Silver v. Reagan

In these proceedings petitioners as citizens, taxpayers, and voters seek a writ of mandate or other appropriate relief to enforce their rights and the rights of all others similarly situated to equality of voting power in the election of members to the House of Representatives of the United States Congress. (U.S. Const., art. I, § 2; U.S. Const., Amend. XIV ; Wesberry v. Sanders (1964) 376 U.S. 1 [ 11 L.Ed.2d 418 , 84 S.Ct. 526 ].) The Governor, the Secretary of State, the Attorney General, and the representatives in Congress from the State of California are respondents in both cases. The Senate and the Assembly of the California Legislature are respondents in the Silver case and interveners in the Vickter case.

In 1961 the Legislature divided the state into 38 congressional districts (Elec. Code, § 30000) pursuant to section 27 of article IV of the California Constitution.^[1] Because that section requires congressional districts to consist either of whole counties, whole assembly districts, or combinations thereof, many of the resulting districts departed substantially

On July 29, 1965, petitioners in the Silver case sought a writ of mandate to secure reapportionment of the state’s congressional districts on the same grounds urged in the present proceedings. We concluded that the Legislature should be given an opportunity to reapportion the congressional districts in the light of our recent legislative reapportionment decision (Silver v. Brown (1965) 63 Cal.2d 270 [ 46 Cal.Rptr. 308 , 405 P.2d 132 ]) without being required to meet the urgent time limits that would have come into play had reapportionment been ordered in time for the 1966 elections. We therefore denied the petition “without prejudice to the right to seek similar relief if the Legislature has not enacted a new congressional districting measure by the close of its regular 1967 session.” (Silver v. Brown (1965) 63 Cal.2d 316 , 318 [ 46 Cal.Rptr. 531 , 405 P.2d 571 ].) The Legislature adjourned on September 8, 1967, without enacting such a measure. Unless the Governor calls a special session, the Legislature will have no further opportunity to reapportion the congressional districts this year.

Under the decisions of the United States Supreme Court, we are convinced that the policies underlying the requirements of compactness and contiguity and the policies underlying maintenance of the integrity of political subdivisions and assembly districts cannot justify such extensive departures from population-based representation as exist among the state’s congressional districts. (Kilgarlin v. Hill (1967) 386 U.S. 120 , 122 [ 17 L.Ed.2d 771 , 774, 87 S.Ct. 820 , 822] ; Swann v. Adams (1967) 385 U.S. 440 , 443-444 [ 17 L.Ed.2d 501 , 504, 87 S.Ct. 569 , 572] ; see Silver v. Brown (1965) 63 Cal.2d 270 , 277 [ 46 Cal.Rptr. 308 , 405 P.2d 132 ], and cases cited.) Moreover, the requirement that assembly districts not be divided in forming congressional districts has been subtantially vitiated by the 1965 reapportionment of the Assembly.

Respondents contend, however, that because of the tremen

The contention that because of population shifts, a reapportionment based on the 1960 census may lead to greater inequalities in the population of districts than now exists may be tested by reference to the number of registered voters for each district in the 1966 general election. [See fn. 3] If it is assumed that there is at least a rough correlation between the number of registered voters and the whole population of each district, it appears that a reapportionment based on the 1960 census would substantially reduce the inequalities in the present apportionment.^[3] Furthermore, inequalities resulting from population shifts during the 10 years between regular censuses are reasonable (Reynolds v. Sims (1964) 377 U.S. 533 , 583-584 [ 12 L.Ed.2d 506 , 539-540, 84 S.Ct. 1362 ]), whereas inequalities resulting from arbitrary geographical requirements are invidious.

In the legislative reapportionment ease we held that the Legislature should be given an opportunity to reapportion both of its houses even though it had already been given an opportunity to reapportion the Senate and had failed to do so. (Silver v. Brown (1965) 63 Cal.2d 270 , 278-279 [ 46 Cal.Rptr. 308 , 405 P.2d 132 ].) We concluded that if it enacted a valid reapportionment measure and adjourned more than 180 days before the June 1966 primary or failed to enact such a measure by that time, there would be sufficient time before the primary to prepare for the election either under a legislative reapportionment or a court reapportionment. We believe that

It is for the Legislature to determine which provision or provisions of section 27 of article IV of the California Constitution should be subordinated to comply with the equal representation requirements of the United States Constitution. (Silver v. Brown (1965) 63 Cal.2d 270 , 280 [ 46 Cal.Rptr. 308 , 405 P.2d 132 ].) It should be noted that those requirements are more rigorous than we assumed in Silver v. Brown. We there stated the limits within which we believed an apportionment would carry at least a strong presumption of validity and beyond which it would be seriously suspect. “Those limits are that no district depart from the ideal size by more than 15 percent and that a majority of the members of each house be elected by the voters of districts containing at least 48 percent of the total population.”^[4] (63 Cal.2d at p. 279.) Since our decision, however, the United States Supreme Court held in Kilgarlin v. Sill (1967) 386 U.S. 120 [ 17 L.Ed.2d 771 , 87 S.Ct. 820 ], and Swann v. Adams (1967) 385 U.S. 440 [ 17 L.Ed.2d 501 , 87 S.Ct. 569 ], that such large deviations cannot be presumed valid but must be justified by a specific showing that a permissible state policy is thereby promoted. We believe that preserving the stability of existing districts for the two remaining elections that will be governed by the 1960 census is a sufficient basis to retain districts that do not deviate by more than 15 percent. Accordingly, the Legislature should be free, if it wishes, to retain as many of such existing districts that it is possible to retain consistently with correcting greater than 15 percent deviations.

We believe that all interested parties should be afforded an opportunity to be heard as to what plan the court should adopt if the Legislature fails to adopt a valid plan. Since time is of the essence, any proposed plan should be presented to the court not later than November 10, 1967. Any such plan must include illustrative maps and the population of the proposed districts based on the 1960 census and set forth complete

A writ of mandate will not issue in these cases at this time, but we retain jurisdiction to review any reapportionment legislation that may be enacted, to order a court plan into effect if necessary, and to grant any further relief that may appear proper in the premises. Petitioners shall recover their costs from the State of California. (Code Civ. Proe., § 1095.)

McComb, J., Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.