Application for stay.
The application for stay of judgment of the United States
District Court for the District of Connecticut presented to Mr.
Justice MARSHALL and by him referred to the Court is granted.
Mr. Justice DOUGLAS, dissenting.
Appellant seeks to stay the judgment of a three-judge Federal
District Court which held unconstitutional Connecticut's plan for
apportioning its state legislature. 341 F.
. The plan was adopted in September 1971, and was only
in the preliminary stages of implementation when it was struck down
as violative of the Equal Protection Clause on March 30, 1972. An
appeal from that decision has been docketed in this Court. Gaffney
v. Cummings, No. 71-1476.
Mr. Justice STEWART would deny the application.
We denied a motion for expedited consideration of that appeal on
May 22, 1972. 406 U.S. 942. Appellant promptly moved the lower
court for a stay of its
Page 407 U.S.
March 30th decision, and when that stay was denied on May 26,
1972, appellant came here.
Earlier this Term, in another reapportionment case, Mr. Justice
Powell articulated the considerations involved in our review of
applications for a stay of lower court judgments:
'A lower court judgment, entered by a
tribunal that was closer to the facts . . ., is entitled to a
presumption of validity. Any party seeking a stay of that judgment
bears the burden of showing that the decision below was erroneous
and that the implementation of the judgment pending appeal will
lead to irreparable harm.' Graves v. Barnes, 405 U.S.
'Irreparable injury,' of course,
inheres in any challenge to legislative apportionment. If the court
below erred, the Fall election will be held under an improper
order, one which will doubtless affect the composition of the next
state legislature. But this type of 'irreparable injury' affects
both sides equally, for if the court below was correct, staying its
order will cause irreparable harm of precisely the same
There is 'irreparable injury' in a different sense if the
court's order striking down a state apportionment is handed down so
near the upcoming election that it is administratively impractical
to implement an orderly election. Here, there is no serious claim
that irreparable injury, in this sense, would result if a stay is
not granted. The court below found as fact that there is ample time
before the Fall election to implement the plan submitted by the
Special Master on May 26, 1972, or any proposed substitute which
the State or appellant might submit within a reasonable time.
Page 407 U.S.
deed, appellant concedes that the question of which plan can be
most easily implemented is a 'non-issue.'2
Thus, the issue determinative of the stay application is the
probable correctness of the decision below, and, in my view,
appellant has not met his burden 'of showing that the decision
below was erroneous.'
In Reynolds v. Sims, 377 U.S.
, 577, we said 'the Equal Protection Clause requires that a
State make an honest and good faith effort to construct districts,
in both houses of its legislature, as nearly of equal population as
is practicable.' Moreover, a State may not be heard to argue that a
population variance is justified because it is de minimus. '[T]he
'as nearly as practicable' standard requires that the State make a
good faith effort to achieve precise mathematical equality. . . .
Unless population variances among . . . districts are shown to have
resulted despite such effort, the State must justify each variance,
no matter how small.' Kirkpatrick v. Preisler, 394 U.S. 526
A comparison of the population variances in this case with those
disapproved in Kirkpatrick, supra, is striking. In Kirkpatrick, the
average variation from the ideal district was only 1.6%. Here,
assembly districts in the State Plan exhibited an average variation
of 1.9%. In Kirkpatrick, the ratio of the largest to the smallest
district was only 1. 06 to 1. Here, the ratio of the largest to the
smallest assembly district is 1.082
Page 407 U.S.
to 1. In Kirkpatrick, 70% of the districts were within plus or
minus 1.88% of the ideal population figure. Here, only 51.65% of
the assembly districts are within 2.0% of the ideal. In
Kirkpatrick, the total variance 4 was 5.97%. Here, the total
variance of the assembly redistricting is 7. 83%.
It is true, of course that 'the extent to which equality may
practicably be achieved may differ from State to State. . . .,'
Kirkpatrick, supra, at 530. Thus a State may be able to justify
certain variations. Here, however, only two justifications are
offered, and neither appear to have particular merit.
It is primarily argued that the variations are justified by a
legitimate state interest in achieving 'a partisan balancing of
strength in each house.' The District Court explained the concept
'The partisan balancing of strength
in each house, termed by interveningdefendant [appellant in this
Court] a 'fair political balance' and by plaintiffs [appellees
herein] 'political gerrymandering' was obtained by so adjusting the
census areas utilized as building blocks into the structuring of
Senate and House districts that, on the basis of the vote for all
the Senate candidates of each party in the elections of 1966, 1968
and 1970, whichever party carried the state should carry a majority
of Senate seats proportional to the statewide party majority, and
likewise in the House, based on the party vote for all the House
candidates of each party in the same three elections.
'In one or more House and one or more
Senate districts some accommodation was also made in
Page 407 U.S.
the interest of retaining in office a particular incumbent.'
This Court has never decided whether political gerrymandering or
'fair political balance' is per se unconstitutional, irrespective
of population variances. See, e. g., Wells v. Rockefeller, 394 U.S.
, 544. But we have said, in no uncertain terms, that
gerrymandering is not a justification where population variances do
result. In Kirkpatrick, for example, we even rejected the State's
attempt to justify the population variances there present on the
ground that the variations were necessary to avoid
'[A]n argument that deviations from
equality are justified in order to inhibit legislators from
engaging in partisan gerrymandering is no more than a variant of
the argument, already rejected, that considerations of practical
politics can justify population disparities.' 394 U.S., at
Thus, whether or not Connecticut may gerrymander its legislature
if population equality is preserved, it may not do so when
population disparities result.
An additional consideration urged to justify the discrepancies
is the State's interest in preserving town lines. But any weight
factor this would ordinarily have is rendered insignificant by the
fact that the State's own plan cuts across 47 towns to create
assembly districts, and 23 towns to create senate districts. See
Whitcomb v. Chavis, 403 U.S. 124
, 162 n.
Appellant has one final argument. Attempting to litigate the
merits of the Special Master's plan, he argues that implementation
of that plan would exceed the equity power of the federal court
under our recent decision in Sixty-Seventh Minnesota State Senate
v. Beens, 406 U.S.
. But the merits of the Special Master's plan are not before
this Court. Indeed, in
Page 407 U.S.
denying the stay below, the District Court obligated itself to
'set down for hearing with all reasonable dispatch the plan
submitted by the Special Master and any other plans submitted.'
Whatever appellant's objections to the Master's plan might be, he
should first air them in the District Court which stands ready to
Additionally, even were the Special Master's plan at issue,
appellant's objections would not be well taken. This is not a case
in which the size of a state house is 'slashed' in half, as in
Minnesota State Senate, supra. Here, the District Court merely
reduced the size of Connecticut's house from 151 members to 144, in
order that the number of house district be an even multiple of the
36 senate districts. [Footnote
] A house of such size is expressly contemplated by the
Connecticut Constitution. [Footnote
] The District Court's action is simply a 'minor variation,'
allowing senate and house districts to be drawn with congruent
boundaries, that is well within the remedial powers of an equity
court. [Footnote 7
I dissent from the Court's order granting this stay.
[______-- 5. Minor variations for this purpose were approved in
the Minnesota State Senate case. 406 U.S., at 187
cases cited in n. 10.
Art. III, 4, of the Connecticut Constitution provides
that 'The house of representatives shall consist of not less than
one hundred twenty- five and not more than two hundred twenty-five
members. . . .'
Appellant also objects to the extent to which the
Master's plan dishonors town boundaries. It is undisputed, however,
that town boundaries cannot be preserved intact in all cases under
any constitutional plan. The Master's plan, drawn with the
preservation of as many town lines as possible as an express
consideration (though a subordinate one to the goal of population
equality), cuts across only 60 towns in creating assembly
districts, and 30 towns in creating senate districts. These figures
compare favorably with those in the State's plan, ante, at 906.
has recently acted to remove whatever procedural roadblocks there
might be to implementation of the Master's plan or any other which
the court below might adopt. Public Act 220, May 16, 1972. The
District Court indicated that the legislature will shortly submit a
plan of its own for the court's consideration. 341 F.
Memorandum, at 3. See also appellant's Motion for Stay of Judgment,
It is irrelevant
to this comparison that Kirkpatrick involved congressional rather
than state legislative redistricting. In either case, the burden is
on the State to demonstrate a valid justification for any
population variance, no matter how small.
variance' in an apportionment plan is derived by adding together
the percentage variation from the ideal of the two districts which
are respectively the most over- and under-populated.