The Wyoming Legislature consists of a Senate and a House of
Representatives. The State Constitution provides that each of the
State's 23 counties shall constitute a senatorial and
representative district and shall have at least one senator and one
representative, and requires the senators and representatives to be
apportioned among the counties "as nearly as may be according to
the number of their inhabitants." A 1981 Wyoming statute
reapportioned the House of Representatives and provided for 64
representatives. Based on the 1980 census placing Wyoming's
population at 469,557, the ideal apportionment would have been
7,337 persons per representative. But the reapportionment resulted
in an average deviation from population equality of 16% and a
maximum deviation of 89%. Niobrara County, the State's least
populous county, was given one representative, even though its
population was only 2,924, the legislature having provided that a
county would have a representative even if the statutory formula
rounded the county's population to zero. The legislature also
provided that, if Niobrara County's representation were held
unconstitutional, it would be combined with a neighboring county in
a single district, so that the House would consist of 63
representatives. Appellants (members of the League of Women Voters
and residents of seven counties in which the population per
representative is greater than the state average) filed an action
in Federal District Court, alleging that granting Niobrara County a
representative diluted the voting privileges of appellants and
other voters similarly situated in violation of the Fourteenth
Amendment, and seeking declaratory and injunctive relief. The
District Court upheld the constitutionality of the reapportionment
statute.
Held: Wyoming has not violated the Equal Protection
Clause of the Fourteenth Amendment by permitting Niobrara County to
have its own representative. Pp.
462 U. S.
842-848.
(a) Some deviations from population equality may be necessary to
permit the States to pursue other legitimate objectives such as
"maintain[ing] the integrity of various political subdivisions" and
"provid[ing] for compact districts of contiguous territory."
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 578. But an
apportionment plan with population disparities larger
Page 462 U. S. 836
than 10% creates a
prima facie case of discrimination,
and therefore must be justified by the State, the ultimate inquiry
being whether the plan may reasonably be said to advance a rational
state policy and, if so whether the population disparities
resulting from the plan exceed constitutional limits. Pp.
462 U. S.
842-843.
(b) This case presents an unusually strong example of an
apportionment plan the population variations of which are entirely
the result of the consistent and nondiscriminatory application of a
legitimate state policy. Wyoming, since statehood, has followed a
constitutional policy of using counties as representative districts
and ensuring that each county has one representative. Moreover,
Wyoming has applied the factor of preserving political subdivisions
free from any taint of arbitrariness or discrimination. Pp.
462 U. S.
843-846.
(c) Wyoming's policy of preserving county boundaries justifies
the additional deviations from population equality resulting from
the provision of representation for Niobrara County. Considerable
population variations would remain even if Niobrara County's
representative were eliminated. Under the 63-member plan, the
average deviation per representative would be 13% and the maximum
deviation would be 66%. These statistics make it clear that the
grant of a representative to Niobrara County is not a significant
cause of the population deviations in Wyoming. Moreover, the
differences between the two plans are justified on the basis of the
above policy of preserving county boundaries. By enacting the
64-member plan, the State ensured that this policy applies
nondiscriminatorily, whereas the effect of the 63-member plan would
be to deprive Niobrara County voters of their own representative.
Pp.
462 U. S.
846-848.
536 F.
Supp. 780, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. O'CONNOR,
J., filed a concurring opinion, in which STEVENS, J., joined,
post, p.
462 U. S. 848.
BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL,
and BLACKMUN, JJ., joined,
post, p.
462 U. S.
850.
Page 462 U. S. 837
JUSTICE POWELL delivered the opinion of the Court.
The issue is whether the State of Wyoming violated the Equal
Protection Clause by allocating one of the 64 seats in its House of
Representatives to a county the population of which is considerably
lower than the average population per state representative.
I
Since Wyoming became a State in 1890, its legislature has
consisted of a Senate and a House of Representatives. The State's
Constitution provides that each of the State's counties "shall
constitute a senatorial and representative district," and that
"[e]ach county shall have at least one senator and one
representative." The senators and representatives are required to
be "apportioned among the said counties as nearly as may be
according to the number of their inhabitants." Wyo. Const., Art. 3,
§ 3. [
Footnote 1] The State has
had 23 counties since 1922. Because the apportionment of the
Wyoming House has been challenged three times in the past 20 years,
some background is helpful.
In 1963, voters from the six most populous counties filed suit
in the District Court for the district of Wyoming challenging the
apportionment of the State's 25 senators and 61 representatives.
The three-judge District Court held that the apportionment of the
Senate -- one senator allocated to each of the State's 23 counties,
with the two largest counties having two senators -- so far
departed from the principle of population equality that it was
unconstitutional.
Schaefer v. Thomson, 240 F.
Supp. 247, 251-252 (Wyo.1964), supplemented,
Page 462 U. S. 838
251 F.
Supp. 450 (1965),
aff'd, sub nom. Harrison v.
Schaefer, 383 U. S. 269
(1966). [
Footnote 2] But the
court upheld the apportionment of the State House of
Representatives. The State's constitutional requirement that each
county shall have at least one representative had produced
deviations from population equality: the average deviation from the
ideal number of residents per representative was 16%, while the
maximum percentage deviation between largest and smallest number of
residents per representative was 90%.
See 1 App. Exhibits
16. The District Court held that these population disparities were
justifiable as
"the result of an honest attempt, based on legitimate
considerations, to effectuate a rational and practical policy for
the house of representatives under conditions as they exist in
Wyoming."
240 F. Supp. at 251.
The 1971 reapportionment of the House was similar to that in
1963, with an average deviation of 15% and a maximum deviation of
86%. 1 App. Exhibits 18. Another constitutional challenge was
brought in the District Court. The three-judge court again upheld
the apportionment of the House, observing that only "five minimal
adjustments" had been made since 1963, with three districts gaining
a representative and two districts losing a representative because
of population shifts.
Thompson v. Thomson, 344 F.
Supp. 1378, 1380 (Wyo.1972).
The present case is a challenge to Wyoming's 1981 statute
reapportioning its House of Representatives in accordance with the
requirements of Art. 3, 3, of the State Constitution. Wyo.Stat. §
28-2-109 (Supp.1983). [
Footnote
3] The 1980 census
Page 462 U. S. 839
placed Wyoming's population at 469,557. The statute provided for
64 representatives, meaning that the ideal apportionment would be
7,337 persons per representative. Each county was given one
representative, including the six counties the population of which
fell below 7,337. The deviations from population equality were
similar to those in prior decades, with an average deviation of 16%
and a maximum deviation of 89%.
See 1 App. Exhibits
19-20.
The issue in this case concerns only Niobrara County, the
State's least populous county. Its population of 2,924 is less than
half of the ideal district of 7,337. Accordingly, the general
statutory formula would have dictated that its population for
purposes of representation be rounded down to zero.
See
28-2-109(a)(ii). This would have deprived Niobrara County of its
own representative for the first time since it became a county in
1913. The state legislature found, however, that
"the opportunity for oppression of the people of this state or
any of them is greater if any county is deprived a representative
in the legislature than if each is guaranteed at least one (1)
representative. [
Footnote
4]"
It therefore followed the
Page 462 U. S. 840
State Constitution's requirement and expressly provided that a
county would receive a representative even if the statutory formula
rounded the county's population to zero. § 28-2-109(a)(iii).
Niobrara County thus was given one seat in a 64-seat House. The
legislature also provided that, if this representation for Niobrara
County were held unconstitutional, it would be combined with a
neighboring county in a single representative district. The House
then would consist of 63 representatives. § 28-2-109(a)(iv).
Appellants, members of the state League of Women Voters and
residents of seven counties in which the population per
representative is greater than the state average, filed this
lawsuit in the District Court for the District of Wyoming. They
alleged that,
"[b]y granting Niobrara County a representative to which it is
not statutorily entitled, the voting privileges of Plaintiffs and
other citizens and electors of Wyoming similarly situated have been
improperly and illegally diluted in violation of the 14th
Amendment. . . ."
App. 3-4. They sought declaratory and injunctive relief that
would prevent the State from giving a separate representative to
Niobrara
Page 462 U. S. 841
County, thus implementing the alternative plan calling for 63
representatives.
The three-judge District Court upheld the constitutionality of
the statute.
536 F.
Supp. 780 (1982). The court noted that the narrow issue
presented was the alleged discriminatory effect of a single
county's representative, and concluded, citing expert testimony,
that "the
dilution' of the plaintiffs' votes is de
minimis when Niobrara County has its own representative."
Id. at 783. The court also found that Wyoming's policy of
granting a representative to each county was rational and, indeed,
particularly well-suited to the special needs of Wyoming.
Id. at 784. [Footnote
5]
We noted probable jurisdiction, 459 U.S. 819 (1982), and now
affirm.
Page 462 U. S. 842
II
A
In
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 568 (1964), the
Court held that "the Equal Protection Clause requires that the
seats in both houses of a bicameral state legislature must be
apportioned on a population basis." This holding requires only
"that a State make an honest and good faith effort to construct
districts . . . as nearly of equal population as is practicable,"
for "it is a practical impossibility to arrange legislative
districts so that each one has an identical number of residents, or
citizens, or voters."
Id. at
377 U.S. 577.
See Gaffney v.
Cummings, 412 U. S. 735,
412 U. S.
745-748 (1973) (describing various difficulties in
measurement of population).
We have recognized that some deviations from population equality
may be necessary to permit the States to pursue other legitimate
objectives, such as "maintain[ing] the integrity of various
political subdivisions" and "providing for compact districts of
contiguous territory."
Reynolds, supra, at
377 U.S. 578. As the Court stated in
Gaffney,
"[a]n unrealistic overemphasis on raw population figures, a mere
nose count in the districts, may submerge these other
considerations and itself furnish a ready tool for ignoring factors
that in day-to-day operation are important to an acceptable
representation and apportionment arrangement."
412 U.S. at
412 U. S.
749.
In view of these considerations, we have held that
"minor deviations from mathematical equality among state
legislative districts are insufficient to make out a
prima
facie case of invidious discrimination under the Fourteenth
Amendment so as to require justification by the State."
Id. at
412 U. S. 745.
Our decisions have established, as a general matter, that an
apportionment plan with a maximum population deviation under 10%
falls within this category of minor deviations.
See, e.g.,
Connor v. Finch, 431 U. S. 407,
431 U. S. 418
(1977);
White v. Regester, 412 U.
S. 755,
412 U. S. 764
(1973). A plan with larger
Page 462 U. S. 843
disparities in population, however, creates a
prima
facie case of discrimination, and therefore must be justified
by the State.
See Swann v. Adams, 385 U.
S. 440,
385 U. S. 444
(1967) ("
De minimis deviations are unavoidable, but
variations of 30% among senate districts and 40% among house
districts can hardly be deemed
de minimis, and none of our
cases suggests that differences of this magnitude will be approved
without a satisfactory explanation grounded on acceptable state
policy"). The ultimate inquiry, therefore, is whether the
legislature's plan "may reasonably be said to advance [a] rational
state policy" and, if so, "whether the population disparities among
the districts that have resulted from the pursuit of this plan
exceed constitutional limits."
Mahan v. Howell,
410 U. S. 315,
410 U. S. 328
(1973).
B
In this case, there is no question that Niobrara County's
deviation from population equality -- 60% below the mean -- is more
than minor. There also can be no question that Wyoming's
constitutional policy -- followed since statehood -- of using
counties as representative districts and ensuring that each county
has one representative is supported by substantial and legitimate
state concerns. In
Abate v. Mundt, 403 U.
S. 182,
403 U. S. 185
(1971), the Court held that "a desire to preserve the integrity of
political subdivisions may justify an apportionment plan which
departs from numerical equality."
See Mahan v. Howell,
supra, at
410 U. S. 329.
Indeed, the Court in
Reynolds v. Sims, supra, singled out
preservation of political subdivisions as a clearly legitimate
policy.
See 377 U.S. at
377 U.S. 580-581.
Moreover, it is undisputed that Wyoming has applied this factor
in a manner "free from any taint of arbitrariness or
discrimination."
Roman v. Sincock, 377 U.
S. 695,
377 U. S. 710
(1964). The State's policy of preserving county boundaries is based
on the State Constitution, has been followed for decades, and has
been applied consistently throughout the State. As the
Page 462 U. S. 844
District Court found, this policy has particular force, given
the peculiar size and population of the State and the nature of its
governmental structure.
See n 5,
supra; 536 F. Supp. at 784. In addition,
population equality is the sole other criterion used, and the
State's apportionment formula ensures that population deviations
are no greater than necessary to preserve counties as
representative districts.
See Mahan v. Howell, supra, at
410 U. S. 326
(evidence is clear that the plan "
produces the minimum
deviation above and below the norm, keeping intact political
boundaries'"). Finally, there is no evidence of "a built-in bias
tending to favor particular political interests or geographic
areas." Abate v. Mundt, supra, at 403 U. S. 187.
As Judge Doyle stated below:
"[T]here is not the slightest sign of any group of people being
discriminated against here. There is no indication that the larger
cities or towns are being discriminated against; on the contrary,
Cheyenne, Laramie, Casper, Sheridan, are not shown to have suffered
in the slightest . . . degree. There has been no preference for the
cattle-raising or agricultural areas as such."
536 F. Supp. at 788 (specially concurring).
In short, this case presents an unusually strong example of an
apportionment plan the population variations of which are entirely
the result of the consistent and nondiscriminatory application of a
legitimate state policy. [
Footnote
6] This does not mean
Page 462 U. S. 845
that population deviations of any magnitude necessarily are
acceptable. Even a neutral and consistently applied criterion such
as use of counties as representative districts can frustrate
Reynolds' mandate of fair and effective representation if
the population disparities are excessively high. [
Footnote 7]
"[A] State's policy urged in justification of disparity in
district population, however rational, cannot constitutionally be
permitted to emasculate the goal of substantial equality."
Mahan v. Howell, supra, at
410 U. S. 326.
It remains true, however, as the Court in
Reynolds noted,
that consideration must be given "to the character as well as the
degree of deviations from a strict population basis." 377 U.S. at
377 U.S. 581. The
consistency of application and the neutrality of effect of the
Page 462 U. S. 846
nonpopulation criteria must be considered along with the size of
the population disparities in determining whether a state
legislative apportionment plan contravenes the Equal Protection
Clause.
C
Here we are not required to decide whether Wyoming's
nondiscriminatory adherence to county boundaries justifies the
population deviations that exist throughout Wyoming's
representative districts. Appellants deliberately have limited
their challenge to the alleged dilution of their voting power
resulting from the one representative given to Niobrara County.
[
Footnote 8] The issue
therefore is not whether a 16% average deviation and an 89% maximum
deviation, considering the state apportionment plan as a whole, are
constitutionally permissible. Rather, the issue is whether
Wyoming's policy of preserving county boundaries justifies the
additional deviations from population equality resulting from the
provision of representation to Niobrara County. [
Footnote 9]
Page 462 U. S. 847
It scarcely can be denied that, in terms of actual effect on
appellants' voting power, it matters little whether the 63-member
or 64-member House is used. The District Court noted, for example,
that the seven counties in which appellants reside will elect 28
representatives under either plan. The only difference, therefore,
is whether they elect 43.75% of the legislature (28 of 64 members)
or 44.44% of the legislature (28 of 63 members). 536 F. Supp. at
783. [
Footnote 10] The
District Court aptly described this difference as "
de
minimis."
Ibid.
We do not suggest that a State is free to create and allocate an
additional representative seat in any way it chooses simply because
that additional seat will have little or no effect on the remainder
of the State's voters. The allocation of a representative to a
particular political subdivision still may violate the Equal
Protection Clause if it greatly exceeds the population variations
existing in the rest of the State and if the State provides no
legitimate justifications for the creation of that seat. Here,
however, considerable population variations will remain even if
Niobrara County's representative is eliminated. Under the 63-member
plan, the average deviation per representative would be 13% and the
maximum deviation would be 66%.
See 1 App. Exhibits 22.
These statistics make clear that the grant of a representative to
Niobrara County is not a significant cause of the population
deviations that exist in Wyoming.
Moreover, we believe that the differences between the two plans
are justified on the basis of Wyoming's longstanding and legitimate
policy of preserving county boundaries.
See supra at
462 U. S. 841,
n. 5, and
462 U. S.
843-844. Particularly where there is no "taint of
arbitrariness or discrimination,"
Roman v. Sincock, 377
U.S. at
377 U. S. 710,
substantial deference is to be accorded the political decisions of
the people of a State acting
Page 462 U. S. 848
through their elected representatives. Here it is noteworthy
that, by enacting the 64-member plan, the State ensured that its
policy of preserving county boundaries applies nondiscriminatorily.
The effect of the 63-member plan would be to deprive the voters of
Niobrara County of their own representative, even though the
remainder of the House of Representatives would be constituted so
as to facilitate representation of the interests of each county.
See 536 F. Supp. at 784;
id. at 786 (Doyle, J.,
specially concurring). In these circumstances, we are not persuaded
that Wyoming has violated the Fourteenth Amendment by permitting
Niobrara County to have its own representative.
The judgment of the District Court is
Affirmed.
[
Footnote 1]
Article 3, § 3, of the Wyoming Constitution provides in relevant
part:
"Each county shall constitute a senatorial and representative
district; the senate and house of representatives shall be composed
of members elected by the legal voters of the counties
respectively, every two (2) years. They shall be apportioned among
the said counties as nearly as may be according to the number of
their inhabitants. Each county shall have at least one senator and
one representative; but at no time shall the number of members of
the house of representatives be less than twice nor greater than
three times the number of members of the senate."
[
Footnote 2]
An example of the disparity in population was that Laramie
County, the most populous county in the State, had two senators for
its 60,149 people, whereas Teton County, the least populous county
in the State, had one senator for its 3,062 people.
See
Schaefer v. Thomson, 240 F. Supp. at 250, n. 3.
[
Footnote 3]
Wyoming Stat. § 28-2-109 (Supp.1982) provides in relevant
part:
"(a) The ratios for the apportionment of senators and
representatives are fixed as follows:"
* * * *
"(ii) The ratio for the apportionment of the representatives is
the smallest number of people per representative which when divided
into the population in each representative district as shown by the
official results of the 1980 federal decennial census with
fractions rounded to the nearest whole number results in a house
with sixty-three (63) representatives;"
"(iii) If the number of representatives for any county is
rounded to zero (0) under the formula in paragraph (a)(ii) of this
section, that county shall be given one (1) representative which is
in addition to the sixty-three (63) representatives provided by
paragraph (a)(ii) of this section;"
"(iv) If the provisions of paragraph (a)(iii) of this section
are found to be unconstitutional or have an unconstitutional
result, then Niobrara county shall be joined to Goshen county in a
single representative district and the house of representatives
shall be apportioned as provided by paragraph (a)(ii) of this
section."
[
Footnote 4]
The legislature made the following findings:
"It is hereby declared the policy of this state is to preserve
the integrity of county boundaries as election districts for the
house of representatives. The legislature has considered the
present population, needs, and other characteristics of each
county. The legislature finds that the needs of each county are
unique, and the interests of each county must be guaranteed a voice
in the legislature. The legislature therefore, will utilize the
provisions of article 3, section 3, of the Wyoming constitution as
the determining standard in the reapportionment of the Wyoming
house of representatives which guarantees each county at least one
(1) representative. The legislature finds that the opportunity for
oppression of the people of this state or any of them is greater if
any county is deprived a representative in the legislature than if
each is guaranteed at least one (1) representative. The legislature
finds that the dilution of the power of counties which join
together in making these declarations is trivial when weighed
against the need to maintain the integrity of county boundaries.
The legislature also finds that it is not practical or necessary to
increase the size of the legislature beyond the provisions of this
act in order to meet its obligations to apportion in accordance
with constitutional requirements consistent with this
declaration."
1981 Wyo.Sess.Laws, ch. 76, § 3.
[
Footnote 5]
The District Court stated:
"Wyoming as a state is unique among her sister states. A small
population is encompassed by a large area. Counties have always
been a major form of government in the State. Each county has its
own special economic and social needs. The needs of the people are
different and distinctive. Given the fact that the representatives
from the combined counties of Niobrara and Goshen would probably
come from the larger county,
i.e., Goshen, the interests
of the people of Niobrara County would be virtually
unprotected."
"The people within each county have many interests in common,
such as public facilities, government administration, and work and
personal problems. Under the facts of this action, to deny these
people their own representative borders on abridging their right to
be represented in the determination of their futures."
"In Wyoming, the counties are the primary administrative
agencies of the State government. It has historically been the
policy of the State that counties remain in this position."
"The taxing powers of counties are limited by the Constitution
and some State statutes. Supplemental monies are distributed to the
counties in accordance with appropriations designated by the State
Legislature. It comes as no surprise that the financial
requirements of each county are different. Without representation
of their own in the State House of Representatives, the people of
Niobrara County could well be forgotten."
536 F. Supp. at 784.
[
Footnote 6]
In contrast, many of our prior decisions invalidating state
apportionment plans were based on the lack of proof that deviations
from population equality were the result of a good faith
application of legitimate districting criteria.
See, e.g.,
Chapman v. Meier, 420 U. S. 1,
420 U. S. 25
(1975) ("It is far from apparent that North Dakota policy currently
requires or favors strict adherence to political lines. . . .
Furthermore, a plan devised by [the Special Master] demonstrates
that . . . the policy of maintaining township lines [does not]
preven[t] attaining a significantly lower population variance");
Kilgarlin v. Hill, 386 U. S. 120,
386 U. S. 124
(1967) (per curiam) (District Court did not "demonstrate why or how
respect for the integrity of county lines required the particular
deviations" or "articulate any satisfactory grounds for rejecting
at least two other plans presented to the court, which respected
county lines but which produced substantially smaller deviations");
Swann v. Adams, 385 U. S. 440,
385 U. S.
445-446 (1967) (no evidence presented that would justify
the population disparities).
[
Footnote 7]
As the
Reynolds Court explained:
"Carried too far, a scheme of giving at least one seat in one
house to each political subdivision (for example, to each county)
could easily result, in many States, in a total subversion of the
equal protection principle in that legislative body. This would be
especially true in a State where the number of counties is large
and many of them are sparsely populated, and the number of seats in
the legislative body being apportioned does not significantly
exceed the number of counties."
377 U.S. at
377 U.S.
581.
See also Connor v. Finch, 431 U.
S. 407,
431 U. S. 419
(1977) ("[T]he policy against breaking county boundary lines is
virtually impossible of accomplishment in a State where population
is unevenly distributed among 82 counties, from which 52 Senators
and 122 House members are to be elected").
This discussion in
Reynolds is illustrated by the
senatorial districts in Wyoming that were invalidated in 1963. Each
county in the State had one senator, while the two largest counties
had two. Because county population varied substantially, extremely
large disparities in population per senator resulted. The six most
populous counties, with approximately 65% of the State's
population, had eight senators, whereas the six least populous
counties, with approximately 8% of the population, had six
senators.
See Schaefer v. Thomson, 240 F. Supp. at 251, n.
5. The Wyoming House of Representatives presents a different case,
because the number of representatives is substantially larger than
the number of counties.
[
Footnote 8]
Counsel for appellants, who represent the state League of Women
Voters, explained at oral argument:
"[A] referendum had been passed by the League of Women Voters
which authorized the attack of only that one portion of the
reapportionment plan. It was felt by the membership or by the
leadership of that group that no broader authority would ever be
given because of the political ramifications and arguments that
would be presented by the membership in attacking or considering .
. . that broader authority."
Tr. of Oral Arg. 8.
[
Footnote 9]
The dissent suggests that we are required to pass upon the
constitutionality of the apportionment of the entire Wyoming House
of Representatives.
See post at
462 U. S.
857-859 (BRENNAN, J., dissenting). Although in some
prior cases challenging the apportionment of one legislative house
the Court has addressed the constitutionality of the other house's
apportionment as well, we never have held that a court is required
to do so. For example, in
Gaffney v. Cummings,
412 U. S. 735
(1973), we considered only the apportionment of the Connecticut
General Assembly, noting expressly that the "Senate plan was not
challenged in the District Court" and that "[a]ppellees do not
challenge the Senate districts on the ground of their population
deviations."
Id. at
412 U. S. 739,
n. 5. In this case, we see no reason why appellants should not be
bound by the choices they made when filing this lawsuit.
[
Footnote 10]
Similarly, appellees note that, under the 64-member plan, 46.65%
of the State's voters theoretically could elect 51.56% of the
representatives. Under the 63-member plan, 46.65% of the population
could elect 50.79% of the representatives.
See 1 App.
Exhibits 32-33.
JUSTICE O'CONNOR, with whom JUSTICE STEVENS joins,
concurring.
By its decisions today in this case and in
Karcher v.
Daggett, ante p.
462 U. S. 725, the
Court upholds, in the former, the allocation of one representative
to a county in a state legislative plan with an 89% maximum
deviation from population equality and strikes down, in the latter,
a congressional reapportionment plan for the State of New Jersey
where the maximum deviation is 0.6984%. As a Member of the majority
in both cases, I feel compelled to explain the reasons for my
joinder in these apparently divergent decisions.
In my view, the "one-person, one-vote" principle is the guiding
ideal in evaluating both congressional and legislative
redistricting schemes. In both situations, however, ensuring equal
representation is not simply a matter of numbers. There must be
flexibility in assessing the size of the deviation against the
importance, consistency, and neutrality of the state policies
alleged to require the population disparities.
Both opinions recognize this need for flexibility in examining
the asserted state policies. [
Footnote
2/1] In
Karcher, New Jersey
Page 462 U. S. 849
has not demonstrated that the population variances in
congressional districts were necessary to preserve minority voting
strength -- the only justification offered by the State.
Ante at
462 U. S.
742-744. Here, by contrast, there can be no doubt that
the population deviation resulting from the provision of one
representative to Niobrara County is the product of the consistent
and nondiscriminatory application of Wyoming's longstanding policy
of preserving county boundaries.
In addition, as the Court emphasizes, in this case, we are not
required to decide whether, and do not suggest that,
"Wyoming's nondiscriminatory adherence to county boundaries
justifies the population deviations that exist throughout Wyoming's
representative districts."
Ante at
462 U. S. 846.
Thus, the relevant percentage in this case is not the 89% maximum
deviation when the State of Wyoming is viewed as a whole, but the
additional deviation from equality produced by the allocation of
one representative to Niobrara County.
Ibid.
In this regard, I would emphasize a point acknowledged by the
majority.
See ante at
462 U. S.
844-845. Although the maximum deviation figure is not
the controlling element in an apportionment challenge, even the
consistent and nondiscriminatory application of a legitimate state
policy cannot justify substantial population deviations throughout
the State where the effect would be to eviscerate the one-person,
one-vote principle. In short, as the Court observes,
ibid., there is clearly
Page 462 U. S. 850
some outer limit to the magnitude of the deviation that is
constitutionally permissible even in the face of the strongest
justifications.
In the past, this Court has recognized that a state legislative
apportionment scheme with a maximum population deviation exceeding
10% creates a
prima facie case of discrimination.
See,
e.g., Connor v. Finch, 431 U. S. 407,
431 U. S. 418
(1977). Moreover, in
Mahan v. Howell, 410 U.
S. 315,
410 U. S. 329
(1973), we suggested that a 16.4% maximum deviation "may well
approach tolerable limits." [
Footnote
2/2] I have the gravest doubts that a statewide legislative
plan with an 89% maximum deviation could survive constitutional
scrutiny despite the presence of the State's strong interest in
preserving county boundaries. I join the Court's opinion on the
understanding that nothing in it suggests that this Court would
uphold such a scheme.
[
Footnote 2/1]
As the Court notes in this case:
"[C]onsideration must be given 'to the character as well as the
degree of deviations from a strict population basis.' . . . The
consistency of application and the neutrality of effect of the
nonpopulation criteria must be considered along with the size of
the population disparities in determining whether a state
legislative apportionment plan contravenes the Equal Protection
Clause."
Ante at
462 U. S.
845-846. Similarly, in
Karcher, the Court
observes:
"The showing required to justify population deviations is
flexible, depending on the size of the deviations, the importance
of the State's interests, the consistency with which the plan as a
whole reflects those interests, and the availability of
alternatives that might substantially vindicate those interests yet
approximate population equality more closely. By necessity, whether
deviations are justified requires case-by-case attention to these
factors."
Ante at
462 U. S.
741.
[
Footnote 2/2]
The Court has recognized that States enjoy a somewhat greater
degree of latitude as to population disparities in a state
legislative apportionment scheme, which is tested under Equal
Protection Clause standards, than in a congressional redistricting
scheme, for which the Court has held that Art. I, § 2, of the
Constitution provides the governing standard.
White v.
Regester, 412 U. S. 755,
412 U. S. 763
(1973).
JUSTICE BRENNAN, with whom JUSTICE WHITE, JUSTICE MARSHALL, and
JUSTICE BLACKMUN join, dissenting.
The Court today upholds a reapportionment scheme for a state
legislature featuring an 89% maximum deviation and a 16% average
deviation from population equality. I cannot agree.
I
Although I disagree with today's holding, it is worth stressing
how extraordinarily narrow it is, and how empty of likely
precedential value. The Court goes out of its way to make clear
that, because appellants have chosen to attack only one small
feature of Wyoming's reapportionment scheme, the Court weighs only
the
marginal unequalizing effect of that one feature, and
not the overall constitutionality of the entire scheme.
Ante at
462 U. S. 846,
and nn. 8, 9;
see ante
Page 462 U. S. 851
at
462 U. S. 849
(O'CONNOR, J., concurring). Hence, although in my view the Court
reaches the wrong result in the case at hand, it is unlikely that
any future plaintiffs challenging a state reapportionment scheme as
unconstitutional will be so unwise as to limit their challenge to
the scheme's single most objectionable feature. Whether this will
be a good thing for the speed and cost of constitutional litigation
remains to be seen. But at least plaintiffs henceforth will know
better than to exercise moderation or restraint in mounting
constitutional attacks on state apportionment statutes, lest they
forfeit their small claim by omitting to assert a big one.
II
A
The Equal Protection Clause of the Fourteenth Amendment requires
that a State, in apportioning its legislature, "make an honest and
good faith effort to construct districts . . . as nearly of equal
population as is practicable."
Reynolds v. Sims,
377 U. S. 533,
377 U.S. 577 (1964). Under
certain conditions the Constitution permits small deviations from
absolute equality in state legislative districts, [
Footnote 3/1] but we have carefully circumscribed
the range of permissible deviations as to both degree and kind.
What is required is
"a faithful adherence to a plan of population-based
representation, with such minor deviations only as may occur in
recognizing certain factors that are free from any taint of
arbitrariness or discrimination."
Roman v. Sincock, 377 U. S. 695,
377 U. S. 710
(1964).
"[T]he overriding objective must be substantial equality of
population among the various districts, so that the vote of any
citizen is approximately equal in weight to that of any other
citizen in the State."
Reynolds, supra, at
377 U.S. 579.
Page 462 U. S. 852
Our cases since
Reynolds have clarified the structure
of constitutional inquiry into state legislative apportionments,
setting up what amounts to a four-step test. First, a plaintiff
must show that the deviations at issue are sufficiently large to
make out a
prima facie case of discrimination. We have
come to establish a rough threshold of 10% maximum deviation from
equality (adding together the deviations from average district size
of the most underrepresented and most overrepresented districts);
below that level, deviations will ordinarily be considered
de
minimis. Ante at
462 U. S.
842-843;
Connor v. Finch, 431 U.
S. 407,
431 U. S. 418
(1977);
White v. Regester, 412 U.
S. 755,
412 U. S.
763-764 (1973). Second, a court must consider the
quality of the reasons advanced by the State to explain the
deviations. Acceptable reasons must be "legitimate considerations
incident to the effectuation of a rational state policy,"
Reynolds, supra, at
377
U.S. 579, and must be "free from any taint of arbitrariness
or discrimination,"
Roman, supra, at
377 U. S. 710.
See Mahan v. Howell, 410 U. S. 315,
410 U. S.
325-326 (1973). Third, the State must show that "the
state policy urged . . . to justify the divergences . . . is,
indeed, furthered by the plan,"
id. at
410 U. S. 326.
This necessarily requires a showing that any deviations from
equality are not significantly greater than is necessary to serve
the State's asserted policy; if another plan could serve that
policy substantially as well while providing smaller deviations
from equality, it can hardly be said that the larger deviations
advance the policy.
See, e.g., Kilgarlin v. Hill,
386 U. S. 120,
386 U. S.
123-124 (1967);
Mahan, supra, at
410 U. S.
319-320,
410 U. S. 326;
Connor, supra, at
431 U. S. 420-421. Fourth, even if the State succeeds in
showing that the deviations in its plan are justified by their
furtherance of a rational state policy, the court must nevertheless
consider whether they are small enough to be constitutionally
tolerable.
"For a State's policy urged in justification of disparity in
district population, however rational, cannot constitutionally be
permitted to emasculate the goal of substantial population
equality."
Mahan, supra, at
410 U. S.
326.
Page 462 U. S. 853
B
It takes little effort to show that Wyoming's 1981 House of
Representatives apportionment is manifestly unconstitutional under
the test established by our cases, whether one considers the
instance of Niobrara County alone or in combination with the large
deviations present in the rest of the scheme.
It is conceded all around, of course, that appellants have shown
a
prima facie case of discrimination. Wyoming's 89%
maximum deviation greatly exceeds our "under 10%" threshold;
indeed, so great is the inequality in this plan that even its 16%
average deviation from ideal district size exceeds the threshold we
have set for maximum deviations. On the other hand, one might
reasonably concede that the State has met the second and third
steps. Wyoming's longstanding policy of using counties as the basic
units of representation is a rational one, found by the District
Court to be untainted by arbitrariness or discrimination. It
appears as well that the deviations at issue could not be reduced
(at least not without substantially increasing the size of the
House of Representatives) consistently with Wyoming's goals of
using county lines and assuring each county at least one
representative. It cannot plausibly be argued, however, that
Wyoming's plan passes the fourth test -- that its deviations, even
if justified by state policy, be within the constitutionally
tolerable range of size.
We have warned that, although maintenance of county or other
political boundaries can justify small deviations, it cannot be
allowed to negate the fundamental principle of one person, one
vote.
E.g., Connor, supra, at
431 U. S. 419.
Likewise, we have recognized that it may not always be feasible,
within constitutional constraints, to guarantee each county or
subdivision a representative of its own.
"Carried too far, a scheme of giving at least one seat in one
house to each political subdivision (for example, to each county)
could easily result, in many States, in a total subversion of the
equal
Page 462 U. S. 854
population principle in that legislative body."
Reynolds, 377 U.S. at
377 U.S. 581 (footnote omitted);
see Mahan, supra, at
410 U. S. 349,
n. 11 (BRENNAN, J., concurring in part and dissenting in part). And
we have unambiguously rejected reliance on the very factor the
State urges as the reason for its plan, stating that sparseness of
population, far from excusing deviations from equality, actually
increases the need for equality among districts:
"[S]parse population is not a legitimate basis for a departure
from the goal of equality. A State with a sparse population may
face problems different from those faced by one with a concentrated
population, but that, without more, does not permit a substantial
deviation from the average. Indeed, in a State with a small
population, each individual vote may be more important to the
result of an election than in a highly populated State. Thus,
particular emphasis should be placed on establishing districts
with as exact population equality as possible."
Chapman v. Meier, 420 U. S. 1,
420 U. S. 24-25
(1975) (emphasis added).
Accord, Connor, supra, at
431 U. S.
418-419, n. 18;
see Reynolds, supra, at
377 U.S. 580.
As the Court implicitly acknowledges,
ante at
462 U. S. 843,
Niobrara County's overrepresentation -- 60% compared to the ideal
district size -- cannot be considered
"the kind of 'minor' variatio[n] which
Reynolds v. Sims
indicated might be justified by local policies counseling the
maintenance of established political subdivisions in apportionment
plans."
Kilgarlin, 386 U.S. at
386 U. S. 123.
In
Kilgarlin, we expressed strong doubt that the 26%
maximum deviation there could ever be permitted,
ibid. In
Mahan, we warned that a 16.4% maximum deviation, even
though fully justified by state policy, "may well approach
tolerable limits." 410 U.S. at
410 U. S. 329.
See also Abate v. Mundt, 403 U. S. 182,
403 U. S. 187
(1971). Here, by contrast, Niobrara County voters are given more
than two and a half times the voting strength of the average
Wyoming voter,
Page 462 U. S. 855
and more than triple the voting strength of voters in some
counties. [
Footnote 3/2]
"[I]f a State should provide that the votes of citizens in one
part of the State should be given two times, or five times, or 10
times the weight of votes of citizens in another part of the State,
it could hardly be contended that the right to vote of those
residing in the disfavored areas had not been effectively
diluted."
Reynolds, supra, at
377 U. S. 562.
The creation of this district represents not a deviation from the
principle of population equality, but an absolute disregard of it.
Niobrara County, alone in the State, has been allocated a seat "on
a basis wholly unrelated to population."
WMCA, Inc. v.
Lomenzo, 377 U. S. 633,
377 U. S. 645
(1964). This hardly constitutes "a faithful adherence to a plan of
population-based representation."
Roman, 377 U.S. at
377 U. S.
710.
If the rest of the State is considered as well, the picture
becomes even worse. The scheme's treatment of Niobrara County is
not a single, isolated abuse, but merely the worst of many
objectionable features. Of Wyoming's 23 counties, only 9 are within
as much as 10% of population proportionality. The populations per
representative of Sublette and Crook Counties are, respectively,
38% and 28% below the statewide average; those of Washakie and
Teton Counties are 29% and 28%, respectively, above that figure.
The average deviation from ideal district size is 16%. The figures
could be spun out further, but it is unnecessary. It is not
surprising, then, that the Court makes no effort to uphold the plan
as a whole. On the contrary, at least two Members of the majority
express their
"gravest doubts that a statewide legislative plan with an 89%
maximum deviation could survive
Page 462 U. S. 856
constitutional scrutiny despite the presence of the State's
strong interest in preserving county boundaries."
Ante at
462 U. S. 850
(O'CONNOR, J., joined by STEVENS, J., concurring).
C
The Court attempts to escape these stark facts through two lines
of reasoning, each relying on an unspoken legal premise. Neither
withstands examination.
First, the Court apparently assumes that the only aspect of
unequal representation that matters is the degree of vote dilution
suffered by any one individual voter.
See ante at
462 U. S. 847.
The Court is mistaken. Severe dilution of the votes of a relatively
small number of voters is perhaps the most disturbing result that
may attend invalid apportionments, because those unfortunate
victims may be virtually disfranchised. It is not the sole evil to
be combated, however. It is equally illegal to enact a scheme under
which a small group is greatly overrepresented, at the expense of
all other voters in the State. Such a "rotten borough" [
Footnote 3/3] plan does tend to yield small
figures supposedly measuring the harm to single individuals, as the
Court's opinion illustrates; but that analysis overlooks the fact
that very large numbers of persons are adversely affected.
[
Footnote 3/4] It is the
principle of equal representation, as well as the votes of
individual plaintiffs, that a State may not dilute.
Reynolds,supra, at
377
U.S. 578. Just as the Equal Protection Clause does not
permit a small class of voters to be deprived of fair and equal
voting power, so does it forbid the elevation of a small class of
"supervoters" granted an extraordinarily powerful franchise. We
would not permit Wyoming, in its legislative elections, to grant a
double- or triple-counted vote to 2,924 voters because they were
named Jones, or because they were licensed to practice law -- even
though such an enactment would, by the Court's reasoning, have
Page 462 U. S. 857
only a
de minimis effect on the rights of the rest of
Wyoming's voters. Why, then, is it permissible to create such an
exalted class based on location of residence?
The Court relies more directly on its unspoken assumption that
we may judge the constitutionality of Niobrara County's
representation by first severing that feature from the rest of the
scheme, and then weighing it only by its incremental effect in
increasing the degree of inequality present in the system as a
whole.
"Appellants deliberately have limited their challenge to the
alleged dilution of their voting power resulting from the one
representative given to Niobrara County. The issue therefore is not
whether a 16% average deviation and an 89% maximum deviation,
considering the state apportionment plan as a whole, are
constitutionally permissible. Rather, the issue is whether
Wyoming's policy of preserving county boundaries justifies the
additional deviations from population equality resulting from the
provision of representation to Niobrara County."
Ante at
462 U. S. 846
(footnotes omitted). The first leg of this logic -- that the
Niobrara problem is legally severable from the rest of the plan --
is contradicted by our prior decisions. The second leg -- that we
should examine only the marginal unequalizing effect -- leads to
exceptionally perverse results.
We confronted an analogous situation in
Maryland Committee
for Fair Representation v. Tawes, 377 U.
S. 656 (1964). The State argued in
Tawes that,
since the plaintiffs had allegedly conceded that one house of the
Maryland Legislature was constitutionally apportioned, and the
courts below had passed only on the apportionment of the other
house, this Court was required to limit its consideration to the
apportionment of the challenged house. We flatly rejected the
argument:
"Regardless of possible concessions made by the parties and the
scope of the consideration of the courts
Page 462 U. S. 858
below, in reviewing a state legislative apportionment case, this
Court must of necessity consider the challenged scheme as a whole
in determining whether the particular State's apportionment plan,
in its entirety, meets federal constitutional requisites. It is
simply impossible to decide upon the validity of the apportionment
of one house of a bicameral legislature in the abstract, without
also evaluating the actual scheme of representation employed with
respect to the other house. Rather, the proper, and indeed
indispensable, subject for judicial focus in a legislative
apportionment controversy is the overall representation accorded to
the State's voters, in both houses of a bicameral state
legislature. We therefore reject [the State's] contention that the
Court is precluded from considering the validity of the
apportionment of the Maryland House of Delegates."
Id. at
377 U. S. 673.
Accord, Lucas v. Colorado General Assembly, 377 U.
S. 713,
377 U. S. 735,
n. 27 (1964). [
Footnote 3/5]
Although we have not invariably adhered to this rule with regard
to the two
houses of a legislature, the concerns that led
us in
Tawes to examine both houses, despite the scope of
the plaintiffs' complaint, forbid us to consider the allocation of
one seat without also examining the remainder of Wyoming's
apportionment of its House of Representatives. A plan with only a
single deviation -- a good deal smaller than this one,
Page 462 U. S. 859
and necessary to carry out a rational state policy -- might well
be tolerated, even though in the same situation a greater number of
substantial deviations would be unacceptable as too much of a
departure from the goal of equality.
See Lucas, supra, at
377 U. S. 735,
n. 27. Where that greater number of deviations is present, as in
this case, common sense as well as
Tawes and
Lucas require us to consider the plan as a whole. The
inequality created by Niobrara County's representation -- a 23%
increase in the maximum deviation from equality -- is necessarily
cumulative with the inequality imposed in the rest of the system.
It is playing artificial tricks to assert that the fairness of the
allocation of one seat in a legislative body can or should be
considered as though it had no connection to the other seats, or to
the fairness of their allocation. Indeed, the Court's own method
contradicts its suggestion that the Niobrara problem is severable.
The Court is fully willing to
consider the system's other
inequalities in this case, and even to give them controlling weight
-- only it wishes to consider those inequalities as weighing
in
favor of the plan.
See infra, this page and
462 U. S. 860.
I agree with the Court that we may not consider Niobrara County in
a vacuum; it seems to me, however, that the existence of numerous
instances of inequality ought to be considered an
undesirable feature in an apportionment plan, not a saving
one. Only by examining the plan "in its totality,"
Lucas,
supra, at
377 U. S. 735,
n. 27, may we judge whether the allocation of any seat in the House
is constitutional. This Court is not bound by a referendum of the
League of Women Voters.
See ante at
462 U. S. 846,
n. 8.
Here, Wyoming's error in granting Niobrara County voters a vote
worth double or triple the votes of other Wyoming voters is
compounded by the impermissibly large disparities in voting power
existing in the rest of the apportionment plan.
Supra at
462 U. S. 855.
Yet, astonishingly, the Court manages to turn that damning fact to
the State's
favor:
"The allocation of a representative to a particular political
subdivision still may violate the Equal Protection Clause if it
greatly exceeds the population variations existing
Page 462 U. S. 860
in the rest of the State and if the State provides no legitimate
justifications for the creation of that seat. Here, however,
considerable population variations will remain even if Niobrara
County's representative is eliminated. . . . These statistics make
clear that the grant of a representative to Niobrara County is not
a significant cause of the population deviations that exist in
Wyoming."
Ante at
462 U. S. 847.
Under this reasoning, the further Wyoming's apportionment plan
departs from substantial equality, the more likely it is to
withstand constitutional attack. It is senseless to create a rule
whereby a single instance of gross inequality is unconstitutional
if it occurs in a plan otherwise letter-perfect, but constitutional
if it occurs in a plan that, even without that feature, flagrantly
violates the Constitution. That, however, is precisely what the
Court does today. [
Footnote
3/6]
Page 462 U. S. 861
D
JUSTICE O'CONNOR, joined by JUSTICE STEVENS, states that she has
"the gravest doubts that a statewide legislative plan with an 89%
maximum deviation could survive constitutional scrutiny. . . ."
Ante at
462 U. S. 850
(concurring opinion). But the Court today holds that just such a
plan does survive constitutional scrutiny. I dissent.
[
Footnote 3/1]
As the Court notes, of course, we have been substantially more
demanding with respect to apportionment of federal congressional
districts.
Mahan v. Howell, 410 U.
S. 315,
410 U. S.
320-325 (1973).
See generally Karcher v. Daggett,
ante p.
462 U. S. 725;
White v. Weiser, 412 U. S. 783
(1973);
Kirkpatrick v. Preisler, 394 U.
S. 526 (1969).
[
Footnote 3/2]
The ideal district size -- statewide population divided by
number of seats -- is 7,337; Niobrara County's population is 2,924.
Thus, the average representative represents 2.59 times as many
constituents as Niobrara County's representative. Similarly, the
populations of Washakie and Teton Counties are, respectively, 3.25
and 3.19 times as large as the population of Niobrara County, yet
all three counties are given one representative each. 1 App.
Exhibits 19-20.
[
Footnote 3/3]
See generally Reynolds v. Sims, 377 U.
S. 533,
377 U.S.
567-568, n. 44 (1964);
Baker v. Carr, 369 U.
S. 186,
369 U.S.
302-307 (1962) (Frankfurter, J., dissenting).
[
Footnote 3/4]
Cf. Swann v. Adams, 385 U. S. 440,
385 U. S. 443
(1967).
[
Footnote 3/5]
"[In]
Maryland Committee for Fair Representation v.
Tawes, . . . 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 evaluation of an
apportionment plan in its totality can a court determine whether
there has been sufficient compliance with the requisites of the
Equal Protection Clause."
377 U.S. at
377 U. S. 735,
n. 27 (emphasis added).
See also Burns v. Richardson,
384 U. S. 73,
384 U. S. 83
(1966).
[
Footnote 3/6]
This case also presents an issue as to what relief should be
accorded. At an absolute minimum, the District Court should have
granted the relief requested by appellants -- the combination of
Niobrara and Goshen Counties into one district, as provided by the
Wyoming Legislature in case its first plan was found
unconstitutional.
See ante at
462 U. S. 840.
That would have yielded a combined district of virtually perfect
size, and would have reduced the plan's maximum deviation from 89%
to 66%. This improvement alone -- 23% -- is larger than any maximum
deviation we have ever approved, with or without justification.
See supra at
462 U. S.
854.
In my view, however, the District Court should have required
Wyoming to devise an apportionment plan constitutional in its
entirety. In
Whitcomb v. Chavis, 403 U.
S. 124 (1971), the plaintiffs' complaint attacked
Indiana's apportionment statute only as to one county.
Id.
at
403 U. S. 137.
We reversed the District Court's judgment that that county was
unconstitutionally apportioned. Nevertheless, we expressly approved
the District Court's decision to expand the relief granted to
include reapportionment of the entire State.
"After determining that Marion County required reapportionment,
the court concluded that 'it becomes clear beyond question that the
evidence adduced in this case and the additional apportionment
requirements set forth by the Supreme Court call for a
redistricting of the entire state as to both houses of the General
Assembly.'"
Id. at
403 U. S. 161
(plurality opinion), quoting
305 F.
Supp. 1364, 1391 (SD Ind.1969);
see 403 U.S. at
403 U. S.
172-173,
403 U. S.
179-180 (Douglas, J., concurring in result in part).
See also supra at
462 U. S. 857-859, and n. 5; Fed.Rule Civ.Proc.
54(c).