DAVE N. VIGNEAULT vs. SECRETARY OF THE COMMONWEALTH & others.

WILKINS, C.J. This petition for a writ of mandamus, brought originally against the Secretary of the Commonwealth, raises the fundamental issue as to the constitutionality of St. 1967, c. 877, Section 3, "An Act apportioning representatives to the several counties of the commonwealth and providing that each representative shall represent an equal number of inhabitants, as nearly as may be." This act, amending G. L. c. 57, Section 4, apportioned the 240 members of the House of Representatives to the fourteen counties "as existing at the time as of which the census of the inhabitants in the municipalities thereof was taken . . . [in 1965] until the next decennial apportionment." The petitioner, a citizen of the Commonwealth and a qualified voter in the thirteenth representative district of Hampden County, contends that the assignment of one representative each to the two island counties, Nantucket County and the County of Dukes County, is repugnant to the Constitutions of the United States and of the Commonwealth as denying him (1) an equal vote compared with citizens of those counties, and (2) equal representation in the House of Representatives.

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The Commissioners of the two counties, as parties respondent, and the Speaker of the House of Representatives and the President of the Senate, as amici curiae, have been allowed to participate. These counties and the Secretary of State by demurrer have challenged the petitioner's standing to sue, and in their answers deny that the petitioner's constitutional rights have been violated. The case is reported without decision by a single justice on the pleadings and two stipulations. [Note p364-1]

The constitutional basis of the petitioner's contentions is the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.

The petitioner has standing to bring this action as he is a voter in a district having a greater population per representative than the Statewide norm. [Note p364-2] McGlue v. County Commrs. of Essex, 225 Mass. 59, 60-62. Graham v. Special Commrs. of Suffolk County, 306 Mass. 237, 241. See Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 390; Baker v. Carr, 369 U.S. 186, 204-208; Reynolds v. Sims, 377 U.S. 533, 554-556.

Within a year we have given an advisory opinion to the Senate as to an apportionment bill which made the same assignment of representatives as does St. 1967, c. 877. 353 Mass. 790. In that opinion the Justices stated (page 799) that in so far as under art. 21 the basis of apportionment was legal voters and not population, it did not conform to the doctrine newly enunciated by a majority of the Supreme Court of the United States. Baker v. Carr, 369 U.S. 186, 237. Reynolds v. Sims, 377 U.S. 533, 577-581. Swann v.

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Adams, 385 U.S. 440, 443-444. The Justices there declined to forecast what the Supreme Court would decide upon the issue now before us of allowing one representative to each island county (page 797).

Subsequently, [Note p365-1] St. 1967, c. 877, has been enacted, Section 3 of which assigns one representative each to the island counties. See Appendix A. Section 1 embodies an extensive "Statement of Legislative Purpose." After declaring its intent to apportion the Commonwealth on a population basis, the Legislature made explicit findings relative to the representation of Nantucket County and the County of Dukes County. "[T]hese are islands, isolated, not readily accessible and most difficult to merge with any portion of the mainland." Such merger would "most probably" result in the election of "a resident of the mainland" and this would figuratively disfranchise the islanders. "Because of their exigency, and without being arbitrary or discriminatory, it is the sense of the General Court that each of these island counties should retain at least one representative as is now required by the Constitution of Massachusetts and that to maintain this status would not be a violation of the Fourteenth Amendment of the United States Constitution." We accord these legislative findings their proper significance. See Attorney Gen. v. Secretary of the Commonwealth, 306 Mass. 25, 30; Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138-139; Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 390; Hall-Omar Baking Co. v. Commissioner of Labor & Indus. 344 Mass. 695, 700-701; Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422.

The evidence before us corroborates these legislative findings. In allocating one representative each to the two island counties, the General Court recognized that they constitute two compact, contiguous districts whose borders conform to natural boundaries and whose right to representation as entities in the General Court antedates by nearly eighty years

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the meeting of the First Continental Congress. [Note p366-1] The districting of the islands follows existing political subdivision lines, and aims to restrict the possibility of partisan gerrymandering [Note p366-2] and to give effect to the county role in the governmental system of the Commonwealth. [Note p366-3] These are all permissible grounds for deviation from a strict mathematical apportionment by population. Reynolds v. Sims, 377 U.S. 533, 577-581. Swann v. Adams, 385 U.S. 440, 443-444.

Tested mathematically, we note that the allocation of one representative each to the two island counties might conceivably enable a majority of 49.76% of the population of the Commonwealth to elect sufficient representatives to control the House. This is only .66% less than the percentage required for control were the Commonwealth to be apportioned under a purely mathematical system. [Note p366-4]

We are of opinion that this divergence from a strict population standard is, in light of the aggregate of the factors considered above, based on legitimate considerations incident to the effectuation of a rational State policy. See Reynolds v. Sims, 377 U.S. 533, 579. The executive and legislative departments of the Commonwealth manifestly believe that genuine representation of the islands would not survive should they be merged into a mainland district or districts. We share that belief, a belief based not altogether

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on judicial notice, but founded in large part on personal experience and knowledge. We think that this view would be held by anyone with first-hand knowledge of the islands and their local conditions. Were we to conclude that the apportionment here in issue is repugnant to the Federal Constitution, which allows two Senators to each State irrespective of population, we think that there would be no alternative to a strict mathematical apportionment. Such a conclusion would go beyond any decision yet made by the Supreme Court of the United States. It would be contrary to our own opinion and would be a long leap toward depriving the people of Nantucket County and the County of Dukes County of a voice in legislation. We think that neither Constitution requires this.

Petition dismissed.

APPENDIX A

Population within each county in 1965 and average population per representative under Chapter 877 of Acts and Resolves of 1967.