.
So they all reside in North Dakota.
Justice Lewis F. Powell: Mr. Kelly, may I tend for minute to the question asked to you earlier by Justice Blackmun.
Are you complaining about the multimember districts for members of House of Representatives as well as the Senate?
Mr. John D. Kelly: Insofar as we're complaining if it means that we're going to have a district, a House district with 10 members, but we're willing to concede that in accordance with the traditions of North Dakota that a district that would be comprised of one senator and two house members which is what the original decision of Judge Benson or Judge Bright and Judge Van Sickle was back in 1972, we're willing to accept that because that is not a large multimember district and it is historically in accordance with our traditions and it would seem to me not confronts the people of North Dakota with the type of problems that they are involved with now in terms of large districts, involving large numbers of people so --
Justice Lewis F. Powell: So two representatives would be alright in your view?
Mr. John D. Kelly: That's our position.
We had originally asked for single member districting across the board, but on reflection, considering the traditions of North Dakota in terms of single senator districts with two-member representation from the House, we felt that, that would be more appropriate and that was all that the district court was prepared to give us and we at that time thought that really met with the compliance with this Court's rule in Connor v. Johnson about avoiding large multimember districts as the general rule.
Chief Justice Warren E. Burger: Mr. Kelly you think there are -- apparently think there is no difference our reviewing or being asked to review the action of the state legislature on the reapportionment and the action of the district court on reapportionment independent of any legislative enactment?
Mr. John D. Kelly: This is a -- we're talking about the jurisdiction of the court now -- I think that this --
Chief Justice Warren E. Burger: In anyways, right now I am asking what you think the difference is or whether you think there is no difference?
Mr. John D. Kelly: Well, I think that if you are called upon to review a state plan that is adopted by a state legislative body and that plan has multimember districting, that in the absence of some showing that this was discriminatory or objectionable on constitutional grounds that you'd have to say them that, that is a state policy which we will respect, if it's not attacked on constitutional grounds.
But I think there is a different standard that applies, where that this Court is recognized and developed where you are reviewing a court fashioned plan and this is a court fashioned plan and this plan -- that to me as my understanding of the rule that you first set out in Connor v. Johnson as a general rule.
Justice William H. Rehnquist: And here the state is defending the plan isn't it?
Mr. John D. Kelly: Well, the Attorney General of the State of North Dakota appears as the attorney for the Secretary of State of North Dakota because he is the state officer that's charged with enforcing the election laws and we sought an injunction against him and I don't know that the Attorney General's office has any more -- provides any more basis for saying this reflects state policy, then the legislature, that the people were ultimately in North Dakota decide what policy is and --
Justice William H. Rehnquist: But in Mahan, for example, it was the state that came to us and challenged the ruling of the three-judge district court which had revived the legislative reapportionment plan.
And in here it seems to me, you're in somewhat different posture because, here the state is defending what the District Court has done?
Mr. John D. Kelly: The Attorney General is defending --
Justice William H. Rehnquist: The Attorney General --
Mr. John D. Kelly: Right, but there is a distinction because it would not be a fair conclusion to say that after all the Chief Executive Officer of the State of North Dakota is the Governor, and he has and this is referred to particularly in Judge Bight's dissent, a veto message which he refers to and as the Chief Executive Officer, he states in that veto message to this legislative plan that was adopted and then defeated on referral his opposition to the legislative plan based on the establishment of large multimember districts.
So, I do not think that, there is at best, that the appellee in this case is faced with the situation where there is no discernible state policy, no identifiable one pro or con because if you put aside our traditions.
But to say that the State of North Dakota is here, as a jurisdiction saying this is our policy and our policy is in favor of large multimember districts, that is not really not the situation at all.
Justice Thurgood Marshall: But the State didn't appeal, did it?
Mr. John D. Kelly: The state was not a party to this case, it's just the Secretary of the State.
Justice Thurgood Marshall: Well, did the Secretary of State appeal?
Mr. John D. Kelly: No he --
Justice Thurgood Marshall: So he is satisfied with the judgment?
Mr. John D. Kelly: Right, the Secretary of State is presumably, and presumably the Attorney General of North Dakota is satisfied.
Justice Thurgood Marshall: But he didn't appeal?
Mr. John D. Kelly: Right, but the Governor is not satisfied nor are the people satisfied.
Justice Thurgood Marshall: But, who is representing the Governor here?
Mr. John D. Kelly: The Governor has got a party, but the Governor couldn't be a party because he doesn't enforce the election law.
Chief Justice Warren E. Burger: Now are you suggesting that your friends who will argue on opposition to you is not speaking for the State of North Dakota through it's Secretary of State?
Mr. John D. Kelly: He is speaking for the Secretary of State, if --
Chief Justice Warren E. Burger: Are you suggesting he is speaking for him as an individual or as a State Officer?
Mr. John D. Kelly: He is speaking for him as a State Officer, right?
Chief Justice Warren E. Burger: Well, then what's the difference between that and just being here for the state, you have me lost a little bit?
Mr. John D. Kelly: My only point is that if in fact, this is to suggest that there is a state policy favoring multimember districts that, that is not a bare conclusion to be drawn by a reason of the fact that the Secretary of State and the Attorney General are attempting to support and justify this court imposed plan.
Chief Justice Warren E. Burger: Well, maybe one speculation is reasonable as that or as reasonable as any other is, that the Secretary of State and the Attorney General merely want to let this plan stay in effect until the legislature can come to grips with it in a few months from now?
Mr. John D. Kelly: Well, we have been waiting for ten years and more and as I say in all candor there is no reasonable prospect that they are going to.
In the few remaining moments if there, I would also point out that the second issue involves population disparities and these disparities in this plan exceed those that were involved in the Virginia case and there is contrary to the Virginia case, no justifiable state policy that would support the type of deviations we're involved with here.
The two that were offered were a bit -- there is a geographic barrier, the Missouri River.
Indeed it is a geographic barrier, but it provides no barrier at all to the establishment of equal population districts.
That is not a problem and that's covered in detail in the brief.
The second point was is that North Dakota is a small agricultural rural state and it is just not that important to get precise districts.
Well, North Dakota has a traditional that it carried on at this last election of having extremely close election results and the individual's voting power in a small state, the one person's vote really can have a substantial impact.
And with the type of issues that are going to be presented to the North Dakota legislature involving not only the future of North Dakota, but large parts of the nation involving the development of resources, it seems to me that equity and fairness and to say nothing of the Constitution, requires a better job of drawing districts lines in terms of establishing fair apportionment within the Dobson Plan, which was basically designed to meet an emergency and had as one of its standards to draw the new lines as closely as you could to the existing lines which were being stricken because they provided a representation that was violative of the Equal Protection Clause.
Chief Justice Warren E. Burger: Thank your Mr. Kelly.
Argument of Paul M. Sand
Mr. Paul M. Sand: Mr. Chief Justice and may please the Court.
Counsel has stated the historic development fairly accurately, but I believe he listed somethings as being no more technical than the real practical situation as it existed.
Prior to 1965, true, North Dakota had a senatorial district and they had multimember house districts and it was basically on the county setup.
The counties could not be taken and attached to another part of a county, but could be moved together, several counties could be comprised to consist one senatorial district.
But, in the more populous counties, the county could be divided and in fact there were several that were divided in which the legislature created one, two or three senatorial districts.
But, in those districts that were created, the county remained as the basic unit and for all practical purposes in the legislature and in discussion of the senators that we referred to as the Senators from Cass County even though Cass County had two senatorial districts.
Justice Potter Stewart: How many counties are there in your state?
Mr. Paul M. Sand: 53, Mr. Justice Stewart.
Justice Potter Stewart: And under the old system before the Court got into it, how many senators were there?
Mr. Paul M. Sand: 49.
Justice Potter Stewart: And twice as many representatives?
Mr. Paul M. Sand: No sir, there we had no 1:2 ratio.
The 1:2 ratio came into being in 1965 by the Federal District Court fashioned plan, but prior to that time, we had variants from anywhere from one representative to five.
Justice Potter Stewart: Per County?
Mr. Paul M. Sand: Per District.
Justice Potter Stewart: Per District, right.
Mr. Paul M. Sand: Even though the ordinary reference was to the county, but in some counties we had more than one senatorial district.
And true, the legislature has toiled with this problem and has made some very sincere efforts.
But about in 1960 through our constitutional process, a constitutional amendment was adopted, which froze the senatorial districts as they existed.
It also created a board which was charged with a duty of reapportioning the state if the legislature failed to do so.
This board consisted of the two majority leaders of each House, the Secretary of State, the Attorney General, and the Chief Justice of a state of North Dakota.
They labored with this problem, long and heavy, but because of provisions of Section 35, it was just impossible to do what the language provided.
And as a result of that a reapportionment plan that was adopted by this committee was declared unconstitutional.
And then from there the actions were brought in the Federal Courts.
And then from 1965, we have developed a different pattern, and this is where the Federal District Court fashioned plan, provided for senatorial districts with more than one senator.
But the ratio was for each senator they would have two representatives.
Now, this plan stayed in existence, and the legislature in 1971 did not reapportion.
There were feeble efforts made, but if I can summarize some of comments made by the legislators, they said, we just don't know where to go, what we can do, and some even said, well let the court do it.
Well, these are some of the difficulties for the legislature.
When this action was initially brought and a temporary plan established a bi-partisan committee was created for the purposes of proposing a plan to the 1973 legislature.
This committee worked hard and long and developed what I would say a very god plan, as far as the variance, but because it contained multimember districts the Governor vetoed the plan.
It was overridden and then referred to the people, about the same an initiated constitutional measure was submitted to the people.
This measure provided for a board to reapportion the state, and also provided that the board provide for single-member districts.
Now, when the people rejected both of these measures, we had to assume that the people were in effect saying leave us be, let's us have the plan that we have now.
The constant changing of boundary lines I believe, hurts representative form of government more so or equally so than the variance in population.
Identification with the district lines is an essential element of representation and the people when they rejected the Court -- no, the legislative plan, my impression was that was rejected because it broke entirely too many county lines.
To say that was rejected because it had multimember districts flies in the face of the people's rejection of the constitutional measure which would have provided for single-member districts.
And on that basis, we are representing the people of the state of North Dakota even though counsel may have some reservations about that.
The Secretary of State, of course is a state constitutional officer, and the Attorney General by law and by common law in the state of North Dakota represents the people there though we have no reservation whatsoever that the Attorney General and the Secretary of State Van Meier representing the people of the state of North Dakota.
So historically, we have consistently had multimember districts for the House to the State of North Dakota and from 1965 we have had multimember districts for the Senate.
Justice Potter Stewart: It's only as result of the court intervention, is it right?
Mr. Paul M. Sand: Right.
Now, prior to the court's Intervention and they are recognizing also that Section 35 of this constitutional menu which prose the districts, I think of that point the state actually operated what we would refer to as a little Federal system.
The Senate had area, the House was on population, even though the counties in the several instances were gathered together to make an area and in another instances counties were divided to make an area, but it was still basically a concept of the little federal system.
Justice Harry A. Blackmun: General Sand let me get straightened out.
Prior to 1965 were your house districts single-member districts?
Mr. Paul M. Sand: No they were Justice Blackmun.
They were anywhere from one to five depending on the population.
Justice Harry A. Blackmun: So that the two to one isn't a very long tradition at all, it's only a decade?
Mr. Paul M. Sand: Since 1965.
Justice Harry A. Blackmun: And its a court imposed tradition then?
Mr. Paul M. Sand: Correct Your Honor.
Justice Harry A. Blackmun: Did you have any -- you say one to five before 1965, did you have many multimember house districts?
Probably far fewer than you had single-member districts?
Mr. Paul M. Sand: I think we had quite a few.
With two representatives we had a seizable number, I would just recall here at the moment I think about five or six that had more than two.
Justice Harry A. Blackmun: Large in the Larger cities?
Mr. Paul M. Sand: In the larger counties like Cass, Grand Forks, Barnes, Richland, Ward and the larger counties or the counties that had the larger cities.
We also believe that where the legislature -- where the court is required to fashion a plan, that the court should fashion a plan which is somewhat patterned after the state plan in existence.
Now true, a plan can be developed which would cut down the variance, but in order to accomplish that and at the same kind maintain some respect for county lines, we'd have to reduce the number of Senators and Representatives, the Legislative Bodies as a whole would have to be reduced.
But as far as the number of Senators and Representatives, I think this is basically the judgment of the people.
We have had consistently representation in the House from 98 to 101 or in that vicinity and 49 to 51 in the Senate.
Now, if the court would have gone to a reduced number, yes our variances may not be that great, but I think the number should be respected because it gives a greater division amongst the electorate and in the same way it also gives members in the House and the Senate which are more responsive to that particular area.
And again in North Dakota the County is the basic political sub division.
The county performs many many functions for and on behalf of the state and to break up the county lines actually destroys the responsiveness to the county needs and on the variance, they find it a little difficult to attempt to speak about accuracy or exactness in population when we know that the initial census is not accurate in itself.
As this Court has said, it is a process, but it is not necessarily accurate.
We have in our brief set out, a few of the cities which have had a census taken since the 1970 census and we find that quite a few of them have grown substantially and in one instance, where the variance was 11% by taking the new population, it has been reduced to 4%.
And it would seemed to me that it would be somewhat inequitable to require an exact mathematical formula based upon a figure which is initially not accepted as being correct and then go from there, when it's reasonably understood that in the matter of a year or two, those population figures will no longer be representative, and we operated on that for a 10-year period.
And in the State of North Dakota, under the situation that we have here, I would submit that a population variance of 20% or in that area is not out of line.
We have the natural barrier to contend with and I think the Court in this instance, there are people from the state, they know the needs, they know the area, they came up with a plan that is satisfactory to the State of North Dakota.
And if I may just simply repeat that when the elections on the initiated measure, constitutional measure and the referendum on the legislative plan were rejected by the people, the people were in fact saying, leave us be as we are created.
Justice Potter Stewart: Of course, General the fact that this is satisfactory to the people of your state, under the decisions of this Court, rightly or wrongly, this doesn't cut any ice at all.
You remember Lucas again st the Colorado Assembly in which the people of the state had accepted, by vote had accepted that plan and the court said nonetheless, it's unconstitutional or even going back to Baker against Carr, the state, the officials of the state were wholly satisfied with that system, so they told us.
They were defending that system in this Court?
Mr. Paul M. Sand: I would agree with that Justice Stewart.
Justice Potter Stewart: So it doesn't -- doesn't rightly or wrongly as I say under the precedence of this Court, that doesn't cut any ice whatsoever?
Mr. Paul M. Sand: What I shouldn't have said and really had in mind was that within the constitutional limits, the people are satisfied with the state, with this system as they have now and we think that a 20% variance is not unconstitutional under these conditions and if the people are satisfied with it and if it meets the constitutional requirements, then there should be no change made.
Chief Justice Warren E. Burger: Mr. Attorney General, you have just mentioned again the 20% variance.
I don't recall whether in any opinions of the Court, we have ever distinguished between -- in percentages between large area like New York and California and a smaller state like North Dakota, but if my arithmetic is correct and I don't vouch for it, the variation per senator, elected from the highest to the lowest is only 786 votes.
786 voters; that is 11,775 in the 29th district to 12,561 in the 18th district, that's on page 3 of your brief.
Now, having said that and if my arithmetic is correct, which I am not sure it is, do you think the Court ought to have – ought to exert much bigger flexibility dealing with a small number of voters than with a percentage that would make a variation of hundreds and thousands?
Mr. Paul M. Sand: Chief Justice Burger, in that respect, in the small number, I mean these percentages really can be in a sense frightening because you have a change of 100 or 200 and the percentage goes way out whereas, if you have larger numbers you can have this --
Chief Justice Warren E. Burger: You mean it cuts both ways?
Mr. Paul M. Sand: Yes, it cuts in both directions.
And reason why we believe that this variation is justifiable because we have had a constant change in population.
Ironically, we've had up until 1970 a decrescent population, but also a change from world to urban within the state.
But from 1970 to 1974, according to the latest report in the US World News based upon the US census, the state of North Dakota has gained since 1970, a little better than 4% population.
Where that population is in the moment I am not prepared to say.
Thank you, Your Honor.
Chief Justice Warren E. Burger: Thank you, do you have anything further Mr. Kelly?
Rebuttal of John D. Kelly
Mr. John D. Kelly: Just two points.
In response to question that Mr. Justice Blackmun asked Mr. Sand, I would point out that the one senator tor two house member ratio has been overall the standard since statehood Your Honor except insofar as our original Constitution provided that both houses should be -- districts should be of equal populations to the extent that, that could be done, but the problem was that since there was a restriction in senate districts and not taking part of one county and making it part of a senate district that involved another county, that were necessarily population imbalances.
And in order to correct that situation, certain districts were given additional house members, but the vast majority of districts since statehood have always had two house members and one senator.
And so that well it's been an absolute tradition of one senator and two house members, the overall tradition is clearly on that kind of a basis.
Insofar as Mr. Chief Justice, your reference to the disparities in populations, based under Dobson plan, I think we're talking about between in terms of people just about something between 2400 and 2500 people difference between the largest or most under represented district or smallest or more over-- most representative district and I think there was an appendix --
Justice Potter Stewart: Where is that?
Mr. John D. Kelly: There is an appendix on page A-6 and A-7 of the appendix to the jurisdictional statement.
I think that --
Chief Justice Warren E. Burger: 6 and 7 of the jurisdictional --
Mr. John D. Kelly: But in any event the small population and each vote is important.
Justice Byron R. White: Population difference is 2400 to 2500?
Rebuttal of Paul M. Sand
Mr. Paul M. Sand: That's correct Mr. Justice White.
Justice William J. Brennan: 1064 in district four, 1384 in district 11 A and --
Justice Potter Stewart: And they had those other --
Justice William J. Brennan: -- they had those 2400?
Mr. Paul M. Sand: Right.
Justice William J. Brennan: That's 700.
Mr. Paul M. Sand: Right.
Chief Justice Warren E. Burger: But when you allocate that percentage, you get a slightly different figure?
Mr. Paul M. Sand: Now well that's --
Justice Byron R. White: Both single-member districts --
Chief Justice Warren E. Burger: Very well.
Mr. Paul M. Sand: Right.
Justice Byron R. White: Now what -- do you how, do you know what percentage of the senate in --
Mr. Paul M. Sand: Thank you.
Chief Justice Warren E. Burger: Thank you Gentleman.
The case is submitted.