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The 192nd General Court of the Commonwealth of Massachusetts

Excerpt of 1977 House Bill 5900

Pre-1972 History of Legislative Redistricting in Massachusetts (Excerpt From House Bill 5900, 1977)

Early Background

Through the past three centuries, the General Court has undergone many changes in its membership and the manner of their election.

The nation's second oldest legislature, the original General Court, authorized in 1628, was a large "town meeting" consisting of the freemen of the sparsely-populated Massachusetts Bay Colony who were able to gather in the Boston area. In 1643, that popular assembly was replaced by a unicameral representative body whose members were chosen annually by the freemen of their respective towns. A decade later, the Governor's Assistants (Council), formerly a strictly executive entity, were constituted as an "upper house" of the General Court. With the advent of the American Revolution in 1775, and the ratification by the voters of Massachusetts of the Constitution of 1780, the Governor's Council lost its legislative functions to become once again a wholly executive body, and in its place the Senate was created as the "upper" branch of the Legislature.

Prior to 1857, towns — and after 1821, cities — were the territorial units on which representation in the House of Representatives was based. Each town or city was allocated one representative as a minimum, with more populous municipalities being authorized to elect additional representatives according to statutory (1692-1780) or constitutional (1780-1857) formulae which varied from time to time. Such additional representation was computed in terms of numbers of legal voters until 1840, when that standard was replaced by an "inhabitant" (legally domiciled population) basis of representation. To aid in making these determinations, a state decennial census was authorized by a constitutional amendment of 1836. That amendment also empowered towns to combine voluntarily in districts for electing representatives, thus allowing such communities to pick up additional representation in certain instances. Under these arrangements, the membership of the House of Representatives fluctuated from a low of 131 members in 1782 to a high of 748 members in 1812.

The membership of the State Senate (40) has remained unchanged since the adoption of the Constitution of 1780 which created it. The original constitutional provision provided for the apportionment of state senators to districts in proportion to the public taxes paid by inhabitants thereof, no such district to elect more than six senators. In 1840, the Constitution was amended to base this senatorial apportionment instead on inhabitants as enumerated by the state decennial census.

The Governor's Council or Executive Council went through many changes during the Colonial Era as British governments modified the Colonial Charter. Under the Charter of 1628, that body consisted of 18 "Assistants" elected annually in the freemen of the Colony. When the Massachusetts Bay Colony, Maine, the New Plymouth Colony, Nantucket, Martha's Vineyard, and certain adjacent territories were consolidated into the Province of Massachusetts Bay in 1692, the "Assistants" were replaced by a 28-member Governor's Council named annually by the General Court (House of Representatives) with gubernatorial consent, to serve both in an executive and legislative capacity.

Reconstituted as the Executive Council, without legislative powers, by the Constitution of 1780, that body was composed, until 1841, of nine members of the Senate elected annually to the Council by the members of the Senate and House of Representatives sitting jointly. From 1841 until 1855, the two branches chose these Executive Council members from the voters at large rather than from among the senators? Thereafter, under a constitutional amendment of 1855, executive councillors have been elected directly by the voters from single-member districts each of which is composed of five contiguous state senatorial districts.

Constitutional Changes of 1857-1970

In 1857, two constitutional amendments required the Senate and the House of Representatives to be apportioned on the basis of a mid-decade state decennial enumeration of "legal voter" rather than inhabitants. The Senate, which remained fixed at 40 members, was to be elected from single-member districts defined by statute. The House of Representatives consisted thereafter of 240 members chosen from one, two and three member districts, drawn by county boards on the basis of a statutory assignment of seats to each county, subject to a prohibition against dividing any city ward or town in forming a representative district. For the purpose of forming such House districts, the exclave Norfolk County Town of Cohasset was treated as part of Plymouth County. Furthermore, each county was allocated at least one state representative.

In 1930, these constitutional provisions were modified to permit towns of more than 12,000 inhabitants to be partitioned for the purpose of forming representative districts.

In the meantime, biennial terms were established for state legislators, executive councillors, and state constitutional officers by a 1918 constitutional amendment, effective for the 1920 state elections.' And successive constitutional amendments of 1891-1972 broadened the franchise, and, hence, the number of legal voters, by the removal of property, poll tax and sex qualifications for voting, and by reducing the minimum age for voting from 21 to 18 years. The electorate was further expanded by federal court opinions which invalidated, or reduced the scope, of residency and literacy requirements added to the Massachusetts Constitution during the Nineteenth Century.

Legislative Redistricting Experience Under 1857

Constitutional Provisions Redistricting Experience Prior to 1955 State Decennial Census.

In 1857, and in 1866 and every tenth year thereafter through 1926, the General Court complied promptly with the constitutional mandate that the Commonwealth be redivided into new representative, senatorial and executive councillor districts at the first session of the General Court immediately following the submission of the State Secretary's report of the mid-decade state decennial census enumeration of legal voters.

Although a constitutional amendment of 1930 revising state census and certain procedural aspects of the 1857 constitutional provisions continued the requirement that all redistrict-immediately following the filing of the state decennial census report, the laws creating new legislative and executive councillor districts were not passed until 1939. A lesser delay ensued following the 1945 state decennial census, when representative districts were redrawn under a 1947 statute, and senatorial and executive councillor districts were revised the following year (1948).

The speed with which the General Court complied with the constitutionality-prescribed redistricting times schedule prior to World War II has been attributed to the discipline of the Republican majorities which dominated both branches of the General Court until the 1948 state biennial election, and to GOP occupancy of the governorship in every year in which redistricting legislation was enacted. In this connection, it is to be noted that the redistricting tasks which should have been done in 1936 and 1946 were deferred until the Democratic governors then incumbent had been replaced by Republican successors.

As these Republican majorities eroded in the 1930's and 1940's, and as urbanization and social change increased the proportion of legislators who reported their duties as "full time" or nearly so, legislative redistricting became more difficult to achieve on time, as partisan, factional and political personality conflicts intensified. The 1948 state biennial election returned a Senate evenly divided between the two major parties, and a Democratic majority to the House of Representatives. After regaining control of the Senate in the 1950 state biennial election, the Republicans lost it again in 1958, placing that body under Democratic domination which has lasted since January 1959. Similarly, after a brief return to control of the House of Representatives in the 1952 state biennial election, the Republicans were superseded by a Democratic majority at the 1954 state biennial election, which has remained unshaken since that time.

Tardy Redistrictings Based on 1955 State Decennial Census.

An immediate consequence of these developments was an extended delay in redistricting the Commonwealth on the basis of the 1955 state decennial census of legal voters. Legislation creating new senatorial and executive councillor districts was delayed until 1960 (c. 432). Even tardier was the reapportionment of the House of Representatives, which made no move to meet its constitutional obligations on that score until the then existing plan of House districts, based on the 1945 state decennial census of legal voters, was invalidated by the Superior Court on the grounds of violations of the Equal Franchise Clauses and the decennial redistricting mandates' of the Massachusetts Constitution, and the Equal Protection of the Laws Clause of the Fourteenth Amendment of the Federal Constitution. That Superior Court finding, which was not repealed, followed in the wake of the landmark decision of the United States Supreme Court in the Tennessee case of Baker v. Carr in 1962, which instituted a long series of opinions by that Court holding that the Equal Protection of the Laws Clause of the Fourteenth Amendment mandates timely "one man, one vote" periodic reapportionment of state legislatures and local representative bodies. Accordingly, the 1963 General Court enacted the required legislation apportioning representatives to (a) the 12 mainland counties in proportion to their numbers of legal voters as enumerated in the 1955 state decennial census, and (b) to the two insular counties of Dukes County and Nantucket at the rate of one representative each; that statute provided for the division of the mainland counties into one-member, two member and three-member representative districts by gubernatorially-appointed county apportionment boards (c. 666).

Redistricting Struggles of 1967-70.

With the reporting of the 1965 state decennial census of legal voters and inhabitants, a new division of the Commonwealth into representative, senatorial and executive councillor districts became necessary. Accordingly, a joint special committee was established in April of 1967 to propose the necessary legislation. Its work was given added urgency by a challenge to the existing legislative districts, filed in the Federal District Court in Boston. Subsequently, that committee proposed an act apportioning representatives to the various counties along the lines of the 1963 law described above, with two changes. First, in the mainland counties, the task of dividing each county into representative districts was assigned to the board of county commissioners in each county other than Suffolk County, where that duty fell upon an apportionment commission which had been elected by the county electorate in 1964. Secondly, after reviewing "one man, one vote" decisions of the federal courts in regard to other states, the joint special committee concluded that the legal voter criterion of legislative redistricting theretofore used in Massachusetts was now violative of the Fourteenth Amendment because of distortions that criterion would produce in the allocation of House seats to counties with large number of urban poor having a low percentage of voter registration. Hence, the apportionment of representatives proposed in the committee bill was based on the number of "inhabitants" (legally domiciled residents) enumerated in the 1965 state decennial census rather than on that census's count of legal voters.

After those committee conclusions were upheld by an advisory opinion of the Supreme Judicial Court requested by the Senate, the committee measure was enacted in amended form in December of 1967 (c. 877). In 1968, this House reapportionment plan was challenged in the Supreme Judicial Court on the grounds that it violated "one man, one vote" standards by awarding one representative apiece to the two island counties, despite their very small populations. However, that Court upheld such distinctive insular county representation as based on "legitimate considerations to . . . a rational state policy" which recognized the isolation of the island counties from the mainland, their long history of distinctive representation in the House, and the negligible impact of this insular overrepresentation in the large 240 member House so far as the voting and representational rights of mainlanders were concerned.

The enactment of legislation establishing new senatorial and executive councillor districts based on the 1965 state decennial census of inhabitants was impeded by an intensive partisan struggle between Democratic majorities in the General Court, on the one hand, and two successive Republican governors on the other, aided by Democratic dissidents. Thrice, plans of senatorial and executive councillor districts proposed by joint special committees of the General Court were vetoed successfully by Governor John. A. Volpe and his successor Governor Francis W. Sargent between 1967 and 1970, on the grounds of unfairness to Republicans, a failure to provide for a "Black" senatorial district in Boston, and "excessive" division of certain cities. The partisan conflict intensified when the Supreme Judicial Court invalidated the existing senatorial districts in June of 1970 on "one man, one vote" grounds and forbade their use in the upcoming 1970 state biennial election. 3 Faced with the prospect of judicially-drawn senatorial and executive councillor districts, the General Court passed over the Governor's veto a fourth plan of such districts after rejecting alternatives proposed by the Governor and the Senate Rules Committee. The resulting 1970 statute made no provision for a "Black" Boston senatorial district (c. 498).

Quinn Amendment of 1970

As a consequence of problems experienced with legislative redistricting under the constitutional provisions of 1859 and 1930, legislative constitutional conventions of 1968 and 1969 proposed, and the voters of Massachusetts in 1970 ratified, Amendment Article XCII of the Constitution, popularly called the "Quinn Amendment" after its author, former House Speaker and Attorney-General Robert H. Quinn of Boston.

That article provided for single-member districts for the election of legislators and executive councillors on the following basis:

(1) A state census of the number of inhabitants in each local ward and precinct was required in 1971 and every tenth year thereafter. This census was to serve as a basis for the decennial establishment of new legislative and executive councillor districts. Transitionally, the present House districts, established in 1967 (c. 877), continued in force until the 1974 state election, at which time legislators and executive councillors were to be chosen on the basis of new districts to take their seats in January of 1975.

(2) At its first regular session in the year after the decennial census of inhabitants is taken — that is, in the year ending in "2" — the General Court was required to divide the Commonwealth into (a) 240 single-member representative districts, (b) 40 single-member senatorial districts, and (c) eight single-member executive councillor districts. These new districts were to govern the election in the year ending in "4" of legislators and executive councillors to be seated commencing in January of the year ending in "5".

(3) Each of the 240 House districts was to contain "as nearly as may be" an equal number of inhabitants, except that Dukes County and Nantucket County each continued to elect a representative notwithstanding their small populations. Each House district was to consist of contiguous territory, without dividing any town of fewer than 6,000 inhabitants among such districts. Insofar as possible, House districts were to be established without uniting in one district (a) two counties or parts of two or more counties, (b) two towns or parts of two or more towns, (c) two cities or parts of two or more cities, (d) a city and a town, or (e) parts of cities and towns.

(4) Similarly, each of the 40 senatorial districts were to contain "as nearly as may be" an equal number of inhabitants, and be formed of contiguous territory, without uniting insofar as possible, two or more counties or parts of two or more counties in a single district. All towns and city wards could be divided along their precinct lines in the formation of Senate districts. Each Executive Council district continued to consist of five contiguous senatorial districts.

(5) The constitutionality of any plan of legislative and executive councillor districts could be challenged in the state courts, within such time limitations as the General Court fixed by statute.

The Quinn Amendment made no change in the longstanding minimum residence qualifications prescribed by the Constitution for one's election to the House of Representatives (one year),1 State Senate (five years),2 or Executive Council (five years).

The Quinn Amendment was the constitutional foundation for the present representative, senatorial and executive councillor districts formed by 1973 statutes based on recommendations of this present Joint Special Committee as described earlier in this chapter.

The House Cut Amendment of 1974 Background

Amendment Article CI of the Massachusetts Constitution, popularly called the "House Cut Amendment," had its origin in an initiative petition for a constitutional amendment filed in 1967 by the Committee for a Modern Legislature, under the provisions of the Initiative and Referendum ("I & R") Amendment to the Constitution."' That petition, supported by the Massachusetts League of Women Voters and others, and signed by more than 150,000 legal voters, proposed (a) replacement of the 240-member House of Representatives by a 160-member body, (b) no change in the membership of the Senate and Executive Council, (c) single-member districts for all three of these bodies based on an enumeration of legal voters in the federal decennial census year ending in "0", and (d) transfer of the redistricting function from the General Court to a 15-member redistricting commission.

Under the terms of the "I & R Amendment," such a constitutional proposal may reach the ballot of a state biennial election only if it receives the affirmative votes of at least 25% of all the members elected to the General Court sitting in joint session in two successive legislative constitutional conventions separated by an intervening state biennial election. Thus, in a 280-member General Court of 240 representatives and 40 senators, a minimum "yes" vote of 70 was necessary. At such a legislative constitutional convention held on June 5, 1968, the initiative measure received that minimum approval (85 yeas vs. 166 nays, 24 members not voting),2 notwithstanding an adverse recommendation by the Joint Committee on the Judiciary. However, by a one-vote margin, the initiative proposal was denied passage in a legislative constitutional convention of the next General Court, held on February 25, 1970, following an adverse recommendation by the Committees on Rules of the two branches (69 yeas vs. 191 nays, 16 members not voting). Agitation for a reduction in the size of House of Representatives continued thereafter, however.

In 1971, a modified version of the foregoing initiative bill was introduced as an ordinary legislative constitutional amendment proposed by Senators David H. Locke of Middlesex and Representative Gilbert H. Cox of Needham. 4 Although adversely reported by the Joint Committee on the Judiciary, this new House Cut proposal was agreed to, in extensively amended form, by legislative constitutional conventions held on August 25, 1971 (177 yeas vs. 65 nays, 35 members not voting) 5 and on June 6, 1973 (166 yeas vs. 093 nays, 21 members not voting). 6 Legislative approval was stimulated by the endorsement given to the House cut idea in non-binding public opinion referenda held in 19 representative districts in the 1970 state biennial election, by such election results in one senatorial district and 60 representative districts in the 1972 state biennial election, and by the belief that a new initiative petition drive would be mounted if the General Court again refused to approve a House cut measure.

Provisions of House Cut Amendment

The House Cut Amendment of 1974, which is reprinted in full in Appendix C hereof, and which is to take effect beginning with the state primary and the state biennial election of 1978 —

(1) Reduces the size of the House of Representatives to160 members, to be elected from single-member districts of contiguous territory;

(2) Eliminates past constitutional guarantees of distinctive representation in the House for the island counties regardless of their small population sizes (in the legislative constitutional convention of 1971, efforts to continue such a guarantee were rejected) ;

(3) Retains the 40-member Senate and eight-member Executive (Governor's) Council which will continue to be elected on a single-member district basis of contiguous territory, with no change in the constitutional requirement that each executive councillor district be formed from five contiguous senatorial districts;

(4) Provides that the above districts in each such body contain as nearly as may be, equal numbers of inhabitants, as determined by a state decennial census conducted in 1975 and every tenth year thereafter;

(5) Retains in the General Court the function of establishing new legislative and executive councillor districts decennially by statute, subject to judicial review by the Supreme Judicial Court upon a complaint filed by any voter of the Commonwealth;

(6) Requires new legislative and executive councillor districts to be established in time for the election to be held in the year ending in the number "8", for the election of legislators and executive councillors to be seated in the year ending in the number "9" (the 240 representative, 40 senatorial and eight executive councillor districts established pursuant to the Quinn Amendment will be superseded by the districts mandated for the 1978 state biennial election);

(7) Allows towns having 2,500 or more inhabitants to be divided in forming legislative and executive councillor districts (in contrast with present constitutional prohibitions against so dividing towns of fewer than 6,000 inhabitants); and

(8) Retains the present constitutional requirement that candidates for election as state representative must have resided in their district, for at least one year, and candidates for election as senator or executive councillor must have lived in the state for at least five years, preceding their election.

The House Cut Amendment provides that senatorial and representative districts shall be formed, "as nearly as maybe," without uniting two counties or parts of two counties. Similarly, it mandates that in creating representative districts, the General Court shall do so "as nearly as may be" without joining a city and a town, two cities, two or more towns, or parts of these municipalities.

However, these provisions of the House Cut Amendment, continuing earlier constitutional policies in respect to preserving the integrity of political subdivisions, are subject to state and federal constitutional "one man, one vote" constraints. Any resulting deviations from the ideal ratio of population per legislator may not be "excessive" in the context of the redistricting plan as a whole, and that they must be supported by evidence showing them to be part of a good faith, reasonable and rational scheme of districts drawn in compliance with constitutional requirements to serve legitimate state objectives.


Planning for 1975 State Decennial Census Activity of Joint Special Committee

With voter ratification of the House Cut Amendment on November 5, 1974, prompt action was taken by the Joint Special Committee and the Department of the State Secretary to develop at an early date the legislation which would be necessary to launch the state decennial census of 1975 which was to govern the ensuing redivision of the Commonwealth into new legislative and executive councillor districts. Of immediate concern were two major tasks.

Firstly, as local wards and precincts were to be the areas for reporting the census, and local precincts were to be the "building blocks," together with whole towns of fewer than 2,500 inhabitants, for forming legislative districts, appropriate steps had to be taken to assure a division of "precinctless" (i.e., one-precinct) towns into precincts, and to bring about, where necessary, a realignment of precincts and wards of larger municipalities already having the same. Where precincts in towns, and wards in cities, also functioned as representational units for the "area" election of members of local legislative bodies or administrative boards, such precincts and wards had to be brought into line with "one-man, one vote" standards of the state and federal constitutions, to avoid future litigation which might "boomerang" against state legislative districts formed from malapportioned local precincts.

Secondly, the existing statutes on the state decennial census had to be revised to reflect the return to the mid-decade year ending in the number "5" as the state census year, and to provide for the more efficient and accurate execution of that census. The Joint Special Committee, the Department of the State Secretary and local election officials were anxious to avoid a recurrence of certain problems which had plagued the 1971 state census required by the Quinn Amendment. To this end, the administrative and procedural machinery of the state 34 HOUSE — No. 5900 I May decennial census had to be reviewed, and appropriate reforms instituted.

Accordingly, Representative George Keverian, House Chairman of the Joint Special Committee, entered into discussions as to these matters with the then-retiring Secretary of the Commonwealth, the Hon. John F. X. Davoren, and with the Secretary-elect, the Hon. Paul H. Guzzi, and their staffs, in December of 1974. At the Chairman's request, the Legislative Research Bureau staff surveyed the problem areas in regard to ward and precinct revision, and the state census, and prepared working memoranda and bill drafts for use in these discussions. Other active participants in these meetings included members of the staff of the Joint Committee on Election Laws, and representatives of the State Department of Education, the Boston Election Commission and the City and Town Clerks' Associations.

In consequence of these deliberations, the House Chairman of the Joint Special Committee filed two bills, namely (a) House, No. 4420 of 1975, which, in revised form, became the State Census Act of 1975 (c. 10) discussed later in this chapter, and (b) House, No. 5643 of 1975, providing a 25c per enumerated inhabitant state subsidy to cities and towns for their census costs, which became Acts of 1975, c. 365.

Increased State Supervision of State Decennial Census

The basic policy decision of the Joint Special Committee, the General Court and the Department of the State Secretary, was to continue the past practice whereby the state decennialcensus is taken by the board of selectmen of each town, the city manager of each council-manager city, and the mayor of each mayor-council city, or their designated agents, 1 and reported by them to the Census Division of the Department of the State Secretary, which is required to check local census figures for their accuracy, arrange for any obviously necessary corrections, and then compile all local counts into a state decennial census report for submission by the Secretary to the General Court.

However, it was decided to provide for the training of local census personnel, and a much closer state monitoring of the way localities enumerated their inhabitants, to avoid a repetition of the errors which occurred in some cities and towns during the. 1971 state census

The Hon. Paul H. Guzzi, Secretary of the Commonwealth, created a Census Adivsory Committee in February 1975 to assist in these monitoring tasks, and to make policy recommendations designed to improve census procedures as the 1975 state decennial census progressed. A retired managerial official of the United States Census Bureau was retained as a consultant to assist in the planning of the census, the programming of training, and the supervision and auditing of the census. Each municipality was required to appoint a municipal census superior to direct local census-taking,' under state oversight. The State Census Manual was revised, and regional training classes were held for local census personnel. The regular staff of the Department was supplemented by CETA employees in these efforts. Throughout this process, the Department of the State Secretary maintained a close liaison with the Joint Special Committee as to all aspects of the 1975 state decennial census.

Inhabitant Basis of State Decennial Census State Constitutional Provisions

Under the House Cut Amendment, Massachusetts will continue to apportion its legislative and executive councillor districts on the basis of their numbers of "inhabitants," except that the two island counties will no longer have a guaranteed minimum representation of one seat apiece in the House. Under the new constitutional dispensation, each representative, senatorial and executive councillor district is a single member district which must contain, in relation to its particular chamber, "an equal number of inhabitants, as nearly as may be."

For these purposes, the state is required to conduct a state decennial census of its "inhabitants" in 1975 and every tenth year thereafter, enumerating the "inhabitants" residing in each city and town, by city ward and by city and town precinct. The House Cut Amendment, like its predecessors, leaves to the General Court the authority to determine how that state decennial census is to be conducted, what the "census day" shall be, and all related details. In contrast with the Quinn Amendment, which prohibited the division of towns of fewer than 6,000 inhabitants in forming representative districts, the House Cut Amendment bars only the partitioning for that purpose of towns of fewer than 2,500 inhabitants. Neither the Quinn Amendment nor the House Cut Amendment impose such an "inhabitant" floor on the division of towns in the forming of senatorial districts.

In keeping with these constitutional mandates, the State Census Act of 1975 directed the 351 cities and towns to enumerate their "inhabitants" according to their respective places of residence on the "state decennial census day" of March 1, 1975. In state decennial censuses in later years, that statutory date will revert to the traditional first day of January.'

State Definitions of "Inhabitant"

The state and federal governments follow different definitions in determining who shall be enumerated as an "inhabitant" or "resident" of a particular place for the purposes of their respective decennial censuses.

Since 1780, the Massachusetts Constitution has stated remove all doubts concerning the meaning of the word "inhabitant" in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office, or place within this state, in that town, district or plantation where he dwelleth, or hath his home.

The Supreme Judicial Court has declared that the terms "inhabitant" and "resident" are equivalent, indicating the place of one's home or dwelling according to the Common Law Doctrine of Domicile; and that so far as the State Constitution is concerned, these terms include all persons so domiciled in Massachusetts whether or not they are citizens. 2 State law defines a "citizen" of the Commonwealth to be a person who is a citizen of the United States domiciled in Massachusetts. Inhabitancy is essential to establish such state and local citizenship, which in turn is required to exercise the franchise and to be elected to office under the Massachusetts Constitution. Thus, by statute, the term "inhabitant" has been defined to mean "a resident in any city or town" of the Commonwealth.

Under the Massachusetts Constitution, the question of "inhabitancy" also involves the intent of the adult individual as to his place of domicile, and as to the place of domicile of minors under 18 years of age who are his children or wards. A person may have only one domicile at a time for the same purpose. As to the place he selects, he need only show "natural residence" there and an intent to remain in it permanently or for an indefinite time without any certain purpose to return to a former place of abode. Involuntary absence does not of itself affect one's domicile.

Federal Definition of "Inhabitant"

In contrast to these complex Massachusetts standards, the United States Census Bureau simply counts each person as an inhabitant at his "usual place of residence," which is construed to mean the place where he was living or sleeping most of the time as of the federal census day of April 1st. In a community's population the Bureau also counts (a) all persons found there who have no "usual residence" elsewhere, (b)armed forces personnel and their families stationed there regardless of legal domicile, (c) members of crews of naval vessels which may have that community as their assigned "home port," and (d) inmates or patients in institutions situated in the community, exclusive of short-term hospital patients. Thus, an individual "residence" for federal census purposes is not necessarily identical to his legal residence, voting residence or legal domicile.

Accordingly, the Supreme Judicial Court ruled in 1974 that the General Court may not authorize use of the federal census rules of residence in the taking of the Massachusetts state decennial census, because those rules consciously ignore the concept of domicile.' Subsequently, on May 26, 1976, the General Court, sitting as a legislative constitutional convention, agreed for a first time to a proposed constitutional amendment allowing the federal rules of residence to be used for the purpose of enumerating "inhabitants" by the state decennial census.2 Taken from the files as current Senate, No. 1455, and awaiting consideration by a legislative constitutional convention of the 1977 General Court, this measure will be submitted to the voters for ratification at the 1978 state biennial election, if again agreed to by such convention.

Local Precinct and Ward Revision in 1975-77

Requirements of State Census Act of 1975

To facilitate the taking of the 1975 and subsequent state decennial census, local compliance with "one man, one vote" standards in the election of local bodies, and the formation of state legislative districts using city and town precincts, and whole small towns, as "building blocks," the State Census Act of 1975 (c. 10) rewrote provisions of the State Election Law which had been revised earlier by the State Census Act of 1972 (c. 735) enacted to implement the Quinn Amendment.

This 1975 law authorized, but did not require, any city council to redivide its city into new precincts, and into new wards containing as nearly as may be equal numbers of inhabitants, on or before June 15, 1975. 1 Like optional authority was granted to the boards of selectmen of towns to revise their town precincts, or to create town precincts if none existed before; however, that action by a town's selectmen in 1975 was mandatory (a) if ordered by their town meeting, or (b) if the town contained 6,000 or more inhabitants and had no precincts. No city precinct, and no precinct in a town of 6,000 or more inhabitants, may be so established with a population in excess of 4,000 inhabitants; and all precincts are required to consist of compact and contiguous territory. If any town of 6,000 or more inhabitants and no precincts failed to divide into precincts as required by the foregoing deadline, that division was to be made by the Local Election District Review Commission in the Department of the State Secretary. To accommodate cities and towns which desired more time for these purposes, the deadline for local adoption of a new plan of precincts or wards was extended from June 15, 1975 to August 15, 1975.

Cities and towns adopting new plans of precincts and wards are required to file the same with the State Secretary for examination and approval by the Local Election District Review Commission, which judges the compliance of such plans with constitutional and statutory standards, and arranges with local authorities for appropriate corrections of any defects.

In 1985 and every tenth year thereafter, the decennial division of towns of 6,000 or more inhabitants into populationequalized precincts whether or not they already have precincts, and the division of cities into precincts and population-equalized wards, will be mandatory and not optional.' Cities and towns remain subject to the jurisdiction of the courts in respect to any present or future failure on their part to comply with "one man, one vote" standards in the formation of their precincts, wards or other local election districts.

As noted earlier, the House Cut Amendment makes indivisible between state representative districts those towns which have fewer than 2,500 inhabitants, in contrast with the indivisibility of towns of under 6,000 inhabitants under the Quinn Amendment. Hence, there is a constitutional suggestion, but not a mandate, as to the desirability of a 2,500-inhabitant ceiling on the size of precincts. However, as there is less need to "chop the parsley fine" in forming precincts for use in dividing the Commonwealth into 160 state representative districts than 240, it appeared unnecessary to reduce the present 4,000-inhabitant ceiling as precinct sizes, or to consider the division of towns of fewer than 6,000 inhabitants among state legislative districts.

Action Taken Under State Census Act of 1975

Acting under the authority of the State Census Act of 1975 (as extended by Acts of 1975, c. 405), the following 33 cities (capitalized) and towns voluntarily submitted new plans of city wards and precincts, or town precincts, as the case was, to the Local Election District Commission, which approved the same with any necessary changes.

One of the foregoing 33 municipalities, the City of Peabody, was granted special additional authority with reference to the revision of its precincts and wards in 1975, because of a "one man, one vote" complaint of ward malapportionment then pending before the Federal District Court in Boston.' A thirty-fourth locality, the City of Westfield, which failed to revise its wards within the above-cited statutory deadlines, did so tardily in 1975 under another special statutory dispensation.

Finally, four "precinctless" towns of 6,000 or more inhabitants were partitioned into precincts by the Local Election District Review Commission when local authorities failed to do this in time themselves (Ayer, Hopkinton, Lincoln, and Millis). Thus, when 1975 ended, 170 towns — including all 153 towns of 6,000 or more inhabitants 3 — were organized in precincts. Of these 170 towns, 27 functioned with new or revised precincts for the purposes of the 1975 state decennial census and the legislative redistricting to be based upon it, while 143 towns of this group continued to employ for those purposes precincts created prior to January 1, 1975. Among these 170 towns, 111 have reported precincts none of which exceed the ceiling of 4,000 inhabitants; the remaining 59 towns, all of them having more than 6,000 inhabitants, report precincts in excess of 4,000 (that "over-population" being negligible in some cases). All but one of the latter 59 towns chose not to revise their precincts in 1975, and continued with their then existing precincts.

The remaining 142 towns of Massachusetts, all with fewer than 6,000 inhabitants, were not divided into precincts when 1975 ended.

Special Laws of 1976-77 re City Wards and Precincts

Quincy Statute of 1976.

In July of 1973, suit was brought against the City of Quincy in the United States District Court in Boston complaining of the then-existing malapportionment of the six city wards, which were used to elect one city council for each to the nine-member city council (whose other three members are elected at-large).

Subsequently, while the case was still before that Court, the Mayor and City Council of Quincy requested, and the General Court enacted, a 1973 statute (c. 591) authorizing the City to increase the number of its wards to eight, using then existing precincts as "building blocks" for the revised wards, and increasing the membership of the City Council to 11, including eight ward councillors and three at-large councillors. However, when this special act was rejected by voters of the City at a special election in September of 1973, the City Council thereafter adopted a new plan of six wards, using existing precincts of the old wards as "building blocks," as suggested by the Joint Special Committee. This action satisfied the requirements of the Court.

Thus, in 1975, Quincy had two maps of wards employing the same unchanged precincts. The "old map," which had been held invalid for city elections, was continued in use for state elections, while the "new map" was the basis for city elections. Each precinct had different identification numbers indicating this double usage. This arrangement sought to avoid the enormous confusion into which voters would be plunged if wholly different maps of precincts were employed at state and city elections.

Further, to ease this situation, and inasmuch as the "new map" of wards (with "old" precincts) was convenient for state legislative use as well, the 1976 General Court granted the City of Quincy authority to resubmit its 1975 state decennial census dates to the State Secretary, according to the ward and precinct designations used in the "new map."

Lynn Statute of 1977

Early in 1977, the General Court enacted a special law, previously approved by the Mayor and City Council of Lynn, allowing them to revise, without shifting populations, the boundaries of three precincts where they traversed on uninhabited park area. That statute further authorizes use of the amended precincts for the purpose of the Court and Executive Council which is to be based upon the same.1

1975 State Decennial Census Results

In January of 1976, the State Secretary submitted to the General Court the results of the 1975 state decennial census, according to the terms of the House Cut Amendment and its implementing legislation (House, No. 1000). The number of inhabitants enumerated in each city and town was reported, broken down by ward and precinct where those election districts existed in 1975, with such revisions thereof as had been achieved under the State Census Act of 1975. In January 1977, the State Secretary submitted a supplementary report covering corrections of typographical errors and rearrangements of statistics authorized by the special laws of 1976 cited above (House, No. 1000). The total number of inhabitants so reported by the 1975 state decennial census for the purposes of redistricting the General Court and Executive Council is 5,789,478, distributed among the 14 counties of the Commonwealth.

For the full text version of House bill 5900, 1977 please visit the State Library of Massachusetts