LOCATION: Charlotte-Mecklenburg School District
DOCKET NO.: 548
DECIDED BY: Burger Court (1970-1971)
CITATION: 403 US 108 (1971)
ARGUED: Mar 23, 1971
DECIDED: Jun 07, 1971
Facts of the case
Media for Ely v. Klahr
Audio Transcription for Oral Argument - March 23, 1971 in Ely v. Klahr
Warren E. Burger:
We’ll hear arguments next in Number 548, Ely against Klahr.
Mr. Shea, you may say precede whenever you are ready.
Philip J. Shea:
Mr. Chief Justice and may it please the Court.
The issue raised by this appeal that a three-judge District Court sitting in Phoenix, Arizona by its decree of May 19, 1970, abused its discretion and committed error by refusing to assure a preliminary injunction to enjoin the operation of the admittedly unconstitutional reapportionment plan and the reapportionment was before the court enacted by a special session of a state legislature and signed into law on January 22, 1970.
As in all prior apportionment statues before it, it stubbornly clung to the idea that reapportionment should be brought about on the basis of voter registration and not on the basis of people.
Now, the use of voter registration as distinguished from the use of population, of people in Arizona has a particularly invidious discriminatory effect.
It probably would in any place because of poor people and certain minorities don’t register as much other people, as much as effluent.
It is particularly so in Arizona.
The northeastern part of the State of Arizona which is one-sixth of a very large state, contains the highest concentration of Indians of any area in the United States.
There are about 70,000 American Indians, Navajos and Hopis and some Apaches.
The average sized district, the legislative district in Arizona is 54,000 people.
The 70,000 people in the northeastern part, 70,000 Indians in northeastern Arizona are still under this reapportionment plan dominated by their white neighbors to the south.
In South Phoenix of this, a very poor area, it is mostly poor black, poor Mexican-American, poor white.
In the legislative district in South Phoenix and it’s just one, there are 70,000 people in an area in northeastern Phoenix, an area which all white, an area which is affluent.
There are 27,000 people, more than twice as many people in South Phoenix in a district as in northeastern Phoenix.
Now, this discrimination of course is invidious, of course it’s horrible and so we complain that Court committed error, it clearly abused its discretion by refusing to enjoin it.
The voter registration as the basis of the apportionment of Arizona has along history.
As matter of fact, it’s the only way we got the reapportion of legislature, at least the lower house, beginning with the adoption of the Arizona Constitution in 1913 which is the basis of -- which was the original statement of the apportionment arrangement.
The lower house, the House of Representatives is a portion with a basis of a voter registration.
The upper house, the State Senate was then apportioned on the basis of county representation, two members from each county.
Now, this suit was failed by Gary Peter Klahr, then a third year law student, in April 1964.
The law at that time seems quite clear.
This Court had seem to -- made it simple and flat and direct statement, “there should be one man, one vote.”
Nevertheless, the Court did not act on the complaint and did not hold hearings on it until about a-year-and-a-half, more than a-year-and-a-half later.
It was waiting patiently, the legislation to the job for the reason that I’m sure the Attorney General is going to say here today that the legislative should be given an opportunity to do to remedy the wrong.
Now, legislature more than a year after the suit was filed, enacted something called Senate Bill 11 which provided for a terribly malapportioned State Senate and it didn’t deal whatever with terribly malapportioned House of Representatives.
The -- after a hearing on that Bill, the Court by its decree and it was first decree issued in this case, the decree of February 22, 1966, held that the constitutional arrangement of both houses was unconstitution -- that is the Arizona Constitution arrangement was unconstitutional under U.S. Fourteenth Amendment.
And also that Senate Bill 11 was unconstitutional and went on to impose a Court plan what it in its decree called a temporary plan, temporary provisional plan, that was based on voter registration.
At least, it was based on voter registration in the urban areas of Phoenix and Tucson and outside of the counties including Phoenix and Tucson, the rural counties, a portion was based on county, 1966 counties, census of following respecting county lines.