ALFRED BONE SHIRT,
BELVA BLACK LANCE,
BONNIE HIGH BULL and
GERMAINE MOVES CAMP,
Respondents,
v.
JOYCE HAZELTINE, in her official capacity as
Secretary of the State of South Dakota,
SCOTT ECCARIUS, in his official capacity as
Speaker of the South Dakota House of Representatives,
SOUTH DAKOTA HOUSE OF REPRESENTATIVES,
ARNOLD BROWN, in his official capacity as
President of the South Dakota Senate, and
SOUTH DAKOTA SENATE,
Petitioners.

[2005 SD 84]

ORIGINAL PROCEEDING

PATRICK DUFFY of
Duffy & Duffy
Rapid City, South Dakota

BRYAN L. SELLS of
American Civil Liberties Union Foundation
Atlanta, Georgia

Attorneys for respondents.

LAWRENCE E. LONG
Attorney General

JOHN P. GUHIN
SHERRI SUNDEM WALD
Assistant Attorneys General
Pierre, South Dakota

Attorneys for petitioners.

Argued March 21, 2005

Opinion Filed 6/29/2005

#23507

GILBERTSON, Chief Justice and SABERS, Justice

[¶1.] Pursuant to SDCL 15-24A-1[1] United States District Judge Karen E. Schreier of the District of South Dakota certified the following question to this Court:

Is the South Dakota Legislature authorized under Article III, Section 5 of the South Dakota Constitution, to reapportion Districts 26 and 27 and other affected areas in response to the federal district court finding a violation of Section 2 of the Voting Rights Act of 1965?

We answer the question in the affirmative.

FACTS

[¶2.] Article III, Section 5 of the South Dakota Constitution mandates that the Legislature apportion its membership every ten years after 1991.  Pursuant to this provision the Legislature undertook the redistricting process following the 2000 census.  Following redistricting committee hearings, the Legislature at a special session adopted the 2001 plan which the governor signed on November 1, 2001.  Bone Shirt v. Hazeltine, 336 FSupp2d 976, 983 (DSD 2004).

[¶3.] Two Native American residents of Todd County in District 27 and two Native American residents in Bennett and Jackson Counties in District 26 brought suit in the United States District Court against the South Dakota Secretary of State, the Speaker of the House of Representatives, the President of the Senate, and the two houses of the South Dakota Legislature.  The plaintiffs in the district court alleged that South Dakota's 2001 legislative redistricting plan violated their rights under Sections 2 and 5 of the Voting Rights Act of 1965.  Bone Shirt, 336 FSupp2d at 980.

[¶4.] A three judge panel held that defendants violated Section 5 by failing to preclear the 2001 legislative redistricting plan.  Id. 336 FSupp2d at 980.  Following a court trial, the United States District Court further held

[T]hat  under the totality of the circumstances, the South Dakota 2001 Plan results in unequal electoral opportunity for Indian voters.  The court finds that plaintiffs have satisfied three Gingles factors and that the totality of the circumstances evidence that Indians in Districts 26 and 27 have been denied an equal opportunity to access the political process.  The current legislative Plan impermissibly dilutes the Indian vote and violates § 2 of the Voting Rights Act.  Defendants  must afford Indians in both Districts 26 and 27 a realistic and fair opportunity to elect their preferred candidates.

Id. 336 FSupp2d at 1052.  The district court pointed out that state government should ordinarily have the opportunity to propose a remedy for a § 2 violation since "redistricting remains primarily in the domain of the states."  Id. 336 FSupp2d at 1053.  Defendants were given forty-five days to file remedial proposals.  Id. 336 FSupp2d at 1053.

[¶5.] In light of our decision in Emery v. Hunt, 2000 SD 97, 615 NW2d 590, a question arose as to whether the Legislature could constitutionally engage in legislative apportionment in a year other than a year after a decennial census.  Because of his concern about the State's ability to comply with the district court's order to make remedial proposals while also complying with the constitutional mandate regarding legislative apportionment, Governor M. Michael Rounds requested an advisory opinion from this Court.  We declined to answer this request because:

The Justices cannot render an advisory opinion on issues which may arise in the federal litigation.  That would involve the Justices [ ] determining issues based on conditions that may or may not take place and which are outside the process of adjudication without giving the parties an opportunity to brief the issues and advocate a position.

Letter from Chief Justice David Gilbertson to Governor M. Michael Rounds, October 5, 2004.

[¶6.] The state defendants then asked the district court to certify the question to this Court.  The district court did so, noting:

Certification is within the federal court's discretion.  Perkins v. Clark Equipment Co., 823 F2d 207, 209 (8thCir 1978).  Certification is "appropriate when the state court's construction of an uncertain state law could make resolution of federal constitutional questions unnecessary."  Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F3d 1452, 1463 (8thCir 1995).  The South Dakota Supreme Court may answer questions of law certified to it "which may be determinative of the cause pending in the certifying court and[when] it appears .  .  .  that there is no controlling precedent in the decisions of the Supreme Court of [South Dakota].  SDCL 15-24A-1.

In the instant case, this court found that the state legislative districting plan of 2001 violates the Voting Rights Act of 1965 because  minority voting rights are diluted.  This court ordered defendants to file remedial proposals consistent with the opinion within 45 days.

" 'When a federal court declares an existing apportionment scheme unconstitutional, it is therefore appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan.' "  Williams v. City of Texarkana. Ark., 32 F2d 1265, 1268 (8thCir 1994)(quoting Wise v. Lipscomb, 437 US 535, 540, 98 SCt 2493, 2497, 57 LEd2d 411 (1978)).  The court must defer to a proposed plan adopted by the legislature, "unless the plan does not completely remedy the violation or the proposed plan itself constitutes a section two violation."  Williams, 32 F3d at 1268.  The district court must fashion a remedial plan if the state legislature does not propose a remedy.  Id.

The Supreme Court of South Dakota has previously ruled that the plain language of Article III, Section 5, authorizes apportionment by the legislature only after a decennial census.  In re Certification of a Question of Law, 615 NW2d 590 (SD 2000) (Emery v. Hunt).  The South Dakota Supreme Court has not had the opportunity, however, to address the question of whether the state legislature has the power under the South Dakota state constitution to reapportion after its 2001 decennial apportionment was found to violate federal law.  If the state legislature has the power to reapportion and enacts a plan that completely remedies the violation without creating a new section two violation, such action may resolve the case pending before this court.  Under these circumstances, the court finds it appropriate to certify a question of law to the South Dakota Supreme Court.  The question proposed by defendants will be broadened, however, to include "other affected areas" in addition to Districts 26 and 27 because plaintiffs' proposed remedial plans slightly impact adjacent legislative districts.

ISSUE

[¶7.] This Court filed an order accepting certification on January 20, 2005.  Consequently this issue is properly before this Court:

Is the South Dakota Legislature authorized under Article III, Section 5 of the South Dakota Constitution, to reapportion Districts 26 and 27 and other affected areas in response to the federal district court finding a violation of Section 2 of the Voting Rights Act of 1965?

ANALYSIS

[¶8.] Two South Dakota cases are relevant to deciding the issue before the Court.  The first, decided in 1933, is In re Opinion of the Judges, 61 SD 107, 246 NW 295 (SD 1933).  The second, issued in 2000, is Emery v. Hunt, 2000 SD 97, 615 NW2d 590.

[¶9.] When In re Opinion of the Judges was before the Court, Article III, Section 5 of the South Dakota Constitution provided:

The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy.  Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state.

The Twenty-Second Legislature which met in 1931 failed to comply with the mandate of § 5 and did not make the required apportionment.  The question became whether the Twenty-Third Legislature meeting in 1933 had the authority to apportion or whether it was prohibited from doing so by the "but at no other time" language in Article III, Section 5.

[¶10.] This Court examined the constitutions of other states and found that most apportionment provisions had affirmative mandates for action at a specified time but, unlike South Dakota, no express prohibition of action at other times.  Despite this, courts held "an affirmative mandate for legislative action at a specified time is an implied prohibition of action at any other time."  In re Opinion of the Judges, 61 SD at 111, 246 NW at 296.  This Court found that no valid distinction could be based upon the South Dakota constitution's express, rather than implied prohibition:

*  *  *

In all cases which we have been able to find upon the point where the Constitution affirmatively requires apportionment at a specific time (usually the first session after enumeration), it is held that such duty is mandatory upon the Legislature (though they are not compellable thereto by any court), and, notwithstanding the fact that there is an implied prohibition against so doing at any other time, such prohibition is conditioned upon the prior performance of the affirmative duty and does not come into operation until the duty mandatorily imposed has been exercised.  In other words, when a Legislature once makes an apportionment following an enumeration no Legislature can make another until after the next enumeration, but the duty to make the apportionment following the enumeration continues until performed even though the Legislature fails to perform such duty at the first session after the enumeration.

In re Opinion of the Judges, 61 SD at 111-112, 246 NW at 296-297.  (emphasis added).

[¶11.] The Court also observed:

It seems quite apparent that the framers of the Constitution in providing for apportionment "at its first regular session, after each enumeration .  .  .  but at no other time," meant to say only this and nothing more:  That the Legislature should make an apportionment at the first session after an enumeration as affirmatively required by the Constitution, and having so done (as the Constitution makers assumed they would) they should not again exercise such power until after another enumeration.

The Court stressed, however, that the failure to perform the duty cannot cancel the legislative obligation:

.  .  .  that is to say, if the apportionment is not made in the first session after the return of the enumeration, the duty to make it devolves upon the Legislature then next sitting and upon each following Legislature until that duty is performed .  .  .  .  "  Botti v. McGovern (1922) 97 NJ Law, 353, 118 A 107, 108.

"The duty is a continuing one, and, if it is not discharged at or within the time prescribed, the burden of its performance rests upon successive General Assemblies until the section has been obeyed."  Fergus v. Kinney (1928) 333 Ill 437, 164 NE 665, 666.

Id., 61 SD at 113, 246 NW at 297.

[¶12.] Therefore the Court held that if the 1933 legislature passed an apportionment act, that act "will not in our opinion be open to successful attack upon the ground that the present session lacked constitutional power to deal with the subject matter of apportionment under section 5 of Article 3 of the Constitution of this state."  Id. 61 SD at 114, 246 NW at 297.[2]

[¶13.] Since our 1933 decision in In re Opinion of the Judges, Article III, Section 5 has been amended three times.[3]  The 1982 initiated constitutional amendment repealed the existing Article III, Section 5 and replaced it with Article III, Section 5 as it reads now:

The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators.  House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine.  Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census.  An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991.  Such apportionment shall be accomplished by December first of the year in which the apportionment is required.  If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

[¶14.] We examined this constitutional provision in Emery v. Hunt, supra.  There, the 1991 Legislature performed its constitutional duty and enacted apportionment legislation following the 1990 census.  No court found the legislation to be invalid or unconstitutional.  The Legislature, however, was concerned about the constitutionality of the legislation in light of the United States Supreme Court's decision in Miller v. Johnson, 515 US 900, 115 SCt 2475, 132 LEd2d 762 (1995).  It amended the 1991 legislation in 1996.  We were asked to determine whether the 1996 amendment violated Article III, Section 5 which mandates apportionment in 1991 and every ten years thereafter.  In a divided opinion, the majority of this Court  concluded that "because the legislature did perform its constitutional duty when it enacted apportionment legislation in 1991 following the 1990 federal census, it lacked constitutional authority to make another apportionment until after the next federal census."  Emery v. Hunt, 2000 SD 97 at ¶ 8, 615 NW2d at 595.   Justice Sabers and Justice Gilbertson dissented interpreting this constitutional provision to allow additional apportionments when the legislature deemed it appropriate.

[¶15.] The Emery Court  also recognized that the 1982 amendment of Article III, Section 5 transferred the duty of apportionment, if not performed by the Legislature, to this Court.  This duty:

is also mandated to be performed at a time certain.  It may only be performed within ninety days after December first of 1991 and every ten years thereafter if the legislature fails to apportion its membership by the December first deadline.

Id., 2000 SD 97 at ¶ 12, 615 NW2d at 596.  After the Court has performed its constitutional duty under Article III, Section 5, the Legislature is prohibited from taking further action until after the next federal census.  Id., 2000 SD 97 at ¶ 15, 615 NW2d at 596.

[¶16.] The duty of the Legislature to apportion and this Court's duty when the Legislature fails to act is the duty to enact a valid apportionment law, a point suggested in In re Opinion of the Judges, see fn  2, supra, and stressed by the majority in Emery v. Hunt:

It is the general rule that once a valid apportionment law is enacted no future act may be passed by the legislature until after the next regular apportionment period prescribed by the Constitution.

Emery v. Hunt, 2000 SD 97 at ¶ 10, 615 NW2d at 595 (quoting Harris v. Shanahan, 192 Kan 183, 387 P2d 771, 779-80 (1963)).  There is a strong presumption that laws enacted by the legislature are constitutional and valid.  Cleveland v. BDL Enterprise, Inc., 2003 SD 54, ¶ 34, 663 NW2d 212, 221.

Since there is a presumption that laws passed by the legislature are valid and constitutional until judicially determined to be otherwise, the legislature will be powerless to lawfully reapportion until the next apportionment period, unless this court adjudges the present senate apportionment act to be invalid.

Harris v. Shanahan, 387 P2d at 780.  "An apportionment which is invalid, for whatever reason, is no apportionment[.]"  Mauzy v. Legislative Redistricting Board, 471 SW2d 570, 574 (Tex 1971).[4]

[¶17.] The foregoing authority instructs that if the legislature fails to perform its constitutional duty to enact apportionment legislation by December 1 of the year in which apportionment is required, this Court has ninety days from the December 1 deadline to apportion.  However, if the legislature apportions and that apportionment is judicially deemed invalid, the legislature continues to have the duty to enact a valid apportionment plan.  Where, as in Emery v. Hunt, supra, the legislature enacted apportionment legislation in 1991 and there had been no judicial determination of invalidity or unconstitutionality, a majority of this Court concluded the legislature had no authority to make another apportionment until after the next census.  Where however, as in this case, a federal court has held that the apportionment is invalid, the legislature has the continuing obligation and duty to enact a valid plan.  The duty continues until performed.[5]

[¶18.] Other jurisdictions with constitutional provisions similar to Article III, Section 5 have reached the same conclusions.[6]  In Yorty v. Anderson, 384 P2d 417 (Cal 1963) the California Supreme Court found that Article IV, Section 6 of its constitution vested the primary duty and power to apportion in the legislature.  If the legislature enacted a reapportionment plan held invalid by judicial decision, the legislature, "under a reasonable construction of Section 6" had the opportunity to adopt a plan meeting the requirements of the federal constitution.  Id., 384 P2d at 419.  The purpose of the provision in Section 6 which created a Reapportionment Commission was to "provide an alternative method of reapportionment to be used only in the event of legislative inaction."  Id.

[¶19.] Article II, Section 35 of the North Dakota Constitution mandates that the legislature apportion at the first regular session after each decennial census.   State v. Sathre, 113 NW2d 679 (ND 1962).  If the legislature fails to apportion, the duty falls on a group of state officials.  The Thirty-Seventh Legislature took no action.  The action taken by the group designated to apportion in the event the Legislature failed to do so was held to violate the constitutional mandate of apportionment according to the population of the districts and was, therefore, void.  The court explained:

It was asserted on argument that should we hold that the action of the group was void, there could be no apportionment under Section 35 until after the next Federal Decennial Census.  We do not so construe Section 35.  While the power of the group to act on behalf of the Legislature expired at the end of the 90-day period, the duty imposed upon the Legislature to reapportion is a continuing one.  State v. Cunningham, 81 Wis 440, 51 NW 724, 15 LRA 561; Denney v. State, 144 Ind 503, 42 NE 929, 31 LRA 726; People ex rel. Carter v. Rice, 135 NY 473, 31 NE 921, 16 LRA 836; In re Opinion of the Judges, 61 SD 107, 246 NW 295.

In Jones v. Freeman, 193 Okl 554, 146 P2d 564, it is said:

While the primary duty of apportioning the state rests upon the first Legislature elected after each Decennial Federal census, the duty is a continuing one and if the first Legislature fails to enact a valid law, the duty devolves upon each succeeding Legislature until it is performed.

*  *  *

Once a valid law is enacted no further act may be passed by the Legislature until after the next Federal Decennial census.

We are of the opinion that the duty of the Legislature to apportion is mandatory and continues until it is performed.

Id., 113 NW2d at 687.[7]

CONCLUSION

[¶20.] Article III, Section 5 of the South Dakota Constitution authorizes the South Dakota Legislature to reapportion Districts 26 and 27 and other affected areas in response to a federal district court's finding a violation of Section 2 of the Voting Rights Act of 1965.     

[¶21.] ZINTER and MEIERHENRY, Justices, concur.

[¶22.] KONENKAMP, Justice, concurs specially.

KONENKAMP, Justice (concurring specially).

[¶23.] Five years ago, we held that the Legislature could not, on its own initiative, reapportion legislative districts other than at the times permitted by the South Dakota Constitution.  Emery v. Hunt, 2000 SD 97, 615 NW2d 590.  Like the case before us today, Emery answered a certified question put to us by the federal district court.  We ruled that in enacting its 1996 redistricting plan “the Legislature acted beyond its constitutional limits.”  Id. at ¶18, 615 NW2d at 597.  We voided the 1996 plan, thus reinstating the preexisting 1991 plan.

[¶24.] Despite the decennial redistricting limitation in South Dakota’s Constitution, the co-authors of today’s lead opinion would permit the Legislature to reapportion voting districts at any time the Legislature deems another apportionment desirable.  See their separate dissents in Emery, 2000 SD 97, ¶¶21-38, 615 NW2d at 597-604.  This proposition is precisely what our ruling in Emery would not permit.  In my view, however, our decision today does not alter our holding in Emery.  Now the question before us is different.

[¶25.] We must decide whether the Legislature may reapportion in response to a court judgment that the existing apportionment is illegal.  There is ample reason to conclude that once a redistricting plan is declared unlawful or unconstitutional, the Legislature can be required to forthwith enact a new plan in compliance with the law.  This is true even if the reapportionment would take place outside the ten-year cycle dictated by our Constitution.

[¶26.] The danger that the Legislature could reapportion every few years for partisan motives is the reason the framers of our Constitution prohibited reapportionment more frequently than every ten years.  That is why the redundant “at no other time” language was inserted in the original text.  The framers feared that a politically dominant party could redistrict at will to suit its own self-serving ends.  South Dakota Constitutional Convention Debates of 1885, vol 1, at 207.  For similar reasons, most states operate on this same ten-year timetable.  The United States Supreme Court has acknowledged that “[l]imitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system . . . .”  Reynolds v. Sims, 377 US 533, 583, 84 SCt 1362, 1393, 12 LEd2d 506 (1964).

[¶27.] On the other hand, once it is determined by a court that a legislative redistricting plan is invalid, equal protection demands a remedy.  The preferred forum for a solution is usually the state.  “[T]he Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts.”  Growe v. Emison, 507 US 25, 34, 113 SCt 1075, 1081, 122 LEd2d 388 (1993) (citing US Const art I, § 2).  The Supreme Court recognized that “[t]he power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged.”  Scott v. Germano, 381 US 407, 409, 85 SCt 1525, 1527, 14 LEd2d 477 (1965) (citations omitted).  Indeed, both “[r]eason and experience argue that courts empowered to invalidate an apportionment statute which transgresses constitutional mandates cannot be left without the means to order appropriate relief.”  Terrazas v. Ramirez, 829 SW2d 712, 718 (Tex 1991).

[¶28.] The fact that the voters rejected an amendment in 2002 to empower the Legislature to reapportion if a state or federal court invalidated an apportionment is of no consequence.  The courts always had the power to require such a reapportionment.  Therefore, I would answer the district court’s question in the affirmative:  the Legislature can reapportion Districts 26 and 27 under Article III, Section 5 of the South Dakota Constitution, but only because there is a court judgment finding the existing apportionment invalid.