Harris v. Anderson , 194 Kan. 302 ( 1965 )

The opinion of the court was delivered by

Fatzer, J.:

In this original action sounding in quo warranto (K. S. A., 20-101a), it is alleged and claimed that the apportionment provisions of the Kansas Constitution, Article 2, Section 2, and Article 10, Section 1, and Chapter 2, of the 1964 Special Session of the legislature, apportioning the seats of the House of Representatives, were rendered unconstitutional and void by the decision of the Supreme Court of the United States in Reynolds v. Sims (June 15, 1964), 377 U. S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362, holding that,

“. . . as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weigtht is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. . . .” (12 L. Ed. 2d 531.))

Subsequent quotations from Reynolds will be found in 12 L. Ed. 2d.

The holding was based on the premise that the right to vote for the candidate of one’s choice is of the essence of the representative form of government, and that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise” (pp. 522, 523); that “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests” (p. 527); that “our legislatures are those instruments of government elected directly by and directly representative of the people” (p. 527); that “all voters, as citizens of a state, stand in the same relation regardless of where they live” (p. 529); that “diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race ... or economic status” (pp. 529, 530); and that “the Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.” (p. 531.)

In holding that, as a federal constitutional requisite, both houses of a state legislature must be apportioned on a population basis, the court stated “we deem it expedient not to attempt to spell out any precise constitutional tests” (p. 537); that what is “marginally permissible in one State may be unsatisfactory in another” (p. 537); and that it intended to state “only a few rather general considerations which appear to us to be relevant” (p. 537), which it denominated as “discoverable” and “manageable” standards or applicable guidelines for implementing its decision in Baker v. Carr, 369 U. S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691, in determining die constitutionality of a state legislative apportionment plan. We further quote and summarize from the opinion:

“A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. . . .”

It was then stated that one state might prefer single-member districts while another state might desire to achieve some flexibility by creating multi-member districts, but that, “the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” (p. 537.) The opinion stated:

“History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures. So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equal-population principle. Again, people, not land or trees or pastures, vote. Modem developments and improvements in transportation and communications make rather hollow, in the mid-1960’s, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.

“A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions. Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature’s activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions. . . .” (pp. 537,538.)

It was further stated:

. . And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering. However, permitting deviations from population-based representation does not mean that each local governmental unit or political subdivision can be given separate representation, regardless of population. Carried too far, a scheme of giving at least one seat in one house to each political subdivision (for example, to each county) could easily result, in many States, in a total subversion of the equal-population principle in that legislative body. This would be especially true in a State where the number of counties is large and many of them are sparsely populated, and the number of seats in the legislative body being apportioned does not significantly exceed the number of counties. Such a result, we conclude, would be constitutionally impermissible. And careful judicial scrutiny must of course be given, in evaluating state apportionment schemes, to the character as well as the degree of deviations from a strict population basis. But if, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all of the State’s citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired.” (pp. 538, 539.) (Emphasis supplied.)

The majority court then formulated arithmetic-absolute standards under the Equal Protection Clause of equal-populated districts for both houses of a bicameral legislature. Those standards are expressed in various phrases as “substantial equality of population among the various districts” (p. 537); “as nearly of equal population as is practicable” (p. 536) and “approximately equal” (p. 537), but that “mathematical exactness or precision is hardly a workable constitutional requirement” (p. 536), which is all characterized by the goal of “full and effective participation by all citizens in state government” (p. 529), and even more clearly that “fair and effective representation for all citizens is concededly the basic aim of legislative apportionment.” (p. 529.)

We acknowledge that Kansas as a state of the Union must recognize as binding an amendment to the Constitution of the United States from the time of its adoption and must enforce it within its own territorial limits, notwithstanding any inconsistent provisions in our Constitution or statutes. Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567, held that the adoption of the Fifteenth Amendment had the effect in law to render inoperative a state constitutional provision which restricted the right of suffrage to the white race. See, Gunn v. Barry, 82 U. S. 610, 21 L. Ed. 212. See, also, 11 Am. Jur., Constitutional Law, Sec. 41, p. 648, and Anno: 71 A. L. R. 1332, dealing with the Nineteenth Amendment which automatically struck out the word “male” wherever it was used in a state constitution or statute defining electors.

When the Constitution of Kansas was adopted in 1859, original Article 2, Section 2, provided that the first House of Representatives would consist of 75 members chosen for one year and the first Senate would consist of 25 members chosen for two years, and after the first election the number of senators and members of the House of Representatives was to be regulated by law, but never to exceed 100 representatives and 33 senators.

In 1873, the people amended Article 2, Section 2, hereafter quoted, and enlarged both houses of the legislature. With the formation of five western counties in 1887, the last of the present 105 counties were organized. The provisions of the Constitution of Kansas dealing with apportionment read:

“The number of representatives and senators shall be regulated by law, but shall never exceed one hundred and twenty-five representatives and forty senators. From and after the adoption of the amendment the house of representatives shall admit one member from each county in which at least two hundred and fifty legal votes were cast at the next preceding general election; and each organized county in which less than two hundred legal votes were cast at the next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east.” (Art. 2, § 2.)

“In the future apportionment of the state, each organized county shall have at least one representative; and each county shall be divided into as many districts as it has representatives.” (Art. 10, § 1.)

“It shall be the duty of the first legislature to make an apportionment, based upon the census ordered by the last legislative assembly of the territory; and a new apportionment shall be made in the year 1866, and every five years thereafter, based upon the census of the preceding year.” (Art. 10, § 2.)

Members of the Senate are elected for a four-year term and members of the House of Representatives are elected for a two-year term (Art. 2, § 29), and the legislature has provided that the Senate shall consist of 40 members and the House of Representatives shall consist of 125 members. (K. S. A. 4-101.)

The foregoing constitutional provisions were construed and applied in Harris v. Shanahan (Dec. 5, 1963), 192 Kan. 183, 387 P. 2d 771, holding the 1963 apportionment of the Senate (Ch. 13, Laws 1963) , and the 1961 apportionment of the House of Representatives (G. S. 1961 Supp., 4-103) to be unconstitutional and void. They were likewise construed and applied in Harris v. Shanahan, (March 30, 1964), 192 Kan. 629, 390 P. 2d 772, which judicially approved Senate Bill No. 2 and House Bill No. 2 of the 1964 Special Session of the legislature. (Chs. 1 and 2, Laws 1964 Special Session), apportioning the state into 40 senatorial districts of approximately equal population and apportioning one member of the House of Representatives to each of the 105 counties, and then apportioning the 20 seats not allocated on a geographical basis to counties entitled to them by virtue of population in accordance with the method of equal proportions.

Our legislature is bicameral and the legislative power of this state is vested in a Senate and House of Representatives. (Art. 2, § 1.) Simply stated, the rationale of the Kansas apportionment plan is that the seats of one house (the Senate) shall be apportioned equally on the basis of population and the seats of the other house (the House of Representatives) shall be apportioned both on a population and a geographical basis. In Harris v. Shanahan (March 30, 1964), supra, it was said:

“. . . in the apportionment of the state into senatorial districts, the legislature is not confined to county boundary lines, but the resulting districts should, where possible, be compact and contain a population and area as similar as may be in its economic, political, and cultural interests, all as determined by the legislature in its discretion, not acting arbitrarily or capriciously.” (1. e. 632.)

It was also said:

“. . . it was recognized by those who framed the Constitution that the districts of the House of Representatives were to be apportioned to the several counties, that is, each organized county was to have at least one representative and seats not allocated on a geographical basis were to be apportioned to counties properly entitled to them by virtue of population, and each county entitled to more than one such seat was to be divided into as many districts equal or substantially equal in population as it had representatives. In no case was a representative district to include territory in more than one county.” (1. c. 632,633.)

Despite the fact that our constitutional apportionment plan was uniquely designed to meet the particular characteristics and needs of Kansas, we are told in Reynolds in the terms of an absolute, that, under the stipulated and admitted facts in the case at bar, the Kansas apportionment plan (Ch. 2, Laws 1964 Special Session) and Article 2, Section 2, and Article 10, Section 1, of our Constitution are unconstitutional because they invidiously discriminate against any person residing in any district mathematically disfavored as a result of the “weighing of representation,” and that to conform to the federal constitutional requisite therein announced, the House of Representatives must be reapportioned.

The plaintiffs allege, and the parties’ written agreement of the facts confirm, that, based upon the 1963 official state census, the official population for the year preceding the enactment of the current House apportionment, and upon which it was based, was 2,172,296. If the 125 House seats were apportioned equitably on the basis of population alone, each district would have had an average of 17,378 people. Under the current apportionment act Saline County is the largest populated district in the state and it was apportioned only one representative, and it has 21.3 times the population of Greeley County which likewise was apportioned only one representative. Moreover, the smallest county (Greeley) has 12.9 percent of the population of an ideal or average-sized district, and tire largest county (Sedgwick) has 18.536 times the average district’s population. Again, using the 1963 figures, the 63 least populated counties (districts), being the majority necessary to enact legislation, were inhabited by 411,792 people, or approximately 19 percent of the state’s total population, while the 84 least populated counties (districts), being the two-thirds majority required for submission of constitutional amendments or to convene a constitutional convention (Art. 14, §§ 1 and 2), were inhabited by 763,093 people, or approximately 35 percent of the state’s population. By contrast, the state’s four largest counties alone contained 827,123 people in 1963, or approximately 38 percent of the state’s total population, while apportioned only 23 representatives, although these 23 seats represent more people than do the 84 smallest counties (districts) which control a two-thirds majority vote in the House of Representatives. The 1964 official state census would result in approximately the same ratios of representation insofar as the 63 and 84 least populated counties are concerned. However, there would be a shift in the ratio of representation between two of the largest populated counties.

This action attacks only the apportionment of the seats in the House of Representatives. As previously indicated, 105 of the 125 seats of that house are apportioned to each of the 105 counties on a geographical basis (of which 30 counties have a population exceeding the ideal or average-sized district), and the remaining 20 seats are apportioned to counties solely by population in accordance with the method of equal proportions. Having laid down the rule that both houses of a bicameral legislature must be apportioned on a population basis but that a certain degree of variance is constitutionally permissible so long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, the majority in Reynolds then warns that divergences from population-based representation does not mean that each local governmental unit or political subdivision can be given separate representation regardless of population, and that if carried too far, “a scheme of giving at least one seat in one house to each political subdivision (for example, to each county) could easily result . . . in a total subversion of the equal-population principle in that legislative body.” (p. 538.) Further, that “this would be especially true in a State where the number of counties is large and many of them are sparsely populated, and the number of seats in the legislative body being apportioned does not significantly exceed the number of counties.” (p. 538.)

We are not enlightened by the word “significantly.” Does it mean 20, 30, 40, or how many seats? If the word was used to mean that the number of seats in the legislative body being apportioned must exceed the number of counties by such number that the vote of any citizen in any district created by the apportionment is approximately equal in weight to that of any other citizen in the state, then it is evident that the 20 seats apportioned to the more populous Kansas counties in accordance with the method of equal proportions are insufficient in number to provide equal-populated districts in accordance with the federal constitutional requisite. This is indicated by the fact that the 63 least populated counties, being the majority necessary to enact legislation, are controlled by 411,792 people, or approximately 19 percent of the state’s total population, while the four largest counties alone contain 827,123 people, or approximately 38 percent of the state’s total population, and are apportioned only 23 seats on both a geographical and population basis.

In light of the decisions of the Supreme Court of the United States in Reynolds v. Sims, supra; WMCA v. Lomenzo, 377 U. S. 633, 12 L. Ed. 2d 568, 84 S. Ct. 1418; Maryland Committee v. Tawes, 377 U. S. 656, 12 L. Ed. 2d 595, 84 S. Ct. 1429; Davis v. Mann, 377 U. S. 678, 12 L. Ed. 2d 609, 84 S. Ct. 1441; Roman v. Sincock, 377 U. S. 695, 12 L. Ed. 2d 620, 84 S. Ct. 1449; Lucas v. Colorado General Assembly, 377 U. S. 713, 12 L. Ed 2d 632, 84 S. Ct. 1459; Meyers v. Thigpen, 378 U. S. 554, 12 L. Ed. 2d 1024, 84 S. Ct. 1905; Williams v. Moss, 378 U. S. 558, 12 L. Ed. 2d 1026, 84 S. Ct. 1907; Hearne v. Smylie, 378 U. S. 563, 12 L. Ed. 2d 1036, 84 S. Ct. 1917; Finney v. Butterworth, 378 U. S. 564, 12 L. Ed. 2d 1037, 84 S. Ct. 1918; Scranton v. Drew, 379 U. S. 40, 13 L. Ed. 2d 107, 85 S. Ct. 207, and Hill v. Davis, 378 U. S. 565, 12 L. Ed. 2d 1037, 84 S. Ct. 1918, establishing federal constitutional requisites for state legislative apportionment, a majority of this court is of the opinion that under the Supremacy Clause of the Constitution of the United States (Article VI), the existing constitutional and statutory apportionment system of Kansas violates the Equal Protection Clause of the Fourteenth Amendment with respect to the House of Representatives.

We, therefore, have the distasteful task of implementing the rule laid down in Reynolds and related cases under the Equal Protection Clause of the Fourteenth Amendment, which we are required to hold to be binding upon this state under the Supremacy Clause of the Constitution of the United States, so long as the majority of the members of the Supreme Court of the United States continue to adhere to that constitutional concept. The highest court of the land has announced the rule that both houses of a bicameral state legislature must be apportioned on a population basis. We are sworn to uphold the Constitution of the United States and the Constitution of the state of Kansas, but under the Supremacy Clause, the Constitution of the United States is the supreme law of the land. The Fourteenth Amendment has been so construed to require that we hold, as we now do, that the existing apportionment plan of the Kansas House of Representatives is unconstitutional as violating the Equal Protection Clause of the amendment. Hence, we declare inoperative that portion of Article 2, Section 2, of the Constitution of Kansas, which reads:

“From and after the adoption of the amendment the house of representatives shall admit one member from each county in which at least two hundred and fifty legal votes were cast at the next preceding general election; and each organized county in which less than two hundred legal votes were cast at the next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east.”

and that portion of Article 10, Section 1, which reads: “each organized county shall have at least one representative; and . . .” Furtiber, we hold invalid the existing apportionment of the House of Representatives contained in House Bill No. 2 of the 1964 Special Session of the legislature.

In view of conclusions announced in Reynolds, the legislature is again called upon to face the unhappy and difficult task of reapportioning the House of Representatives. In performing that duty, this court will endeavor to exercise all the patience and understanding it is permitted within the limitations of Reynolds, and will approve any reasonable plan of the legislature which does not result in arbitrary classification or unreasonable departure from the equal population principle recently declared to be a federal constitutional requisite.

In Maryland Committee v. Tawes, supra, the Supreme Court of the United States stated that under no circumstances should further elections be permitted to be conducted under any unconstitutional apportionment plan. The 1966 election is the next election of members of the House of Representatives. Under K. S. A. 25-204 and 25-311, the secretary of state is charged with initiation of acts precedent to the holding of primary and general elections, that is, the preparation of notices of the primary election and the certification of nominees for the general election. That process will be initiated by him by giving notice of the 1966 primary election on or before April 2, 1966. Information as to representative districts must necessarily be in his hands for a sufficient time prior to that date to permit proper preparation of the required notices.

This court makes no indication of when or at what legislative session — the 1965 Regular Session of the legislature or a Special Session called by the governor following the 1966 Budget Session— the legislature should enact a proper and valid apportionment of the House of Representatives in accordance with the constitutional requisite announced in Reynolds, supra. However, it feels certain that the legislature will enact a valid apportionment act apportioning the state into' representative districts in conformity with that constitutional requisite, in ample time so that the secretary of state will have proper and necessary information as to such representative districts at a reasonable time prior to April 2, 1966.

For the purpose of affording the legislature ample opportunity to undertake the necessary reapportionment, we withhold further determination of this action, retaining jurisdiction to hear the matter further and to take such additional action as is deemed advisable and within such reasonable time as the circumstances require.