Arrington v. Elections Bd.

173 F.Supp.2d 856

Rev. Olen ARRINGTON, Jr., Alvin Baldus, Stephen H. Braunginn, John D. Buenker Robert J. Cornell, V. Janet Czuper, Levens de Back, Steven P. Doyle, Anthony S. Earl, James A. Evans, Dagoberto Ibarra, John H. Krause, Sr., Joseph J. Kreuser, Frank L. Nikolay, Melanie R. Schaller, Angela W. Sutkiewicz, and Ollie Thompson, Plaintiffs and James R. Baumgart, Roger M. Breske, Brian T. Burke, Charles J. Chvala, Russell S. Decker, Jon Erpenbach, Gary R. George, Richard Grobschmidt, Dave Hansen, Robert Jauch, Mark Meyer, Rodney Moen, Gwendolynne S. Moore, Kimberly Plache, Fred A. Risser, Judy Robson, Kevin W. Shibilski, and Robert D. Wirch, each individually and as members of the Wisconsin State Senate, Intervenor-Plaintiffs, v. ELECTIONS BOARD, an independent agency of the State of Wisconsin, John P. Savage, its chairman, and each of its members in his or her official capacity, David Halbrooks, Don M. Millis, Randall Nash, Gregory J. Paradise, Catherine Shaw, Judd David Stevenson, Christine Wiseman, and Kevin J. Kennedy, its executive director, Defendants and Scott R. Jensen, in his capacity as the Speaker of the Wisconsin Assembly, and Mary E. Panzer, in her capacity as the Minority Leader of the Wisconsin Senate, Intervenor-Defendants.

No. 01-C-121.

United States District Court, E.D. Wisconsin.

November 28, 2001.

LaFollette Godfrey & Kahn, Madison, WI, by Brady C. Williamson, Mike B. Wittenwyler, Godfrey & Kahn, Milwaukee, WI, by Howard Pollack, for Plaintiffs.

Boardman, Suhr, Curry & Field, Madison, WI, by Michael P. May, James E. Bartzen, for Intervening Plaintiffs.

Wisconsin Department of Justice by Assistant Attorney General Thomas J. Balistreri, for Defendant.

Michael Best & Freidrich, Madison, WI, by James R. Troupis, Eric M. McLeod, Gordon P. Giampietro, for Intervening Defendants.

Before EASTERBROOK, Circuit Judge, STADTMUELLER, Chief District Judge, and REYNOLDS, Senior District Judge.¹

MEMORANDUM OPINION AND ORDER

STADTMUELLER, Chief Judge.

Under Article I, Section 2 of the United States Constitution, congressional representatives shall be apportioned among the several states according to population, as determined by a decennial census. The Bureau of the Census, U.S. Department of Commerce ["the Census Bureau"], conducted the required decennial census of Wisconsin — and all other states — during the first part of last year. On December 28, 2000, the Census Bureau certified the population of Wisconsin to be 5,471,210 as of April 1, 2000, and the population of the United States as a whole to be 281,424,188. Distributing the 435 representatives authorized by law among the 50 states, then, Wisconsin is presently entitled to 8 representatives (one for every 646,952 people). In previous years the state was entitled to nine.²

Under the congressional districting law enacted by the Wisconsin Legislature in 1991 and codified in Wis. Stat. § 3.001,³ the voters of the state of Wisconsin are assigned to one of nine congressional districts. Unless the law is changed or enjoined, its now-outdated provisions will govern the upcoming 2002 congressional elections. Cf. Hastert v. State Bd. of Elections, 777 F.Supp. 634, 637 (N.D.Ill.1991)(noting a similar problem arising in Illinois in 1991). Concerned voters from Wisconsin's nine congressional districts filed suit in the federal district court for the Eastern District of Wisconsin on February 1, 2001, to address the situation. These voters seek a declaratory judgment that the current apportionment plan is unconstitutional, an injunction barring administration of elections under that plan and, in the absence of subsequent action by state legislators, the institution of a judicially-crafted redistricting plan.

On February 5, 2001, the State Senate Democratic Caucus moved to intervene to expand the action to include the reapportionment of the state legislative districts. On February 8, 2001, Chief Judge Joel M. Flaum of the Seventh Circuit Court of Appeals, acting pursuant to 28 U.S.C. § 2284(b)(1), appointed Circuit Court Judge Frank H. Easterbrook, Chief District Court Judge J.P. Stadtmueller, and Senior District Court Judge John W. Reynolds to a three-judge district court panel to preside over the action.⁴ Then, on February 21, 2001, State Assembly Speaker Scott Jensen and State Senate Minority Leader Mary Panzer moved to intervene regarding the redistricting of the congressional districts (though they have not yet moved to join in the proposed redistricting of the state legislative districts).

The United States Supreme Court has interpreted Article I, Section 2 of the United States Constitution as delegating to the states the "primary responsibility for apportionment of their federal congressional and state legislative districts." Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993). Considering that the state legislature had not yet attempted to create a constitutional apportionment plan (indeed, had not yet had the opportunity to do so), Judge Reynolds on February 28, 2001, ordered all interested parties to submit briefs addressing the potential lack of a justiciable case or controversy.⁵ The plaintiffs, intervenor plaintiffs, and intervenor defendants submitted briefs arguing that such a case or controversy does, in fact, exist. The defendants took no position on the matter.

It is the determination of this court that the complaint as filed does present a justiciable case or controversy. The case or controversy requirement of Article III of the United States Constitution confines the federal courts to resolving "`real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of the facts.'" Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)(quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971))(quoting, in turn, Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). Thus, to determine whether a justiciable case or controversy exists, it is important to identify clearly the injury that the plaintiffs claim and the relief that they seek.

In their complaint, the plaintiffs allege that shifts in population and population growth have rendered the nine Wisconsin congressional districts established by law in 1991 no longer as equal in population as required by the United States Constitution. Specifically, they allege that the plaintiffs who reside in the 1st, 2nd, 6th, 8th, and 9th Congressional Districts, based on the current district lines, are particularly under-represented in comparison with residents of other districts. They further allege that the absolute reduction in the number of congressional representatives for Wisconsin in the United States House of Representatives renders the state malapportioned and its citizens misrepresented. (See Compl. at 10-11.) They seek a declaration that the apportionment of Wisconsin's nine congressional districts in Chapter 3 of the Wisconsin Statutes is unconstitutional, an injunction barring the state Elections Board from administering elections according to Chapter 3 of the Wisconsin Statutes, and, in the absence of an amended state law, establishment of a judicial plan of apportionment to make the state's eight new congressional districts as nearly equal in population as practicable. (See id. at 13-14.) To be very clear, then, the plaintiffs do not address their complaint to any apportionment scheme the state legislature may enact in the future. Doing so obviously would fail the case or controversy test. See Illinois v. City of Chicago, 137 F.3d 474, 477 (7th Cir.1998)(parties may not "litigate about laws not yet enacted, indeed not yet introduced").

Complaints such as the one filed in this court are not uncommon.⁶ See, e.g., Growe v. Emison, supra (addressing a lawsuit alleging claims nearly identical to those in this case); Flateau v. Anderson, 537 F.Supp. 257 (S.D.N.Y.1982)(same). See also, AFL-CIO v. Elections Bd., 543 F.Supp. 630 (E.D.Wis.1982); Prosser v. Elections Bd., 793 F.Supp. 859 (W.D.Wis.1992)(previous cases where federal courts in Wisconsin have become involved in the redistricting of legislative districts). See also, Korman v. Giambra, No. 01-CV-369 (W.D.N.Y. filed May 24, 2001); Hastert v. State Bd. of Elections, No. 91-CV-4028 (N.D. Ill. reopened June 1, 2001)(cases challenging state apportionment laws based on the results of the 2000 census). Such suits are prevalent because existing apportionment schemes become "instantly unconstitutional" upon the release of new decennial census data. Pamela S. Karlan, The Right to Vote: Some Pessimism about Formalism, 71 Tex. L.Rev. 1705, 1726 (1993). See also Note, Federal Court Involvement in Redistricting Litigation, 114 Harv. L.Rev. at 878 ("The 2000 census, like each prior census, will indicate not only changes in overall population size but also changes in population distribution .... These population shifts will render federal, state, and local district maps unconstitutional under the one person, one vote requirement."). This unconstitutionality derives from Article I, Section 2 of the United States Constitution, which requires legislative districts to be as equipopulous as possible. See Kirkpatrick v. Preisler, 394 U.S. 526, 530-31, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). Cf. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)(each individual's vote must count equally as each other person's vote). Since it is impossible for legislative districts to remain equipopulous from decade to decade, challenges to districting laws may be brought immediately upon release of official data showing district imbalance — that is to say, "before reapportionment occurs." Karlan, supra, 71 Tex. L.Rev. at 1726 (emphasis in original). See also 114 Harv. L.Rev. at 879 ("When the...