Texas enacted Senate Bill One (S.B. 1) providing for
congressional redistricting. The State was divided into 24
districts, with an average deviation from the ideal district of
.745%, and a maximum deviation of 2.43% above and 1.7% below the
ideal. Appellees alleged that the reapportionment violated their
constitutional rights under Art. I, § 2, and submitted Plan B,
which, although cutting across more county lines, generally
followed the district lines of S.B. 1. Plan B had a total maximum
deviation of .149%. Shortly before the three-judge court hearing,
appellees submitted, alternatively, Plan C. That scheme, with a
total maximum deviation of .284%, substantially disregarded the
configuration of the districts in S.B. 1, using population as the
only consideration. The District Court found S.B. 1
unconstitutional, and ordered the adoption of Plan C, as being more
compact and contiguous than the other plans.
Held:
1. Although the percentage deviations in S.B. 1 are smaller than
those invalidated in
Kirkpatrick v. Preisler, 394 U.
S. 526, and Wells v. Rockefeller,
394 U.
S. 542, they were not "unavoidable," and the districts
were not as mathematically equal as reasonably possible. The
argument that variances are justified if they necessarily result
from the State's attempt to avoid fragmenting political
subdivisions by drawing district lines along existing political
subdivision lines is not legally acceptable.
Kirkpatrick,
supra, at
394 U. S.
533-534. Pp.
412 U. S.
790-791.
2. Though the drawing of district boundaries in a way that
minimizes the number of contests between present incumbents does
not of itself establish invidiousness,
Burns v.
Richardson, 384 U. S. 73,
384 U. S. 89 n.
16, it is not necessary to decide whether such state interest will
justify the deviations in S.B. 1, since Plan B serves this purpose
as well with less population variance. Pp.
412 U. S.
791-792.
3. Population variances do invidiously devalue the individual's
vote at some point or level in size, and this is especially
noticeable in congressional districts, with their substantial
populations. Pp.
412 U. S.
792-793.
Page 412 U. S. 784
4. Plan B, to a greater extent than Plan C, while eliminating
population variances, adhered to the districting preferences of the
state legislature, which has "primary jurisdiction" over
legislative reapportionment. Pp.
412 U. S.
793-797.
Affirmed in part, reversed in part, and remanded.
WHITE, J., delivered the opinion of the Court, in Part I of
which all Members joined and in Part II of which BURGER, C.J., and
DOUGLAS, BRENNAN, STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. POWELL, J., filed a concurring opinion, in which BURGER,
C.J., and REHNQUIST, J., joined,
post, p.
412 U. S. 798.
MARSHALL, J., filed an opinion concurring in part in Part II of the
opinion of the Court,
post, p.
412 U. S.
798.
MR. JUSTICE WHITE delivered the opinion of the Court.
This case concerns the congressional reapportionment of the
State of Texas.
On June 17, 1971, the Governor of the State of Texas signed into
law Senate Bill One (S.B. 1), Tex.Acts, 62d Leg., 1st Called Sess.,
c. 12, p. 38, providing for the congressional redistricting of the
State. S.B. 1 divided the State into 24 congressional districts for
the ensuing decennium. [
Footnote
1] Based upon 1970 census figures, absolute
Page 412 U. S. 785
population equality among the 24 districts would mean a
population of 466,530 in each district. The districts created by
S.B. 1 varied from a high of 477,856 in the 13th District to a low
of 458,581 in the 15th District. The 13th District exceeded the
ideal district by 2.43% and the 15th District was smaller by 1.7%.
The population difference between the two districts was 1,275
persons, and their total percentage deviation was 4.13%. The ratio
of the 13th District to the 15th was 1.04 to 1. The average
deviation of all districts from the ideal district of 466,530 was
.745% or 3,421 persons. [
Footnote
2]
Page 412 U. S. 786
On October 19, 1971, appellees, residents of the 6th, 13th,
16th, and 19th congressional districts, filed suit in the United
States District Court for the Northern District of Texas against
appellant, the Secretary of State of Texas and the chief election
officer of the State. Appellees alleged that the reapportionment of
the Texas congressional seats, as embodied in S.B. 1, violated
their rights under Art. I, § 2, and the Equal Protection Clause of
the Fourteenth Amendment. [
Footnote
3] They requested an injunction against the use of S.B. 1, an
order requiring a new apportionment or the use of a plan submitted
with their complaint, or at-large elections. The plan appended to
appellees' original complaint, which came to be called Plan B,
generally followed the redistricting pattern of S.B. 1. However,
the district lines were adjusted where necessary so as to achieve
smaller population variances among districts. Plan B created
districts varying from 466,930 to 466,234, for a total absolute
deviation between the largest and smallest district of 696 persons.
District 12 exceeded the ideal by .086% and District Four was under
the ideal by .063%, for a total percentage deviation of .149%.
Although the plan followed the district lines of S.B. 1 where
possible, in order to achieve maximum population equality, Plan B
cut across 18 more county lines than did S.B. 1. [
Footnote 4]
Page 412 U. S. 787
A three-judge court was convened. 28 U.S.C. §§ 2281, 2284. On
January 10, 1972, several days prior to the scheduled hearing of
the case, appellees filed an amended complaint suggesting an
alternative plan, which came to be called Plan C. Plan C, unlike
Plan B, substantially disregarded the configuration of the
districts in S.B. 1. Instead, as the authors of the plan frankly
admitted and the District Court found, Plan C represented an
attempt to attain lower deviations without regard to any
consideration other than population. The districts in Plan C varied
in population from 467,173 as a high to 465,855 as a low, a
difference of 1,318 persons. The largest district was overpopulated
by .139%, and the smallest underpopulated by .145%, the total
percentage deviation being .284%. Plan C had 14 districts with
greater deviations than Plan B, eight districts with deviations
Page 412 U. S. 788
equal to those found in Plan B, and two districts with
deviations smaller than those in Plan B. [
Footnote 5]
On January 21, 1972, the District Court heard argument and
received into evidence various depositions. The next day, the court
announced its decision. Relying upon this Court's decision in
Kirkpatrick v. Preisler, 394 U. S. 526
(1969), the District Court declared S.B. 1 unconstitutional and
enjoined appellant from "conducting or permitting any primary or
general elections based upon the districts established by S.B. 1."
The District Court ordered the adoption of Plan C as "the plan of
this Court for the congressional districts of the State
Page 412 U. S. 789
of Texas." [
Footnote 6]
Noting that its order was entered
"without prejudice to the legislative and executive branches of
the State of Texas to proceed with the consideration and adoption
of any other constitutionally permissible plan of congressional
redistricting at a called or regular session of the
Legislature,"
the District Court retained jurisdiction
"for the purposes of considering any such plan which might be
adopted by the Legislature of the State of Texas until
congressional reapportionment is enacted based on the Twentieth
Decennial Census to be conducted in 1980. [
Footnote 7]"
This Court, on application of appellant, granted a stay of the
order of the District Court. 404 U.S. 1065 (1972). The 1972
congressional elections were therefore conducted under the plan
embodied in S.B. 1. We noted probable jurisdiction of the appeal.
409 U.S. 947 (1972).
Page 412 U. S. 790
I
The command of Art. I, § 2, that representatives be chosen "by
the People of the several States" was elucidated in
Wesberry v.
Sanders, 376 U. S. 1 (1964),
and in
Kirkpatrick v. Preisler, 394 U.S. at
394 U. S.
527-528, to permit only those population variances among
congressional districts that "are unavoidable despite a good faith
effort to achieve absolute equality, or for which justification is
shown."
Id. at
394 U. S. 531.
[
Footnote 8]
See also Wells
v. Rockefeller, 394 U. S. 542,
394 U. S. 546
(1969).
Kirkpatrick and
Wells invalidated state
reapportionment statutes providing for federal congressional
districts having total percentage deviations of 5.97% and 13.15,
respectively. In both cases, we concluded that the deviations did
not demonstrate a good faith effort to achieve absolute equality,
and were not sufficiently justified.
The percentage deviations now before us in S.B. 1 are smaller
than those invalidated in
Kirkpatrick and
Wells,
but we agree with the District Court that, under the standards of
those cases, they were not "unavoidable," and the districts were
not as mathematically equal as reasonably possible. Both Plans B
and C demonstrate this much, and the State does not really dispute
it. [
Footnote 9]
Page 412 U. S. 791
Also, as in
Kirkpatrick and
Wells,
"we do not find legally acceptable the argument that variances
are justified if they necessarily result from a State's attempt to
avoid fragmenting political subdivisions by drawing congressional
district lines along existing county, municipal, or other political
subdivision boundaries."
Kirkpatrick v. Preisler, supra, at
394 U. S.
533-534.
The State asserts that the variances present in S.B. 1
nevertheless represent good faith efforts by the State to promote
"constitutency representative relations," [
Footnote 10] a policy frankly aimed at
maintaining existing relationships between incumbent congressmen
and their constituents and preserving the seniority the members of
the State's delegation have achieved in the United States House of
Representatives. We do not disparage this interest. We have, in the
context of state reapportionment, said that the fact that
"district boundaries may have been drawn in a way that minimizes
the number of contests between present incumbents does not, in and
of itself, establish invidiousness."
Burns v. Richardson, 384 U. S. 73,
384 U. S. 89 n.
16 (1966).
Cf. Gaffney v. Cummings, ante at
412 U. S. 752.
But we need not decide whether this state interest is sufficient to
justify the deviations at issue here, for Plan B admittedly serves
this purpose as well
Page 412 U. S. 792
as S.B. 1 while adhering more closely to population equality.
[
Footnote 11] S.B. 1 and its
population variations, therefore, were not necessary to achieve the
asserted state goal, and the District Court was correct in
rejecting it. [
Footnote
12]
Appellant also straightforwardly argues that Kirkpatrick and
Wells should be modified so as not to require the "small"
population variances among congressional districts involved in this
case to be justified by the State. S.B. 1, it is urged, absent
proof of invidiousness over and above the population variances
among its districts, does not violate Art. I, § 2. It is clear,
however, that, at some point or level in size, population variances
do import invidious devaluation of the individual's
Page 412 U. S. 793
vote and represent a failure to accord him fair and effective
representation. Appellant concedes this, and would locate the line
differently than the Court did in
Kirkpatrick and
Wells. Keeping in mind that congressional districts are
not so intertwined and freighted with strictly local interests as
are state legislative districts, and that, as compared with the
latter, they are relatively enormous, with each percentage point of
variation representing almost 5,000 people, we are not inclined to
disturb
Kirkpatrick and
Wells. This is
particularly so in light of
Mahan v. Howell, 410 U.
S. 315 (1973), decided earlier this Term, where we
reiterated that the
Wesberry, Kirkpatrick, and
Wells line of cases would continue to govern congressional
reapportionments, although holding that the rigor of the rule of
those cases was inappropriate for state reapportionments challenged
under the Equal Protection Clause of the Fourteenth Amendment.
II
The District Court properly rejected S.B. 1, but it had before
it both Plan B and Plan C, and there remains the question whether
the court correctly chose to implement the latter. [
Footnote 13] Plan B adhered to the basic
district configurations found in S.B. 1, but adjusted the district
lines, where necessary, in order to achieve maximum population
equality among districts. Each district in Plan B contained
generally the same counties as the equivalent district in S.B. 1.
[
Footnote 14] Plan C, on the
other hand, was based entirely upon population considerations
Page 412 U. S. 794
and made no attempt to adhere to the district configurations
found in S.B. 1. [
Footnote
15] Both plans were submitted to the District Court by
appellees. After deciding that S.B. 1 was unacceptable, the
District Court ordered the implementation of Plan C. In announcing
its decision, the court said only:
"Plan C is based solely on population, and is significantly more
compact and contiguous than either S.B. 1 or Plan B. . . . The
Court has considered Plans B and C . . . , and concludes that Plan
C best effectuates the principle of 'one man, one vote' enunciated
by the Supreme Court."
Appellant argues that, even if the District Court properly
struck down S.B. 1, it should have selected Plan B, rather than
Plan C. Appellees defend the selection of Plan C as an exercise of
the remedial discretion of the District Court, although, in doing
so, they argue against a plan that they proposed and frequently
urged upon the District Court.
From the beginning, we have recognized that
"reapportionment is primarily a matter for legislative
consideration and determination, and that judicial relief becomes
appropriate only when a legislature fails to reapportion according
to federal constitutional requisites
Page 412 U. S. 795
in a timely fashion after having had an adequate opportunity to
do so."
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 586 (1964).
See also id. at
377 U.S.
584,
377 U.S.
586-587;
id. at
377 U.S. 588-589 (opinion of STEWART,
J.). We have adhered to the view that state legislatures have
"primary jurisdiction" over legislative reapportionment.
See
Maryland Committee for Fair Representation v. Tawes,
377 U. S. 656,
377 U. S. 676
(1964);
Davis v. Mann, 377 U. S. 678,
377 U. S. 693
(1964);
Roman v. Sincock, 377 U.
S. 695,
377 U. S.
709-710,
377 U. S.
711-712 (1964);
Burns v. Richardson, 384 U.S.
at
384 U. S. 84-85;
Ely v. Klahr, 403 U. S. 108,
403 U. S. 114
(1971);
Whitcomb v. Chavis, 403 U.
S. 124,
403 U. S.
160-161 (1971);
Sixty-seventh Minnesota State Senate
v. Beens, 406 U. S. 187,
406 U. S.
195-201 (1972);
Mahan v. Howell, 410 U.S. at
410 U. S. 327.
Just as a federal district court, in the context of legislative
reapportionment, should follow the policies and preferences of the
State, as expressed in statutory and constitutional provisions or
in the reapportionment plans proposed by the state legislature,
whenever adherence to state policy does not detract from the
requirements of the Federal Constitution, we hold that a district
court should similarly honor state policies in the context of
congressional reapportionment. In fashioning a reapportionment plan
or in choosing among plans, a district court should not preempt the
legislative task, nor "intrude upon state policy any more than
necessary."
Whitcomb v. Chavis, supra, at
403 U. S.
160.
Here, it is clear that Plan B, to a greater extent than did Plan
C, adhered to the desires of the state legislature while attempting
to achieve population equality among districts. S.B. 1, a duly
enacted statute of the State of Texas, established the State's 24
congressional districts with locations and configurations found
appropriate by the duly elected members of the two houses of the
Texas Legislature. As we have often noted, reapportionment is a
complicated process. Districting
Page 412 U. S. 796
inevitably has sharp political impact and inevitably political
decisions must be made by those charged with the task.
See
Gaffney v. Cummings, ante at
412 U. S. 753.
Here those decisions were made by the legislature in pursuit of
what were deemed important state interests. Its decisions should
not be unnecessarily put aside in the course of fashioning relief
appropriate to remedy what were held to be impermissible population
variations between congressional districts.
Plan B, as all parties concede, represented an attempt to adhere
to the districting preferences of the state legislature while
eliminating population variances. Indeed, Plan B achieved the goal
of population equality to a greater extent than did Plan C. Despite
the existence of Plan B, the District Court ordered implementation
of Plan C, which, as conceded by all parties, ignored legislative
districting policy and constructed districts solely on the basis of
population considerations. The District Court erred in this choice.
Given the alternatives, the court should not have imposed Plan C,
with its very different political impact, on the State. It should
have implemented Plan B, which most clearly approximated the
reapportionment plan of the state legislature while satisfying
constitutional requirements. The court said only that Plan C is
"significantly more compact and contiguous" than Plan B. But both
Plan B and Plan C feature contiguous districts, and, even if the
districts in Plan C can be called more compact, the District
Court's preferences do not override whatever state goals were
embodied in S.B. 1 and, derivatively, in Plan B.
"The remedial powers of an equity court must be adequate to the
task, but they are not unlimited. Here, the District Court erred in
so broadly brushing aside state apportionment policy without solid
constitutional or equitable grounds for doing so."
Whitcomb v.Chavis, supra, at
403 U. S. 161.
If there was a good reason for adopting
Page 412 U. S. 797
Plan C rather than Plan B, the District Court failed to state
it.
Of course, the District Court should defer to state policy in
fashioning relief only where that policy is consistent with
constitutional norms and is not itself vulnerable to legal
challenge. The District Court should not, in the name of state
policy, refrain from providing remedies fully adequate to redress
constitutional violations which have been adjudicated and must be
rectified. But here, the District Court did not suggest or hold
that the legislative policy of districting so as to preserve the
constituencies of congressional incumbents was unconstitutional or
even undesirable. We repeat what we have said in the context of
state legislative reapportionment:
"The fact that district boundaries may have been drawn in a way
that minimizes the number of contests between present incumbents
does not, in and of itself, establish invidiousness."
Burns v. Richardson, 384 U.S. at
384 U. S. 89 n.
16.
Cf. Gaffney v. Cummings, ante at
412 U. S. 752;
Taylor v. McKeithen, 407 U. S. 191
(1972). And we note that appellees themselves submitted Plan B to
the District Court and defended it on the basis that it adhered to
state goals, as embodied in S.B. 1, while eliminating impermissible
deviations. [
Footnote
16]
The judgment of the District Court invalidating S.B. 1 is
affirmed. The adoption of Plan C is, however, reversed, and the
case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Page 412 U. S. 798
[
Footnote 1]
Prior to the passage of S.B. 1, the Texas Senate had twice
defeated redistricting bills, passed by the House, with total
deviations smaller than the total deviation in S.B. 1.
[
Footnote 2]
The redistricting of the 24 Texas congressional districts under
S.B. 1 follows:
Absolute Variance % Variance
District Population from Ideal from Ideal
1 461,870 - 4,651 1.00
2 466,836 + 306 .07
3 465,221 - 1,309 .28
4 463,142 - 3,388 .73
5 465,093 - 1,437 .31
6 467,913 + 1,383 .30
7 461,704 - 4,826 1.03
8 461,216 - 5,314 1.14
9 467,483 + 953 .20
10 465,493 - 1,037 .22
11 468,148 + 1,618 .35
12 465,671 - 859 .18
13 477,856 +11,326 2.43
14 467,839 + 1,309 .28
15 458,581 - 7,949 1.70
16 477,614 +11,084 2.38
17 467,912 + 1,382 .30
18 462,062 - 4,468 .96
19 477,459 +10,929 2.34
20 467,942 + 1,412 .30
21 466,656 + 126 .03
22 461,448 - 5,082 1.09
23 466,248 - 282 .06
24 465,315 - 1,216 .26
[
Footnote 3]
At a subsequent pretrial conference, the Fourteenth Amendment
claims were eliminated.
[
Footnote 4]
Plan B resulted in the following districting:
Absolute Variance
District Population from Ideal
1 466,545 + 15
2 466,565 + 35
3 466,266 -264
4 466,234 -296
5 466,620 + 90
6 466,285 -245
7 466,336 -194
8 466,704 +174
9 466,678 +148
10 466,313 -217
11 466,258 -272
12 466,930 +400
13 466,663 +133
14 466,437 - 93
15 466,359 -171
16 466,663 +133
17 466,432 - 98
18 466,520 - 10
19 466,649 +119
20 466,514 - 16
21 466,753 +223
22 466,707 +177
23 466,424 -106
24 466,875 +345
[
Footnote 5]
Plan C resulted in the following districts:
Absolute Variance
District Population from Ideal
1 465,986 -544
2 466,817 +287
3 466,835 +305
4 467,108 -578
5 466,258 -272
6 467,023 +493
7 466,336 -194
8 466,704 +174
9 466,678 +148
10 466,303 -227
11 466,569 + 39
12 466,926 +396
13 467,173 +648
14 466,437 - 93
15 466,359 -171
16 465,941 -589
17 466,340 -190
18 466,520 - 10
19 466,154 -376
20 466,654 +124
21 466,875 +345
22 466,707 +177
23 466,167 -363
24 465,855 -675
[
Footnote 6]
The District Court's entire discussion of its reasons for
selecting Plan C follows:
"Defendant has not submitted any plan of reapportionment as an
alternative to S.B. 1. Plaintiffs have proposed two plans, B and C.
Plan B is based on S.B. 1, but has a significantly lower deviation
than S.B. 1. Plan C is based solely on population, and is
significantly more compact and contiguous than either S.B. 1 or
Plan B. . . . The Court has considered Plans B and C, as well as
the plan submitted by the intervening plaintiffs, and concludes
that Plan C best effectuates the principle of 'one man, one vote'
enunciated by the Supreme Court."
[
Footnote 7]
The District Court's order also granted leave to intervene to
Van Henry Archer, Chairman of the Bexar County Republican Party,
and others. The intervenors, appellees in this Court, filed a
suggested reapportionment plan with their complaint in intervention
which was rejected by the District Court, and is not pressed here.
The District Court also retained jurisdiction for the purpose of
extending the impending February 7, 1972, filing date for
congressional candidates "in the event it is made known to [the
District] Court that a called session of the Legislature will
include congressional reapportionment." However, the Governor
refused to call a special session of the legislature.
[
Footnote 8]
Kirkpatrick v. Preisler
"reject[ed] Missouri's argument that there is a fixed numerical
or percentage population variance small enough to be considered
de minimis and to satisfy without question the 'as nearly
as practicable' standard."
394 U.S. at
394 U. S. 530.
We concluded,
"Unless population variances among congressional districts are
shown to have resulted despite such [good faith] effort, the State
must justify each variance, no matter how small."
Id. at
394 U. S.
531.
[
Footnote 9]
Prior to the passage of S.B. 1, the Texas House twice passed a
congressional reapportionment bill with lower deviations. Each bill
had a total deviation of 2.5%. Although both bills were ultimately
defeated in the Senate, their passage by the House, and indeed
their very existence, indicates that it was possible and
practicable to construct a redistricting scheme with lower
population deviations among districts than those embodied in S.B.
1.
[
Footnote 10]
"Appellant earnestly submits that the term 'constitutency
representative relations' is the more accurate term; indeed it is
very hard to see why those who are so concerned about
representation should stigmatize as a mere euphemism a term which
brings in both parties to the representational relationship. . . .
(The assumptions seem to be that, while a Congressman may like his
job, no constituency can like its Congressman, or care whether he
continues to represent it or not -- and that no Congressman can
possibly learn to know his constituency well enough to serve it
better than he can serve another constituency selected for him by,
it may be, a young mathematician in Dallas.) Under either name,
appellant would defend this motive as entirely proper, if the
burden of that defense fell upon him on the facts herein."
Brief for Appellant 72.
[
Footnote 11]
It appears that the two plans passed by the House and defeated
by the Senate may also have fostered this goal while achieving
lower population variances.
[
Footnote 12]
Appellant contends that the authors of S.B. 1, and the
legislature, in passing on the plan, took into account projected
population shifts among the districts. Remembering that the
congressional districting plan will be in effect for at least 10
years and five congressional elections, the appellant argues that
the legislature might properly consider population changes in
devising a redistricting plan. In
Kirkpatrick v. Preisler,
we recognized that, "[w]here these shifts can be predicted with a
high degree of accuracy, States that are redistricting may properly
consider them." 394 U.S. at
394 U. S. 535.
We were, however, careful to note:
"By this, we mean to open no avenue for subterfuge. Findings as
to population trends must be thoroughly documented and applied
throughout the State in a systematic, not an
ad hoc,
manner."
Ibid.
In the present case, we conclude that Texas' attempt to justify
the deviations found in S.B. 1 falls far short of this standard.
The record is barren, with the exception of scattered and vague
assertions in deposition testimony, of adequate documentation of
the projected population shifts and firm evidence that the alleged
shifts were in fact, relied upon.
There is also some suggestion that passage of S.B. 1 was
preceded by a dispute as to who would fill the Second District
congressional seat. The State does not urge this alleged goal as a
justification for the deviations in S.B. 1, nor can we tell from
this record whether S.B. 1, in fact, resolved this dispute.
[
Footnote 13]
The court had before it a plan submitted by the
plaintiffs-intervenors and, possibly, other plans. Only Plan B and
Plan C appear to have been seriously urged by the parties and
considered by the court, and only those plans are defended before
this Court.
[
Footnote 14]
"Plan B, presented by Appellees, merely took the plan of the
legislature and adjusted that plan to achieve greater equality to
present to the court, in a graphic manner, what the legislature
could have done if it had been disposed to make an attempt at
population equality. . . ."
Brief for Appellees 25.
[
Footnote 15]
Appellees' amended complaint explained Plan C, as follows:
"That, had the legislature desired to enact a statute consonant
with the mandate of Article I, § 2 of the U.S. Constitution, that
is a plan which made each district as compact and contiguous and as
nearly equal in population to each other district as practicable,
taking into account solely population and not taking into account
'social,' 'cultural,' 'economic' or 'other factors,' including
preservation of incumbent congressman, it could have enacted a plan
the same as or substantially similar to that plan set forth in
Exhibit C annexed hereto and herewith incorporated by reference as
though set forth at length herein. That such plan is hereinafter
referred to as 'Plan C.'"
[
Footnote 16]
S.B. 1 is conceded also to have sought adherence to county
lines. While Plan B admittedly cuts more county lines than does
Plan C, it also achieves lower deviations. Because both Plan B and
Plan C were required to fracture more political boundaries than did
S.B. 1, in order to achieve population equality among districts,
appellant does not contend that Plan B is unacceptable because of
more cutting of county lines.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring.
Had I been a member of the Court when
Kirkpatrick v.
Preisler, 394 U. S. 526
(1969), and
Wells v. Rockefeller, 394 U.
S. 542 (1969), were decided, I would not have thought
that the Constitution -- a vital and living charter after nearly
two centuries because of the wise flexibility of its key provisions
-- could be read to require a rule of mathematical exactitude in
legislative reapportionment. Moreover, the dissenting opinions of
Justices Harlan
* and WHITE and
the concurring opinion of Justice Fortas in those cases
demonstrated well that the exactitude required by the majority
displayed a serious misunderstanding of the practicalities of the
legislative and reapportioning processes. Nothing has occurred
since
Kirkpatrick and
Wells to reflect adversely
on the soundness, as I view it, of the dissenting perceptions.
Indeed, the Court's recent opinions in
Mahan v. Howell,
410 U. S. 315
(1973),
Gaffney v. Cummings, ante p.
412 U. S. 735, and
White v. Regester, ante, p.
412 U. S. 755,
strengthen the case against attempting to hold any reapportionment
scheme -- state or congressional -- to slide-rule precision. These
more recent cases have allowed modest variations from theoretical
"exactitude" in recognition of the impracticality of applying the
Kirkpatrick rule as well as in deference to legitimate
state interests.
However all of this may be,
Kirkpatrick is virtually
indistinguishable from this case, and unless and until the Court
decides to reconsider that decision, I will follow it. Accordingly,
I join the Court's opinion.
* MR. JUSTICE STEWART joined Mr. Justice Harlan's opinion.
MR. JUSTICE MARSHALL, concurring in part.
While I join Part I of the Court's opinion, I can agree with
412 U. S.
wherein the Court reverses the District
Page 412 U. S. 799
Court's selection of Plan C over Plan B only insofar as that
determination rests upon the fact that Plan B comes closer than
Plan C to achieving the goal of "precise mathematical equality,"
see Kirkpatrick v. Preisler, 394 U.
S. 526,
394 U. S.
530-531 (1969).
See also Wells v. Rockefeller,
394 U. S. 542
(1969). Whatever the merits of the view that a legislature's
reapportionment plan will not be struck down merely because
"district boundaries may have been drawn in a way that minimizes
the number of contests between present incumbents,"
Burns v.
Richardson, 384 U. S. 73,
384 U. S. 89 n.
16 (1966), it is entirely another matter to suggest that a federal
district court which has determined that a particular
reapportionment plan fails to comport with the constitutional
requirement of "one man, one vote" must, in drafting and adopting
its own remedial plan, give consideration to the apparent desires
of the controlling state political powers. In my opinion, the
judicial remedial process in the reapportionment area -- as in any
area -- should be a fastidiously neutral and objective one, free of
all political considerations and guided only by the controlling
constitutional principle of strict accuracy in representative
apportionment. Here, the District Court gave ample recognition to
the legislature's "primary responsibility"* in the area of
apportionment when it added that its redistricting order was
"without prejudice to the legislative and executive branches of
the State of Texas to proceed with the consideration and adoption
of any other constitutionally permissible plan of congressional
redistricting at a called or regular session of the Legislature of
the State of Texas."
Nevertheless, because the District Court failed to adhere
strictly to the principle of mathematical precision in selecting
between Plan B and Plan C, its choice of Plan C must be
reversed.
*
See, e.g., Maryland Committee for Fair Representation v.
Tawes, 377 U. S. 656,
377 U. S. 676
(1964);
Ely v. Klahr, 403 U. S. 108,
403 U. S. 114
(1971);
Burns v. Richardson, 384 U. S.
73,
384 U. S. 84-85
(1966).