Appellants, including voters in several of New York State's most
populous counties, filed suit on their own behalf and for others
similarly situated, against various state and local election
officials, attacking the legislative apportionment system as a
violation of the Fourteenth Amendment. The 1894 New York
Constitution provides for a complex "ratio" system of senatorial
apportionment, with the county as the basic unit, yielding separate
and diverse ratios for "populous" and "less populous" counties, and
resulting in comparatively less representation for the populous
counties. Under the existing apportionment, senators representing
40.9% of the State's citizens comprised a majority in the Senate,
and the most populous senatorial district had 2.4 times as many
citizens as the least populous one. Gross disparities would remain
under the forthcoming apportionment. Similarly, the provisions for
apportioning Assembly seats resulted in establishing three separate
categories of counties with distinctly different population ratios,
and also favored the less populous counties. Under the existing
apportionment, assemblemen representing 37.1% of the State's
citizens constituted a majority in the Assembly, and the most
populous assembly district had 11.9 times as many citizens as the
least populous one. Gross disparities would remain under the
forthcoming apportionment. No initiative procedure exists under New
York law, and no adequate political remedy for malapportionment is
available. The District Court initially denied relief, holding the
issues nonjusticiable. This Court, in
370 U.
S. 190, vacated that judgment and remanded for further
consideration in the light of
Baker v. Carr, 369 U.
S. 186. Thereafter, the District Court dismissed the
complaint on the merits, concluding that the constitutional
provisions were not arbitrary or irrational in giving weight to
"area, accessibility and character of interest" in addition to
population.
Held:
Page 377 U. S. 634
1. The Equal Protection Clause requires that both houses of a
bicameral state legislature be apportioned substantially on an
equal population basis.
Reynolds v. Sims, ante, p.
377 U. S. 533,
followed. P.
377 U. S.
653.
2. Neither house of the New York Legislature is now, or will be
when reapportioned on 1960 census figures, apportioned sufficiently
on a population basis to be constitutionally sustainable. Pp. 653-
377 U. S.
654.
(a) No matter how sophisticated or complex an apportionment plan
may be, it cannot significantly undervalue the votes of citizens
merely because of where they reside. P.
377 U. S.
653.
(b) A formula with a built-in bias against voters residing in
the more populous counties cannot be constitutionally condoned. Pp.
377 U. S.
653-654.
3. Using equitable principles, the District Court must determine
whether, in view of the imminence of the 1964 election, that
election may be held under the existing apportionment provisions,
or whether effectuation of appellants' rights should not be further
delayed. P.
377 U. S.
655.
208 F.
Supp. 368, reversed and remanded.
Page 377 U. S. 635
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
At issue in this litigation is the constitutional validity,
under the Fourteenth Amendment to the Federal Constitution, of the
apportionment of seats in the New York Legislature.
I
Appellants initially brought this action on May 1, 1961, in the
Federal District Court for the Southern District of New York.
Plaintiffs below included individual citizens and voters residing
in five of the six most populous New York counties (Bronx, Kings,
Nassau, New York and Queens), suing in their own behalf and on
behalf of all New York citizens similarly situated. Appellees, sued
in their representative capacities, are various state and local
officials charged with duties in connection with reapportionment
and the conducting of state elections. The complaint claimed rights
under the Civil Rights Act, 42 U.S.C. §§ 1983, 1988, and asserted
jurisdiction under 28 U.S.C. § 1343(3).
Plaintiffs below sought a declaration that those provisions of
the State Constitution which establish the formulas for
apportioning seats in the two houses of the New York Legislature,
and the statutes implementing them, are unconstitutional since
violative of the Fourteenth Amendment to the Federal Constitution.
The complaint further asked the District Court to enjoin
defendants
Page 377 U. S. 636
from performing any acts or duties in compliance with the
allegedly unconstitutional legislative apportionment provisions.
Plaintiffs asserted that they had no adequate remedy other than the
judicial relief sought, and requested the court to retain
jurisdiction until the New York Legislature,
"freed from the fetters imposed by the Constitutional provisions
invalidated by this Court, provides for such apportionment of the
State legislature as will insure to the urban voters of New York
State the rights guaranteed them by the Constitution of the United
States."
In attacking the existing apportionment of seats in the New York
Legislature, plaintiffs below stated, more particularly, that:
"The provisions of the New York State Constitution, Article III,
§§ 2-5, violate the XIV Amendment of the Constitution of the United
States because the apportionment formula contained therein results,
and must necessarily result, when applied to the population figures
of the State in a grossly unfair weighting of both houses in the
State legislature in favor of the lesser populated rural areas of
the state to the great disadvantage of the densely populated urban
centers of the state. . . ."
"As a result of the constitutional provisions challenged herein,
the Plaintiffs' votes are not as effective in either house of the
legislature as the votes of other citizens residing in rural areas
of the state. Plaintiffs and all others similarly situated suffer a
debasement of their votes by virtue of the arbitrary, obsolete, and
unconstitutional apportionment of the legislature, and they and all
others similarly situated are denied the equal protection of the
laws required by the Constitution of the United States."
The complaint asserted that the legislative apportionment
provisions of the 1894 New York Constitution, as
Page 377 U. S. 637
amended, are not only presently unconstitutional, but also were
invalid and violative of the Fourteenth Amendment at the time of
their adoption, and that
"[t]he population growth in the State of New York and the shifts
of population to urban areas have aggravated the violation of
Plaintiffs' rights under the XIV Amendment."
As requested by plaintiffs, a three-judge District Court was
convened. [
Footnote 1] The New
York City defendants admitted the allegations of the complaint and
requested the Court to grant plaintiffs the relief they were
seeking. The remaining defendants moved to dismiss. On January 11,
1962, the District Court announced its initial decision. It held
that it had jurisdiction, but dismissed the complaint, without
reaching the merits, on the ground that it failed to state a claim
upon which relief could be granted, since the issues raised were
nonjusticiable.
202 F.
Supp. 741. In discussing the allegations made by plaintiffs,
the Court stated:
"The complaint specifically cites as the cause of this allegedly
unconstitutional distribution of state legislative representation
the New York Constitutional provisions requiring that:"
"(a) '. . . the total of fifty Senators established by the
Constitution of 1894 shall be increased by those Senators to which
any of the larger counties become entitled in addition to their
allotment as of 1894, but without effect for decreases in other
large counties . . .'"
"(b) no county may have 'four or more Senators unless it has a
full ratio for each Senator . . .' and "
Page 377 U. S. 638
"(c) '. . . every county except Hamilton shall always be
entitled [in the Assembly] to one member coupled with the
limitation of the entire membership to 150 members. . . .'
[
Footnote 2]"
Noting that the 1894 Constitution, containing the present
apportionment provisions, was approved by a majority of the State's
electorate before becoming effective, and that subsequently the
voters had twice disapproved proposals for a constitutional
convention to amend the constitutional provisions relating to
legislative apportionment, the District Court concluded that, in
any event, there was a "want of equity in the relief sought, or, to
view it slightly differently, want of justiciability, [which]
clearly demands dismissal."
Plaintiffs appealed to this Court from the District Court's
dismissal of their complaint. On June 11, 1962, we vacated the
judgment below and remanded for further consideration in the light
of
Baker v. Carr, 369 U. S. 186,
which had been decided subsequent to the District Court's dismissal
of the suit below.
370 U. S. 190. In
vacating and remanding, we stated:
"Our well established practice of a remand for consideration in
the light of a subsequent decision therefore applies. . . . [W]e
believe that the court below should be the first to consider the
merits of the federal constitutional claim, free from any doubts as
to its justiciability and as to the merits of alleged arbitrary and
invidious geographical discrimination. [
Footnote 3] "
Page 377 U. S. 639
On August 16, 1962, the District Court, after conducting a
hearing, [
Footnote 4] dismissed
the complaint on the merits, concluding that plaintiffs had not
shown by a preponderance of the evidence that there was any
invidious discrimination, that the apportionment provisions of the
New York Constitution were rational, and not arbitrary, that they
were of historical origin and contained no improper geographical
discrimination, that they could be amended by an electoral majority
of the citizens of New York, and that, therefore, the apportionment
of seats in the New York Senate and Assembly was not
unconstitutional.
208 F.
Supp. 368. Finding no failure by the New York Legislature to
comply with the state constitutional provisions
Page 377 U. S. 640
requiring and establishing the formulas for periodic
reapportionment of Senate and Assembly seats, the court below
relied on the presumption of constitutionality attaching to a state
constitutional provision and the necessity for a clear violation
"before a federal court of equity will lend its power to the
disruption of the state election processes. . . ." After
postulating a number of "tests" for invidious discrimination,
including the "[r]ationality of state policy and whether or not the
system is arbitrary," "[w]hether or not the present complexion of
the legislature has a historical basis," whether the electorate has
an available political remedy, and "[g]eography, including
accessibility of legislative representatives to their electors,"
the Court concluded that none of the relevant New York
constitutional provisions was arbitrary or irrational in giving
weight to, in addition to population, "the ingredient of area,
accessibility and character of interest." Stating that, in New
York, "the county is a classic unit of governmental organization
and administration," the District Court found that the allocation
of one Assembly seat to each county was grounded on a historical
basis. The Court noted that the 1957 vote on whether to call a
constitutional convention was "heralded as an issue of
apportionment" by the then Governor, but that nevertheless a
majority of the State's voters chose not to have a constitutional
convention convened. The Court also noted that,
"if strict population standards were adopted, certain
undesirable results might follow, such as an increase in the size
of the legislature to such an extent that effective debate may be
hampered or an increase in the size of districts to such an extent
that contacts between the individual legislator and his
constituents may become impracticable. [
Footnote 5]"
As a result of the District
Page 377 U. S. 641
Court's dismissal of the complaint, the November, 1962, election
of New York legislators was conducted pursuant to the existing
apportionment scheme. A timely appeal to this Court was filed, and
we noted probable jurisdiction on June 10, 1963, 374 U.S. 802.
II
Apportionment of seats in the two houses of the New York
Legislature is prescribed by certain formulas contained in the 1894
State Constitution, as amended. Reapportionment is effected
periodically by statutory provisions, [
Footnote 6] enacted in compliance with the
constitutionally established formulas. The county is the basic unit
of area for apportionment purposes, except that two sparsely
populated counties, Fulton and Hamilton, are treated as one. New
York uses citizen population, instead of total population,
excluding aliens from consideration, for purposes of legislative
apportionment. The number of assemblymen is fixed at 150, while the
size of the Senate is prescribed as not less than 50, and may vary
with each apportionment. [
Footnote
7] All members of both houses of the New York Legislature are
elected for two-year terms only, in even-numbered years.
With respect to the Senate, after providing that that body
should initially have 50 seats and creating 50 senatorial
districts, the New York Constitution, in Art. III, § 4, as amended,
provides for decennial readjustment of the size of the Senate and
reapportionment of senatorial
Page 377 U. S. 642
seats, beginning in 1932 and every decade thereafter, in the
following manner:
"Such districts shall be so readjusted or altered that each
senate district shall contain as nearly as may be an equal number
of inhabitants, excluding aliens, and be in as compact form as
practicable, and shall remain unaltered until the first year of the
next decade as above defined, and shall at all times consist of
contiguous territory, and no county shall be divided in the
formation of a senate district except to make two or more senate
districts wholly in such county. . . ."
"No county shall have four or more senators unless it shall have
a full ratio for each senator. No county shall have more than
one-third of all the senators; and no two counties or the territory
thereof a now organized, which are adjoining counties, or which are
separated only by public waters, shall have more than one-half of
all the senators."
"The ratio for apportioning senators shall always be obtained by
dividing the number of inhabitants, excluding aliens, by fifty, and
the senate shall always be composed of fifty members, except that
if any county having three or more senators at the time of any
apportionment shall be entitled on such ratio to an additional
senator or senators. such additional senator or senators shall be
given to such county in addition to the fifty senators, and the
whole number of senators shall be increased to that extent.
[
Footnote 8]"
As interpreted by practice and judicial decision,
reapportionment and readjustment of senatorial representation is
accomplished in several stages. First, the total population of the
State, excluding aliens, as determined by the last federal census,
is divided by 50 (the minimum
Page 377 U. S. 643
number of Senate seats) in order to obtain a so-called "ratio"
figure. The counties on account of which the size of the Senate
might have to be increased are then ascertained -- counties having
three or more ratios,
i.e., more than 6% of the State's
total citizen population each. Under the existing apportionment,
only five counties are in the 6% or more class, four of New York
City's five counties and upstate Erie County (Buffalo and
environs). Nassau County (suburban New York City) will be added to
this class in the pending reapportionment based on the 1960 census.
After those counties that come within the "populous" category, so
defined, have been ascertained, they are then allocated one
senatorial seat for each full ratio. Fractions of a ratio are
disregarded, and each populous county is thereafter divided into
the appropriate number of Senate districts. In ascertaining the
size of the Senate, the total number of additional seats resulting
from the growth of the populous counties since 1894 is added to the
50 original seats. And, while the total number of seats which any
of the populous counties has gained since 1894 is added to the 50
original seats, the number of seats which any of them has lost
since 1894 is not deducted from the total number of seats to be
added. Currently, the New York Senate, as reapportioned in 1953,
has 58 seats. From that total, the number allocated to the populous
counties is subtracted -- 27 under the 1953 apportionment -- and
the remaining seats -- 31 under the 1953 scheme -- are then
apportioned among the less populous counties. When reapportioned on
the basis of 1960 census figures, the Senate will have 57 seats,
with 26 allotted to the populous counties, as a result of applying
the constitutionally prescribed ratio and the requirement of a full
ratio in order for a populous county to be given more than three
Senate seats.
The second stage of applying the senatorial apportionment
formula involves the allocation of seats to the less
Page 377 U. S. 644
populous counties,
i.e., those having less than 6% of
the State's total citizen population (less than three full ratios).
After the number of Senate seats allocated to the populous counties
(and thus the size of the Senate) has been determined, a second
population ratio figure is obtained by dividing the number of seats
available for distribution to the less populous counties, 31 under
both the 1950 and 1960 censuses, into the total citizen population
of the less populous counties. Less populous counties which are
entitled to two or three seats, as determined by comparing a
county's population with the second ratio figure thus ascertained,
are then divided into senatorial districts. A less populous county
is entitled to three seats if it has less than three full first
ratios, but has more than three, or has two and a large fraction,
second rations. Since the first ratio is significantly larger than
the second, a county can have less than three first ratios but more
than three second ratios. Finally, counties with substantially less
than one second ratio are combined into multi-county districts.
The result of applying this complicated apportionment formula is
to give the populous counties markedly less senatorial
representation, when compared with respective population figures,
than the less populous counties. Under the 1953 apportionment,
based on the 1950 census, a senator from one of the less populous
counties represented, on the average, 195,859 citizens, while a
senator from a populous county represented an average of 301,178.
The constitutionally prescribed first ratio figure was 284,069,
while the second ratio was, of course, only 195,859. Under the
pending apportionment based on the 1960 census, the first ratio
figure is 324,816, and the average population of the senatorial
districts in the populous counties will be 366,128. On the other
hand, the second ratio, and the average population of the
senatorial districts in the less populous counties, is only
216,822.
Page 377 U. S. 645
Thus, a citizen in a less populous county had, under the 1953
apportionment, over 1.5 times the representation, on the average,
of a citizen in a populous county, and, under the apportionment
based on the 1960 census, this ratio will be about 1.7 to 1.
[
Footnote 9]
The 1894 New York Constitution also provided for an Assembly
composed of 150 members, in Art. III, § 2. Under the formula
prescribed by Art. III, § 5, of the New York Constitution, each of
the State's 62 counties, except Hamilton County, which is combined
with Fulton County for purposes of Assembly representation, is
initially given one Assembly seat. The remaining 89 seats are then
allocated among the various counties in accordance with a "ratio"
figure obtained by dividing the total number of seats, 150, into
the State's total citizen population. Applying the constitutional
formula, a county whose population is at least 1 1/2 times this
ratio (1% of the total citizen population) is given one additional
assemblyman. The remaining Assembly seats are then apportioned
among those counties whose citizen populations total two or more
whole ratios, with any remaining seats being allocated among the
counties on the basis of "highest remainders." Finally, those
counties receiving more than one seat are divided into the
appropriate number of Assembly districts. In allocating 61 of the
150 Assembly seats on a basis wholly unrelated to population, and
in establishing three separate categories of counties for the
apportionment of Assembly representation, the constitutional
provisions relating to the apportionment of Assembly seats plainly
result in a favoring of the less populous counties. Under the new
reapportionment based on
Page 377 U. S. 646
1960 census figures, the smallest 44 counties will each be given
one seat for an average of 62,765 citizen inhabitants per seat,
three counties will receive two seats each, with a total of six
assemblymen representing an average of 93,478 citizen inhabitants,
and the 14 most populous counties will be given the remaining 100
seats, resulting in an average representation figure of 129,183
citizen inhabitants each. [
Footnote 10]
Although the New York Legislature has not yet reapportioned on
the basis of 1960 census figures, [
Footnote 11] the outlines of the forthcoming
apportionment can be predicted with assurance. Since the rules
prescribed in the New York Constitution for apportioning the Senate
are so explicit and detailed, the New York Legislature has little
discretion, in decennially enacting implementing statutory
reapportionment provisions, except in determining which of the less
populous counties are to be joined together in multi-county
districts and in districting within counties having more than one
senator. Similarly, the legislature has little discretion in
reapportioning Assembly seats. [
Footnote 12]
Page 377 U. S. 647
A number of other rather detailed rules, some mandatory and some
only directive, are included in the constitutional provisions
prescribing the system for apportioning seats in the two houses of
the New York Legislature, and are set out in Art. III, §§ 2-5, of
the New York Constitution. [
Footnote 13]
When the New York Legislature was reapportioned in 1953, on the
basis of 1950 census figures, assemblymen representing 37.1% of the
State's citizens constituted a majority in that body, and senators
representing 40.9% of the citizens comprised a majority in the
Senate. Under the still effective 1953 apportionment, applying 1960
census figures, assemblymen representing 34.7% of the citizens
constitute a majority in the Assembly, and senators representing
41.8% of the citizens constitute a majority in that body. If
reapportionment were carried out under the existing constitutional
formulas, applying 1960 census figures, 37.5% of the State's
citizens would
Page 377 U. S. 648
reside in districts electing a majority in the Assembly, and
38.1% would live in areas electing a majority of the members of the
Senate. When the State was reapportioned in 1953 on the basis of
the 1950 census, the most populous Assembly district had 11.9 times
as many citizens as the least populous one, and a similar ratio in
the Senate was about 2.4 to 1. Under the current apportionment,
applying 1960 census figures, the citizen population variance ratio
between the most populous and least populous Assembly districts is
about 21 to 1, and a similar ratio in the Senate is about 3.9 to 1.
If the Assembly were reapportioned under the existing
constitutional formulas, the most populous Assembly district would
have about 12.7 times as many citizens as the least populous one,
and a similar ratio in the Senate would be about 2.6 to 1.
According to 1960 census figures, the six counties where the six
individual appellants reside had a citizen population of 9,129,780,
or 56.2% of the State's total citizen population of 16,240,786.
They are currently represented by 72 assemblymen and 28 senators --
48% of the Assembly and 48.3% of the Senate. When the legislature
reapportions on the basis of the 1960 census figures, these six
counties will have 26 Senate seats and 69 Assembly seats, or 45.6%
and 46%, respectively, of the seats in the two houses. The 10 most
heavily populated counties in New York, with about 73.5% of the
total citizen population, are given, under the current
apportionment, 38 Senate seats, 65.5% of the membership of that
body, and 93 Assembly seats, 62% of the seats in that house. When
the legislature reapportions on the basis of the 1960 census
figures, these same 10 counties will be given 37 Senate seats and
92 Assembly seats, 64.9% and 61.3%, respectively, of the membership
of the two houses. The five counties comprising New York City have
45.7% of the State's total citizen population,
Page 377 U. S. 649
and are given, under the current apportionment, 43.1% of the
Senate seats and 43.3% of the seats in the Assembly. When the
legislature reapportions on the basis of the 1960 census figures,
these same counties will be given 36.8% and 37.3%, respectively, of
the membership of the two houses.
Under the existing senatorial apportionment, applying 1960
census figures, Suffolk County's one senator represents a citizen
population of 650,112, and Nassau County's three senators represent
an average of 425,267 citizens each. The least populous senatorial
district, on the other hand, comprising Saratoga, Warren, and Essex
Counties, has a total population of only 166,715. [
Footnote 14] Under the forthcoming
reapportionment based on the 1960 census, Nassau County will again
be allocated only three Senate seats, with an average population of
425,267, while the least populous senatorial district, which will
probably comprise Putnam and Rockland Counties, will have a citizen
population of only 162,840. [
Footnote 15] Onondaga County, with a total citizen
population of 414,770, less than the average population of each
Nassau County district, will nevertheless be given two Senate
seats. Because of the effect of the full ratio requirement
applicable only to the populous counties, Nassau County, despite
the fact that its citizen population increased from 655,690 to
1,275,801,
Page 377 U. S. 650
will not obtain a single additional senatorial seat as a result
of the reapportionment based on 1960 census figures. And Monroe
County, with a citizen population of 571,029, since not having more
than 6% of the State's total citizen population, will have the same
number of senators under the new apportionment, three, as Nassau
County, although it has less than half that county's population.
New York City's 20 senators will represent an average citizen
population of 360,193, while the 15 multi-county senatorial
districts to be created upstate will have an average of only
207,528 citizens per district. Because of the operation of the full
ratio rule with respect to counties having more than 6% of the
State's total citizen population each, the unrepresented remainders
(above a full first ratio but short of another full first ratio
which is required for an additional Senate seat) in three of the
urban counties will be as follows: Nassau, 301,353; New York,
284,805; and Kings, 244,798. Thus, over 800,000 citizens will not
be counted in the apportionment of Senate seats, even though the
unrepresented remainders in two of these three counties equal or
exceed the statewide average population of 284,926 citizens per
district. Furthermore, the effect of the rule requiring an increase
in the number of Senate seats because of the entitlement of
populous counties to added senatorial representation, coupled with
the failure to reduce the size of the Senate because of reductions
in the number of seats to which a populous county is entitled (as
compared with its senatorial representation in 1894), is that the
comparative voting power of the populous counties in the Senate
decreases as their share of the State's total population
increases.
With respect to the Assembly, the six assemblymen currently
elected from Nassau County represent an average citizen population
of 212,634, and one of that county's current Assembly districts has
a citizen population of
Page 377 U. S. 651
314,721. Suffolk County's three assemblymen presently represent
an average of 216,704 citizens. On the other hand, the least
populous Assembly district, Schuyler County, has a citizen
population, according to the 1960 census, of only 14,974, and yet,
in accordance with the constitutional formula, is allocated one
Assembly seat. [
Footnote 16]
Under the new apportionment, Schuyler County will again be given
one Assembly seat, while one projected Monroe County district will
have a citizen population of 190,343 and an Assembly district in
Suffolk County will have over 170,000 citizens. [
Footnote 17] Additionally, the average
population of the 54 Assembly districts in New York City's four
populous counties will be in excess of 132,000 citizens each.
Under the 1953 apportionment, based on 1950 census figures, the
most populous Assembly district, in Onondaga County, had a citizen
population of 167,226, while the least populous district was that
comprising Schuyler County, with only 14,066 citizens. In the
Senate, the most populous districts were the four in Bronx County,
averaging 344,545 citizens each, while the least populous district
had a citizen population of only 146,666.
No adequate political remedy to obtain relief against alleged
legislative malapportionment appears to exist in
Page 377 U. S. 652
New York. [
Footnote 18]
No initiative procedure exists under New York law. A proposal to
amend the State Constitution can be submitted to a vote by the
State's electorate only after approval by a majority of both houses
of two successive sessions of the New York Legislature. [
Footnote 19] A majority vote of both
houses of the legislature is also required before the electorate
can vote on the calling of a constitutional convention. [
Footnote 20] Additionally, under New
York law, the question of whether a constitutional convention
should be called must be submitted to the electorate every 20
years, commencing in 1957. [
Footnote 21] But even if a constitutional convention were
convened, the same alleged discrimination which currently exists in
the apportionment of Senate seats against each of the counties
having 6% or more of a State's citizen population would be
perpetuated in the election of convention delegates. [
Footnote 22] And, since the New York
Legislature has rather consistently complied with the state
constitutional requirement for decennial legislative
reapportionment in accordance with the rather explicit
constitutional rules, enacting
Page 377 U. S. 653
effective apportionment statutes in 1907, 1917, 1943, and 1953,
judicial relief in the state courts to remedy the alleged
malapportionment was presumably unavailable. [
Footnote 23]
III
.
In
Reynolds v. Sims, ante, p.
377 U. S. 533,
decided also this date, we held that the Equal Protection Clause
requires that seats in both houses of a bicameral state legislature
must be apportioned substantially on a population basis. Neither
house of the New York Legislature, under the state constitutional
formulas and the implementing statutory provisions here attacked,
is presently or, when reapportioned on the basis of 1960 census
figures, will be apportioned sufficiently on a population basis to
be constitutionally sustainable. Accordingly, we hold that the
District Court erred in upholding the constitutionality of New
York's scheme of legislative apportionment.
We have examined the state constitutional formulas governing
legislative apportionment in New York in a detailed fashion in
order to point out that, as a result of following these provisions,
the weight of the votes of those living in populous areas is of
necessity substantially diluted in effect. However complicated or
sophisticated an apportionment scheme might be, it cannot,
consistent with the Equal Protection Clause, result in a
significant undervaluation of the weight of the votes of certain of
a State's citizens merely because of where they happen to reside.
New York's constitutional formulas relating to
Page 377 U. S. 654
legislative apportionment demonstrably include a built-in bias
against voters living in the State's more populous counties. And
the legislative representation accorded to the urban and suburban
areas becomes proportionately less as the population of those areas
increases. With the size of the Assembly fixed at 150, with a
substantial number of Assembly seats distributed to sparsely
populated counties without regard to population, and with an
additional seat given to counties having 1 1/2 population ratios,
the population variance ratios between the more populous and the
less populous counties will continually increase so long as
population growth proceeds at a disparate rate in various areas of
the State. With respect to the Senate, significantly different
population ratio figures are used in determining the number of
Senate seats to be given to the more populous and the less populous
counties, and the more populous counties are required to have full
first ratios in order to be entitled to additional senatorial
representation. Also, in ascertaining the size of the Senate, the
number of seats by which the senatorial representation of the more
populous counties has increased since 1894 is added to 50, but the
number of Senate seats that some of the more populous counties have
lost since 1894 is not subtracted from that figure. Thus, an
increasingly smaller percentage of the State's population will, in
all probability, reside in senatorial districts electing a majority
of the members of that body. Despite the opaque intricacies of New
York's constitutional formulas relating to legislative
apportionment, when the effect of these provisions, and the
statutes implementing them, on the right to vote of those
individuals living in the disfavored areas of the State is
considered, we conclude that neither the existing scheme nor the
forthcoming one can be constitutionally condoned.
We find it inappropriate to discuss questions relating to
remedies at the present time, beyond what we said in
Page 377 U. S. 655
our opinion in
Reynolds. [
Footnote 24] Since all members of both houses of the New
York Legislature will be elected in November, 1964, the court
below, acting under equitable principles, must now determine
whether, because of the imminence of that election and in order to
give the New York Legislature an opportunity to fashion a
constitutionally valid legislative apportionment plan, it would be
desirable to permit the 1964 election of legislators to be
conducted pursuant to the existing provisions, or whether, under
the circumstances, the effectuation of appellants' right to a
properly weighted voice in the election of state legislators should
not be delayed beyond the 1964 election. We therefore reverse the
decision below and remand the case to the District Court for
further proceedings consistent with the views stated here and in
our opinion in
Reynolds v. Sims.
It is so ordered.
[For dissenting opinion of MR. JUSTICE HARLAN,
see
ante, p.
377 U.S.
589.]
[For dissenting opinion of MR. JUSTICE STEWART,
see
post, p.
377 U. S.
744.]
[
Footnote 1]
See 196 F.
Supp. 758, where the District Court concluded that the suit
presented issues warranting the convening of a three-judge court,
over defendants' motions to dismiss the complaint for lack of
jurisdiction and for failure to state a claim on which relief could
be granted.
[
Footnote 2]
202 F. Supp. at 743. All decisions of the District Court, and
also this Court's initial decision in this litigation, are reported
sub nom. WMCA, Inc. v. Simon.
[
Footnote 3]
370 U.S. at
370 U. S. 191.
Shortly after we remanded the case, the District Court ordered
defendants to answer or otherwise move in respect to the complaint.
Another of the defendants, a Nassau County official, joined the New
York City defendants in admitting most of the allegations, and
requested the Court to grant plaintiffs the relief which they were
seeking. The remaining defendants, presently appellees, denied the
material allegations of the complaint and asserted varied
defenses.
[
Footnote 4]
At the hearing on the merits, a large amount of statistical
evidence was introduced showing the population and citizen
population of New York under various censuses, including the
populations of the State's 62 counties and the Senate and Assembly
districts established under the various apportionments. The 1953
apportionment of Senate and Assembly seats under the 1950 census
was shown, and other statistical computations showing the
apportionment to be made by the legislature under the 1960 census
figures, as a result of applying the pertinent constitutional
provisions, were also introduced into evidence.
The District Court refused to receive evidence showing the
effect to the alleged malapportionment on citizens of several of
the most populous counties with respect to financial matters such
as the collection of state taxes and the disbursement of state
assistance. The Court also excluded evidence offered to show that
the State Constitution's apportionment formulas was devised for the
express purpose of creating a class of citizens whose
representation was inferior to that of a more preferred class, and
that there had been intentional discrimination against the citizens
of New York City in the designing of the legislative apportionment
provisions of the 1894 Constitution. Since we hold that the court
below erred in finding the New York legislative apportionment
scheme here challenged to be constitutionally valid, we express no
view on the correctness of the District Court's exclusion of this
evidence.
[
Footnote 5]
A concurring opinion stated that, while the six counties where
plaintiffs reside contain 56.2% of the State's population, they
comprise only 3.1% of its area, and, if legislative apportionment
were "based solely on population, . . . 3% of the state's area
would dominate the rest of New York."
[
Footnote 6]
The existing plan of apportionment of Senate and Assembly seats
is provided for in McKinney's N.Y.Laws, 1952 (Supp.1963), State
Law, §§ 120-124, enacted by the New York Legislature in 1953.
[
Footnote 7]
Article III, § 2, of the 1894 New York Constitution provided for
a 50-member Senate and a 150-member Assembly. Article III, § 3, of
the 1894 Constitution prescribed a detailed plan for the
apportionment of the 50 Senate seats, subject to periodic
alteration by the legislature under the formula provided for in
Act. III, § 4.
[
Footnote 8]
N.Y.Const., Art. III, § 4.
[
Footnote 9]
For an extended discussion of the apportionment of seats in the
New York Senate under the pertinent state constitutional
provisions,
see Silva, Apportionment of the New York
Senate, 30 Ford.L.Rev. 595 (1962).
See also Silva,
Legislative Representation -- With Special Reference to New York,
27 Law & Contemp.Prob. 408 (1962).
[
Footnote 10]
For a thorough discussion of the apportionment of seats in the
New York Assembly pursuant to the relevant state constitutional
provisions,
see Silva, Apportionment of the New York
Assembly, 31 Ford.L.Rev. 1 (1962).
[
Footnote 11]
Article III, § 4, of the New York Constitution requires the
legislature to reapportion and redistrict Senate seats no later
than 1966, and Art. III, § 5, provides that
"[t]he members of the assembly shall be chosen by single
districts and shall be apportioned by the legislature at each
regular session at which the senate districts are readjusted or
altered, and by the same law, among the several counties of the
state, as nearly as may be according to the number of their
respective inhabitants, excluding aliens."
[
Footnote 12]
While the legislature has the sole power to apportion Assembly
seats among the State's counties, in accordance with the
constitutional formula, the New York Constitution gives local
governmental authorities the exclusive power to divide their
respective counties into Assembly districts. A county having only
one assemblyman constitutes one Assembly district by itself, of
course, and therefore cannot be divided into Assembly districts.
But, with respect to counties given more than one Assembly seat,
the New York Constitution, Art. III, § 5, provides:
"In any county entitled to more than one member [of the
Assembly], the board of supervisors, and in any city embracing an
entire county and having no board of supervisors, the common
council, or if there be none, the body exercising the powers of a
common council, shall . . . divide such counties into assembly
districts as nearly equal in number of inhabitants, excluding
aliens, as may be. . . ."
[
Footnote 13]
Under these specific provisions, while more than one Senate or
Assembly district can be contained within the whole of a single
county, and while a Senate district may consist of more than one
county, no county border line can be broken in the formation of
either type of district. Both Senate and Assembly districts are
required to consist of contiguous territory, and each Assembly
district is required to be wholly within the same senatorial
district. Each Assembly district in the same county shall contain,
as nearly as may be, an equal number of citizen inhabitants, and
shall consist of "convenient" territory and be as compact as
practicable. Further detailed provisions relate to the division of
towns between adjoining districts, and the equalization of
population among Senate districts in the same county and Assembly
districts in the same Senate district.
[
Footnote 14]
Included as Appendix D to the District Court's opinion on the
merits is a map of the State of New York showing the 58 senatorial
districts under the existing apportionment. 208 F. Supp. at 383.
Appendix E contains a chart which includes census figures showing
the 1960 population of each of New York's 62 counties.
Id.
at 384.
[
Footnote 15]
Appendix A to the District Court's opinion on the merits is a
chart showing the apportionment of senatorial seats which would
result if the Senate were reapportioned on the basis of the present
constitutional formula, using 1960 census figures, including the
citizen populations of the 13 most populous counties, the number of
senators to be allocated to each, and the average citizen
population per senator in each of the projected senatorial
districts. 208 F. Supp. at 380.
[
Footnote 16]
Included as Appendix C to the District Court's opinion on the
merits is a map of the State of New York showing the number of
Assembly seats apportioned to each county under the existing
apportionment. 208 F. Supp. at 383. Appendix E contains a chart
which includes census figures showing the 1960 population of each
of New York's 62 counties.
Id. at 384.
[
Footnote 17]
Appendix B to the District Court's opinion on the merits is a
chart showing the apportionment of Assembly seats which would
result if the Assembly were reapportioned under the present
constitutional formula, using 1960 census figures, including the
number of Assembly seats to be given to each county and the
approximate citizen population in each projected Assembly district.
208 F. Supp. at 381-382.
[
Footnote 18]
For a discussion of the lack of federal constitutional
significance of the presence or absence of an available political
remedy,
see Lucas v. Forty-Fourth General Assembly of Colorado,
post, pp.
377 U. S.
736-737.
[
Footnote 19]
Under Art. XIX, § 1, of the New York Constitution.
[
Footnote 20]
According to Art. XIX, § 2 of the New York Constitution, which
provides that the question of whether a constitutional convention
should be called can be submitted to the electorate "at such times
as the legislature may by law provide. . . ."
[
Footnote 21]
Pursuant to Art. XIX, § 2, of the New York Constitution. In
1957, the State's electorate, by a close vote, disapproved the
calling of a constitutional convention, and the question is not
required to be submitted to the people again until 1977.
[
Footnote 22]
Under Art. XIX, § 2 of the New York Constitution, delegates to a
constitutional convention are elected three per senatorial district
plus 15 delegates elected at large.
[
Footnote 23]
Decisions by the New York Court of Appeals indicate that state
courts will do no more than determine whether the New York
Legislature has properly complied with the state constitutional
provisions relating to legislative apportionment in enacting
implementing statutory provisions.
See, e.g., In re
Sherrill, 188 N.Y. 185, 81 N.E. 124 (1907);
In re
Dowling, 219 N.Y. 44, 113 N.E. 545 (1916); and
In re
Fay, 291 N.Y. 198, 52 N.E.2d 97 (1943).
[
Footnote 24]
See Reynolds v. Sims, ante, p.
377 U.S. 585.