Court filing, Opening Brief of Plaintiffs, April 27, 1965

?yfi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 25 27 28 29 30 31 32 s/ITT LAW 'ADA x d o o i ; ... O iJ 3 X p - ......... i i Adoo r 0 8 3 X L f i l e d APR 2? 1965 OLIVER F. PRATT, d / ? Rose ?Kizer.. d IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA FLORA DUNCAN, also known as FLORA ONCKEN, and C. W. WOODBURY, M.D., Plliaintiffs GRANT SAWYER, Governor of the State of Nevada, JOHN KOONTZ, Secretary of the State of Nevada, PAUL LAXALT, Lieutenant Governor of the State of Nevada, MICHAEL MIRABELLI, Treasurer of the State of Nevada, and JOHN DOES I through XX, ) )) ) Civil Action File No. 695 )) ) )) OPENING BRIEF OF \) PLAINTIFFSrrT1 } ) Defendants. )) ___ __ ) C 0 U N S E L BOYD and LEAVITT 811 Sahara Avenue Las Vegas, Nevada 735-5902 Attorneys for Plaintiffs HARVEY DICKERSON Attorney General of Nevada Supreme Court Building Carson City, Nevada 882-2561 Attorney for Defendants 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 ITT AW iDA A d O O 0 8 3 X i - J A d O O 0 8 3 X AFFIDAVIT OF MAILING STATE OF NEVADA ) ? s s COUNTY OF CLARK j MOLLY KOENIG, being first duly sworn, says that she is a citizen of the United States, over 21 years of age, a resident of the County of Clark, and not a party to the within action; that affiant's business address is 811 Sahara Avenue, Las Vegas, Nevada; that affiant served a copy of the attached Opening Brief of Plaintiffs by placing said copy in a package addressed to Harvey Dickerson, Attorney General of Nevada, attorney for the defendants herein, at Supreme Court Building, Carson City, Nevada, which package was then sealed and postage fully prepaid thereon, and thereafter was on the 27 day of April, 1965, deposited in the United States mail at Las Vegas, Nevada; that there is deliv?ery service by United States mail at the place so adressed, or regular communication by United States mail between the place of mailing and the place so addressed. MOL^x KOENIG 7/ SUBSCRIBED and sworn to before me this c% day of April, 1965. Notary Public in and for said* County and State. My commission expires: l-i-iO-65- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 virr LAW 7 A DA U A d O O l O ? 3 X j A d U ? _ J _ O d 3 X TABLE OF CASES Baker vs, Carr, 369 U.S. 186 .................... Davis vs. Mann, 377 U.S. 678 .................... Gray vs. Sanders, 372 U.S. 368 .................. Lucas vs. Forty-fourth General Assembly of Colorado^ 3T7HT7S'.? 7*13 , ^ I 7 .......... Maryland Committee for Fair Representation . . . . vs. Tawes , 377 U .S. 537) Reynolds vs. Sims, 377 U.S. 533 .................. Roman vs. Sincock, 377 U.S. 695 ............ ? ? ? Scholle vs. Hare, 369 U.S. 429 .................. UMCA, Inc., vs. Lomenzo, 377 U.S. 633 ............ Pages 2 6, 8, 11 3 6, 8, 9, 5, 8, 11 4, 7, 10 6, 8, 12 3 3, 5, 8 10 13 A d O O ' O ? 3 X 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 BOYD & LEAVITT A d O O ; 0 8 3 X A d O O O d 3 X ? A d O O 1 O?J3X W IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA FLORA DUNGAN, also knoxvn as FLORA ONCKEN, and C. W. WOODBURY, M.D., Plaintiffs, vs. GRANT SAWYER, Governor of the State of Nevada, JOHN KOONTZ, Secretary of the State of Nevada, PAUL LAXALT, Lieutenant Governor of the State of Nevada, MICHAEL MIRABELLI, Treasurer of the State of Nevada, and JOHN DOES I through XX, Defendants. ) )> )) )) ) >) ) ) ) )))) ) Civil Action File No. 695 OPENING ERIEF OF PLAINTIFFS I. STATEMENT OF FACTS The facts in this action have been stipulated between the parties hereto pursuant to Court order and reference to said stipulation is hereby made. II. STATEMENT OF THE ISSUES The issues in this case are as follows: 1. IS A CITIZEN OF A STATE DENIED EQUAL PROTECTION OF THE LAWS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTI?TUTION OF THE UNITED STATES WHEN HIS VOTE FOR MEMBERS OF A STATE LEGISLATURE IS DEBASED AND DILUTED MERELY BECAUSE OF WHERE HE RESIDES? A T T O R N E Y S A T LA W LAS VEGAS. NEVADA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 ITT AW lD?. I II A d O O OfcOX 2. DOES THE EQUAL PROTECTION CLAUSE OF TEE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRE THAT THE SEATS IN BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE BE APPOR?TIONED ON A POPULATION BASIS, AND CAN AN ANALOGY BE DRAWN BETWEEN THE SCHEME OF LEGISLATIVE REPRESENTATION FOLLOWED IN THE FEDERAL CONGRESS AND THE APPORTIONMENT 0^ SEATS IN THE NEVADA LEGISLATURE' 3. CAN AN INDIVIDUAL'S CONSTITUTIONALLY PROTECTED RIGHT TO CAST AN EQUALLY WEIGHTED VOTE BE DENIED BY A VOTE OF A MAJORI?TY OF A STATE?S ELECTORATE? 4. WHEN A STATE LEGISLATURE FAILS TO REAPPORTION ITSELF ACCORDING TO FEDERAL CONSTITUTIONAL REQUISITES AFTER HAVING AN ADEQUATE OPPORTUNITY TO DO SO, MAY A COURT GRANT RELIEF UNDER EQUITABLE PRINCIPLES TO INSURE THAT NO FURTHER ELECTIONS ARE HELD UNDER AN UNCONSTITUTIONAL SCHEME? III. ARGUMENT A. A CITIZEN OF A STATE IS DENIED EQUAL PROTECTION OF THE LAWS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CON?STITUTION OF THE UNITED STATES WHEN HIS VOTE FOR MEMBERS OF A STATE LEGISLATURE IS DEBASED AND DILUTED MERELY BECAUSE OF WHERE HE RESIDES. The legal principle that a citizen of a state is denied equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States when his vote for members of a state legislature is debased and diluted merely because of where he resides, was before the Supreme Court in the case of Baker vs. Carr. 369 U.S. 186. In that case the Court, at page 197-198, said: " . . . we hold today only (a) that the Court possessed jurisdiction of the subject matter; (b) that a justiciable cause of ac?tion is stated upon which appellants would be entitled to appropriate relief; and (c) 1 A d O O O d 3 X 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 25 27 28 29 30 31 32 /ITT LAW AO A A d O O OfcJ3X L. A d O O O d 3 X - because appellees raise the issue before this Court, that the appellants have stand?ing to challenge the Tennessee apportionment statutes. Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appel?lants prevail at the trial." Subsequent to the Baker case, numerous actions involving malapportionment of state legislatures have been filed in several states. The Supreme Court remanded two cases (Scholle vs. Hare, 369 U.S. 429, Michigan; WMCA, Inc, vs. Simon, 370 U.S. 190, New York) to lower courts for reconsideration in light of the decisior in the Baker case. In Gray vs. Sanders, 372 U.S. 368, the Supreme Court helc that the Georgia unit system was unconstitutional since it result?ed in dilutioia and debasement of certain votes because of where the voter resided. The Court said, at page 379-380: "How then can one person be given twice or ten times the voting power of another per?son in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geograph?ical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote -- whatever their race, whatever their sex, what?ever their occupation, whatever their income, and wherever their home may be in that geo?graphical unit. This is required by the Equal - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 'ITT A W KV A fm ??? L? .... n .?iii A ciO O Protection Clause of the Fourteenth Amendment. The concept of 'we the people' under the Con?stitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, under?lies many of our decisions." (Emphasis ours.) The Court further stated, at page 381: "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth and Nineteenth Amendments can mean only one thing -- one person, one vote." (Em?phasis ours.) In Reynolds vs. Sims, 377 U.S. 533, the Supreme Court was presented with a case involving the apportionment of the two houses of the Alabama Legislature. In discussing the question of overweighting and diluting votes, the Court said: "And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a state could be constitutionally permitted to enact a law providing that certain of the state's voters could vote two, five, or 10 t___ j A d O O O d 3 X - 4 - A d O O * O ? 3 X J - ? . . . . .:.~ J . A d O O O d 3 X : A d O O O d 3 X 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 QOYD & LEAVITT A T T O R N E Y S A T LA W LAS VtG?S. NEVADA ! times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the state would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable." Continuing, tne Coure stated that "weighting the votes of citizens differently, by any method or means, merely because of where they happen to r?sid?, hardly seems justifiable." The Court further states: "Since the achieving of fair and effec?tive representation for all citizens is con-cededly the basic aim of legislative apportion?ment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs oasic constitutional rights under the Fourteenth Amendment just as much as invidious discrimina?tions based upon factors such as race." (Empha?sis ours.) " . . . the basic principle of represen?tative government remains, and must remain, unchanged ? the weight of a citizen's vote cannot be made to depend on where he lives." See also, WMCA. Inc, vs. Lomenzo. 377 U.S. 633 (New York); Maryland Committee for Fair Representation vs. Tawes. 377 U.S. 656 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 IS 19 20 21 22 23 24 25 25 27 28 29 30 31 32 ITT AW iDA I 1 A d O O ; O t i3 X 1? (Maryland); Davis vs. Mann, 377 U.S. 678 (Virginia); Roman vs. Sincock, 377 U.S. 695 (Delaware); Lucas vs. Forty-fourth General Assembly of Colorado, 377 U.S. 713 (Colorado). An examination of the facts in this case (as stipulated by the parties hereto) will show that the votes of the plaintiffs herein for members of the state legislature have been effectively diluted and debased by reason of their place of residence -- Clark County, Nevada. According to 1960 census figures, Clark County had a citizen population of 127,016, or 44.52% of the State's total citizen population of 285,278. Clark County cur?rently has 12 Assemblymen and 1 Senator. The number of votes required in Clark County to equal in weight one vote in each of the remaining counties in the State based on the 1960 census figures is set forth in the stipulation of facts in paragraph 10, and varies from 1.12 in Washoe County to 18.64 in Storey County in the Assembly and from 1.50 in Washoe County to 223.62 in Storey County in the Senate. Storey County has a total population of 568 according to the census figures, yet this county has the same representation in the Nevada State Senate as Clark County with a population of 127,016. In Clark County one Assemblyman represents 10,585 citizens, while in Storey County one Assemblyman represents 568 citizens. The variances in other counties in the State are set forth in the chart listed in paragraph 9 in the Stipulation As To Facts on file herein. Thus, it can readily be seen from the chart that the plaintiffs' vote for members of the state legislature has been effectively diluted and debased because of their place of residence B? THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMEND?MENT TO THE UNITED STATES CONSTITUTION REQUIRES THAT BOTH HOUSES OF A BICAMERAL STATE LEGISLATURE RE APPORTIONED QN A POPULATION \ - 6 - .-A i______ A d O O f GfcOX i 1 2 3 4 5 6 7 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 BOYD a LEAVITT A T T O R N E Y S A T LA W A d O O O d 3 X A d O O 0 8 3 X ' A d O O O d 3 X BASIS AND NO ANALOGY CAN BE DRAWN BETWEEN THE SCHEME OF LEGISLA?TIVE REPRESENTATION FOLLOWED IN THE FEDERAL CONGRESS AND THE APPORTIONMENT OF SEATS IN THE NEVADA LEGISLATURE. The Supreme Court in Reynolds vs. Sims, 377 U.S. 533, made it clear that both houses of a state legislature must be apportioned on a population basis to meet the requirements of the Equal Protection Clause. The Court said: "We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individu?al's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when com?pared with votes of citizens living in other parts of the State. "The right of a citizen to equal repre?sentation and to have his vote weighted equally with those of all other citizens in the election of members of one house of a bicameral state legislature would amount to little if States could effectively submerge the equal-population principle in the apportionment of seats in the other house. If such a scheme were permissible, an individual citizen's ability to exercise an effective voice in the only instrument of state government directly representative of the people might be almost as effectively thwarted as if neither house were apportioned on a population basis. Deadlock between the two bodies might result in compromise and concession on some \ - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 'ITT A W IDA A d O O O d 3 X S L. A d O O O d 3 X issues. But in all too many cases the more probable result would be frustration of the majority will through minority veto in the house not apportioned on a population basis, stemming directly from the failure to accord adequate overall legislative representation to all of the State?s citizens on a nondis-criminatory basis." See also, I-MCA, Inc, vs, Lomenzo, 377 U.S. 633 (New York); Maryland Committee for Fair Representation vs. Tav/es, 377 U.S. 656 (Maryland); Davis vs. Mann, 377 U.S. 678 (Virginia); Roman vs. Sincock, 377 U.S. 695 (Delaware); Lucas vs. Forty-fourth General Assembly of Colorado, 377 U.S. 713 (Colorado). In rejecting the so-called federal analogy argument the Court stated: "Attempted reliance on the federal analogy appears often to be little more than an after-the-fact rationalization offered in defense of maladjusted state apportionment arrangements. The original constitutions of 36 of our States provided that representation in both houses of the state legislatures would be based completely, or predominantly, on pop?ulation. And the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legis?latures when the system of representation in the Federal Congress was adopted." The Court further pointed out that the federal system was one "arising from unique historical circumstances" and that the ,fgo-call@d federal analogy io inapplicable as a sustaining R A d O O O U 3 K A d O O O d 3 X A d O O Od3X L.!AdOO? 1 O U 3 X 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 25 27 28 29 30 31 32 BOYD a LEAVITT precedent for state legislative apportionments." The original Constitution of the State of Nevada pro?vided and still does provide in Section 13 of Article I: "Representation shall be apportioned according to population." (See paragraph 3 of Stipulation As To Facts.) The Constitution of the State of Nevada also provides that the federal census and any census taken by the state shall "serve as the basis of representation in both houses of the legislature." (See paragraph 6 of Stipulation As To Facts.) Section 6 of Article XVII of the original Constitution of the State of Nevada provided apportionment of both Senate and Assembly in the State of Nevada. (See paragraph 5 of Stipulation As To Facts.) Under the present apportionment in the State of Nevada, there is one senator representing all of Clark County, consisting of 127,016 citizens. Storey County has the same representation in the Senate and has a population of 568. The chart as set forth in paragraph 9 of the Stipulation As To Facts shows the disparities as to the remaining counties in the state. It is obvious from the figures that plaintiffs' right to vote has been effectively impaired, and defendants' Second Affirmative Defense to the complaint that the present apportion?ment is in accordance with that "recommended by the framers of the United States Constitution" is without merit. C. AN INDIVIDUAL'S CONSTITUTIONALLY PROTECTED RIGHT TO CAST AN EQUALLY WEIGHTED VOTE CANNOT BE DENIED EVEN BY A VOTE OF A MAJORITY OF A STATE'S ELECTORATE, IF THE APPORTIONMENT SCHEME ADOPTED BY THE VOTERS FAILS TO MEASURE UP TO THE REQUIREMENTS OF THE EQUAL PROTECTION CLAUSE. The Supreme Court in Lucas vs. Forty-fourth General Assembly of Colorado, 377 U aS.713, held as follows: A T T O R N E Y S A T L A W LAS '/? '?AS. NEVADA - 9 - \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 /ITT -A W ADA , ?__ i -> :*dOO O U 3 X "An'individual's constitutionally pro?tected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause. Manifestly, the fact that an appor?tionment plan is adopted in a popular refer?endum is insufficient to sustain its consti?tutionality or to induce a court of equity to refuse to act." Continuing, the Court stated: "A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose to do so. We hold that the fact that a challenged legislative apportionment plan was approv?ed by the electorate is without federal v constitutional significance, if the scheme adopted fails to satisfy the basic require?ments of the Equal Protection Clause, as delineated in our opinion in Reynolds vs. Sims ?" The Constitution of the State of Nevada was amended in 1950 whereby Section 5 of Article IV was changed to allow one senator from each county. (See paragraph 7 of Stipulation As To Facts.) The defendants have pleaded these facts as their First Affirmative Defense to plaintiffs' complaint. In view of the decision in Lucas vs. Forty-fourth General Assembly of Colorado, supra, this defense is without merit. D. WHEN A STATE LEGISLATURE FAILS TO REAPPORTION ITSELF ACCORDING TO FEDERAL CONSTITUTIONAL REQUISITES, AFTER HAVING AN ... j A d O O Q 8 3 X 10 - Aci OO > Od3x: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 25 27 28 29 30 31 32 BOYD St LEAVITT X d O O O U 3 X : A d O O O d 3 X ADEQUATE OPPORTUNITY TO DO SO, THE COURT M Y GRANT RELIEF UNDER EQUITABLE PRINCIPLES TO INSURE THAT NO FURTHER ELECTIONS ARE HELD UNDER AN UNCONSTITUTIONAL SCHEME. The Supreme Court has held that the primary responsi?bility for proper apportionment is with the state legislature, but if the legislature refuses to apportion itself according to Federal Constitutional requisites, then the Court should grant relief under equitable principles. The Court said in the Maryland case (Maryland Committee for Fair Representation vs. Tawes, 377 U.S. 656): "Since primary responsibility for legislative apportionment rests with the legislature itself, and since adequate time exists in which the Maryland General Assembly can act, the Maryland courts need feel obliged to take further affirmative action only if the legislature fails to enact a constitutionally valid state legislative apportionment scheme in a timely fashion after being afforded a further opportunity by the courts to do so. However, under no circumstances should the 1966 election of members of the Maryland Legislature be permitted to be conducted pursuant to the existing or any other unconstitutional plan." In the Virginia case (Davis vs. Mann, 377 U.S. 678) the Court said: "After the District Court has provided the Virginia Legislature with an adequate opportunity to enact a valid plan, it can then proceed, should it become necessary, AT TORNEYS A T LAW - 1 1 - LAS V S ? A S . NE V AD A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2S 29 30 31 32 ?/ITT LAW ?AHA A d O O 1 0 8 3 X 1 A d O O O d 3 X to grant relief under equitable principles to insure that no further elections are held under an unconstitutional scheme. Since the District Court stated that it was retaining jurisdiction and that plaintiffs could seek further appropriate relief, the court below presumably intends to take further action, should the Virginia Legislature fail to act promptly in remedying the constitutional defects in the State's legislative appor?tionment plan." In the Delaware case (Roman vs. Sincock, 377 U.S. 695) the lower court entered an injunction against the holding of any elections for the General Assembly either as it previously existed or under a constitutional amendment and reserved jurisdiction to make such further orders as it might deem necessary. The Court stated in that case: "And the court below did not err in granting injunctive relief after it had become apparent that, despite its decree holding that the 1963 constitutional amend?ment reapportioning seats in the Delaware Legislature failed to comply T^ith federal constitutional requirements, no further reapportionment by the Delaware General Assembly was probable." Continuing, the Court said: "Acting under general equitable prin?ciples, the court below must now determine whether it would be advisable, so as to avoid a possible disruption of state elec?tion processes and permit additional time 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 25 27 28 29 30 31 32 ITT AW 1 n A II .. i A d O O O d 3 X for the Delaware Legislature to adopt a con?stitutionally valid apportionment scheme, to allow the 1964 election of Delaware legis?lators to be conducted pursuant to the pro?visions of the 1963 constitutional amendment, or whether those factors are insufficient to justify any further delay in the effectuation of appellants? constitutional rights.? In the Alabama case (Reynolds vs. Sims, 337 U.S. 533) the District Court adopted and ordered into effect for the November 1962 election "a provisional and temporary reapportionment plan? and retained jurisdiction "until the Legislature, as provisionally reapportioned . . . , has an opportunity to provide a true reap?portionment of both Houses of the Alabama Legislature.? The lower court then enjoined the defendant state officials from holding any future elections under any apportionment plan except under the apportionment scheme outlined in the Court's order. In commenting on the action of the Alabama District Court, the Supreme Court stated that it was "an appropriate and well-considered exercise of judicial power." The Court in discussing the action of the District Court stated: A d O O O ? 3 X "We feel that the District Court in this case acted in a most proper and commendable manner. It initially acted wisely in declining to stay the impending primary election in Ala?bama , and properly refrained from acting further until the Alabama Legislature had been given an opportunity to remedy the admitted discrepancies in the State's legislative apportionment scheme, while initially stating some of its views to provide guidelines for legislative action. And 13 - V r A d O O l O d 3 X i ... J A d O O ? o a a x L : AaOO O U 3 X r! X d O O ^ ' ? O M 3 * 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 BOYD & LSAV1TT it correctly recognized that legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requi?sites in a timely fashion after having had an adequate opportunity to do so. Addition?ally, the court below acted xtfith proper judicial restraint, after the Alabama Legis?lature had failed to act effectively in remedying the constitutional deficiencies in the State's legislative apportionment scheme, in ordering its oxm temporary reap?portionment plan into effect, at a time sufficiently early to permit the holding of elections pursuant to that plan without great difficulty, and in prescribing a plan admittedly provisional in purpose so as not to usurp the primary responsibility for reapportionment which rests with the legis?lature." In this action the complaint was filed on August 18, 1964. An answer was filed on September 4, 1964 and the case was at issue. The Nevada Legislature was scheduled to convene in January, 1965. An order xvas filed on December 14, 1964, setting forth the time for filing of briefs and a date for a hearing. The order set March 31, 1965, as the date for filing of a Stip?ulation of Facts in order to allow the Nevada Legislature an opportunity to apportion itself in view of the Supreme Court decisions. A further extension of time to file said stipulation was granted when the Nevada Legislature was still in session on \ - 14 - A T T O R N E Y S A T L A W VGGtS. fiEVASA A ciO O 1 0 ? 3 X V A d O O , O ? 3 X ! ? d O O O ? 3 X 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 March 31, 1965. Only one bill, Assembly Bill No. 1, the first to be introduced in the Assembly in January, 1965, was considered by the Legislature. This bill was defeated in the Assembly 18-17 and did not reach the Senate. The 1965 Nevada Legislature did not take any other action on reapportionment. (See paragraph 14 of Stipulation As To Facts.) The Nevada Legislature has had an adequate opportunity to apportion itself according to federal constitutional requisites and has refused to do so. Since the Nevada Legislature has refused to properly apportion itself, this Court should adopt and order into effect for the primary election of September, 1966 and the general elec?tion of November, 1966 a constitutional reapportionment plan and issue a permanent injunction restraining the defendants herein from conducting any elections for members of the Nevada Legislatur other than under said plan. Respectfully submitted, BOYD and LEAVITT Art?rrie?s for Plaintiffs- 81X Sahara Avenue L?-s Vegas, Nevada BOYD 8t LEAVITT A T T O R N E Y S AT LA W \,y}. '/{?? .4 S. NEVADA - 15 - ! A d O O : OiJ3X ?w