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Show FRIDAY, JULY 23. THE DAILY RECORD PACE TEN 1971 Attorney General Opinion the ratio of 1.30 to 1 which we held excessive for state legislatures in and Mr. Walter D. Talbot Utah State Board of Education 1400 University Club Bldg. 136 East South Temple Street Salt Lake City, Utah 84111 v. Adams. 385 U.S. 440 (1967). this convincing showing of malapportionment, the court refrained Swann Even with action in order to allow the Indiana Legislature to call a special session for the purpose of redisfrom Dear Mr. Talbot i is in response to your letter of June 28, This 1971, regarding reapportionment tricting. ..." of the Utah State Board of Education. It Enclosed is a copy of our opinion of June 4, which sets forth the basic rules for apportionment 1971, laid down by the Uhited States Supreme Court in Reynolds v. Sims. 377 U.S. 533 (1964). I would like to make the foll- should be noted that in speaking of these made no mention of the possibility of their being justified as it did in Swann v. Adams. The implication of the above statement is, I believe, that a total variance as high as those mentioned is per se unconstitutional and could not be justified. In the opinion, we said that no set deviation could be given as a range within which the Legislature could devise any apportionment plan i.t desired, but that if in exceptional instances a deviation as high as fifteen percent above or below the ideal size district were necessary to preserve the integrity of political subdivisions such a deviation would be permissible. This conclusion was based on a number of cases decided before 1967 in which In Abate v. Mundt. supra, the apportionment plan provided for a county legislature of eighteen members chosen from five districts corresponding with towns, each district being assigned legislators in the proportion of its population to that of the smallest town. In sustaining the constitutionality of a deviation of 7.1 percent underrepresentation and 4.8 percent overrepresentation, or a total deviation of 11.9 percent, the Court said: owing comments with respect to this opinion. vrj-ance- s higher were sustained, and it was our belief that because of the geography of Utah and our constitutional requirement that counties could not be divided in the formation of senatorial districts that a deviation of this magnitude could be justified. In 1967, the United States Supreme Court said in Swann v. Adams. 385 deviations to this extent and the Court "In assessing the constitutionality of various apportionment plans, we have observed that viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs. Sailors v. Kent Board of Education. 387 U.S. 105, 110-1(1967), and that a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynolds v. Sims. 377 U.S. 533, 578 (1964). These observations, along with the facts that local legislative bodies frequently have fewer representatives than do their U.S. 440: 11 deviations are unof 30 but variations avoidable, 40 among and among senate districts house districts can hardly be deemed de minimus and none of our cases suggests that differences of this magni"De tude minimus will be approved without a satis- factory explanation grounded ceptable state policy. ... "As no this on an case comes to us alternative but to reverse. we ac- - state equality, never suggested that certain geographic areas or political interests are entitled to disproportionate representation. Rather our statements In 1969, the United States Supreme Court held unconstitutional in Kirkpatrick v. Preisler. 394 U.S. 526, and Wells v. Rockefeller. 394 U.S. 542, total varizuices of 5.97 percent and 13.096 percent, respectively. These cases dealt with congressional redistricting. Stricter limitations have been imposed for congressional apportionment than for state legislatures, but the Court's opinions in these two cases must be read in full to get a picture as to why it concluded such variances were not justified. Since the Swann v. Adams case, supra, several lower courts have also held deviations substantially lower than 15 percent above or below the norm to be unjustified, but again no general-rulcan be drawn from them because what may constitute a justification for a variance in one state would not be a justification for it in another state. have Supp., at 1391. This evidence, based on 1960 census figures, showed that Senate district 20, with one senator for 80,496, was overrepresented by 13.68, while district 5, with one sena305 F. tor for 106,790, was underrepresented by 14.52, for a total variance of 28.20 and a ratio between the largest and smallest districts of 1.327 to 1. The house figures were similar. The variation rangod from one representative for 41,449 in district 39 to one for 53,003 in district 35, for a variance of 24.78 and a ratio of 1.279 to 1. These variations were in excess of, or very nearly equal to the variation of 25.65 par- and needs of a local community as a whole may sometimes justify departures from strict equality. emphasize that our decision on based the long tradition of "We is overlapping function and dual personnel in Rockland County government and on the fact that the plan before us does not contain a built in bias to favor tending particular political interests or geographic areas. And we say today nothing should be taken to that even these factors could justify substantially greater deviations from population equality. But we are not prepared to hold that Rockland County re apportionment plan violates the Constitution, and, therefore, we imply June 7, 1971), and Abate v. Mundt. U.S. (No. 71, Juno 7, 1971). Although there were other issues involved in Whitcomb v. Chavis, the Court said with respect the same time, however, we reject defendants' suggestion that the court was wrong in ordering statewide re apportionment. After determining that Marion County required reapportionment, the court concluded that 'it becomes clear beyond question that the evidence adduced in this case and the additional apportionment requirements set forth by the Supreme Court call for a redistricting of the entire Btate as to both' houses of the General Assembly. reflected the view that the ticular circumstances Three days after our opinion was given two pertinent decisions were handed down by the united States Supreme Court in Whitcomb v. Chavis, U.S. (No. 92, "At con- government apportionment schemes, cf. Reynolds v. Sims, supra, at 578. Of course, this Court has and that the State was attempting to follow congressional district lines." to deviations: may have than do state legislative districts, lend support to the argument that slightly greater percentage deviations may be tolerable for local The Di- complete population districts gressional and have strict Court made no attempt to explain or justify the many variations among legislative districts. As for the State, all it suggested in either the lower court or here is that its plan comes as close as 'practical' to national counterparts and that and some local legislative a much smaller population affirm." (Emphasis added.) There are a number of other cases dealing with appordistricts and local units of government. no shed They light on what may be permissible deviations, tionment of school since they were concerned primarily with the question of whether or not they were subject to the "one-ma- n, e" rule. This question was laid to rest by the United States one-vot- Supreme Court 397 U.S. 50, in 1970 in Hadley v. Junior College District. in which the Court held in substance that whenever a governing body process the Mundt tinct "one-ma- n, one-vot- e" is chosen through the election rule applies. In view of the Whitcomb v. Chavis and Abate v. is obvious that there has been a disdecisions, e" of the "one-ma- n, rule by the tightening-u- p it one-vot- Uhited States Supreme Court, and that it seems equally clear a deviation of 15 percent above or below the ideal total deviation of 30 percent, could no longer be justified. In fact, the statements in Abate v. Mundt that slightly greater deviations may be tolerable for local government apportionment schemes than for their state and figure, or a national counterparts, and that "nothing we say here today should be taken to imply that even these factors could jussubstantially greater deviations from population equaltify would appear to set the maximum deviation permissible ity" between the most underrepresented and overrepresented districts at about 12 percent, and even this deviation would Con't i |
