Appellants, voters in the Denver metropolitan area, seeking
declaratory and injunctive relief, sued various officials having
duties in connection with state elections challenging the
apportionment of seats in both houses of the Colorado General
Assembly. A three-judge Federal District Court deferred a hearing
until after the 1962 general election at which two proposals for
amending the state constitutional provisions relating to
legislative apportionment were to be voted on by the Colorado
electorate. Under the plan which was adopted, the House of
Representatives was presumably to be apportioned on the basis of
population, but the existing apportionment of the Senate, based on
a combination of population and other factors (geography,
compactness and contiguity, accessibility, natural boundaries, and
conformity to historical divisions) was substantially maintained.
The rejected proposal would have based apportionment of both houses
largely on the basis of population. Under the adopted plan,
counties with only about one-third of the State's total population
would elect a majority of the Senate; the maximum population
variance ratio would be about 3.6 to 1; and the chief metropolitan
areas, with over two-thirds of the State's population, could elect
only a bare majority of the Senate. Following the general election,
the parties amended their pleadings so that a challenge to the
newly adopted apportionment scheme was solely involved. The
District Court, stressing approval by the electorate, held that the
recently adopted plan met the requirements of the Equal Protection
Clause of the Fourteenth Amendment, and dismissed the suit.
Held:
1. Both houses of a bicameral state legislature must be
apportioned substantially on a population basis.
Reynolds v.
Sims, ante, p.
377 U. S. 533,
followed. P.
377 U. S.
734.
2. Though this Court need not pass upon the apportionment of the
House, which is not challenged here, the apportionment of
Page 377 U. S. 714
the Senate under the newly adopted scheme, which is not
severable from the apportionment of the House, departs from
population-based representation too substantially to be permissible
under the Equal Protection Clause. P.
377 U. S.
735.
3. A political remedy, such as the initiative and referendum,
may justify an equity court in deferring action temporarily on an
apportionment plan to allow recourse to such procedure; but such a
remedy has no constitutional significance if the plan does not meet
equal protection requirements. Pp.
377 U. S.
736-737.
4. The disparities from population-based representation in the
allocation of Senate seats to populous areas cannot be justified as
rational on the ground that geographical, historical, and other
factors were taken into account. P.
377 U. S.
738.
5. The "federal analogy" relied upon with regard to the Senate
apportionment plan is without factual or legal merit. P.
377 U. S.
738.
6. It is not appropriate for this Court to express a view on the
question of remedies, since the District Court, acting under
equitable principles, must now determine whether the imminence of
1964 elections requires utilization of the newly adopted
apportionment plan for purposes of those elections or whether
appellants' right to cast adequately weighted votes for state
legislators in those elections can practicably be effectuated. P.
377 U. S.
739.
219 F.
Supp. 922 reversed and remanded.
Page 377 U. S. 715
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Involved in this case is an appeal from a decision of the
Federal District Court for the District of Colorado upholding the
validity, under the Equal Protection Clause of the Fourteenth
Amendment to the Federal Constitution, of the apportionment of
seats in the Colorado Legislature pursuant to the provisions of a
constitutional amendment approved by the Colorado electorate in
1962.
I
Appellants, voters, taxpayers and residents of counties in the
Denver metropolitan area, filed two separate actions, consolidated
for trial and disposition, on behalf of themselves and all others
similarly situated, in March and July, 1962, challenging the
constitutionality of the apportionment of seats in both houses of
the Colorado General Assembly. Defendants below, sued in their
representative capacities, included various officials charged with
duties in connection with state elections. Plaintiffs below
asserted that Art. V, §§ 45, 46, and 47, of the Colorado
Constitution, and the statutes [
Footnote 1] implementing those constitutional provisions,
result in gross inequalities and disparities with respect to their
voting rights. They alleged that
"one of the inalienable rights of citizenship . . . is equality
of franchise and vote, and that the concept of equal protection of
the laws requires that every citizen be equally represented in the
legislature of his State."
Plaintiffs sought declaratory and injunctive relief, and also
requested the Court to order a constitutionally
Page 377 U. S. 716
valid apportionment plan into effect for purposes of the 1962
election of Colorado legislators. Proponents of the current
apportionment scheme, which was then to be voted upon in a
November, 1962, referendum as proposed Amendment No. 7 to the
Colorado Constitution, were permitted to intervene. A three-judge
court was promptly convened.
On August 10, 1962, the District Court announced its initial
decision. [
Footnote 2]
Lisco v. McNichols, 208 F.
Supp. 471. After holding that it had jurisdiction, that the
issues presented were justiciable, and that grounds for abstention
were lacking, [
Footnote 3] the
court below stated that the population
Page 377 U. S. 717
disparities among various legislative districts under the
existing apportionment "are of sufficient magnitude to make out a
prima facie case of invidious discrimination . . . ."
However, because of the imminence of the primary and general
elections, and since two constitutional amendments, proposed
through the initiative procedure and prescribing rather different
schemes for legislative apportionment, would be voted upon in the
impending election, the District Court continued the cases without
further action until after the November, 1962, election. Colorado
legislators were thus elected in 1962 pursuant to the provisions of
the existing apportionment scheme.
At the November, 1962, general election, the Colorado electorate
adopted proposed Amendment No. 7 by a vote of 305,700 to 172,725,
and defeated proposed Amendment No. 8 by a vote of 311,749 to
149,822. Amendment No. 8, rejected by a majority of the voters,
prescribed an apportionment plan pursuant to which seats in both
houses of the Colorado Legislature would purportedly be apportioned
on a population basis. [
Footnote
4] Amendment
Page 377 U. S. 718
No. 7, on the other hand, provided for the apportionment of the
House of Representatives on the basis of population, but
essentially maintained the existing apportionment in the Senate,
which was based on a combination of population and various other
factors.
After the 1962 election, the parties amended their pleadings so
that the cases involved solely a challenge to the apportionment
scheme established in the newly adopted Amendment No. 7. Plaintiffs
below requested a declaration that Amendment No. 7 was
unconstitutional
Page 377 U. S. 719
under the Fourteenth Amendment, since resulting in substantial
disparities from population-based representation in the Senate, and
asked for a decree reapportioning both houses of the Colorado
Legislature on a population basis. After an extended trial at which
a variety of statistical and testimonial evidence regarding
legislative apportionment in Colorado, past and present, was
introduced, the District Court, on July 16, 1963, announced its
decision on the merits.
Lisco v. Love, 219 F.
Supp. 922. Splitting 2-to-1, the court below concluded that the
apportionment scheme prescribed by Amendment No. 7 comported with
the requirements of the Equal Protection Clause, and thus dismissed
the consolidated actions. In sustaining the validity of the
senatorial apportionment provided for in Amendment No. 7, despite
deviations from population-based representation, the District Court
stated that the Fourteenth Amendment does not require "equality of
population within representation districts for each house of a
bicameral state legislature." Finding that the disparities from a
population basis in the apportionment of Senate seats were based
upon rational considerations, the court below stated that the
senatorial apportionment under Amendment No. 7
"recognizes population as a prime, but not controlling, factor,
and gives effect to such important considerations as geography,
compactness and contiguity of territory, accessibility, observance
of natural boundaries, [and] conformity to historical divisions
such as county lines and prior representation districts . . . .
[
Footnote 5]"
Stressing also that the apportionment plan had been recently
adopted by popular vote in a statewide referendum, the Court
stated:
"[Plaintiffs] argument that the apportionment of the Senate by
Amendment No. 7 is arbitrary, invidiously
Page 377 U. S. 720
discriminatory, and without any rationality [has been answered
by the] voters of Colorado . . . . By adopting Amendment No. 7 and
by rejecting Amendment No. 8, which proposed to apportion the
legislature on a per capita basis, the electorate has made its
choice between the conflicting principles. [
Footnote 6]"
Concluding, the District Court stated:
"We believe that no constitutional question arises as to the
actual, substantive nature of apportionment if the popular will has
expressed itself. . . . In Colorado, the liberal provisions for
initiation of constitutional
Page 377 U. S. 721
amendments permit the people to act -- and they have done so. If
they become dissatisfied with what they have done, a workable
method of change is available. The people are free, within the
framework of the Federal Constitution, to establish the
governmental forms which they desire, and, when they have acted,
the courts should not enter the political wars to determine the
rationality of such action. [
Footnote 7]"
In dissenting, District Judge Doyle stated that he regarded the
senatorial apportionment under Amendment No. 7 as irrational and
invidiously discriminatory, and that the constitutional amendment
had not sufficiently remedied the gross disparities previously
found by the District Court to exist in Colorado's prior
apportionment scheme. Instead, he stated, the adopted plan freezes
senatorial apportionment and merely retains the former system with
certain minor changes. Equality of voting power in both houses is
constitutionally required, the dissent stated, since there is no
logical basis for distinguishing between the two bodies of the
Colorado Legislature. In rejecting the applicability of the
so-called federal analogy, Judge Doyle relied on this Court's
decision in
Gray v. Sanders, 372 U.
S. 368. He concluded that, although absolute equality is
a practical impossibility, legislative districting based
substantially on population is constitutionally required, and that
the disparities in the
Page 377 U. S. 722
apportionment of Senate seats under Amendment No. 7's provisions
cannot be rationalized. [
Footnote
8]
Notices of appeal from the District Court's decisions were
timely filed, and we noted probable jurisdiction on December 9,
1963. 375 U.S. 938.
II
When this litigation was commenced, apportionment of seats in
the Colorado General Assembly was based on certain provisions of
the State Constitution and statutory provisions enacted to
implement them. Article V, § 45, of the Colorado Constitution
provided that the legislature
Page 377 U. S. 723
"shall revise and adjust the apportionment for senators and
representatives . . . according to ratios to be fixed by law," at
the sessions following the state enumeration of inhabitants in 1885
and every 10 years thereafter, and following each decennial federal
census. Article V. § 46, as amended in 1950, stated that "[t]he
senate shall consist of not more than thirty-five and the house of
not more than sixty-five members." Article V, § 47, provided
that:
"Senatorial and representative districts may be altered from
time to time, as public convenience may require. When a senatorial
or representative district shall be composed of two or more
counties, they shall be contiguous, and the district as compact as
may be. No county shall be divided in the formation of a senatorial
or representative district."
Article V, § 3, provides that senators shall be elected for
four-year terms, staggered so that approximately one-half of the
members of the Senate are elected every two years, and that all
representatives shall be elected for two-year terms.
Pursuant to these general constitutional provisions, the
Colorado General Assembly has periodically enacted detailed
statutory provisions establishing legislative districts and
prescribing the apportionment to such districts of seats in both
houses of the Colorado Legislature. Since the adoption of the
Colorado Constitution in 1876, the General Assembly has been
reapportioned or redistricted in the following years: 1881, 1891,
1901, 1909, 1913, 1932, 1953, and, with the adoption of Amendment
No. 7, in 1962. [
Footnote 9]
The 1932 reapportionment was an initiated
Page 377 U. S. 724
measure, adopted because the General Assembly had neglected to
perform its duty under the State Constitution. In 1933 the
legislature attempted to thwart the initiated measure by enacting
its own legislative reapportionment statute, but the latter measure
was held unconstitutional by the Colorado Supreme Court. [
Footnote 10]
The 1953 apportionment scheme, implementing the existing state
constitutional provisions and in effect immediately prior to the
adoption of Amendment No. 7, was contained in several statutory
provisions which provided for a 35-member Senate and a 65-member
House of Representatives. Section 63-1-2 of the Colorado Revised
Statutes established certain population "ratio" figures for the
apportionment of Senate and House seats among the State's 63
counties. One Senate seat was to be allocated to each senatorial
district for the first 19,000 population, with one additional
senator for each senatorial district for each additional 50,000
persons or fraction over 48,000. One House seat was to be given to
each representative district for the first 8,000 population, with
one
Page 377 U. S. 725
additional representative for each House district for each
additional 25,000 persons or fraction over 22,400. Sections 63-1-3
and 63-1-6 established 25 senatorial districts and 35
representative districts, respectively, and allocated the 35 Senate
seats and 65 House seats among them according to the prescribed
population ratios. No counties were divided in the formation of
senatorial or representative districts, in compliance with the
constitutional proscription. Thus, senators and representatives in
those counties entitled to more than one seat in one or both bodies
were elected at large by all of the county's voters. The City and
County of Denver was given eight Senate seats and 17 House seats,
and Pueblo County was allocated two Senate seats and four House
seats. Other populous counties were also given more than one Senate
and House seat each. Certain counties were entitled to separate
representation in either or both of the houses, and were given one
seat each. Sparsely populated counties were combined in
multi-county districts.
Under the 1953 apportionment scheme, applying 1960 census
figures, 29.8% of the State's total population lived in districts
electing a majority of the members of the Senate, and 32.1% resided
in districts electing a majority of the House members. Maximum
population variance ratios of approximately 8-to-1 existed between
the most populous and least populous districts in both the Senate
and the House. One senator represented a district containing
127,520 persons, while another senator had only 17,481 people in
his district. The smallest representative district had a population
of only 7,867, while another district was given only two House
seats for a population of 127,520. In discussing the 1953
legislative apportionment scheme, the District Court, in its
initial opinion, stated that
"[f]actual data presented at the trial reveals the existence of
gross and glaring disparity in voting strength as between the
several representative and
Page 377 U. S. 726
senatorial districts,"
and that
"[t]he inevitable effect . . . [of the existing apportionment
provisions] has been to develop severe disparities in voting
strength with the growth and shift of population. [
Footnote 11]"
Amendment No. 7 provides for the establishment of a General
Assembly composed of 39 senators and 65 representatives, with the
State divided geographically into 39 senatorial and 65
representative districts, so that all seats in both houses are
apportioned among single-member districts. [
Footnote 12] Responsibility for creating House
districts "as nearly equal in population as may be" is given to the
legislature. Allocation of senators among the counties follows the
existing scheme of districting and apportionment, except that one
sparsely populated county is detached from populous Arapahoe County
and joined with four others in forming a senatorial district, and
one additional senator is apportioned to each of the counties of
Adams, Arapahoe, Boulder and Jefferson. Within counties given more
than one Senate seat, senatorial districts are to be established by
the legislature "as nearly equal in population as may be."
[
Footnote 13] Amendment No.
7 also provides
Page 377 U. S. 727
for a revision of representative districts, and of senatorial
districts within counties given more than one Senate seat, after
each federal census, in order to maintain conformity with the
prescribed requirements. [
Footnote 14] Pursuant to this constitutional mandate, the
Colorado Legislature, in early 1963, enacted a statute establishing
65 representative districts and creating senatorial districts in
counties given more than one Senate seat. [
Footnote 15] Under the newly adopted House
apportionment plan, districts in which about 45.1% of the State's
total population reside are represented by a majority of the
members of that body. The maximum population variance ratio,
between the most populous and least populous House districts, is
approximately 1.7 to 1. The court below concluded that the House
was apportioned as nearly on a population basis as was practicable,
consistent with Amendment No. 7's requirement that "[n]o part of
one county shall be added to another county or part of another
county" in the formation of a legislative district, and directed
its concern solely to the question of whether the
Page 377 U. S. 728
deviations from a population basis in the apportionment of
Senate seats were rationally justifiable. [
Footnote 16]
Senatorial apportionment, under Amendment No. 7, involves little
more than adding four new Senate seats and distributing them to
four populous counties in the Denver area, and in substance
perpetuates the existing senatorial apportionment scheme. [
Footnote 17] Counties containing
only 33.2% of the State's total population elect a majority of the
39-member Senate under the provisions of Amendment No. 7. Las
Animas County, with a 1960 population of only 19,983, is given one
Senate seat, while El Paso County, with 143,742 persons, is
allotted only two Senate seats. Thus, the maximum population
variance ratio, under the revised senatorial apportionment, is
about 3.6 to 1. [
Footnote
18] Denver and the three adjacent suburban
Page 377 U. S. 729
counties contain about one-half of the State's total 1960
population of 1,753,947, but are given only 14 out of 39 senators.
The Denver, Pueblo, and Colorado Springs metropolitan areas,
containing 1,191,832 persons, about 68%, or over two-thirds of
Colorado's population, elect only 20 of the State's 39 senators,
barely a majority. The average population of Denver's eight
senatorial districts, under Amendment No. 7, is 61,736, while the
five least populous districts contain less than 22,000 persons
each. Divergences from population-based representation in the
Senate are growing continually wider, since the underrepresented
districts in the Denver, Pueblo, and Colorado Springs metropolitan
areas are rapidly gaining in population, while many of the
overrepresented rural districts have tended to decline in
population continuously in recent years. [
Footnote 19]
Page 377 U. S. 730
III
Several aspects of this case serve to distinguish it from the
other cases involving state legislative apportionment also decided
this date. Initially, one house of the Colorado Legislature is at
least arguably apportioned substantially on a population basis
under Amendment No. 7 and the implementing statutory provisions.
Under the apportionment schemes challenged in the other cases, on
the other hand, clearly neither of the houses in any of the state
legislatures is apportioned sufficiently on a population basis so
as to be constitutionally sustainable. Additionally, the Colorado
scheme of legislative apportionment here attacked is one adopted by
a majority vote of the Colorado electorate almost contemporaneously
with the District Court's decision on the merits in this
litigation. Thus, the plan at issue did not result from prolonged
legislative inaction. However, the Colorado General Assembly, in
spite of the state constitutional mandate for periodic
reapportionment, has enacted only one effective legislative
apportionment measure in the past 50 years. [
Footnote 20]
Page 377 U. S. 731
As appellees have correctly pointed out, a majority of the
voters in every county of the State voted in favor of the
apportionment scheme embodied in Amendment No. 7's provisions, in
preference to that contained in proposed Amendment No. 8, which,
subject to minor deviations, would have based the apportionment of
seats in both houses on a population basis. However, the choice
presented to the Colorado electorate, in voting on these two
proposed constitutional amendments, was hardly as clear-cut as the
court below regarded it. One of the most undesirable features of
the existing apportionment scheme was the requirement that, in
counties given more than one seat in either or both of the houses
of the General Assembly, all legislators must be elected at large
from the county as a whole. Thus, under the existing plan, each
Denver voter was required to vote for eight senators and 17
representatives. Ballots were long and cumbersome, and an
intelligent choice among candidates for seats in the legislature
was made quite difficult. No identifiable constituencies within the
populous counties resulted, and the residents of those areas had no
single member of the Senate or House elected specifically to
represent them. Rather, each legislator elected from a multimember
county represented the county as a whole. [
Footnote 21] Amendment No. 8, as distinguished
from Amendment No. 7, while purportedly basing the apportionment
of
Page 377 U. S. 732
seats in both houses on a population basis, would have
perpetuated, for all practical purposes, this debatable feature of
the existing scheme. Under Amendment No. 8, senators were to be
elected at large in those counties given more than one Senate seat,
and no provision was made for subdistricting within such counties
for the purpose of electing senators. Representatives were also to
be elected at large in multimember counties pursuant to the
provisions of Amendment No. 8 at least initially, although
subdistricting for the purpose of electing House members was
permitted if the voters of a multimember county specifically
approved a representative subdistricting plan for that county.
Thus, neither of the proposed plans was, in all probability, wholly
acceptable to the voters in the populous counties, and the
assumption of the court below that the Colorado voters made a
definitive choice between two contrasting alternatives and
indicated that "minority process in the Senate is what they want"
does not appear to be factually justifiable.
Finally, this case differs from the others decided this date in
that the initiative device provides a practicable political remedy
to obtain relief against alleged legislative malapportionment in
Colorado. [
Footnote 22] An
initiated
Page 377 U. S. 733
measure proposing a constitutional amendment or a statutory
enactment is entitled to be placed on the ballot if the signatures
of 8% of those voting for the Secretary of State in the last
election are obtained. No geographical distribution of petition
signers is required. Initiative and referendum has been frequently
utilized throughout Colorado's history. [
Footnote 23] Additionally, Colorado courts have
traditionally not been hesitant about adjudicating controversies
relating to legislative apportionment. [
Footnote 24] However,
Page 377 U. S. 734
the Colorado Supreme Court, in its 1962 decision discussed
previously in this opinion, [
Footnote 25] refused to consider or pass upon the federal
constitutional questions, but instead held only that the Colorado
General Assembly was not required to enact a reapportionment
statute until the following legislative session. [
Footnote 26]
IV
In
Reynolds v. Sims, 377 U. S. 533, we
held that the Equal Protection Clause requires that both houses of
a bicameral state legislature must be apportioned substantially on
a population basis. Of course, the court below assumed, and the
parties apparently conceded, that the Colorado House of
Representatives, under the statutory provisions enacted by the
Colorado Legislature in early 1963 pursuant to Amendment No. 7's
dictate that the legislature should create 65 House districts "as
nearly equal in population as may be," is now apportioned
sufficiently on a population basis to comport with federal
constitutional requisites. We need not pass on this question, since
the apportionment of Senate seats, under Amendment No. 7, clearly
involves departures from population-based representation too
Page 377 U. S. 735
extreme to be constitutionally permissible, and there is no
indication that the apportionment of the two houses of the Colorado
General Assembly, pursuant to the 1962 constitutional amendment, is
severable. [
Footnote 27] We
therefore conclude that the District Court erred in holding the
legislative apportionment plan embodied in Amendment No. 7 to be
constitutionally valid. Under neither Amendment No. 7's plan nor,
of course, the previous statutory scheme, is the overall
legislative representation in the two houses of the Colorado
Legislature sufficiently grounded on population to be
constitutionally sustainable under the Equal Protection Clause.
[
Footnote 28]
Page 377 U. S. 736
Except as an interim remedial procedure, justifying a court in
staying its hand temporarily, we find no significance in the fact
that a nonjudicial, political remedy may be available for the
effectuation of asserted rights to equal representation in a state
legislature. Courts sit to adjudicate controversies involving
alleged denials of constitutional rights. While a court sitting as
a court of equity might be justified in temporarily refraining from
the issuance of injunctive relief in an apportionment case in order
to allow for resort to an available political remedy, such as
initiative and referendum, individual constitutional rights cannot
be deprived, or denied judicial effectuation, because of the
existence of a nonjudicial remedy through which relief against the
alleged malapportionment, which the individual voters seek, might
be achieved. An individual's constitutionally protected right to
cast an equally weighted vote cannot be denied even by a vote of a
majority of a State's electorate, if the apportionment scheme
adopted by the voters fails to measure up to the requirements of
the Equal Protection Clause. Manifestly, the fact that an
apportionment plan is adopted in a popular referendum is
insufficient to sustain its constitutionality or to induce a court
of equity to refuse to act. As stated by this Court in
West
Virginia State Bd. of Educ. v. Barnette, 319 U.
S. 624,
319 U. S.
638,
"One's right to life, liberty, and property . . . and other
fundamental rights may not be submitted to vote; they depend on the
outcome of no elections. [
Footnote 29]"
A citizen's constitutional rights can hardly be infringed simply
because a majority
Page 377 U. S. 737
of the people choose that it be. [
Footnote 30] We hold that the fact that a challenged
legislative apportionment plan was approved by the electorate is
without federal constitutional significance if the scheme adopted
fails to satisfy the basic requirements of the Equal Protection
Clause, as delineated in our opinion in
Reynolds v. Sims.
And we conclude that the fact that a practicably available
political remedy, such as initiative and referendum, exists under
state law provides justification only for a court of equity to stay
its hand temporarily while recourse to such a remedial device is
attempted or while proposed initiated measures relating to
legislative apportionment are pending and will be submitted to the
State's voters at the next election.
Page 377 U. S. 738
Because of the imminence of the November, 1962, election and the
fact that two initiated proposals relating to legislative
apportionment would be voted on by the State's electorate at that
election, the District Court properly stayed its hand and permitted
the 1962 election of legislators to be conducted pursuant to the
existing statutory scheme. But appellees' argument, accepted by the
court below, that the apportionment of the Colorado Senate, under
Amendment No. 7, is rational because it takes into account a
variety of geographical, historical, topographic and economic
considerations fails to provide an adequate justification for the
substantial disparities from population-based representation in the
allocation of Senate seats to the disfavored populous areas.
[
Footnote 31] And any
attempted reliance on the so-called federal analogy is factually as
well as constitutionally without merit. [
Footnote 32]
Page 377 U. S. 739
Since the apportionment of seats in the Colorado Legislature,
under the provisions of Amendment No. 7, fails to comport with the
requirements of the Equal Protection Clause, the decision below
must be reversed. Beyond what we said in our opinion in
Reynolds, [
Footnote
33] we express no view on questions relating to remedies at the
present time. On remand, the District Court must now determine
whether the imminence of the 1964 primary and general elections
requires that utilization of the apportionment scheme contained in
the constitutional amendment be permitted, for purposes of those
elections, or whether the circumstances in Colorado are such that
appellants' right to cast adequately weighted votes for members of
the State Legislature can practicably be effectuated in 1964.
Accordingly, we reverse the decision of the court below and remand
the case 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.]
[
Footnote 1]
Colo.Rev.Stat.1953, c. 63, §§ 63-1-1 to 63-1-6.
[
Footnote 2]
The District Court wisely refrained from acting at all until a
case pending in the Colorado Supreme Court was decided without that
court's passing on the federal constitutional questions relating to
Colorado's scheme of legislative apportionment which were raised in
that suit.
In re Legislative Reapportionment, 150 Colo.
380,
374 P.2d 66
(1962). After accepting jurisdiction, the Colorado Supreme Court,
over a vigorous dissent, ignored the federal constitutional issues
and instead discussed only the matter of when the Colorado
Legislature was required, pursuant to the State Constitution, to
reapportion seats in the General Assembly. The Court concluded that
a reapportionment measure enacted during the 1963 session of the
Colorado Legislature, on the basis of 1960 census figures, would,
if neither of the proposed constitutional amendments relating to
legislative apportionment was approved by the voters in November,
1962, be in sufficient compliance with the constitutional
requirement of periodic legislative reapportionment.
See
also 208 F. Supp. at 474, discussing the Colorado Supreme
Court's decision in that case.
[
Footnote 3]
In its initial opinion, the District Court properly concluded
that the argument that
"the Colorado Supreme Court has preempted jurisdiction by first
hearing the controversy, is without merit in view of the fact that
the Supreme Court of Colorado has refrained from even considering
the issue of infringement of the plaintiffs' federally guaranteed
constitutional rights."
208 F. Supp. at 475. Continuing, the court below correctly held
that, under the circumstances, it was not required to abstain, and
stated:
"The considerations which demand abstinence are not present in
the instant case. Here, the General Assembly of the State of
Colorado has repeatedly refused to perform the mandate imposed by
the Colorado Constitution to apportion the legislature. The
likelihood that the unapportioned General Assembly will ever
apportion itself now appears remote. The Supreme Court of Colorado,
while retaining jurisdiction of the subject matter of the
controversy presented to it, has postponed further consideration of
the cause until June, 1963. Under these circumstances, we must
conclude that the parties do not at least at present, have an
adequate, speedy and complete remedy apart from that asserted in
the case at bar, and thus grounds for abstention are at this time
lacking."
208 F. Supp. at 476.
See Davis v. Mann, ante, pp.
377 U. S.
690-691, where we discussed the question of abstention
by a federal court in a state legislative apportionment
controversy.
[
Footnote 4]
As stated succinctly by the District Court in its opinion on the
merits,
"The defeated Amendment No. 8 proposed a three-man commission to
apportion the legislature periodically. The commission was to have
the duty of delineating, revising and adjusting senatorial and
representative districts. Its actions were to be reviewed by the
Colorado Supreme Court. The districting was to be on a strict
population ratio for both the Senate and the House with limited
permissible variations therefrom."
219 F. Supp. at 925.
Additionally, under proposed Amendment No. 8, the commission
would determine a strict population ratio for both the Senate and
the House by dividing the State's total population, as ascertained
in each decennial federal census, by the number of seats assigned
to the Senate and the House, respectively. No legislative district
should contain a population per senator or representative of 33
1/3% more or less than the strict population ratio, except certain
mountainous senatorial districts of more than 5,500 square miles in
area, but no senatorial district was to contain a population of
less than 50% of the strict population ratio. Senatorial districts
should consist of one county or two or more contiguous counties,
but no county should be divided in the formation of a senatorial
district. Representative districts should consist of one county or
two or more contiguous counties. Any county apportioned two or more
representatives could be divided into representative subdistricts,
but only after a majority of the voters in the county had approved,
in a general election, the exact method of subdivision and the
specific apportionment of representatives among the subdistricts
and the county at large. A proposal to divide a county into
subdistricts could be placed on the ballot only by initiative
petition in accordance with state law, and only at the general
elections in 1966 and 1974, and at the general elections held each
10 years thereafter. Amendment No. 8, like Amendment No. 7, would
have required implementing legislation, and would not have become
effective, if adopted, until the 1964 elections.
[
Footnote 5]
219 F. Supp. at 932.
[
Footnote 6]
Ibid. Continuing, the court below stated:
"The initiative gives the people of a state no power to adopt a
constitutional amendment which violates the Federal Constitution.
Amendment No. 7 is not valid just because the people voted for it.
. . . [But] the traditional and recognized criteria of equal
protection. . . . are arbitrariness, discrimination, and lack of
rationality. The actions of the electorate are material to the
application of the criteria. The contention that the voters have
discriminated against themselves appalls, rather than convinces.
Difficult as it may be at times to understand mass behavior of
human beings, a proper recognition of the judicial function
precludes a court from holding that the free choice of the voters
between two conflicting theories of apportionment is irrational or
the result arbitrary."
"The electorate of every county from which the plaintiffs come
preferred Amendment No. 7. In the circumstances, it is difficult to
comprehend how the plaintiffs can sue to vindicate a public right.
At the most, they present a political issue which they lost. On the
questions before us, we shall not substitute any views which we may
have for the decision of the electorate. . . . [W]e decline to act
as a superelectorate to weigh the rationality of a method of
legislative apportionment adopted by a decisive vote of the
people."
Id. at 932-933.
And, earlier in its opinion on the merits, the District Court
stated:
"With full operation of the one-man, one-vote principle, the
Colorado electorate, by an overwhelming majority, approved a
constitutional amendment creating a Senate the membership of which
is not apportioned on a strict population basis. By majority
process, the voters have said that minority process in the Senate
is what they want. A rejection of their choice is a denial of the
will of the majority. If the majority becomes dissatisfied with
that which it has created, it can make a change at an election in
which each vote counts the same as every other vote."
Id. at 926-927.
[
Footnote 7]
Id. at 933.
[
Footnote 8]
Additionally, Judge Doyle correctly stated that
"a properly apportioned state legislative body must at least
approximate by
bona fide attempt the creation of districts
substantially related to population."
219 F. Supp. at 941. With respect to the relatively easy
availability of the initiative procedure in Colorado, the dissent
perceptively pointed out that
"it is of little consolation to an individual voter who is being
deprived of his rights that he can start a popular movement to
change the Constitution. This possible remedy is not merely
questionable, it is, for practical purposes, impossible."
Id. at 942. Judge Doyle referred to Amendment No. 7's
provisions relating to senatorial apportionment as
"the product of a mechanical and arbitrary freezing accomplished
by adoption, with slight modification, of the unlawful alignments
which had existed in the previous statute."
Id. at 943. Discussing the majority's view that
geographic and economic considerations were relevant in explaining
the disparities from population-based senatorial representation, he
discerningly stated that geographic and area factors carry "little
weight when considered in the light of modern methods of electronic
communication, modern highways, automobiles and airplanes," and,
with regard to economic considerations, that "[e]conomic interest
are remarkably well represented without special representation,"
that "[i]t is dangerous to build into a political system a favored
position for a segment of the population of the state," that
"[t]here exists no practical method of ridding ourselves of them,"
and that, "long after the institutions pass, the built-in advantage
remains even though it is at last only a vestige of the dead
past."
Ibid.
[
Footnote 9]
Admittedly, the Colorado Legislature has never complied with the
state constitutional provision requiring the conducting of a
decennial state census in 1885 and every 10 years thereafter, and,
of course, has never reapportioned seats in the legislature based
upon such a census. Under Amendment No. 7, sole reliance is placed
on the federal census, and there is no longer any requirement for
the conducting of a decennial state census.
In its initial opinion, the District Court stated that there had
been only a "modicum of apportionment, either real or purported,"
as well as "several abortive attempts," since Colorado first
achieved statehood. However, in its later opinion on the merits,
the court below viewed the situation rather differently, and stated
that "[a]pportionment of the Colorado legislature has not remained
static." As indicated by the District Court, in addition to the
reapportionments which were effected,
"[i]n 1954, the voters rejected a referred apportionment
measure, and, in 1956, rejected an initiated constitutional
amendment proposing the reapportionment of both chambers of the
legislature on a straight population basis."
219 F. Supp. at 930.
[
Footnote 10]
Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757 (1934).
See note 24
infra.
[
Footnote 11]
208 F. Supp. at 474, 475.
[
Footnote 12]
Amendment No. 7 is set out as Appendix A to the District Court's
opinion on the merits, 219 F. Supp. at 933-934, and provides for
the repeal of the existing Art. V, §§ 45, 46 and 47, and the
adoption of "new Sections 45, 46, 47 and 48 of Article V," which
are set out verbatim in the
377
U.S. 713app|>Appendix to this opinion.
Additionally, the provisions of proposed Amendment No. 8,
rejected by the Colorado electorate, are set out as Appendix B to
the District Court's opinion on the merits. 219 F. Supp. at
934-935.
See the discussion of Amendment No. 8's
provisions in
note 4
supra.
[
Footnote 13]
In addition to establishing House districts, the legislation
enacted by the Colorado General Assembly in early 1963, in
implementation of Amendment No. 7's provisions, also divided
counties apportioned more than one Senate seat into single-member
districts. Amendment No. 7, in contrast to Amendment No. 8,
explicitly provided for districting, with respect to both Senate
and House seats, in multimember counties. The rejected amendment,
on the other hand, made no provision at all for districting within
counties given more than one Senate seat, and allowed
subdistricting of House seats only upon specific approval of such a
plan by a county's voters. Thus, Amendment No. 8 would at least in
part have perpetuated the extremely objectionable feature of the
existing apportionment scheme, under which legislators in
multimember counties were elected at large from the county as a
whole.
[
Footnote 14]
As stated by the District Court,
"Mandatory provisions [of Amendment No. 7] require the revision
of representative districts and of senatorial districts within
counties apportioned more than one senator after each Federal
Census."
219 F. Supp. at 925. Under the provisions of Amendment No. 7,
eight counties are given more than one Senate seat, and 14 of the
39 senatorial districts are comprised of more than one county.
[
Footnote 15]
Colo.Laws 1963, c. 143, p. 520-532, referred to as House Bill
No. 65.
[
Footnote 16]
As stated by the court below,
"The Colorado legislature met in January, 1963, and passed a
statute, H.B.No. 65, implementing Amendment No. 7. No question is
raised concerning the implementing legislation."
219 F. Supp. at 924-925. Again, the District Court stated:
"The cases now before the court do not present the issues as
they existed prior to the apportionment made by Amendment No. 7. .
. . [T]he then-existing disparities in each chamber were severe,
the defendants presented no evidence to sustain the rationality of
the apportionment, and witnesses for the intervenors, while
defending the apportionment of the Senate, recognized the
malapportionment of the House. The change by Amendment No. 7 was
such as to require a trial
de novo, and we are concerned
with the facts as finally presented."
Id. at 928.
[
Footnote 17]
Appendix C to the District Court's opinion on the merits
contains a chart of the senatorial districts created under
Amendment No. 7's provisions, showing the population of and the
counties included in each. 219 F. Supp. at 935-938.
[
Footnote 18]
Included as Appendix D to the District Court's opinion on the
merits is a chart showing the ratios of population per senator in
each district to the population of the least populous senatorial
district, as established by Amendment No. 7 and the implementing
statutory provisions dividing counties given more than one Senate
seat into separate senatorial districts. 219 F. Supp. at 939.
[
Footnote 19]
Appellants have repeatedly asserted that equality of population
among districts has been the traditional basis of legislative
apportionment in both houses of the Colorado General Assembly. They
pointed out that both houses of the territorial legislature
established by Congress in the organic act creating the territory
of Colorado in 1861 were expressly required to be apportioned on a
population basis. And, they contended, the legislative districts
established for the apportionment of the 26 Senate and 49 House
seats in the first General Assembly after Colorado became a State
were virtually all substantially equal in population. Referring to
the language of the Colorado Supreme Court in
Armstrong v.
Mitten, 95 Colo. 425, 37 P.2d 757 (1934), they urged that no
basis other than population has ever been recognized for
apportioning representation in either house of the Colorado
Legislature. Appellees, on the other hand, have consistently
contended that population "ratio" figures have been used in
apportioning seats in both houses since 1881, requiring
proportionately more population to obtain additional legislative
representation. Since the Colorado Supreme Court's statements in
Armstrong regarding population as the basis of legislative
representation plainly assumed the existence of an underlying
population ratio scheme, its language can hardly be read out of
context to support the proposition that absolute equality of
population among districts has been the historical basis of
legislative apportionment in Colorado. For a short discussion of
legislative apportionment in Colorado, including the adoption of
Amendment No. 7 and the instant litigation,
see Note, 35
U. of Colo.L.Rev. 431 (1963).
[
Footnote 20]
In 1953, the Colorado General Assembly enacted the legislative
apportionment scheme in effect when this litigation was commenced.
Prior to 1953, the last effective apportionment of legislative
representation by the General Assembly itself was accomplished in
1913. The 1932 measure was an initiated act, adopted by a vote of
the Colorado electorate. Although the legislature enacted a
statutory plan in 1933, in an attempt to nullify the effect of the
1932 initiated act, that measure was held invalid and
unconstitutional, as matter of state law, by the Colorado Supreme
Court.
See note 24
infra. And the 1962 adoption of the apportionment scheme
contained in proposed constitutional Amendment No. 7 resulted, of
course, not from legislative action, but from a vote of the
Colorado electorate approving the initiated measure. The 1963
statutory provisions were enacted by the General Assembly simply in
order to comply with Amendment No. 7's mandate for legislative
implementation.
[
Footnote 21]
We do not intimate that apportionment schemes which provide for
the at-large election of a number of legislators from a county, or
any political subdivision, are constitutionally defective. Rather,
we merely point out that there are certain aspects of electing
legislators at large from a county as a whole that might well make
the adoption of such a scheme undesirable to many voters residing
in multimember counties.
[
Footnote 22]
Article V, § 1, of the Colorado Constitution provides that
"the people reserve to themselves the power to propose laws and
amendments to the constitution and to enact or reject the same at
the polls independent of the general assembly . . . ,"
and further establishes the specific procedures for initiating
proposed constitutional amendments or legislation.
Twenty-one States make some provision for popular initiative.
Fourteen States provided for the amendment of state constitutional
provisions through the process of initiative and referendum.
See The Book of the States 1962-1963, 14. Seven States
allow the use of popular initiative for the passage of legislation
but not constitutional amendments. Both types of initiative and
referendum may, of course, be relevant to legislative
reapportionment.
See Report of Advisory Commission on
Intergovernmental Relations, Apportionment of State Legislatures 57
(1962). In some States the initiative process is ineffective and
cumbersome, while in others, such as Colorado, it is a practicable
and frequently utilized device.
In addition to the initiative device, Art. V, § 1, of the
Colorado Constitution provides that, upon the timely filing of a
petition signed by 5% of the State's voters or at the instance of
the legislature, the Colorado electorate reserves the power of
voting upon legislative enactments in a statewide referendum at the
next general election.
[
Footnote 23]
Amendment of the Colorado Constitution can be accomplished, in
addition to resort to the initiative and referendum device, through
a majority vote of the electorate on an amendment proposed by the
General Assembly following a favorable vote thereon "by two-thirds
of all the members elected to each house" of the Colorado
Legislature, pursuant to Art. XIX, § 2, of the Colorado
Constitution. Additionally, a constitutional convention can be
convened, upon the favorable recommendation of two-thirds of the
members elected to each house of the General Assembly, if the
electorate approves of the calling of such a convention to "revise,
alter and amend" the State Constitution, under Art. XIX, § 1, of
the Colorado Constitution. Pursuant to Art. XIX, § 1,
"[t]he number of members of the convention shall be twice that
of the senate and they shall be elected in the same manner at the
same places, and in the same districts."
[
Footnote 24]
See Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757
(1934), where the Colorado Supreme Court held that a 1933 statute,
enacted by the legislature to effectively nullify the 1932
initiated act reapportioning legislative representation, was void
under the state constitutional provisions. In finding the
legislative measure invalid, the Colorado court stated that
"redistricting must be done with due regard to the requirement that
representation in the General Assembly shall be based upon
population," and that
"[t]he legislative act in question is void because it violates
section 45 of article 5 of the Constitution, which requires the
reapportionment to be made on the basis of population, as disclosed
by the census, and according to ratios to be fixed by law."
Stating that "[i]t is clear that ratios, after having been fixed
under section 45, . . . cannot be changed until after the next
census," the Colorado Supreme Court concluded that
"[t]he legislative act attempts to confer upon some districts a
representation that is greater, and upon others a representation
that is less, than they are entitled to under the
Constitution."
Id., 95 Colo. at 428, 37 P.2d at 758.
[
Footnote 25]
See note 2
supra.
[
Footnote 26]
In re Legislative Reapportionment, 150 Colo. 380,
374 P.2d 66
(1962). Even so, the Colorado court stated that "it is abundantly
clear that this court has jurisdiction . . . ."
Id. at
385, 374 P.2d at 69.
See note 2 supra.
[
Footnote 27]
See Maryland Committee for Fair Representation v. Tawes,
ante, p.
377 U. S. 673,
where we discussed the need for considering the apportionment of
seats in both houses of a bicameral state legislature in evaluating
the constitutionality of a state legislative apportionment scheme,
regardless of what matters were raised by the parties and decided
by the court below. Consistent with this approach, in determining
whether a good faith effort to establish districts substantially
equal in population has been made, a court must necessarily
consider a State's legislative apportionment scheme as a whole.
Only after an evaluation of an apportionment plan in its totality
can a court determine whether there has been sufficient compliance
with the requisites of the Equal Protect on Clause. Deviations from
a strict population basis, so long as rationally justifiable, may
be utilized to balance a slight overrepresentation of a particular
area in one house with a minor underrepresentation of that area in
the other house. But, on the other hand, disparities from
population-based representation, though minor, may be cumulative,
instead of offsetting, where the same areas are disadvantaged in
both houses of a state legislature, and may therefore render the
apportionment scheme at least constitutionally suspect. Of course,
the court below can properly take into consideration the present
apportionment of seats in the House in determining what steps must
be taken in order to achieve a plan of legislative apportionment in
Colorado that sufficiently comports with federal constitutional
requirements.
[
Footnote 28]
See Reynolds v. Sims, ante, p.
377 U.S. 576, where we discussed some
of the underlying reasons for our conclusion that the Equal
Protection Clause requires that seats in both houses of a state
legislature must be apportioned substantially on a population basis
in order to comport with federal constitutional requisites.
[
Footnote 29]
And, as stated by the court in
Hall v. St. Helena Parish
School Bd., 197 F.
Supp. 649, 659 (D.C.E.D.La.1961),
aff'd, 368 U.
S. 515, "No plebiscite can legalize an unjust
discrimination."
[
Footnote 30]
In refuting the majority's reliance on the fact that Amendment
No. 7 had been adopted by a vote of the Colorado electorate, Judge
Doyle, in dissenting below, stated:
"The protection of constitutional rights is not to be approached
either pragmatically or expediently, and though the fact of
enactment of a constitutional provision by heavy vote of the
electorate produces pause and generates restraint, we cannot, true
to our oath, uphold such legislation in the face of palpable
infringement of rights. Thus, state racial legislation would
unquestionably enjoy overwhelming electorate approval in certain of
our states, yet no one would argue that this factor could
compensate for manifest inequality. It is too clear for argument
that constitutional law is not a matter of majority vote. Indeed,
the entire philosophy of the Fourteenth Amendment teaches that it
is personal rights which are to be protected against the will of
the majority. The rights which are here asserted are the rights of
the individual plaintiffs to have their votes counted equally with
those of other voters. . . . [T]o say that a majority of the voters
today indicate a desire to be governed by a minority is to avoid
the issue which this court is asked to resolve. It is no answer to
say that the approval of the polling place necessarily evidences a
rational plan. The plaintiffs have a right to expect that the cause
will be determined in relation to the standards of equal
protection. Utilization of other or different standards denies them
full measure of justice."
219 F. Supp. at 944.
[
Footnote 31]
In its opinion on the merits, the District Court stated:
"By the admission of states into the Union with constitutions
creating bicameral legislatures, membership to which is not
apportioned on a population basis, Congress has rejected the
principle of equal representation as a constitutional
requirement."
219 F. Supp. at 927-928. For the reasons stated in our opinion
in
Reynolds v. Sims, ante, p.
377 U.S. 582, we find this argument
unpersuasive as a justification for the deviations from population
in the apportionment of seats in the Colorado Senate under the
provisions of Amendment No. 7. Also, the court below stated that
the disparities from population-based senatorial representation
were necessary in order to protect "insular minorities" and to
accord recognition to "the state's heterogeneous characteristics."
Such rationales are, of course, insufficient to justify the
substantial deviations from population in the apportionment of
seats in the Colorado Senate under Amendment No. 7, under the views
stated in our opinion in
Reynolds.
[
Footnote 32]
See Reynolds v. Sims, ante, pp.
377 U.S. 571-576, discussing and
rejecting the applicability of the so-called federal analogy to
state legislative apportionment matters. As stated in the dissent
below,
"It would appear that there is no logical basis for
distinguishing between the lower and upper house -- that the equal
protection clause applies to both since no valid analogy can be
drawn between the United States Congress"
and state legislatures. 219 F. Supp. at 940-941. Additionally,
the apportionment scheme embodied in the provisions of Amendment
No. 7 differs significantly from the plan for allocating
congressional representation among the States. Although the
Colorado House of Representatives is arguably apportioned on a
population basis, and therefore resembles the Federal House,
senatorial seats are not apportioned to counties or political
subdivisions in a manner that at all compares with the allocation
of two seats in the Federal Senate to each State.
[
Footnote 33]
See Reynolds v. Sims, ante, p.
377 U.S. 585.
|
377
U.S. 713app|
APPENDIX TO OPINION OF THE COURT
Amendment No. 7, approved by a vote of the Colorado electorate
in November, 1962, appears in Colo.Laws 1963, c. 312, p. 1045
et seq., and, in relevant part, provides as follows:
"Sections 45, 46, and 47 of Article V of the Constitution of the
State of Colorado are hereby repealed
Page 377 U. S. 740
and new Sections 45, 46, 47 and 48 of Article V are adopted, to
read as follows:"
" Section 45. -- General Assembly. -- The general assembly shall
consist of 39 members of the senate and 65 members of the house,
one to be elected from each senatorial and representative district.
Districts of the same house shall not overlap. All districts shall
be as compact as may be and shall consist of contiguous whole
general election precincts. No part of one county shall be added to
another county or part of another county in forming a district.
When a district includes two or more counties they shall be
contiguous."
" Section 46. -- House of Representatives. -- The state shall be
divided into 65 representative districts which shall be as nearly
equal in population as may be."
" Section 47. -- Senate. -- The state shall be divided into 39
senatorial districts. This apportionment of senators among the
counties shall be the same as now provided by 63-1-3 of Colorado
Revised Statutes 1953, which shall not be repealed or amended other
than in numbering districts, except that the counties of Cheyenne,
Elbert, Kiowa Kit Carson and Lincoln shall form one district, and
one additional senator is hereby apportioned to each of the
counties of Adams, Arapahoe, Boulder and Jefferson. Within a county
to which there is apportioned more than one senator, senatorial
districts shall be as nearly equal in population as may be."
" Section 48. -- Revision of Districts. -- At the regular
session of the general assembly of 1963 and each regular session
next following official publication of each Federal enumeration of
the population of the state, the general assembly shall immediately
alter and amend the boundaries of all
Page 377 U. S. 741
representative districts and of those senatorial districts
within any county to which there is apportioned more than one
senator to conform to the requirements of Sections 45, 46 and 47 of
this Article V. After 45 days from the beginning of each such
regular session, no member of the general assembly shall be
entitled to or earn any compensation or receive any payments on
account of salary or expenses, and the members of any general
assembly shall be ineligible for election to succeed themselves in
office, until such revisions have been made. Until the completion
of the terms of the representatives elected at the general election
held in November of 1962 shall have expired, the apportionment of
senators and representatives and the senatorial and representative
districts of the general assembly shall be as provided by law."
MR. JUSTICE CLARK, dissenting.
While I join my Brother STEWART's opinion, I have some
additional observations with reference to this case.
The parties concede that the Colorado House of Representatives
is now apportioned "as nearly equal in population as may be." The
Court does not disturb this stipulation, though it seems to accept
it in niggardly fashion. The fact that 45.1% of the State's
population resides in the area which selects a majority of the
House indicates rather conclusively that the apportionment comes
within the test laid down in
Reynolds v. Sims,
377 U. S. 533:
"one person, one vote," that is, "approximately equal" or "as
nearly as is practicable" with only "some deviations . . . ."
Indeed, the Colorado House is within 4.9% of being perfect.
Page 377 U. S. 742
Moreover, the fact that the apportionment follows political
subdivision lines to some extent is also a teaching to
Reynolds
v. Sims, supra. But the Court strikes down Colorado's
apportionment, which was adopted by the majority vote of every
political subdivision in the State, because the Senate's majority
is elected by 33.2% of the population, a much higher percentage
than that which elects a majority of the Senate of the United
States.
I would refuse to interfere with this apportionment for several
reasons. First, Colorado enjoys the initiative and referendum
system which it often utilizes and which, indeed, produced the
present apportionment. As a result of the action of the Legislature
and the use of initiative and referendum, the State Assembly has
been reapportioned eight times since 1881. This indicates the
complete awareness of the people of Colorado to apportionment
problems and their continuing efforts to solve them. The courts
should not interfere in such a situation.
See my
concurring opinion in
Baker v. Carr, 369 U.
S. 186,
369 U.S.
258-259 (1962). Next, as my Brother STEWART has pointed out,
there are rational and most persuasive reasons for some deviations
in the representation in the Colorado Assembly. The State has
mountainous areas which divide it into four regions, some parts of
which are almost impenetrable. There are also some depressed areas,
diversified industry, and varied climate, as well as enormous
recreational regions and difficulties in transportation. These
factors give rise to problems indigenous to Colorado, which only
its people can intelligently solve. This they have done in the
present apportionment.
Finally, I cannot agree to the arbitrary application of the "one
man, one vote" principle for both houses of a State Legislature. In
my view, if one house is fairly apportioned by population (as is
admitted here), then the people should have some latitude in
providing, on a rational basis, for representation in the other
house. The
Page 377 U. S. 743
Court seems to approve the federal arrangement of two Senators
from each State on the ground that it was a compromise reached by
the framers of our Constitution and is a part of the fabric of our
national charter. But what the Court overlooks is that Colorado, by
an overwhelming vote, has likewise written the organization of its
legislative body into its Constitution,
* and our dual
federalism requires that we give it recognition. After all, the
Equal Protection Clause is not an algebraic formula. Equal
protection does not rest on whether the practice assailed "results
in some inequality," but rather on whether "any state of facts
reasonably can be conceived that would sustain it"; and one who
attacks it must show "that it does not rest upon any reasonable
basis, but is essentially arbitrary." Mr. Justice Van Devanter, in
Lindsley v. Natural Carbonic Gas Co., 220 U. S.
61,
220 U. S. 78-79
(1911). Certainly Colorado's arrangement is not arbitrary. On the
contrary, it rests on reasonable grounds which, as I have pointed
out, are peculiar to that State. It is argued that the Colorado
apportionment would lead only to a legislative stalemate between
the two houses, but the experience of the Congress completely
refutes this argument. Now in its 176th year, the federal plan has
worked well. It is further said that, in any event, Colorado's
apportionment would substitute compromise for the legislative
process. But most legislation is the product of compromise between
the various forces acting for and against its enactment.
In striking down Colorado's plan of apportionment, the Court, I
believe, is exceeding its powers under the Equal Protection Clause;
it is invading the valid functioning of
Page 377 U. S. 744
the procedures of the States, and thereby is committing a
grievous error which will do irreparable damage to our
federal-state relationship. I dissent.
* The Court says that the choice presented to the electorate was
hardly "clear-cut." The short answer to this is that if the voters
had desired other choices, they could have accomplished this easily
by filing initiative petitions, since, in Colorado, 8% of the
voters can force an election.
MR. JUSTICE STEWART, whom MR. JUSTICE CLARK joins,
dissenting.**
It is important to make clear at the outset what these cases are
not about. They have nothing to do with the denial or impairment of
any person's right to vote. Nobody's right to vote has been denied.
Nobody's right to vote has been restricted. Nobody has been
deprived of the right to have his vote counted. The voting right
cases which the Court cites are, therefore, completely wide of the
mark. [
Footnote 2/1] Secondly,
these cases have nothing to do with the "weighting" or "diluting"
of votes cast within any electoral unit. The rule of
Gray v.
Sanders, 372 U. S. 368, is
therefore, completely without relevance here. [
Footnote 2/2] Thirdly, these cases are not
concerned with the election of members of the Congress of the
United States, governed by Article I of the Constitution.
Consequently,
Page 377 U. S. 745
the Court's decision in
Wesberry v. Sanders,
376 U. S. 1, throws
no light at all on the basic issue now before us. [
Footnote 2/3]
The question involved in these cases is quite a different one.
Simply stated, the question is to what degree, if at all, the Equal
Protection Clause of the Fourteenth Amendment limits each sovereign
State's freedom to establish appropriate electoral constituencies
from which representatives to the State's bicameral legislative
assembly are to be chosen. The Court's answer is a blunt one, and,
I think, woefully wrong. The Equal Protection Clause, says the
Court, "requires that the seats in both houses of a bicameral state
legislature must be apportioned on a population basis." [
Footnote 2/4]
After searching carefully through the Court's opinions in these
and their companion cases, I have been able to find but two reasons
offered in support of this rule. First, says the Court, it is
"established that the fundamental principle of representative
government in this country is one of equal representation for equal
numbers of people . . . ." [
Footnote
2/5] With all respect, I think that this is not correct, simply
as a matter of fact. It has been unanswerably demonstrated before
now that this
"was not the colonial system, it was not the system chosen for
the national government by the Constitution, it was not the system
exclusively or even predominantly practiced by the States at the
time of adoption of the Fourteenth Amendment, it is not
predominantly practiced by the
Page 377 U. S. 746
States today. [
Footnote
2/6]"
Secondly, says the Court, unless legislative districts are equal
in population, voters in the more populous districts will suffer a
"debasement" amounting to a constitutional injury. As the Court
explains it, "To the extent that a citizen's right to vote is
debased, he is that much less a citizen." [
Footnote 2/7] We are not told how or why the vote of a
person in a more populated legislative district is "debased," or
how or why he is less a citizen, nor is the proposition
self-evident. I find it impossible to understand how or why a voter
in California, for instance, either feels or is less a citizen than
a voter in Nevada simply because, despite their population
disparities, each of these States is represented by two United
States Senators. [
Footnote 2/8]
To put the matter plainly, there is nothing in all the history
of this Court's decisions which supports this constitutional rule.
The Court's draconian pronouncement, which makes unconstitutional
the legislatures of most of the 50 States, finds no support in the
words of the Constitution, in any prior decision of this Court, or
in the 175-year political history of our Federal Union. [
Footnote 2/9] With
Page 377 U. S. 747
all respect, I am convinced these decisions mark a long step
backward into that unhappy era when a majority of the members of
this Court were thought by many to have convinced themselves and
each other that the demands of the Constitution were to be measured
not by what it says,
Page 377 U. S. 748
but by their own notions of wise political theory. The rule
announced today is at odds with long established principles of
constitutional adjudication under the Equal Protection Clause, and
it stifles value of local individuality and initiative vital to the
character of the Federal Union which it was the genius of our
Constitution to create.
I
What the Court has done is to convert a particular political
philosophy into a constitutional rule, binding upon each of the 50
States, from Maine to Hawaii, from Alaska to Texas, without regard
and without respect for the many individualized and differentiated
characteristics of each State, characteristics stemming from each
State's distinct history, distinct geography, distinct distribution
of population, and distinct political heritage. My own
understanding of the various theories of representative government
is that no one theory has ever commanded unanimous assent among
political scientists, historians, or others who have considered the
problem. [
Footnote 2/10] But even
if it were thought that the rule announced today by the Court is,
as a matter of political theory, the most desirable general rule
which can be devised as a basis for the makeup of the
representative assembly of a typical State, I could not join in the
fabrication of a constitutional mandate which imports and forever
freezes one theory of political thought into our Constitution, and
forever denies to every State any opportunity for enlightened and
progressive innovation in the design of its democratic
institutions, so as to accommodate within a system
Page 377 U. S. 749
of representative government the interests and aspirations of
diverse groups of people, without subjecting any group or class to
absolute domination by a geographically concentrated or highly
organized majority.
Representative government is a process of accommodating group
interests through democratic institutional arrangements. Its
function is to channel the numerous opinions, interests, and
abilities of the people of a State into the making of the State's
public policy. Appropriate legislative apportionment, therefore,
should ideally be designed to insure effective representation in
the State's legislature, in cooperation with other organs of
political power, of the various groups and interests making up the
electorate. In practice, of course, this ideal is approximated in
the particular apportionment system of any State by a realistic
accommodation of the diverse and often conflicting political forces
operating within the State.
I do not pretend to any specialized knowledge of the myriad of
individual characteristics of the several States, beyond the
records in the cases before us today. But I do know enough to be
aware that a system of legislative apportionment which might be
best for South Dakota, might be unwise for Hawaii, with its many
islands, or Michigan, with its Northern Peninsula. I do know enough
to realize that Montana, with its vast distances, is not Rhode
Island, with its heavy concentrations of people. I do know enough
to be aware of the great variations among the several States in
their historic manner of distributing legislative power -- of the
Governors' Councils in New England, of the broad powers of
initiative and referendum retained in some States by the people, of
the legislative power which some States give to their Governors, by
the right of veto or otherwise of the widely autonomous home rule
which many States give to their
Page 377 U. S. 750
cities. [
Footnote 2/11] The
Court today declines to give any recognition to these
considerations and countless others, tangible and intangible, in
holding unconstitutional the particular systems of legislative
apportionment which these States have chosen. Instead, the Court
says that the requirements of the Equal Protection Clause can be
met in any State only by the uncritical, simplistic, and
heavy-handed application of sixth-grade arithmetic.
But legislators do not represent faceless numbers. They
represent people, or, more accurately, a majority of the voters in
their districts -- people with identifiable needs and interests
which require legislative representation, and which can often be
related to the geographical areas in which these people live. The
very fact of geographic districting, the constitutional validity of
which the Court does not question, carries with it an acceptance of
the idea of legislative representation of regional needs and
interests. Yet if geographical residence is irrelevant, as the
Court suggests, and the goal is solely that of equally "weighted"
votes, I do not understand why the Court's constitutional rule does
not require the abolition of districts and the holding of all
elections at large. [
Footnote
2/12]
Page 377 U. S. 751
The fact is, of course, that population factors must often to
some degree be subordinated in devising a legislative apportionment
plan which is to achieve the important goal of ensuring a fair,
effective, and balanced representation of the regional, social, and
economic interests within a State. And the further fact is that,
throughout our history, the apportionments of State Legislatures
have reflected the strongly felt American tradition that the public
interest is composed of many diverse interests, and that, in the
long run, it can better be expressed by a medley of component
voices than by the majority's monolithic command. What constitutes
a rational plan reasonably designed to achieve this objective will
vary from State to State, since each State is unique in terms of
topography, geography, demography, history, heterogeneity, and
concentration of population, variety of social and economic
interests, and in the operation and interrelation of its political
institutions. But so long as a State's apportionment plan
reasonably achieves, in the light of the State's own
characteristics, effective and balanced representation of all
substantial interests without sacrificing the principle of
effective majority rule, that plan cannot be considered
irrational.
II
This brings me to what I consider to be the proper
constitutional standards to be applied in these cases. Quite
simply, I think the cases should be decided by application of
accepted principles of constitutional adjudication under the Equal
Protection Clause. A recent expression by the Court of these
principles will serve as a generalized compendium:
"[T]he Fourteenth Amendment permits the States a wide scope of
discretion in enacting laws which affect some groups of citizens
differently than others. The constitutional safeguard is offended
only if the
Page 377 U. S. 752
classification rests on grounds wholly irrelevant to the
achievement of the State's objective. State legislatures are
presumed to have acted within their constitutional power despite
the fact that, in practice, their laws result in some inequality. A
statutory discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it."
McGowan v. Maryland, 366 U. S. 420,
366 U. S.
425-426. These principles reflect an understanding
respect for the unique values inherent in the Federal Union of
States established by our Constitution. They reflect, too, a wise
perception of this Court's role in that constitutional system. The
point was never better made than by Mr. Justice Brandeis,
dissenting in
New State Ice Co. v. Liebmann, 285 U.
S. 262,
285 U. S. 280.
The final paragraph of that classic dissent is worth repeating
here:
"To stay experimentation in things social and economic is a
grave responsibility. Denial of the right to experiment may be
fraught with serious consequences to the nation. It is one of the
happy incidents of the federal system that a single courageous
state may, if its citizens choose, serve as a laboratory; and try
novel social and economic experiments without risk to the rest of
the country. This Court has the power to prevent an experiment. We
may strike down the statute which embodies it on the ground that,
in our opinion, the measure is arbitrary, capricious or
unreasonable. . . . But, in the exercise of this high power, we
must be ever on our guard lest we erect our prejudices into legal
principles. If we would guide by the light of reason, we must let
our minds be bold."
285 U.S. at
285 U. S. 311.
That cases such as the ones now before us were to be decided under
these accepted Equal Protection Clause
Page 377 U. S. 753
standards was the clear import of what was said on this score in
Baker v. Carr, 369 U. S. 186,
369 U. S.
226:
"Nor need the appellants, in order to succeed in this action,
ask the Court to enter upon policy determinations for which
judicially manageable standards are lacking. Judicial standards
under the Equal Protection Clause are well developed and familiar,
and it has been open to courts since the enactment of the
Fourteenth Amendment to determine, if on the particular facts they
must, that a discrimination reflects no policy, but simply
arbitrary and capricious action."
It is to be remembered that the Court in
Baker v. Carr
did not question what had been said only a few years earlier in
MacDougall v. Green, 335 U. S. 281,
335 U. S.
284:
"It would be strange indeed, and doctrinaire, for this Court,
applying such broad constitutional concepts as due process and
equal protection of the laws, to deny a State the power to assure a
proper diffusion of political initiative as between its thinly
populated counties and those having concentrated masses, in view of
the fact that the latter have practical opportunities for exerting
their political weight at the polls not available to the former.
The Constitution -- a practical instrument of government -- makes
no such demands on the States."
Moving from the general to the specific, I think that the Equal
Protection Clause demands but two basic attributes of any plan of
state legislative apportionment. First, it demands that, in the
light of the State's own characteristics and needs, the plan must
be a rational one. Secondly, it demands that the plan must be such
as not to permit the systematic frustration of the will of a
majority
Page 377 U. S. 754
of the electorate of the State. [
Footnote 2/13] I think it is apparent that any plan of
legislative apportionment which could be shown to reflect no
policy, but simply arbitrary and capricious action or inaction, and
that any plan which could be shown systematically to prevent
ultimate effective majority rule would be invalid under accepted
Equal Protection Clause standards. But, beyond this, I think there
is nothing in the Federal Constitution to prevent a State from
choosing any electoral legislative structure it thinks best suited
to the interests, temper, and customs of its people. In the light
of these standards, I turn to the Colorado and New York plans of
legislative apportionment.
III
COLORADO
The Colorado plan creates a General Assembly composed of a
Senate of 39 members and a House of 65 members. The State is
divided into 65 equal population representative districts, with one
representative to be elected from each district, and 39 senatorial
districts, 14 of which include more than one county. In the
Colorado House, the majority unquestionably rules supreme, with the
population factor untempered by other considerations. In
Page 377 U. S. 755
the Senate, rural minorities do not have effective control, and
therefore do not have even a veto power over the will of the urban
majorities. It is true that, as a matter of theoretical arithmetic,
a minority of 36% of the voters could elect a majority of the
Senate, but this percentage has no real meaning in terms of the
legislative process. [
Footnote
2/14] Under the Colorado plan, no possible combination of
Colorado senators from rural districts, even assuming
arguendo that they would vote as a bloc, could control the
Senate. To arrive at the 36% figure, one must include with the
rural districts a substantial number of urban districts, districts
with substantially dissimilar interests. There is absolutely no
reason to assume that this theoretical majority would ever vote
together on any issue so as to thwart the wishes of the majority of
the voters of Colorado. Indeed, when we eschew the world of
numbers, and look to the real world of effective representation,
the simple fact of the matter is that Colorado's three metropolitan
areas, Denver, Pueblo, and Colorado Springs, elect a majority of
the Senate.
The State of Colorado is not an economically or geographically
homogeneous unit. The Continental Divide crosses the State in a
meandering line from north to south, and Colorado's 104,247 square
miles of area are almost
Page 377 U. S. 756
equally divided between high plains in the east and rugged
mountains in the west. The State's population is highly
concentrated in the urbanized eastern edge of the foothills, while
farther to the east lies that agricultural area of Colorado which
is a part of the Great Plains. The area lying to the west of the
Continental Divide is largely mountainous, with two-thirds of the
population living in communities of less than 2,500 inhabitants or
on farms. Livestock raising, mining and tourism are the dominant
occupations. This area is further subdivided by a series of
mountain ranges containing some of the highest peaks in the United
States, isolating communities and making transportation from point
to point difficult and, in some places during the winter months,
almost impossible. The fourth distinct region of the State is the
South Central region, in which is located the most economically
depressed area in the State. A scarcity of water makes a state-wide
water policy a necessity, with each region affected differently by
the problem.
The District Court found that the people living in each of these
four regions have interests unifying themselves and differentiating
them from those in other regions. Given these underlying facts,
certainly it was not irrational to conclude that effective
representation of the interests of the residents of each of these
regions was unlikely to be achieved if the rule of equal population
districts were mechanically imposed; that planned departures from a
strict per capita standard of representation were a desirable way
of assuring some representation of distinct localities whose needs
and problems might have passed unnoticed if districts had been
drawn solely on a per capita basis; a desirable way of assuring
that districts should be small enough in area, in a mountainous
State like Colorado, where accessibility is affected by
configuration as well as compactness of districts, to enable
each
Page 377 U. S. 757
senator to have firsthand knowledge of his entire district and
to maintain close contact with his constituents; and a desirable
way of avoiding the drawing of district lines which would submerge
the needs and wishes of a portion of the electorate by grouping
them in districts with larger numbers of voters with wholly
different interests.
It is clear from the record that, if per capita representation
were the rule in both houses of the Colorado Legislature, counties
having small populations would have to be merged with larger
counties having totally dissimilar interests. Their representatives
would not only be unfamiliar with the problems of the smaller
county, but the interests of the smaller counties might well be
totally submerged by the interests of the larger counties with
which they are joined. Since representatives representing
conflicting interests might well pay greater attention to the views
of the majority, the minority interest could be denied any
effective representation at all. Its votes would not be merely
"diluted," an injury which the Court considers of constitutional
dimensions, but rendered totally nugatory.
The findings of the District Court speak for themselves:
"The heterogeneous characteristics of Colorado justify
geographic districting for the election of the members of one
chamber of the legislature. In no other way may representation be
afforded to insular minorities. Without such districting, the
metropolitan areas could theoretically, and no doubt practically,
dominate both chambers of the legislature."
". . . The realities of topographic conditions with their
resulting effect on population may not be ignored. For an example,
if [the rule of equal population districts] was to be accepted,
Colorado would have one senator for approximately every 45,000
persons. Two contiguous Western Region senatorial
Page 377 U. S. 758
districts, Nos. 29 and 37, have a combined population of 51,675
persons inhabiting an area of 20,514 square miles. The division of
this area into two districts does not offend any constitutional
provisions. Rather, it is a wise recognition of the practicalities
of life . . . ."
"We are convinced that the apportionment of the Senate by
Amendment No. 7 recognizes population as a prime, but not
controlling, factor, and gives effect to such important
considerations as geography, compactness and contiguity of
territory, accessibility, observance of natural boundaries,
conformity to historical divisions such as county lines and prior
representation districts, and 'a proper diffusion of political
initiative as between a state's thinly populated counties and those
having concentrated masses.' 219 F. Supp. at 932."
From 1954 until the adoption of Amendment 7 in 1962, the issue
of apportionment had been the subject of intense public debate. The
present apportionment was proposed and supported by many of
Colorado's leading citizens. The factual data underlying the
apportionment were prepared by the wholly independent Denver
Research Institute of the University of Denver. Finally, the
apportionment was adopted by a popular referendum in which not only
a 2-1 majority of all the voters in Colorado, but a majority in
each county, including those urban counties allegedly discriminated
against, voted for the present plan in preference to an alternative
proposal providing for equal representation per capita in both
legislative houses. As the District Court said:
"The contention that the voters have discriminated against
themselves appalls rather, than convinces. Difficult as it may be
at times to understand mass behavior of human beings, a proper
recognition of
Page 377 U. S. 759
the judicial function precludes a court from holding that the
free choice of the voters between two conflicting theories of
apportionment is irrational or the result arbitrary."
Ibid.
The present apportionment, adopted overwhelmingly by the people
in a 1962 popular referendum as a state constitutional amendment,
is entirely rational, and the amendment, by its terms, provides for
keeping the apportionment current. [
Footnote 2/15] Thus, the majority has consciously
chosen to protect the minority's interests, and, under the liberal
initiative provisions of the Colorado Constitution, it retains the
power to reverse its decision to do so. Therefore, there can be no
question of frustration of the basic principle of majority
rule.
IV
NEW YORK
". . . Constitutional statecraft often involves a degree of
protection from minorities which limits the principle of majority
rule. Perfect numerical equality in voting rights would be achieved
if an entire State legislature were elected at large, but the
danger is too great that the remote and less populated sections
would be neglected or that, in the event of a conflict between two
parts of the State, the more populous region would elect the entire
legislature, and in its councils the minority would never be
heard."
"Due recognition of geographic and other minority interests is
also a comprehensible reason for reducing the weight of votes in
great cities. If seventy percent of a State's population lived in a
single city and the remainder
Page 377 U. S. 760
was scattered over wide country areas and small towns, it might
be reasonable to give the city voters somewhat smaller
representation than that to which they would be entitled by a
strictly numerical apportionment in order to reduce the danger of
total neglect of the needs and wishes of rural areas."
The above two paragraphs are from the brief which the United
States filed in
Baker v. Carr, 369 U.
S. 186. [
Footnote
2/16] It would be difficult to find words more aptly to
describe the State of New York, or more clearly to justify the
system of legislative apportionment which that State has
chosen.
Legislative apportionment in New York follows a formula which is
written into the New York Constitution and which has been a part of
its fundamental law since 1894. The apportionment is not a crazy
quilt; it is rational, it is applied systematically, and it is kept
reasonably current. The formula reflects a policy which accords
major emphasis to population, some emphasis to region and
community, and a reasonable limitation upon massive
overcentralization of power. In order to effectuate this policy,
the apportionment formula provides that each county shall have at
least one representative in the Assembly, that the smaller counties
shall have somewhat greater representation in the legislature than
representation based solely on numbers would accord, and that some
limits be placed on the representation of the largest
Page 377 U. S. 761
counties in order to prevent one megalopolis from completely
dominating the legislature.
New York is not unique in considering factors other than
population in its apportionment formula. Indeed, the inclusion of
such other considerations is more the rule than the exception
throughout the States. Two-thirds of the States have given effect
to factors other than population in apportioning representation in
both houses of their legislatures, and over four-fifths of the
States give effect to non-population factors in at least one house.
[
Footnote 2/17] The typical
restrictions are those like New York's affording minimal
representation to certain political subdivisions, or prohibiting
districts composed of parts of two or more counties, or requiring
districts to be composed of contiguous and compact territory, or
fixing the membership of the legislative body. All of these factors
tend to place practical limitations on apportionment according to
population, even if the basic underlying system is one of equal
population districts for representation in one or both houses of
the legislature.
That these are rational policy considerations can be seen from
even a cursory examination of New York's political makeup. In New
York, many of the interests which a citizen may wish to assert
through the legislative process are interests which touch on his
relation to the government of his county as well as to that of the
State, and consequently these interests are often peculiar to the
citizens of one county. As the District Court found, counties have
been an integral part of New York's governmental structure since
early colonial times, and the many functions performed by the
counties today reflect both the historic gravitation toward the
county as the central unit of political activity and the realistic
fact that
Page 377 U. S. 762
the county is usually the most efficient and practical unit for
carrying out many governmental programs. [
Footnote 2/18]
A policy guaranteeing minimum representation to each county is
certainly rational, particularly in a State like New York. It
prevents less densely populated counties from being merged into
multi-county districts where they would receive no effective
representation at all. Further, it may be only by individual county
representation that the needs and interests of all the areas of the
State can be brought to the attention of the legislative body. The
rationality of individual county representation becomes
Page 377 U. S. 763
particularly apparent in States where legislative action
applicable only to one or more particular counties is the
permissible tradition.
Despite the rationality of according at least one representative
to each county, it is clear that such a system of representation,
coupled with a provision fixing the maximum number of members in
the legislative body -- a necessity if the body is to remain small
enough for manageably effective action -- has the result of
creating some population disparities among districts. But since the
disparity flows from the effectuation of a rational state policy,
the mere existence of the disparity itself can hardly be considered
an invidious discrimination.
In addition to ensuring minimum representation to each county,
the New York apportionment formula, by allocating somewhat greater
representation to the smaller counties while placing limitations on
the representation of the largest counties, is clearly designed to
protect against overcentralization of power. To understand fully
the practical importance of this consideration in New York, one
must look to its unique characteristics. New York is one of the few
States in which the central cities can elect a majority of
representatives to the legislature. As the District Court found,
the 10 most populous counties in the State control both houses of
the legislature under the existing apportionment system. Each of
these counties is heavily urban; each is in a metropolitan area.
Together, they contain 73.5% of the citizen population, and are
represented by 65.5% of the seats in the Senate and 62% of the
seats in the Assembly. Moreover, the nine counties comprising one
metropolitan area -- New York City, Nassau, Rockland, Suffolk and
Westchester -- contain 63.2% of the total citizen population and
elect a clear majority of both houses of the legislature under the
existing system which the Court today holds invalid. Obviously,
therefore, the existing
Page 377 U. S. 764
system of apportionment clearly guarantees effective majority
representation and control in the State Legislature.
But this is not the whole story. New York City, with its seven
million people and a budget larger than that of the State, has, by
virtue of its concentration of population, homogeneity of interest,
and political cohesiveness, acquired an institutional power and
political influence of its own hardly measurable simply by counting
the number of its representatives in the legislature. Elihu Root, a
delegate to the New York Constitutional Convention of 1894, which
formulated the basic structure of the present apportionment plan,
made this very point at that time:
"The question is whether thirty separate centers of 38,606 each
scattered over the country are to be compared upon the basis of
absolute numerical equality with one center of thirty times 38,606
in one city, with all the multiplications of power that comes from
representing a single interest, standing together on all measures
against a scattered and disunited representation from the thirty
widely separated single centers of 38,606. Thirty men from one
place owing their allegiance to one political organization,
representing the interest of one community, voting together, acting
together solidly; why, they are worth double the scattered elements
of power coming from hundreds of miles apart."
3 Revised Record of the New York State Constitutional Convention
of 1894, p. 1215.
Surely it is not irrational for the State of New York to be
justifiably concerned about balancing such a concentration of
political power, and certainly there is nothing in our Federal
Constitution which prevents a State from reasonably translating
such a concern into its apportionment formula.
See MacDougall
v. Green, 335 U. S. 281.
Page 377 U. S. 765
The State of New York is large in area and diverse in interests.
The Hudson and Mohawk Valleys, the farm communities along the
southern belt, the many suburban areas throughout the State, the
upstate urban and industrial centers, the Thousand Islands, the
Finger Lakes, the Berkshire Hills, the Adirondacks -- the people of
all these and many other areas, with their aspirations and their
interests, just as surely belong to the State as does the giant
metropolis which is New York City. What the State has done is to
adopt a plan of legislative apportionment which is designed in a
rational way to ensure that minority voices may be heard, but that
the will of the majority shall prevail.
V
In the allocation of representation in their State Legislatures,
Colorado and New York have adopted completely rational plans which
reflect an informed response to their particularized
characteristics and needs. The plans are quite different, just as
Colorado and New York are quite different. But each State, while
clearly ensuring that in its legislative councils the will of the
majority of the electorate shall rule, has sought to provide that
no identifiable minority shall be completely silenced or engulfed.
The Court today holds unconstitutional the considered governmental
choices of these two sovereign States. By contrast, I believe that
what each State has achieved fully comports with the letter and the
spirit of our constitutional traditions.
I would affirm the judgments in both cases.
** [This opinion applies also to No. 20,
WMCA, Inc., et al.
v. Lomenzo, Secretary of State of New York, et al., ante, p.
377 U. S.
633.]
[
Footnote 2/1]
See Reynolds v. Sims, ante, pp.
377 U. S.
554-555, citing:
Ex parte Yarbrough,
110 U. S. 651;
United States v. Mosley, 238 U. S. 383;
Guinn v. United States, 238 U. S. 347;
Lane v. Wilson, 307 U. S. 268;
United States v. Classic, 313 U.
S. 299;
Ex parte Siebold, 100 U.
S. 371;
United States v. Saylor, 322 U.
S. 385;
Gomillion v. Lightfoot, 364 U.
S. 339;
Nixon v. Herndon, 273 U.
S. 536;
Nixon v. Condon, 286 U. S.
73;
Smith v. Allwright, 321 U.
S. 649;
Terry v. Adams, 345 U.
S. 461.
[
Footnote 2/2]
"Once the geographical unit for which a representative is to be
chosen is designated, all who participate in the election are to
have an equal vote . . . ."
Gray v. Sanders, 372 U.S. at
372 U. S. 379.
The Court carefully emphasized in
Gray that the case did
not
"involve a question of the degree to which the Equal Protection
Clause of the Fourteenth Amendment limits the authority of a State
Legislature in designing the geographical districts from which
representatives are chosen . . . for the State Legislature . . .
."
372 U.S. at
372 U. S.
376.
[
Footnote 2/3]
In
Wesberry v. Sanders, the Court held that Article I
of the Constitution (which ordained that members of the United
States Senate shall represent grossly disparate constituencies in
terms of numbers, U.S.Const., Art. I, 3, cl. 1;
see
U.S.Const., Amend. XVII) ordained that members of the United States
House of Representatives shall represent constituencies as nearly
as practicable of equal size in terms of numbers. U.S.Const., Art.
I, § 2.
[
Footnote 2/4]
See Reynolds v. Sims, ante, p.
377 U.S. 568.
[
Footnote 2/5]
Id. 377 U. S.
560-561.
[
Footnote 2/6]
Baker v. Carr, 369 U. S. 186,
369 U.S. 266,
369 U.S. 301 (Frankfurter, J.,
dissenting).
See also the excellent analysis of the relevant
historical materials contained in MR. JUSTICE HARLAN's dissenting
opinion filed this day in these and their companion cases,
ante, p.
377 U.S.
589.
[
Footnote 2/7]
Reynolds v. Sims, ante, p.
377 U.S. 567.
[
Footnote 2/8]
On the basis of the 1960 Census, each Senator from Nevada
represents fewer than 150,000 constituents, while each Senator from
California represents almost 8,000,000. As will become clear later
in this opinion, I do not mean to imply that a state legislative
apportionment system modeled precisely upon the Federal Congress
would necessarily be constitutionally valid in every State.
[
Footnote 2/9]
It has been the broad consensus of the state and federal courts
which, since
Baker v. Carr, 369 U.
S. 186, have been faced with the basic question involved
in these cases that the rule which the Court announces today has no
basis in the Constitution and no root in reason.
See, e.g.,
Sobel v. Adams, 208 F.
Supp. 316,
214 F.
Supp. 811;
Thigpen v. Meyers, 211 F.
Supp. 826;
Sims v. Frink, 205 F.
Supp. 245,
208 F.
Supp. 431;
W.M.C.A., Inc., v. Simon, 208 F.
Supp. 368;
Baker v.Carr, 206 F.
Supp. 341;
Mann v. Davis, 213 F.
Supp. 577;
Toombs v. Fortson, 205 F.
Supp. 248;
Davis v. Synhorst, 217 F.
Supp. 492;
Nolan v. Rhodes, 218 F.
Supp. 953;
Moss v. Burkhart, 207 F.
Supp. 885;
Lisco v. Love, 219 F.
Supp. 922;
Wisconsin v. Zimmerman, 209 F.
Supp. 183;
Marshall v. Hare, 227 F.
Supp. 989;
Hearne v. Smylie, 225 F.
Supp. 645;
Lund v. Mathas, 145 So. 2d 871
(Fla.);
Caesar v. Williams, 84 Idaho 254, 371 P.2d 241;
Maryland Committee for Fair Representation v. Tawes, 228
Md. 412, 180 A.2d 656, Id., Md., 182 A.2d 877; 229 Md. 406, 184
A.2d 715;
Levitt v. Maynard, 104 N.H. 243, 182 A.2d 897;
Jackman v. Bodine, 78 N.J.Super. 414,
188 A.2d 642;
Sweeney v. Notte, 183
A.2d 296 (R.I.);
Mikell v. Rousseau, 123 Vt. 139,
183 A.2d 817.
The writings of scholars and commentators have reflected the
same view.
See, e.g., De Grazia, Apportionment and
Representative Government; Neal,
Baker v. Carr: Politics
in Search of Law, 1962 Supreme Court Review 252; Dixon, Legislative
Apportionment and the Federal Constitution, 27 Law & Contempt.
Prob. 329; Dixon, Apportionment Standards and Judicial Power, 38
Notre Dame Law. 367; Israel, On Charting a Course Through the
Mathematical Quagmire: The Future of
Baker v. Carr, 61
Mich.L.Rev. 107; Israel, Non-population Factors Relevant to an
Acceptable Standard of Apportionment, 38 Notre Dame Law. 499;
Lucas, Legislative Apportionment and Representative Government: The
Meaning of
Baker v. Carr, 61 Mich.L.Rev. 711; Friedelbaum,
Baker v. Carr: The New Doctrine of Judicial Intervention
and its Implications for American Federalism, 29 U. of Chi.L.Rev.
673; Bickel, The Durability of
Colegrove v. Green, 72 Yale
L.J. 39; McCloskey, The Reapportionment Case, 76 Harv.L.Rev. 54;
Freund, New Vistas in Constitutional Law, 112 U.Pa.L.Rev. 631, 639;
Comment,
Baker v. Carr and Legislative Apportionments: A
Problem of Standards, 72 Yale L.J. 968.
[
Footnote 2/10]
See, e.g., De Grazia Apportionment and Representative
Government, pp. 19-63; Ross, Elections and Electors, pp. 21-127;
Lakeman and Lambert, Voting in Democracies, pp. 19-37, 149-156;
Hogan, Election and Representation; Dahl, A Preface to Democratic
Theory, pp. 63-84, 124-151.
[
Footnote 2/11]
See, e.g., Sandalow, The Limits of Municipal Power
Under Home Rule: A Role for the Courts, 48 Minn.L.Rev. 643; Klemme,
The Powers of Home Rule Cities in Colorado, 36 U.Colo.L.Rev.
321.
[
Footnote 2/12]
Even with legislative districts of exactly equal voter
population, 26% of the electorate (a bare majority of the voters in
a bare majority of the districts) can, as a matter of the kind of
theoretical mathematics embraced by the Court, elect a majority of
the legislature under our simple majority electoral system. Thus,
the Court's constitutional rule permits minority rule.
Students of the mechanics of voting systems tell us that, if all
that matters is that votes count equally, the best vote-counting
electoral system is proportional representation in state-wide
elections.
See, e.g., Lakeman and Lambert,
supra,
377
U.S. 713fn2/10|>n. 10. It is just because electoral systems
are intended to serve functions other than satisfying mathematical
theories, however, that the system of proportional representation
has not been widely adopted.
Ibid.
[
Footnote 2/13]
In
Baker v. Carr, 369 U. S. 186, it
was alleged that a substantial numerical majority had an effective
voice in neither legislative house of Tennessee. Failure to
reapportion for 60 years in flagrant violation of the Tennessee
Constitution and in the face of intervening population growth and
movement had created enormous disparities among legislative
districts -- even among districts seemingly identical in
composition -- which, it was alleged, perpetuated minority rule and
could not be justified on any rational basis. It was further
alleged that all other means of modifying the apportionment had
proven futile, and that the Tennessee legislators had such a vested
interest in maintaining the
status quo that
reapportionment by the legislature was not a practical possibility.
See generally the concurring opinion of MR. JUSTICE CLARK,
369 U.S. at
369 U.S.
251.
[
Footnote 2/14]
The theoretical figure is arrived at by placing the legislative
districts for each house in rank order of population, and by
counting down the smallest population end of the list a sufficient
distance to accumulate the minimum population which could elect a
majority of the house in question. It is a meaningless abstraction
as applied to a multi-membered body because the factors of
political party alignment and interest representation make such
theoretical bloc voting a practical impossibility. For example,
31,000,000 people in the 26 least populous States representing only
17% of United States population have 52% of the Senators in the
United States Senate. But no one contends that this bloc controls
the Senate's legislative process.
[
Footnote 2/15]
Within the last 12 years, the people of Michigan, California,
Washington, and Nebraska (unicameral legislature) have expressed
their will in popular referenda in favor of apportionment plans
departing from the Court's rule.
See Dixon, 38 Notre Dame
Law.,
supra, at 383-385.
[
Footnote 2/16]
Brief for the United States as
amicus curiae on
reargument, No. 6, 1961 Term, pp. 29-30.
The Solicitor General, appearing as
amicus in the
present cases, declined to urge this Court to adopt the rule of per
capita equality in both houses, stating that
"[s]uch an interpretation would press the Equal Protection
Clause to an extreme, as applied to State legislative
apportionment, would require radical changes in three-quarters of
the State governments, and would eliminate the opportunities for
local variation."
Brief for the United States as
amicus curiae, No. 508,
1963 Term, p. 32.
[
Footnote 2/17]
See Dixon, 38 Notre Dame Lawyer,
supra, at
399.
[
Footnote 2/18]
The following excerpts from the brief of the Attorney General of
New York in this case are instructive:
"For example, state aid is administered by the counties in the
following areas: educational extension work (N.Y. Education Law §§
1104, 1113), community colleges (N.Y. Education Law §§ 6301, 6302,
6304), assistance to physically handicapped children (N.Y.
Education Law § 4403), social welfare such as medical and other aid
for the aged, the blind, dependent children, the disabled, and
other needy persons (N.Y. Social Welfare Law §§ 153, 154, 257,
409), public health (N.Y. Public Health Law §§ 608, 620, 636, 650,
660), mental health (N.Y. Mental Hygiene Law, Art. 8-A, § 191-a),
probation work (N.Y. Correction Law § 14-a), highway construction,
improvement and maintenance (N.Y. Highway Law §§ 12, 112, 112-a,
279), conservation (N.Y. County Law §§ 219, 299-w, N.Y.
Conservation Law §§ 205, 879), and civil defense preparations
(State Defense Emergency Act §§ 23-b, 25-a)."
"County governments, are, of course, far more than
instrumentalities for the administration of state aid. They have
extensive powers to adopt, amend or repeal local laws affecting the
county (N.Y. County Law §§ 301-309), and also play a vital part in
the enactment of state laws which affect only a particular county
or counties (
see N.Y. Const., Art. IX, §§ 1, 2). The
enactment in 1959 of a new County Charter Law (N.Y. County Law,
Art. 6-A), providing opportunity for the fundamental reorganization
of county governments by county residents, has given the counties
an even greater role to play in the social economic and political
life of modern New York."
Brief for appellees Secretary of State and Attorney General, No.
20, 1963 Term, pp. 42-43.