Memo to Cox from Wooten RE: Research Issues and Revisions

    MEMORANDUM 

Todd Cox 

Candice S. Wooten 

Cromartie v. Hunt 

June 16, 2000 

  

  

ISSUES 

This memo covers research issues arising from Section III of the Jurisdictional Statement 

on behalf of the Smallwood Appellants, addressing whether or not the District Court erred in 

ordering redistricting on the eve of the post-2000 census redistricting cycle. Three main research 

issues are covered here: 

Arguments that have been used to support a Court’s decision to continue to use a 

redistricting plan that has been declared invalid or unconstitutional. 

Reported cases that reflect instances where a Court considers the lateness of the decade 
~ 

\ 
when determining whether to grant relief. Particularly, situations where it is later in the 

decade or close to the time of a new census, the state is approaching a new redistricting ~ 
wi 

plan based upon new census results, and based on these circumstances the Court allows gel 

elections to be held under an old plan to avoid the disruption and/or cost that would occur 

as a result of the redistricting. 

Reported cases which illustrate instances where the District Court in the remedy phase of 

a case refuses to allow a state to go forward under an unconstitutional plan, and an 

Appellate Court says that it is an “abuse of discretion” for the District Court to prohibit  



  

the state from going forward under that plan. 

BRIEF ANSWERS 
  

Courts have used several arguments to support a decision to allow a state to proceed 

under a redistricting plan that has been declared invalid or unconstitutional. The most 

prevalent explanation used by Courts has been a desire to avoid significant disruptions in 

the election process when the election machinery is already underway. Roman v. Sincock, 
  

377 US 695, 709-710 (1964); Reynolds v. Sims, 377 U.S. 533, 585 (1964); Martin v. 
  

Venables, 401 F. Supp. 611, 620-621 (D. Conn. 1975). Other Courts have refused to 

enjoin an entity from conducting elections under an invalid plan because it was not in the 

plan 
ublic’s interest to do so 0 es 51 e Court expresses concern that such changes P (Semin g 

could result in voter confusion, incurrence of substantial costs, and damage the public Ns + 

perception of the governmental entity whose elections have been affected by the challenge. | ii ail 

> | form cfinre 
Diaz v. Silver, 932 F. Supp. 462, 468 (E.D.N.Y. 1996); Cardona v. Oakland Unified     

School District, California, 785 F. Supp. 837, 842-843 (N.D. Ca. 1992); Knox v.   

Milwaukee Cty. Bd. Of Election Commrs., 581 F. Supp. 399, 405-406, (E.D. Wis. 1984); 
  

  

Dobson v. Mayor and City Council of Baltimore City, 330 F. Supp. 1290, 1299-1300 (D. 

yo = Md. 1971). 

Fed” 
II 

- - Ee —— si Th nt 

al SHE CR i Ji TSE - re ‘ry 

ice following a decennial census is the constitutional norm.” Reynolds v.   

Sims, 377 U.S. 533, 583-584 (1964). Rehearing denied, 379 US 870 (1969). With that 

idea in mind, several Courts have refused to enjoin elections under an old or invalid plan 

iy 

 



  

when a challenge to a district is made close to the time of a new census, and a new 

reapportionment scheme will likely be required based on those census results. Dickinson 

v. Indiana State Election Bd., 933 F.2d 497 (7" Cir. 1991); White v. Daniel, 909 F. 2d 99 
    

(4™ Cir. 1990); Simkins v. Gressette, 631 F.2d 287 (4™ Cir. 1980); Maryland Citizens for a 
    

  

Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4™ Cir. 1970); 

Mac Govern v. Connolly, 637 F. Supp. 111, 116 (D. Mass. 1986) 
  

III. While several Courts have affirmed a District Court’s actions in enjoining elections under 

unconstitutional or invalid districts, Chavis v. Whitcomb, 396 U.S. 1064 (1970); Kilgarlin   

v. Hill, 386 U.S. 120, 121 (1967), no cases specifically state that it was an abuse of 

discretion for a lower Court not to permit elections to be held under an unconstitutional or 

invalid apportionment scheme. Case law reflecting such an action by an appellate Court 

was not discovered. 

DISCUSSION 
  

L Courts have used Various Arguments to Support a Decision to Allow Officials to 

Conduct Elections Under an Invalid or Unconstitutional Plan. 

Reynolds v. Sims, 377 U.S. 533, 585 (1964) is the seminal case in this area, and is cited by 
  

the majority of Courts which have withheld relief by allowing a governmental entity to proceed 

under an otherwise unconstitutional or invalid redistricting plan. According to Reynolds, 

Once a state’s legislative apportionment scheme has been found to be 
unconstitutional, it would be the unusual case in which a court would be justified 

in not taking appropriate action to insure that no further elections are conducted 
under the invalid plan. However, under certain circumstances, such as where an 
impending election is imminent and a States election machinery is already in 
  

  

i W 

 



  

progress, equitable considerations might justify a court in withholding the granting 

of immediately effective relief in a legislative apportionment case, even though the 
existing apportionment scheme was found invalid. 
  

In awarding or withholding immediate relief, a court is entitled to and should 
consider the proximity of a forthcoming election and the mechanics and 

complexities of state election laws, and should act and rely upon general equitable 

principles. With respect to the timing of relief, a court can reasonably endeavor to 

avoid a disruption of the election process which might result from requiring 

precipitate changes that could make unreasonable or embarrassing demands on a 

State in adjusting to the requirements of the court decrees....[A]ny relief can be 
fashioned in the light of well know principles of equity. 

  

  

  

  

  

iti, V) J 
- p— tir 

a ea | | ST  etr—— i ie EST 

Reynolds v. Sims, 377 U.S. 533, 585 (1964) (emphasis added); Reynolds allows a Court to i 
/ : id 

  

consider the proximity of an upcoming election, existing state ‘election laws, and equitable DY | L / 
oN { 

principles when determining whether to grant or withhold relief. A Court may withhold relief in Bie 

Single 

PAA 

rr election officials, or to avoid actions which could create embarrassing situations for election or 7 “fn A~ 

order to avoid disrupting the election process, to avoid imposing impracticable demands on 

political officials. Reynolds, 377 U.S. at 585. 

  

Using Reynolds v. Sims as a baseline, several Courts have permitted elections to be held 

under an unconstitutional apportionment scheme in order to avoid disrupting the election process. 

See e.g., Kilgarlin v. Hill, 386 U.S. 120, 121 (1967) (Supreme Court affirmed a District Court’s 
  

decision to allow elections to proceed under a constitutionally infirm plan); Knox v. Milwaukee 
  

Cty. Bd. Of Election Commrs., 581 F. Supp. 399, 405-406, (E.D. Wis. 1984) (Claim for 
  

injunctive relief barred under the doctrine of laches and based in part on the disruption such action 

would create, and the prejudicial impact it would have on candidates); In re Pennsylvania 
  

Congressional Dists. Reapportionment Cases, 535 F. Supp. 191, 194 (M.D. Pa. 1982) (Court 
  

denied injunctive relief after weighing the disruption and expense to the public with the low 

Ae 

 



  

probability of plaintiff's ability to demonstrate population deviation); Cosner v. Dalton, 522 F. 
  

Supp. 350, 364 (E.D. Va. 1981) (“Interim relief using an unconstitutional apportionment plan is 

permissible where necessary election machinery is already in progress for an election rapidly 

approaching.”); Martin v. Venables, 401 F. Supp. 611, 620-621 (D. Conn. 1975) (Election 
  

machinery already underway, and substantial disruption would result from enjoining elections); 

Dobson v. Mayor and City Council of Baltimore City, 330 F. Supp. 1290, 1299-1301 (D. Md. 
  

1971) (Enjoining elections would disrupt the election process and prejudice citizens, candidates 

and government officials). See also Farnum v. Burns, 548 F. Supp. 769, 774-775 (D. R.1. 1982) 
  

(Where the election machinery for a senatorial election was not in gear, the State was enjoined 

from holding senatorial elections until new apportionment plan was devised to avoid disrupting 

fall elections for other offices.) In the majority of cases where relief has been withheld and 

elections have proceeded under an unconstitutional plan, the “election machinery” was already in 

progress, and such actions were supported by arguments of unnecessary disruption, undue delay, 

substantial cost and/or prejudice to candidates and to the state, and needless confusion of the 

electorate. 

Courts have also chosen not to enjoin a governmental entity from conducting elections 

CO mp! L, MN 
ig an unconstitutional or otherwise invalid plan because it was not in the public’s interest to do X 

4 so. (In re Pennsylvania Congressional Dists. Reapportionment Cases, 535 F. Supp. 191 (M.D. Pa.” | 
  % 

AL 
1982), presented-such-a-situation- Plaintiffs filed suit challenging the constitutionality of a X 

tf 

[ 
z | Congressional apportionment scheme, and requested an injunction to delay the primary and 

general elections from being held under that plan. Id., at 192. The Court chose not to rule on the 

\ | constitutionality of the plan, and denied the motion for a preliminary injunction. This decision was 

 



  

made after considering the “expense to the public, the disruption of campaign organizations, and 

the confusion which would inevitably result if at this late date the congressional primary were to 

be delayed.” Id., at 194. The cost of holding a special election would be approximately six 

million dollars, and in addition to electing United States Representatives, voters would be electing 

individuals for several key state and national positions. Id. In weighing the public interest 

against the plaintiff's likelihood of success in their claim, the Court unanimously decided to deny 

the motion for an injunction. Id. Dobson v. Mayor and City Council of Baltimore City also cites 
  

the “Double costs and double burden” that would be assumed by election officials who would be 

forced to conduct elections for other offices as scheduled, and then hold a special election at a 

later date for the race at issue. Dobson, 330 F. Supp. at 1301. Absentee ballots had been mailed, 
  

primary strips had been printed, and voting machines had been delivered. Candidates that had 

already begun the campaign process would be forced to repeat many of those activities, increasing 

  

costs and time spent on the campaign. Dobson, 330 F. Supp. at 1302. See also Knox v. 

Milwaukee Cty. Bd. Of Election Commrs., 581 F. Supp. 399, 405-406, (E.D. Wis. 1984) (In 
  

denying relief, the Court cited the significant prejudice that defendants and citizens would suffer if 

such an injunction were granted - nominations had already been filed, campaigning had already 

begun, and if an injunction were granted, when the terms of present elected officials expired, no 

one would be prepared to take those positions, rendering government ineffective.) See e.g., Diaz 

v. Silver, 932 F. Supp. 462, 468 (E.D.N.Y. 1996) (Harm to the public in delaying elections 

outweighs the benefits of granting a preliminary injunction); Cardona v. Oakland Unified School 
  

District, California, 785 F. Supp. 837, 842-843 (N.D. Ca. 1992) (Public interest in having 
  

elections go forward - election machinery in gear and costs of delaying election would be 

0 

 



  

significant); Ashe v. Board of Elections in the City of New York, 1988 U.S. Dist. LEXIS 6055 
  

(E.D.N.Y. 1988) (discussed in Diaz v. Silver, 932 F. Supp. 462, 468 (E.D.N.Y. 1996) )(Harm to 
  

plaintiffs balanced against public interest in maintaining an orderly system of registration and 

holding primaries on regularly scheduled date); Mac Govern v. Connolly, 637 F. Supp. 111, 116 
  

(D. Mass. 1986) (“When the massive disruption to the political process of the Commonwealth is 

weighed against the harm to the plaintiffs of suffering through one more election based on an 

allegedly invalid districting scheme, equity requires that we deny relief.”) 

In some instances, a Court may choose not to rule on the merits of a challenge to an 

existing apportionment plan. Instead, some Courts have allowed governmental entities to proceed 

under a questioned plan without reaching a decision on the merits. In Hogue v. Auburtin, 291 F. 
  

Supp. 1003, 1004 (S.D. Ala. 1968), the Court allowed elections to continue under a challenged 

plan because the political machinery was already in progress. Plaintiffs challenged the validity of 

voting districts comprised of an “apparent excess of white voters.” Id., at 1004. The District 

Court denied a motion to enjoin all elections scheduled for November of 1968, emphasizing that 

the complaint was filed too close to the November election date to “permit proper development of 

evidence that would justify the extraordinary relief sought [by the plaintiffs] of enjoining an 

election which includes state and national candidates.” Id., at 1004. The District Court ordered 

local governmental officials to take other steps to ensure the validity of the election results, but 

refused to stop the elections. Id., at 1004-1005. 

Dobson v. Mayor and City Council of Baltimore City, 330 F. Supp. 1290 (D. Md. 1971) 
  

also provides such as an example. In Dobson, Plaintiffs sought to enjoin the Baltimore City 

Council elections, asserting that a recent redistricting ordinance was unconstitutional. Dobson, 

fog 

 



  

330 F. Supp. at 1291. The Court chose not to rule on the merits and granted summary judgment 

for the defendants, citing the “disruption that would occur to the elective process and the 

prejudice that would be suffered by present candidates and others if the pending elections were oS 
/ 

Vd 

  

enjoined.” Id., at 1299. — Republican Party of Virginia v. Wilder, 774 F. Supp. 400 , 

(W.D. Va. 1991), the Republican’ ie of Virginia challenged newly drawn voting districts as 

being the result of partisan gerrymandering, and sought a preliminary injunction allowing either 

the Virginia General Assembly or the Court to enact a new redistricting plan, and to extend the 

deadline for filing for the upcoming elections. Id., at 402. The District Court determined that the 

plaintiffs had not met their burden, and refused to grant a preliminary injunction. Granting an 

injunction would not be in the public’s best interest, as it would inevitably lead to a delay in the 

general election. Id., at 407. In support of their decision, the Court emphasized: / 

| A 
l«=— [T]here is a strong public interest in holding the House elections at the \ 

\same time as the general election in November. Otherwise, low voter turnout 

might well occur. Just as importantly, we believe the public interest favors an 
electorate familiar with its candidates and elections conducted in an orderly way 

within easily understood boundaries.....[A] rush to reorganize can only increase 

confusion brought about by redistricting... 

\ 

  

Republican Party of Virginia, 774 F. Supp. at 407. According to these cases, while the district in 

question had not been declared unconstitutional, the Court permitted elections to be held under a 

challenged redistricting plan to avoid disrupting the electoral process, to encourage stronger voter 

participation in a particular election, and to limit any additional confusion brought on by an 

already complicated electoral process. 

  

iit 

/ Taylor v. Haywood Cty., 544 F. Supp. 1122 (W.D. Tenn. 1982), however, is an example 

of a case where the Courts have chosen to delay elections up to two days before the actual 

\ 

NM 
\ 
X -8- 

 



  

elections were to be held, with little regard for the disruption that may result from such an action. 

In Taylor, the Plaintiffs sought an injunction enjoining the defendants from conducting county- 

wide elections for Highway Commissioners positions. Taylor, 544 F. Supp. at 1123. Plaintiffs / 

alleged that the decision to change from district to county wide elections discriminated against / 

black voters in an attempt to dilute black voting strength. The Court found the decision to switch 

from district wide to county wide elections to be racially motivated, and issued an injunction. Id., | 2 3 1 
Mo 

at 1124. This injunction, issued on April 3, was to take effect immediately, and prevented 

  

| i 
election officials from conducting elections on April 5*. The Court “[a]fter a balancing of the i , 

IY pore 

hardships which an injunction at ...[that] time would produce,” with the serious nature of the Cot 5 

violations at issue, ruled in favor of the plaintiffs. Id., at 1135. See also Michaelson ex. rel. | El Zs | 

I S Loss 
| Lewis v. Booth, 437 F. Supp. 439, 441-442 (D.R.1. 1977) (District Court enjoined elections 

  

scheduled for the first day of the Jewish religious observance of Rosh Hashanah, postponing the | (Hern 

elections for a two day period, and found no evidence that such an action would cause no real |Conery 

~. he 
i ANH 

difficulty for elections officials, negligible costs to the State, and little confusion for the general | 

public.) | 

LAN TT | 

Recently, the Middle District of Alabama addressed this issue in Kelly v. Bennett, 2000 
  

U.S. Dist. LEXIS 5474 (M. D. Ala. 2000). In Kelly, the plaintiffs challenged the Alabama State | 

  

House of Representatives and Senate districts under Shaw v. Reno, 509 U.S. 630 (1993). The 

Court determined that the districts in question were unconstitutional, and entered an injunction | 

prohibiting elections in the challenged districts without the Court’s approval. The Court felt that 

at that time it was too late to order the State to redistrict and conduct special elections under a 

a 

AO. 

 



  

new plan, Kelly, U.S. Dist. LEXIS at 72, - not that it was impossible, but that it would require 
\ 

significant expenses that were not justified in light of the circumstances. Kelly, U.S. Dist. LEXIS 

at 72, n.30. The Court agreed that the plaintiffs were entitled to an injunction against future use of 

those districts deemed unconstitutional, even for a special election. Id., at 73. Yet, the Court also 

recognized the State’s interest in “avoiding the expense of redistricting for a single special election 

in these 4 jcts.” Id. In the event a special election were required in any of the unconstitutional 

districts, “fhe Court will at that time, hear from parties, consider all the circumstances then 

existing, and determine the appropriate relief.” Id. While this case does not enjoin elections in 

  

districts deemed unconstitutional, it differs from previously discussed cases in that it leaves the 

door open for the Court to fashion a remedy at a later date. The Court recognizes many of the 

same factors that other Courts have used to support a decision to allow elections to proceed 

under an unconstitutional plan, including the expense of redistricting, Id., at 73, and the fact that | 

a new reapportionment scheme based on newly available census data would likely be implemented 

in accordance with the Alabama Constitution, forcing the state to redistrict with unnecessary 

frequency. Id., at 12-13. However, this Court chose to reserve the right to act until necessary. 
% 

IL. The Court Considers the Lateness of the Decade or the Approaching of a New 

Apportionment Scheme Based on New Census Figures in Withholding Relief. 

“A challenge to a reapportionment plan close to the time of a new census, which may 

require reapportionment, is not favored.” White v. Daniel, 909 F. 2d 99, 103 (4™ Cir. 1990). 
  

Courts have typically chosen not to enjoin a governmental entity from conducting elections under 

an invalid or challenged plan on the eve of a new reapportionment scheme. 

-10- 

 



  

The United States Supreme Court in Ely v. Klahr, 403 U.S. 108 (1971) spoke to this   

issue. The plaintiff filed suit challenging the constitutionality of Arizona’s state legislative 

districting laws. After several attempts by the legislature to enact a valid apportionment plan, the 

Court chose not to enact any of the plans submitted by the legislature. In making this decision, 

the Court ordered the State to conduct the1970 elections under the legislature’s plan, based on a 

belief that another plan could not be created and implemented without delaying the primary 50 

elections. Id., at 113. The Supreme Court ruled that the District Court did not err in allowing 

elections to take place under the existing reapportionment plan, nor was it incorrect that the Cou 

allowed the State until November of that year to reapportion based on the 1970 census figures, 

considering the fact that the 1970 elections had already been held and that the 1971 figures 

would be available in 1971. Id., at 114-115. Here, the United States Supreme Court affirmed the    
actions of the District Court in allowing elections to be held under the legislature’s plan, which 

| 

| 

did not meet Constitutional muster. In making that decision, the Court relied on the fact that | 
{ 

\ 
1970 census would bring a new reapportionment plan, based on current census data. Id., at 114- | 

113, 

The Fourth Circuit in Marvland Citizens for a Representative Gen. Assembly v. Governor 
  

of Maryland, 429 F.2d 606 (4® Cir. 1970), Simkins v. Gressette, 631 F.2d 287 (4™ Cir. 1980), and   
  

White v. Daniel, 909 F.2d 99 (4™ Cir. 1990) have followed this practice, and have chosen not to   

order reapportionment of electoral districts on the eve of a census based reapportionment scheme. 

While these cases are not instances where a Court permitted elections to proceed under an 

unconstitutional or invalid apportionment plan because of the close proximity to the census and its 

results, the Court’s language is helpful. In each case, a challenge has been made to an existing 

«11a 

 



  

apportionment scheme, and that challenge has been dismissed under the equitable doctrine of 

laches. In support of its decision to dismiss, the Fourth Circuit has continually cited as a factor 

the closeness in time to a new census, and the creation of a new reapportionment scheme based 

on those results. 

In Marvland Citizens for a Representative Gen. Assembly v. Governor of Maryland, 
  

Plaintiffs challenged the constitutionality of the statute apportioning Maryland’s General 

Assembly, and requested an injunction prohibiting the State from conducting the 1970 primary 

and general elections under the existing statute, as well as a directive to conduct the 1970 
/ 

/ elections under a new reapportionment plan. Maryland Citizens, 429 F.2d at 607. In this case, the 
/ 

/ 

/ Fourth Circuit chose to affirm the District Court’s dismissal of the action. While the Court 

  

—
,
 

indicated that had “the present apportionment [been deemed] constitutionally defective, it would 
] 

ICL 
have been necessary to develop a reapportionment plan’ Ik at 609, the Court emphasized that if A 

SE 4 

ce
rt
 
n
s
 

A 
A
t
 

they were to require reapportionment under such circumstances, it would “necessarily impose 

great disruption upon potential candidates, the electorate, and the electoral process.” Id., at 610. 

It would also create the potential for reapportionment with undue frequency. Maryland 

  

reapportioned districts in 1965, and was obligated to reapportion in 1970 based on the results of 

the 1970 census. Id., at 610. If it were required to adopt another reapportionment plan prior to 

the release of the census results and the creation of a new plan based on those results, that plan 

: : : : Vi 
would be “good for the 1970 elections only Id., at 610. Reapportionment with such frequency J 

i 
A 

lends itself to governmental instability, which the Fourth Circuit sought to avoid. Id., at 610. In 

making this ruling, the Fourth Circuit compares the facts in that case to those in Chavis v. 

~~ Whitcomb, 396 U.S. 1064 (1970), where the Supreme Court granted a stay of the District 
ee 

“12. 

 



  

Court’s order, which had the affect of allowing an election to occur using an apportionment 

scheme that the District Goin found to be unconstitutional. The Fourth Circuit, by 
a ~:J 

comparison, indicated that F relief was appropriately withheld in Chavis, a fortiori, it must be \Y 
— 

withheld in this case.” Maryland Citizens, 429 F.2d at 611. By virtue of such a comparison, the | 
  

J 
Fa 

<3
 

Fourth Circuit appears to support withholding relief in a situation where an unconstitutional |e 

district is at issue. 

Simkins v. Gressette also reflects the Fourth Circuit’s practice of waiting for census 
  

results before requiring a new apportionment scheme. In Simkins, plaintiffs challenged South 

Carolina’s existing apportionment plan, arguing that it diluted their vote in violation of the First, 

Thirteenth, Fourteenth and Fifteenth amendments to the Constitution. Simkins, 631 F.2d at 289. 

The Fourth Circuit applied the equitable doctrine of laches, in response to the plaintiff's filing of 

the claim more than three years after the last senatorial election, and two days before the opening 

of the filing period. Id., at 295. The lateness of the filing, coupled with the fact that 1980 was the 

year of a national census which would likely require reapportionment in South Carolina, | 

supported the Fourth Circuit’s decision to deny equitable relief. Id., at 296. 

White v. Daniel involved a challenge to the election methods used by Brunswick County,   

Virginia in electing its Board of Supervisors. The Fourth Circuit recognized the seriousness of 

the plaintiffs claim, yet believed that the claim should have been barred by the equitable doctrine 

of laches, and reversed. White, 909 F. 2d at 100. In completing the laches analysis, the Fourth 

  

Circuit recognized that by affirming the District Court’s order to redistrict, the Board would still 

be required to reapportion within the year when the most recent census results became available. 

“Two reapportionments within a short period of two years would greatly prejudice the County ot 

7 

13 

 



  

ai 
and its citizens by creating instability and dislocation in the electoral system, and by imposing | 

     

  

great financial and logistical burdens.” Id., at 104. Any reapportionment done before the release 

of the 1990 census figures would be based on 1980 census data, which would not provide a “fair 

and accurate representation of the citizens of the County.” Id., at 104. 

ay 
The Seventh Circuit dealt with this issue in Dickinson v. Indiana State Election Bd.;933 ~ \ 

  

F.2d 497 (7 Cir. 1991). Plaintiffs sued, challenging the validity of several Indiana House districts. | 

The District Court in this case concluded that “on equitable grounds, the pending 1991 \ 

redistricting (based on the 1990 census) makes the entry of relief inappropriate.” Id., at 502-503. i / 

Legislative reapportionment was imminent, and the congressional districts in question will likely ye 

/ 
be reshuffled at that time. The Seventh Circuit affirmed the District Court’s action on this matter, 

stating that the legislature should be allowed to redistrict in accordance with Indiana’s 

Constitutional requirements, and plaintiffs may seek judicial relief at a later time if the Legislature 

fails to redistrict appropriately. Id., at 503. 
9 

  

Mac ( Govern v. Connolly, 637 F.Supp. 111 (D. Mass. 1986) acknowledged the 

  

importance of an upcoming reapportionment based on new census results when choosing to deny 

a request to reapportion challenged districts. The Plaintiffs sought to reapportion the legislative 

districts of Massachusetts before the 1986 general and primary elections, arguing that they 

violated the Equal Protection Clause of the Constitution. Id., at 112. The Court chose to dismiss 

the complaint. The timing of this action in relation to the “normal decennial reapportionment” 

weighed heavily against granting relief. Id., at 115-116. A 1985 state census had recently been 

conducted, and measured the number of inhabitants in all Massachusetts cities and towns, and 

under the State Constitution, a new reapportionment scheme based on those results was required 

-14- 

 



    

  

to be completed prior to January 1988. Id., at 113. The Court recognized that the 1985 figures 

may not have been completed at that point, and that any reapportionment would be based on 1975 

aT 

state census figures, or on “inapposite federal census figures.” Id., at 116. Such an action would 

not relieve the state from its obligation to reapportion based on the 1985 census figures, and | 

would result in repeated reapportionment within a short period of time, along with the disruption 

that accompanies any reapportionment plan. Id., at 116. The Court chose not to require 

reapportionment in this case, where “the remedy sought would come at great cost and yield 

  

    

results that are at best uncertain and, at worst, perverse.” Id. Weighing “the massive disruption | 

7] 
to the political process of the Commonwealth” against “the harm to plaintiffs of suffering through | ! 

one more election based on an allegedly invalid districting scheme, equity requires that we deny 

relief” Id. 

Ry 

aii 
ie a ; 

Zz en) —— Bay oa 
/ Tl \ lr CR hr. © apmiem— ne 

i 7” ~ PE 
7 i 

III. Abuse of Discretion Standard 

No cases were found which reflected an appellate Court’s decision to reverse a district 

Court’s decision not to allow a governmental entity to proceed under an unconstitutional 

apportionment scheme. 

CONCLUSION   

Reynolds v. Sims provides guidance to the majority of Courts that have chosen to permit 
  

elections to proceed under an unconstitutional or otherwise invalid apportionment plan. Courts 

. have chosen several reasons for permitting elections to continue, but all appear to be a variation 

15. 

 



  

of those espoused in Reynolds: The proximity of an upcoming election, the mechanics of state 

election laws, the desire to avoid a disruption of the election process, and making unreasonable or 

embarrassing demands on a state, its election officials or political candidates in adjusting to the 

requirements of the Court’s decree. Reynolds, 377 U.S. at 585. 

Other Courts have permitted elections to proceed under a challenged plan when it was 

deemed “in the public’s best interest” to do so. When weighing options, the Courts have 

considered the expense to the public, the confusion that may result from enjoining an election or 

requiring reapportionment, the impact on voter turnout, and the impact an injunction would have 

on the entity’s operation. In re Pennsylvania Congressional Dists. Reapportionment Cases, 535 F. 
  

Supp. at 194; Dobson v. Mayor and City Council of Baltimore City, 330 F. Supp. at 1301, 
  

  

Republican Party of Virginia, 774 F. Supp. at 407. 

Overall, Courts appear to be willing to delay elections for one of the aforementioned 

reasons, however in Taylor v. Haywood Cty., 544 F. Supp. 1122 (W.D. Tenn. 1982), the Court 
  

was willing to enjoin an elections two days before the election was scheduled to take place for 

what it considered serious violations. Recently, the Middle District of Alabama reserved the right 

to act in the event of a special election - weighing both the interests of the plaintiffs in securing an 

  

injunction against the cost to the state if it were required to redistrict. In Kelly v. Bennett, 2000 

U.S. Dist. LEXIS 5474 (M.D. Ala. 2000), the Court reserved the right to hear evidence and make 

a decision as to the injunction if and when a special election were to be required. 

The Courts also do not appear to favor requiring reapportionment on the eve of a census 

when a new reapportionment scheme would be created based on that census. White v. Daniel, 909 
  

F.2d at 103. Such an action comes at increased expense to the public, disruption of the election 

16 

 



  

machinery, and confusion to the electorate. Reapportionment with undue frequency is not 

favored, Maryland Citizens for a Representative Gen. Assembly v. Governor of Maryland, 429 
  

F.2d at 610, and Courts appear willing to act to avoid frequent reapportionment. Simkins v. 

Gressette, 631 F.2d at 296; Dickinson, 933 F.2d at 503. 

While the Courts regularly affirmed a District Court’s decision to allow elections to 

proceed under an unconstitutional or otherwise invalid plan, no cases were found where an 

Appellate Court either reversed a decision by a District Court enjoining an election, or where the 

Appellate Court found it to be an abuse of the District Court’s discretion for a District Court to 

prohibit a state from going forward under such a plan. 

¥7.