#### *In re*APPORTIONMENT OF ALLEGAN COUNTY BOARD OF SUPERVISORS—1968. PETITION OF GRAY.

1. Counties — Representation — Apportionment — Equal Population.

The basic criterion for determining the validity of apportionment of representation in loeal governmental bodies is substantially equal population.

2. Same — Board op Supervisors — Apportionment.

The statute providing for apportionment of districts represented on the county board of supervisors makes single-member districts of nearly equal population its basic requirement, and the mandatory guidelines found in the statute cannot justify districts of substantially unequal population (PA 1966, No 261 [MCLA, §§46.401-46.415]).

3. Same — Apportionment—Constitutional Requirements.

Apportionment is essentially a local legislative obligation not to be interfered with by the courts unless a review of the entire plan establishes it to be violative of constitutional or statutory requirements.

4. Same — Board op Supervisors — Apportionment—Validity—Variances.

Plan for apportionment of Allegan County Board of Supervisors which provided for 21 districts with a population variance ratio of 1:1.828 *held*invalid, where a review of the plan'is convincing that the variances among the districts are not based on legitimate considerations incident to the effectuation of a rational policy.

References por Points in Beadnotes

[1, 2, 4, 5] 25 Am Jur 2d, Elections § 31.

[3] 25 Am Jur 2d, Elections § 32.

*6935. Same — Board op Supervisors — Apportionment — Weighted Voting.

Each supervisor elected under apportionment plan, declared to be invalid because of unjustified variances in population ratio between districts, shall be entitled to vote as supervisor in proportion the population represented by him bears to the average population of all the districts.

Original statutory action in Court of Appeals to review apportionment plan.

Submitted Division 3 July 1, 1968, at Lansing.

(Docket No. 5,755.)

Decided October 23, 1968.

Petition by David M. Gray for statutory review of apportionment plan for the Allegan County Board of Supervisors. Elections ordered to proceed under plan July 5, 1968. Plan declared invalid, with instructions as to . voting of board elected under it, October 23, 1968.

*Edward Read Barton,*for plaintiff.

*George A. Greig,*Allegan County Prosecuting Attorney, for defendant.

Quinn, J.

Pursuant to PA 1966, No 261, MCLA, §§ 46.401 — 46.415 (Stat Ann 1968 Cum Supp §§ 5.359 [1] — 5.359 [15]) and on April 6,1967, the Allegan county board of supervisors adopted Plan A of its apportionment committee for the reapportionment of the board. May 13, 1968, said board of supervisors authorized the county clerk to file Plan A. Thereafter, plaintiff filed a petition and an amended petition to review Plan A and a brief in support thereof. Plaintiff also moved to add the county of Allegan as a party defendant in response to defendant’s motion to dismiss. Defendant filed answer *694and a brief in support thereof. The cause was argued and submitted July 1, 1968.

Plaintiff’s motion to add the county of Allegan as a party defendant is granted and defendant’s motion to dismiss is denied.

Plan A provides for 21 districts, the largest of which has a population of 3,552 and the smallest 2,019, according to the 1960 census. The same census places the total county population at 57,729, and the average population of the 21 districts is 2,749. The maximum population variance ratio is 1:1.76, and under Plan A, 44.9% of the population can elect a majority of the hoard of supervisors. The largest district is 34.3% above the average and the smallest 26.6% below the average. Thus a vote for supervisor in the largest district has a value of 74% as compared with the same vote in the average district, and by the same comparison, a similar vote in the smallest district has a value of 136%.

In *Avery*v. *Midland County*(1968), 390 US 474 (88 S Ct 1114, 20 L Ed 2d 45) the United States Supreme Court adopted as applicable to the apportionment of local units of State government, the principles announced in *Reynolds*v. *Sims*(1964), 377 US 533 (84 S Ct 1362, 12 L Ed 2d 506), for the apportionment of State legislatures, and again indicated that the basic criterion in determining the validity of apportionment is “substantially equal population”. *Reynolds, supra,*recognized the impossibility of exactness in apportionment but stated,

> “So 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 2 houses of a bicameral state legislature.”

*695It appears to ns that the legislature anticipated *Avery, supra,*and applied the principles of *Reynolds, supra,*to county apportionment in Michigan when it enacted PA 1966, No 261, MOLA, §§ 46-.401-46.415 (Stat Ann 1968 Cum Supp §§ 5.359[1]-5.359[15]). Section 4(a) thereof makes the basic requirement of county apportionment “single-member districts and as nearly of equal population as is practicable”. The remaining mandatory guidelines specified in section 4(b) through (h) are subsidiary to (a), and while they are to be followed in formulating an apportionment plan and while they may assist in determining the practicality of population variance between districts, they will not justify districts of substantially unequal population.

The great diversity of problems among the States in relation to apportionment deterred the United States Supreme Court in *Reynolds, supra,*from laying down spcific guidelines. The same diversity of problems among the local governmental units of Michigan prevents this Court from being more specific. Apportionment is essentially a local legislative obligation not to be interfered with by the courts unless a review of the entire plan establishes it to be violative of constitutional or statutory requirements, and such a review must necessarily be on a case-by-case basis.

A review of Plan A is convincing that' the unacceptable variances among the districts are not based on legitimate considerations incident to the effectuation of a rational policy, and Plan A is declared to be invalid, the provisions of PA 1968, No 153 (MCLA § 46.401 [Stat Ann 1969 Cum Supp § 5.359(1)]) notwithstanding.1 However, this Court and counsel for all parties are interested in insuring orderly elec*696tions. The imminence of the 1968 primary election caused all parties to request this Court not to interfere with the holding of that primary election under Plan A. We honored that request by our order of July 5, 1968, but such action does not absolve us from our obligation to follow constitutional and statutory mandates and to apply them to any election held under Plan A. Our finding that Plan A is invalid requires that the Allegan county board of supervisors be reapportioned by the county apportionment commission in accordance with mandatory guidelines specified in PA 1966, No 261, § 4. In the meantime, we adopt as the most feasible method of fulfilling our obligation the weighted voting plan used in *Thigpen*v. *Meyers*(1964), 231 F Supp 938. Each supervisor elected in 1968 under Plan A shall be entitled to vote as supervisor in the proportion the population represented by him bears to the average population of the 21 districts. The supervisors from the respective districts shall have the following votes:

> District 1 — 1.14

> District 2 — 1.

> District 3— .75

> District 4— .75

> District 5— .94

> District 6 — 1.1

> District 7— .75

> District 8 — 1.2

> District 9— .85

> District 10 — 1.1

> District 11— .90

> District 12— .90

> District 13— .90

> District 14 — • .86

> District 15 — 1.

> District 16 — 1.14

> District 17— .96

> District 18 — 1.3

> District 19— .96

> District 20 — 1.3

> District 21 — 1.2

In the event the official published figures of the 1970 United States official census are not available in time for the county apportionment commission to formulate and adopt an apportionment plan for the 1970 primary election, that election and the *6971970 general election may be beld under Plan A witb. supervisors elected thereat being subject to the weighted voting specified herein.

T. G. Kavanagh, P. J., and McGregor, J., concurred.

1

PA 1968, No 153, provides in part: “in no event -will litigation' affect, alter, change, amend or delay any apportionment plan adopted under this act insofar as 1968 supervisor elections are eoneerned,”-