Memorandum from Winner to Suitts, Chambers, Wheeler, Klein, and Daly; History of Apportionment Provisions of N.C. Constitution; Legal Research on Constitution of North Carolina

    .—

LSNC Memo

Tb: Steve Suitts, Julius Chambers,
Richard Klein and George Daly

 

From:
Leslie Winner ,\$vJ
Justice For Poor People

133‘“ November 5, 1980

Re:
Legislative Reapportionment

Attached is a brief history of the N. C. Constitution
provisions which prohibits splitting multi-member counties.

For your convenience, copies of the current provisions

are attached.
Steve, please don't forget to send the Vanderbilt Law

Review article. Thanks.

 

 

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11/5/80
Leslie J. Winner

History of Apportionment Provisions
of

N. C. Constitution

I. House of Representatives

A. 53 of the Constitution of1J76 established a House of
Commons composed of 2 from each county plus one from each of 6
specified towns. [Potter's Laws of N. C. 1821]

B. Article I §l, “2 of the 1835 amendments changed the
House of Commons' composition to 120 members with the represen—
tatbms apportioned according to the federal determination of
population by county with each county guaranteed at least one
representative. [Revised Statutes of North Carolina (1837)]

C. Article II, 56 of the 1868 Constitution maintained
the provision of the 1835 amendment. [Battle's Revised Code
1873]

D. This provision was substantially maintained until
1967 except that the Convention of 1875 renumbered it to be
Article II, §5. [See annotation to NCGS (1943) Vol. I]

E. In Drum v. Seawell, 249 F. Supp. 877, 880 (M.D.N.C.
1965), the Court held the provisions requiring that each
county be afforded at least one representative regardless of
its population to be in violation of the Equal Protection
provisions of the 14th Amendment because of the disproportion-
ate representation which resulted (20:1 ratio).

F. In apparent response to Drum, the Session Laws of
1967, C. 640, proposed an amendment to Article II SS4, 5, and
6. These amendments were adopted and are substantially identical
to the current provision. They include the prohibition against
splitting counties.

 

G. In 1969 there was a complete editorial revision of
the Consitution. This was adopted by vote in 1970, effective
1971. The relevant provisions were not changed except §§ 4,
5, and 6 became §§ 3, 4 and 5.

II. Senate
A. 52 of the Constitution of 1776 established a Senate

composed of one representative from each county. [Potter's
Laws of N. C. 1821]

History of Apportionment
page 2

B. Article I, §l, “1 of the 1835 Amendments apportioned
50 senators in proportion to the amount of public taxes paid by
each county for the past 5 years, "Provided, that no county shall
be divided in the formation of a senatorial district." If a county
had an excess of a whole number and adjoined a county with not
enough property taxes to get one senator, the two counties were
to be joined to form a senate district. [Revised Statutes of N.
C. (1837)] (Note: I am not positive this proposed amendment
was approved, but I am almost sure it was.)

C. The Constitution of 1868, Article II, §5 provided for
50 senators with districts to be determined every ten years so
that, "each Senate District shall contain, as nearly as may be,
an equal number of inhabitants, ... and shall at all times consist
of contiguous territory; and no county shall be divided in the
formation of a Senate District, unless such County shall befEEuit-
ably entitled to two or more Senators." (emphasis added) [Battle‘s
Revised Code 1873]

 

 

 

 

 

D. In 1875, Article II, §5 was renumbered Article II, 54.

E. This provision remained in tact until 1967. The provision
was not challenged in Drum v. Seawell, supra, but was amended at
the same time the House provision was amended. The current Article
II, S4 was adopted (then numbered §S). This provision was not changed
by the 1969 editorial revision.

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Art. II, § 3 CONSTITUTION OF NORTH CAROLINA

Art. II, § 5

Sec. 3. Senate districts; apportionment of Senators. The Senators shall be elected
from districts. The General Assembly, at the first regular session convening after
the return of every decennial census of population taken by order of Congress, shall
revise the senate districts and the apportionment of Senators among those districts,
subject to the following requirements:

(1) Each Senator shall represent, as nearly as may be, an equal number of inhab-
itants, the number of inhabitants that each Senator represents being determined
for this purpose by dividing the population of the district that he represents by
the number Of Senators apportioned to that district;

(2) Each senate district shall at all times consist of contiguous territory;

(3) No county shall be divided in the formation of a senate district;

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(4) \Vhen established, the senate districts and the apportionment of Senators

shall remain unaltered until the return 0

taken by order of Congress.

Editor’s Note. -— The provisions of this
section are similar to those of Art. II, § 4,
Const. 1868, as amended in 1872-3 and
1968, and the cases in the following anno-
tation were decided under that section.

Reapportionment is a political question

f another decennial census of population

and not a judicial one. Leonard v. Max-
well, 216 NC. 89, 3 S.E.2d 316 (1939).

Unconstitutional Apportionment. -— See
Drum v. Seawell, 249 F. Supp. 877 (M.D.
N.C. 1965), afi'd, 383 US. 831, 86 S. Ct.
1237, 16 L. Ed. 2d 298 (1966).

Sec. 4. Number of Representatives. The House of Representatives shall be com—
posed of 120 Representatives, biennially chosen by ballot.

Cross Reference. —— See note to § 5 of
this article.
Editor’s Note. -— The provisions of this

section are similar to those of Art. II, § 5,
Const. 1868, as amended in 18723, 1962
and 1968.

See. 5. Representative districts; apportionment of Representatives. The Repre-
sentatives shall be elected from districts. The General Assembly, at the first regular
session convening after the return of every decennial census of population taken
by order of Congress, shall revise the representative districts and the apportionment
of Representatives among those districts, subject to the following requirements:

(1) Each Representative shall represent, as nearly as may be, an equal number
of inhabitants, the number of inhabitants that each Representative represents being
determined for this purpose by dividing the population of the district that he repre-
sents by the number of Representatives apportioned to that district;

(2) Each representative district shall at

all times consist of contiguous territory;

3) No county shall be divided in the formation of a representative district:
(4) When established, the representative districts and the apportionment of Rep-
resentatives shall remain unaltered until the return of another decennial census of

population taken by order of Congress.

Cross Reference. — For implementing
statute, see (3.5. § 120-2.

Editor’s Note. —— The provisions of this
section are similar to those of Art. II, § 6,
Const. 1868, as amended in 1968. The case
cited in the following annotation construed
that section and Art. II, § 5. Const. 1868,
as amended, which corresponded to § 4 of
this article.

Obligation of the State is to apportion as
nearly equally as possible on a population
based representation, and even minor devi-
ations must be free from any taint oi arbi-
trariness or discrimination. Drum v. Sea-
well, 219 F. Supp. 377 (M.D.N.C. 1965),
atI’d, 383 US. 831, 86 S. Ct. 1237, 16 L.
Ed. 2d 298 (1966).

Statistical Tests Used in Evaluating
State's Efforts at Equal Apportionment.—
The Supreme Court, while rejecting a rigid

application of a mathematical formula, has
laid down two statistical tests in evaluating
the State's “honest and good faith effort
to construct districts as nearly of equal
population as is practicable." First, the
minimum controlling percentage, i.e., the
percentage of the State's population which
resides in the least populous districts which
can elect a majority of each House; and
second, the population variance ratio, i.e.,
the ratio between the most populous dis-
trict and the least populous district of the
State. Drum v. Seawell, 249 F. Supp. 877
(KI.D.N.C. 1965), aff'd, 383 US. 831, 86
S. Ct. 1237, 16 L. Ed. 2d 298 (1966).
Guide Lines to Assist Lower Courts in
Implementing Constitutional Guaranties of
Suffrage—The equal protection clause re-
quires substantially equal representation for
all citizens in a state in each of the two