Opinion
Questions Propounded by the House in an Order Dated May 4, 1973 and Passed May 7, 1973 and Submitted and Delivered to the Court on June 21, 1973.
Answered June 22, 1973. June 26, 1973.
ARMAND A. DUFRESNE, Jr. DONALD W. WEBBER RANDOLPH A. WEATHERBEE CHARLES A. POMEROY SIDNEY W. WERNICK JAMES P. ARCHIBALD
HOUSE ORDER PROPOUNDING QUESTIONS House of Representatives
Whereas, it appears to the Members of the House of Representatives of the 106th Legislature that the following are important questions of law and that the occasion is a solemn one; and
Whereas, in accordance with Article IV, Part I, Section 2 of the Constitution of Maine, the 106th Legislature is considering reapportionment of the House of Representatives; and
Whereas, a plan for such reapportionment, which represents a good faith effort to conform to the provisions of the Maine Constitution, has been reported from the Joint Select Committee on Constitutional State Reapportionment, viz: H.P. 472, L.D. 984, which is now pending before the House of Representatives; and
Whereas, the House of Representatives has annexed a copy of said report and a copy of the Report to the 106th Maine State Legislature by the House Apportionment Commission hereto; and
Whereas, questions have been raised concerning whether the method of reapportionment of the House of Representatives due to the prohibitions against crossing county and municipal boundaries prescribed by the provisions of Article IV, Part I, Sections 2 and 3 of the Constitution of Maine, is consistent with the requirements of the Equal Protection Clause of the 14th Amendment to the Constitution of the United States or the Equal Protection Clause of Article I, Section 6-A of the Constitution of Maine and whether any plan for reapportionment of the House of Representatives founded on such provisions would be valid; and it is important that the Legislature be informed with respect thereto so that it may act upon the proposed report; now, therefore, be it
Ordered, that in accordance with the provisions of Article VI, Section 3 of the Constitution of Maine, the Justices of the Supreme Judicial Court are hereby respectfully requested to give to the House of Representatives their opinion on the following questions of law, viz:
QUESTION NO. I:
Whether the method of reapportionment as it relates to keeping representative districts within counties and whole municipalities as prescribed by Article IV, Part First, Sections 2 and 3 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
QUESTION NO. II:
Whether that portion of the reapportionment as it relates to fractional excesses over whole numbers to be computed in favor of the counties having larger fractional excesses as prescribed by Article IV, Part First, Section 2 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
QUESTION NO. III:
Whether that portion of the reapportionment as it relates to a district containing fewer inhabitants than the largest fraction remaining to any municipality within such county after allocating of one or more Representatives to municipalities entitled to one or more Representatives as prescribed by Article IV, Part First, Section 3 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
QUESTION NO. IV:
Whether that portion of the reapportionment as it relates to giving additional Representatives from the remaining County Representatives unallocated under the foregoing procedure shall be allocated to municipalities having the largest fraction remaining as prescribed by Article IV, Part First, Section 3 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
QUESTION NO. V:
Whether forming multi-member districts composed of more than one municipality, as proscribed by the provisions of Article IV, Part First, Sections 2 and 3 of the Constitution of Maine, is permissible under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States or the Equal Protection Clause of Article I, Section 6-A of the Constitution of Maine?
QUESTION NO. VI:
In general, whether the method of reapportionment prescribed by the provision of Article IV, Part I, Sections 2 and 3 of the Constitution of Maine is permissible under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States or the Equal Protection Clause of Article I, Section 6-A of the Constitution of Maine?
QUESTION NO. VII:
Whether the proposed plan for reapportionment of the House of Representatives, H.P. 472, L.D. 984, hereto annexed, is permissible under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States or the Equal Protection Clause of Article I, Section 6-A of the Constitution of Maine?
ONE HUNDRED AND SIXTH LEGISLATURE
Legislative Document No. 984
H.P. 472 House of Representatives, February 20, 1973
Referred to Committee on Constitutional State Reapportionment. Joint Select Committee. Sent up for concurrence and ordered printed.
E. LOUISE LINCOLN, Clerk
Presented by Mr. Curtis of Orono.
STATE OF MAINE IN THE YEAR OF OUR LORD NINETEEN HUNDRED SEVENTY-THREE RESOLVE, to Apportion 151 Representatives among the Several Counties, Cities, Towns, Plantations and Classes in the State of Maine.Be it enacted by the People of the State of Maine, as follows:
Apportionment of Representatives to the Legislature. Resolved:
That for the 107th Legislature to and including that of the year 1982:
The County of Androscoggin shall choose 14 Representatives to be apportioned as follows:
Lewiston 6 Auburn 4 Lisbon 1 Durham, Mechanic Falls, Minot, Poland 1 Greene, Webster, Turner and Wales 1 Leeds, Livermore and Livermore Fall 1
The County of Aroostook shall choose 14 Representatives to be apportioned as follows:
Presque Isle 2 Caribou 2 Limestone 1 Houlton 1 Easton, Fort Fairfield and Westfield 1 Macwahoc, Reed Plt., Bancroft, Weston, Orient, Haynesville, Glenwood, Benedicta, Amity, Sherman, Cary Plt., Island Falls, Crystal, Hodgdon, Linneus, Oakfield, Dyer Brook, Merrill, Moro Plt., Hersey 1 Ludlow, Smyrna, Littleton, Hammond Plt., Monticello, Bridgewater, Blaine, Mars Hill, E. Plt., New Limerick 1 Chapman, Mapleton, Castle Hill, Washburn, Wade, Perham, Woodland, Masardis, Oxbow 1 Van Buren, Grand Isle, Cyr, Hamlin,
LEGISLATIVE DOCUMENT No. 984
Caswell, Connor 1 Madawaska, Frenchville 1 Fort Kent, New Canada, Wallagrass, St. John, St. Francis 1 Eagle Lake, Winterville, Garfield, Nashville, Portage, Ashland, Westmanland, New Sweden, Stockholm, St. Agatha, Allagash 1
The County of Cumberland shall choose 29 Representatives to be apportioned as follows:
Portland 10 South Portland 4 Westbrook 2 Brunswick 2 Scarborough 1 Falmouth 1 Cape Elizabeth 1 Gorham 1 Windham 1 Bridgton, Sebago, Harrison, Otisfield, Naples 1 Baldwin, Raymond, Casco, Standish 1 Gray, New Gloucester 1 Yarmouth, North Yarmouth 1 Freeport, Pownal 1 Cumberland, Harpswell 1
The County of Franklin shall choose 3 Representatives to be apportioned as follows:
Avon, Carthage, Dallas, Eustis, Industry, Weld, Kingfield, Madrid, New Vineyard, Phillips, Rangeley, Strong, Coplin Plt., Rangeley Plt., Sandy River Plt. 1 Farmington, Chesterville, New Sharon, Temple 1 Jay, Wilton 1
The County of Hancock shall choose 5 Representatives to be apportioned as follows:
Blue Hill, Brooklin, Brooksville, Castine, Deer Isle, Sedgwick, Stonington, Swan's Island 1 Tremont, Surry, Ellsworth, Trenton, Long Island, Cranberry Isles 1 Bar Harbor, Mount Desert, Southwest Harbor 1 Bucksport, Orland, Dedham, Penobscot, Verona 1 Otis, Amherst, Aurora, Mariaville, Osborn Plt., Waltham, Eastbrook, Franklin Hancock, Sullivan, Lamoine, Sorrento, Winter Harbor, Gouldsboro, Plt. No. 33 1
LEGISLATIVE DOCUMENT No. 984
The County of Kennebec shall choose 14 Representatives to be apportioned as follows:
Augusta 3 Waterville 3 Winslow 1 Gardiner 1 Albion, Benton, Clinton, China, Unity Plt. 1 Vassalborough, Windsor, Chelsea, Pittston 1 Oakland, Sidney, Belgrade, Rome, Vienna 1 Randolph, Farmingdale, Hallowell 1 West Gardiner, Litchfield, Monmouth, Manchester, Wayne 1 Winthrop, Readfield, Mt. Vernon, Fayette 1
The County of Knox shall choose 4 Representatives to be apportioned as follows:
Rockland 1 Cushing, Friendship, Isle Au Haut, North Haven, Owl's Head, St. George, South Thomaston, Vinalhaven, Matinicus Isle Plt. 1 Camden, Hope, Rockport 1 Appleton, Thomaston, Union, Warren, Washington 1
The County of Lincoln shall choose 3 Representatives to be apportioned as follows:
Jefferson, Nobleboro, Waldoboro, Whitefield, Monhegan Isle Plt., Somerville Plt. 1 Boothbay, Boothbay Harbor, Southport, Westport, Wiscasset 1 Alna, Bremen, Bristol, Damariscotta, Dresden, Edgecomb, Newcastle, South Bristol 1
The County of Oxford shall choose 7 Representatives to be apportioned as follows:
Rumford 1 Mexico, Peru 1 Buckfield, Canton, Dixfield, Hartford, Sumner, Woodstock, Milton Twp. 1 Paris, West Paris, Hebron 1 Norway, Oxford 1 Brownfield, Denmark, Fryeburg, Hiram, Lovell, Porter, Stow, Sweden 1 Andover, Bethel, Byron, Gilead, Greenwood, Hanover, Newry, Roxbury, Stoneham, Upton, Lincoln Plt., Magalloway Plt., Waterford, No. Oxford, So. Oxford 1
The County of Penobscot shall choose 19 Representatives to be apportioned as follows:
Bangor 5 Orono 2
LEGISLATIVE DOCUMENT No. 984
Brewer 1 ld Town 1 Millinocket 1 Dexter, Garland, Corinth, Exeter 1 Corinna, Newport, Stetson, Plymouth, Dixmont, Newburg 1 Etna, Carmel, Herman, Levant, Glenburn 1 Orrington, Holden, Eddington, Clifton 1 Hampden, Veazie 1 Charleston, Bradford, Hudson, Kenduskeag, Lagrange, Alton, Argyle, Milford, Bradley 1 Lincoln, Lee, Winn, Chester, Woodville 1 Mattawamkeag, Kingman, Drew, Webster, Prentiss, Springfield, Carroll, Lakeville, Lowell, Burlington, Howland, Enfield, Passadumkeag, Maxfield, Seboeis, Grand Falls, Greenbush, Greenfield, Edinburg 1 East Millinocket, Medway, Patten, Stacyvill, Mount Chase 1
The County of Piscataquis shall choose 3 Representatives to be apportioned as follows:
Dover-Foxcroft, Sangerville 1 Milo, Atkinson, Sebec, Barnard Plt., Bowerbank, Medford, Brownville, Willimantic, Lakeview Plt., Elliottsville Plt. 1 Wellington, Kingsbury Plt., Abbot, Monson, Blanchard Plt., Guilford, Shirley, Greenville, Parkman 1
The County of Sagadahoc shall choose 4 Representatives to be apportioned as follows:
Bath 2 Topsham, Bowdoin, Bowdoinham 1 Richmond, Woolwich, West Bath, Phippsburg, Arrowsic, Georgetown 1
The County of Somerset shall choose 6 Representatives to be apportioned as follows:
Skowhegan 1 Madison, Norridgewock, Starks 1 Pittsfield, Canaan, Hartland 1 Detroit, Palmyra, St. Albans, Ripley, Cambridge, Harmony, Cornville, Athens, Bingham, Brighton Plt. 1 Solon, Anson, Embden, New Portland, Moscow, Pleasant Ridge, Highland Plt., Caratunk, The Forks, West Forks, Jackman, Moose River, Dennistown Plt., Unorg. Terr. So. Somerset 1 Mercer, Smithfield, Fairfield 1
LEGISLATIVE DOCUMENT No. 984
The County of Waldo shall choose 4 Representatives to be apportioned as follows:
Belmont, Freedom, Islesboro, Knox, Liberty, Lincolnville, Montville, Morrill, Northport, Palermo, Searsmont 1 Frankfort, Prospect, Searsport, Stockton Springs, Winterport 1 Brooks, Burnham, Jackson, Monroe, Swanville, Thorndike, Troy, Unity, Waldo 1 Belfast 1
The County of Washington shall choose 5 Representatives to be apportioned as follows:
Deblois, Cherryfield, Steuben, Milbridge, Harrington, Addison, Beals, Jonesport 1 Columbia, Columbia Falls, Centerville, Jonesboro, Whitneyville, Marshfield, Machias, Roque Bluffs, East Machias, Northfield, Machiasport 1 Lubec, Eastport, Cutler, Whiting, Pembroke 1 Perry, Dennysville, Charlotte, Robbinston, Calais, Plt. No. 14, Meddybemps, Cooper 1 Baring, Alexander, Wesley, Crawford, Baileyville, Princeton, Grand Lake Plt., Vanceboro, Danforth, Waite, Codyville, Plt. No. 21, Talmadge, Beddington 1
The County of York shall choose 17 Representatives to be apportioned as follows:
Biddeford 3 Kittery 1 Saco 2 Sanford 2 York 1 Old Orchard Beach 1 Kennebunk 1 Limington, Cornish, Limerick, Newfield, Parsonsfield, Shapleigh, Waterboro 1 Berwick, Acton, Lebanon 1 Alfred, Arundel, Kennebunkport, Lyman 1 Eliot, South Berwick 1 North Berwick, Wells 1 Buxton, Dayton, Hollis 1Sec. 2. Residents of unorganized territory. If all other legal requirements are complied with, residents of unorganized territory not apportioned within a specific area shall be allowed to register and vote in the nearest accessible organized municipality within the same county and, for this purpose, shall be considered classed in the same representative district.
Sec. 3. P. S.L., 1963, c. 233, repealed. Chapter 233 of the private and special laws of 1963, as amended, is repealed.
LEGISLATIVE DOCUMENT No. 984 STATEMENT OF FACT
This proposal is an apportionment and districting plan for the Maine House of Representatives. It is the unanimous report of the House Apportionment Commission, which was created by the 105th Legislature, and is prepared under the formula provided by the Maine Constitution. The plan is based in part upon L.D. 1843 and L.D. 1846 of the 105th Legislature and in part upon the commission's efforts.
A comparison of the 2 L.D.'s showed identical or nearly identical districts in a majority of the counties. Reviewing these, the commission decided no improvement was possible. In the remaining counties, attempts were made to create districts as close to population equality as practicable under the present constitutional formula.
However, the commission felt it was prevented by the Maine Constitution from producing a plan which could meet the equal population standard required by the Constitution of the United States. Because of the requirements that House seats be apportioned by county and that municipalities cannot be divided, large population disparities resulted. Another resolution recommended by the commission will propose a Maine constitutional amendment to provide a new formula and procedure for apportionment.
ANSWERS OF THE JUSTICES
To the Honorable House of Representatives of the State of Maine:
In compliance with the provisions of Section 3 of Article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following answers to the questions submitted and delivered to the Court on June 21, 1973.
The questions themselves, as submitted, seek to test the validity of provisions of the Maine Constitution against those of the Constitution of the United States. Thereby, they recognize, correctly, that the federal Constitution is controlling over Constitutions of the various States by virtue of Article VI, Clause 2 of the Constitution of the United States which provides:
"This Constitution . . . shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, anything in the Constitution . . . of any State to the Contrary notwithstanding."
Florida v. Mellon, 273 U.S. 12, 47 S.Ct. 265, 71 L.Ed. 511 (1927).
In the interests of conciseness and clarity we answer the questions inversely to the order in which they were propounded.
QUESTION NO. VII: Whether the proposed plan for reapportionment of the House of Representatives, H.P. 472, L.D. 984, hereto annexed, is permissible under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States or the Equal Protection Clause of Article I, Section 6-A of the Constitution of Maine?
ANSWER: We answer in the negative.
The most recent pronouncement of the Supreme Court of the United States in the case of Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973) reaffirmed two principles derived from the "equal protection of the laws" clause of the federal Fourteenth Amendment in specific application to reapportionment of houses of a bicameral state Legislature: (1)
"`that a State make an honest and good faith effort to construct districts, . . . as nearly of equal population as is practicable . . .'"
and (2)
"`[s]o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.'" (p. 985 of 93 S.Ct.)
Mahan v. Howell decided, further, that a
"policy of maintaining the integrity of political subdivision lines in the process of reapportioning a state legislature, . . . is a rational one" (p. 987 of 93 S.Ct.)
since it furthers the purpose of facilitating enactment of statutes of purely local concern and preserves for voters in the political subdivision a voice in the State Legislature on local matters.
Hence, preservation of the integrity of political subdivision lines may serve as a justification, consistently with mandates of the "equal protection of the laws" clause of the federal Fourteenth Amendment, for "deviations from the equal population principle" provided that the divergences are within limits recognized as constitutionally tolerable.
As to the range of deviation which will pass constitutional muster, Mahan v. Howell stated that a ". . . 16-odd percent maximum deviation . . . may well approach tolerable limits." The Court added, however: "we do not believe it exceeds them", thus rendering suspect any appreciable excess as an unjustifiable "sacrifice" of "substantial equality."
Measured by this most recent interpretation of the requirements of the "equal protection of the laws" clause of the federal Constitution, the proposed plan for reapportionment of the House of Representatives, H.P. 472, L.D. 984, must be considered to violate the Constitution of the United States.
The plan proposed by H.P. 472, L.D. 984, clearly "sacrifices substantial equality" because it attempts to preserve traditional political subdivisions as mandated by Article IV, Part First, Sections 2 and 3 of the Constitution of Maine.
According to the report of the House Apportionment Commission, the maximum percentage variation from the ideal district is 94.02%. The extreme deviations from the ideal in the proposed legislation result in one district being 67.57% under represented and another being 26.45% over represented. The majority report of the Commission, moreover, states that an attempt was made
"to create districts as close to population equality as practicable under the present constitutional formula."
Although the United States Supreme Court in Mahan v. Howell did not establish 16.04% maximum percentage variation as an absolute standard for determining the constitutionality of state reapportionment plans, it is apparent the 94.02% maximum percentage variation of the plan proposed by H.P. 472, L.D. 984, goes far beyond constitutionally tolerable limits of deviation.
QUESTION NO. VI: In general, whether the method of reapportionment prescribed by the provision of Article IV, Part I, Sections 2 and 3 of the Constitution of Maine is permissible under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States or the Equal Protection Clause of Article I, Section 6-A of the Constitution of Maine?
ANSWER: We answer this question in the negative.
Accepting the Commission's conclusion that it came as close to substantial equality as was possible under the provisions of the Maine Constitution, Article IV, Part 1, Sections 2 and 3, it is apparent that, within the foreseeable future, no plan could be devised in accordance with the present Maine constitutional provisions which would not be violative of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.
QUESTION NO. V: Whether forming multi-member districts composed of more than one municipality, as proscribed by the provisions of Article IV, Part First, Sections 2 and 3 of the Constitution of Maine, is permissible under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States or the Equal Protection Clause of Article I, Section 6-A of the Constitution of Maine?
ANSWER: We answer in the affirmative — subject to the qualification, however, that even though Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965) establishes that a multi-member constituency apportionment is not per se a violation of "equal protection of the laws" mandates, it may become constitutionally infirm by an application in a particular instance which produces deviations from "substantial equality" beyond the range of constitutional tolerance indicated in Mahan v. Howell, supra.
QUESTION NO. IV: Whether that portion of the reapportionment as it relates to giving additional Representatives from the remaining County Representatives unallocated under the foregoing procedure shall be allocated to municipalities having the largest fraction remaining as prescribed by Article IV, Part First, Section 3 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
ANSWER: We answer in the affirmative — subject to the qualification, however, that even though the procedure specified by Article IV, Part First, Section 3, of the Constitution of Maine, as referred to in Question No. IV, may be a reasonable implementation of a rational State policy of maintaining the integrity of political subdivision lines, it may become constitutionally infirm by an application in a particular instance which produces deviations from "substantial equality" beyond the range of constitutional tolerance indicated in Mahan v. Howell, supra.
QUESTION NO. III: Whether that portion of the reapportionment as it relates to a district containing fewer inhabitants than the largest fraction remaining to any municipality within such county after allocating of one or more Representatives to municipalities entitled to one or more Representatives as prescribed by Article IV, Part First, Section 3 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
ANSWER: We answer in the affirmative — subject to the qualification, however, that even though the procedure specified by Article IV, Part First, Section 3, of the Constitution of Maine, as referred to in Question No. III, may be a reasonable implementation of a rational State policy of maintaining the integrity of political subdivision lines, it may become constitutionally infirm by an application in a particular instance which produces deviations from "substantial equality" beyond the range of constitutional tolerance indicated in Mahan v. Howell, supra.
QUESTION NO. II: Whether that portion of the reapportionment as it relates to fractional excesses over whole numbers to be computed in favor of the counties having larger fractional excesses as prescribed by Article IV, Part First, Section 2 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
ANSWER: We answer in the affirmative — subject to the qualification, however, that even though the procedure specified by Article IV, Part First, Section 2 of the Constitution of Maine, as referred to in Question No. II, may be a reasonable implementation of a rational State policy of maintaining the integrity of political subdivision lines, it may become constitutionally infirm by an application in a particular instance which produces deviations from "substantial equality" beyond the range of constitutional tolerance indicated in Mahan v. Howell, supra.
QUESTION NO. I: Whether the method of reapportionment as it relates to keeping representative districts within counties and whole municipalities as prescribed by Article IV, Part First, Sections 2 and 3 of the Constitution of Maine is permissible under the E.P.C. of the 14th Amendment to the Constitution of the United States or the E.P.C. of Article I, Section 6-A of the Constitution of Maine?
ANSWER: We answer in the affirmative — subject, however, to the qualification that even though the policy of "keeping representative districts within counties and whole municipalities as prescribed by Article IV, Part First, Sections 2 and 3 of the Constitution of Maine" is a rational State interest which may justify deviations from substantial population equality, by its application in a particular instance it may become unconstitutional, as a violation of the "equal protection of the laws" clause of the federal Fourteenth Amendment, should it produce deviations from substantial population equality in excess of the limits of constitutional tolerance indicated in Mahan v. Howell, supra.
While we have answered Question No. I in the affirmative with qualification, the House Apportionment Commission's Report demonstrates that a constitutionally permissible reapportionment of the House of Representatives is unattainable as a practical matter in the foreseeable future so long as "the method of reapportionment as it relates to keeping representative districts within counties and whole municipalities as prescribed by Article IV, Part First, Sections 2 and 3 of the Constitution of Maine" remains in effect.
Dated at Portland, Maine, this twenty-second day of June, 1973.
Respectfully submitted: