Complainants, certain Virginia voters, brought this action
against appellants, various officials having state election duties,
challenging the statutory provisions apportioning seats in the
Virginia Legislature as violative of the Equal Protection Clause.
While the Virginia Constitution provides for decennial
reapportionment the establishment of districts rests in the
discretion of the legislature, which has been guided chiefly by
population, but which has also considered factors such as
compactness and contiguity of territory, geographic features, and
community of interests. Under the existing apportionment, the State
is divided into 36 senatorial districts, with 40 senators, and 70
House districts with 100 delegates. The maximum population variance
ratios between the most populous and least populous senatorial and
House districts are, respectively, 2.65 to 1 and 4.36 to 1; and,
under the 1962 apportionment, about 41.1% of the State's total
population reside in districts electing a majority of the Senate,
and about 40.5% in districts electing a majority of the House. No
adequate political remedy for legislative reapportionment exists in
Virginia, and no initiative procedure is provided for. Appellants
before the three-judge court which was convened to decide the case
showed the number of military or military-related personnel in the
areas where complainants resided, disparities from population-based
representation among the various States in the Federal Electoral
College, and results of a comparative study showing Virginia as
eighth among the States in population-based legislative
representativeness. The District Court entered an interlocutory
order holding Virginia's legislative apportionment
unconstitutional, and refused to abstain pending the obtaining of
the state courts' views on the validity of the apportionment. The
Court refused to defer deciding the case until after the January,
1964, regular session of the legislature, and retained jurisdiction
for the entry of necessary orders.
Held:
1. Neither of the houses of the Virginia General Assembly is
apportioned sufficiently on a population basis to be
constitutionally sustainable. P.
377 U. S.
690.
Page 377 U. S. 679
2. Where a federal court's jurisdiction is properly invoked and
the relevant state constitutional and statutory provisions are
plain and unambiguous, abstention is not necessary. P.
377 U. S.
690.
3. The Equal Protection Clause applies to failure to meet
federal constitutional requirements whether the legislature
periodically reapportions or fails to act. P.
377 U. S.
691.
4. The fact that large numbers of military or military-related
personnel reside in the same areas as appellees cannot justify
underrepresentation of those areas, because the nature of their
employment alone provides no proper basis for discrimination; there
was no showing that the legislature took this factor into account
in making the apportionment, and, even if it had, the maximum
population variance ratios would have remained impermissible. Pp.
377 U. S.
691-692.
5. The apportionment was not sustainable, either factually or
legally, as involving an attempt to balance urban and rural power
in the legislature. P.
377 U. S.
692.
6. Analogy to deviations from population in the Federal
Electoral College provides no constitutional basis for sustaining a
state apportionment scheme under the Equal Protection Clause. P.
377 U. S.
692.
7. It would be inappropriate for this Court to consider the
remedies for malapportionment of the legislature, since the next
election of Virginia legislators does not occur until 1965, the
legislature has ample time to effect a valid reapportionment, and
the District Court has retained jurisdiction to grant relief under
equitable principles if necessary to ensure that no further
elections are held under an unconstitutional scheme. Pp.
377 U. S.
692-693.
213 F.
Supp. 577 affirmed and remanded.
Page 377 U. S. 680
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Presented for decision in this case is the validity, under the
Equal Protection Clause of the Fourteenth Amendment to the Federal
Constitution, of the apportionment of seats in the legislature of
the Commonwealth of Virginia.
I
Plaintiffs below, residents, taxpayers and qualified voters of
Arlington and Fairfax Counties, filed a complaint on April 9, 1962,
in the United States District Court for the Eastern District of
Virginia, in their own behalf and on behalf of all voters in
Virginia similarly situated, challenging the apportionment of the
Virginia General Assembly. Defendants, sued in their representative
capacities, were various officials charged with duties in
connection with state elections. Plaintiffs claimed rights under
provisions of the Civil Rights Act, 42 U.S.C. §§ 1983, 1988 and
asserted jurisdiction under 28 U.S.C. § 1343(3).
The complaint alleged that the present statutory provisions
apportioning seats in the Virginia Legislature, as amended in 1962,
result in invidious discrimination
Page 377 U. S. 681
against plaintiffs and "all other voters of the State Senatorial
and House districts" in which they reside, since voters in
Arlington and Fairfax Counties are given substantially less
representation than voters living in other parts of the State.
Plaintiffs asserted that the discrimination was violative of the
Fourteenth Amendment, as well as the Virginia Constitution, and
contended that the requirements of the Equal Protection Clause of
the Federal Constitution, and of the Virginia Constitution, could
be met only by a redistribution of legislative representation among
the counties and independent cities of the State "substantially in
proportion to their respective populations." Plaintiffs asserted
that they
"possess an inherent right to vote for members of the General
Assembly . . . and to cast votes that are equally effective with
the votes of every other citizen"
of Virginia, and that this right was being diluted and
effectively denied by the discriminatory apportionment of seats in
both houses of the Virginia Legislature under the statutory
provisions attacked as being unconstitutional. Plaintiffs contended
that the alleged inequalities and distortions in the allocation of
legislative seats prevented the Virginia Legislature from "being a
body representative of the people of the Commonwealth," and
resulted in a minority of the people of Virginia controlling the
General Assembly.
The complaint requested the convening of a three-judge District
Court. With respect to relief, plaintiffs sought a declaratory
judgment that the statutory scheme of legislative apportionment in
Virginia, prior as well as subsequent to the 1962 amendments,
contravenes the Equal Protection Clause of the Fourteenth
Amendment, and is thus unconstitutional, and void. Plaintiffs also
requested the issuance of a prohibitory injunction restraining
defendants from performing their official duties relating to the
election of members of the General Assembly pursuant to the present
statutory provisions. Plaintiffs
Page 377 U. S. 682
further sought a mandatory injunction requiring defendants to
conduct the next primary and general elections for legislators on
an at-large basis throughout the State.
A three-judge District Court was promptly convened. Residents
and voters of the City of Norfolk were permitted to intervene as
plaintiffs against the original defendants and against certain
additional defendants, election officials in Norfolk. On June 20,
1962, all of the plaintiffs obtained leave to amend the complaint
by adding an additional prayer for relief which requested that,
unless the General Assembly "promptly and fairly" reapportioned the
legislative districts, the Court should reapportion the districts
by its own order so as to accord the parties and others similarly
situated "fair and proportionate" representation in the Virginia
Legislature.
Evidence presented to the District Court by plaintiffs included
basic figures showing the populations of the various districts from
which senators and delegates are elected, and the number of seats
assigned to each. From that data, various statistical comparisons
were derived. Since the 1962 reapportionment measures were enacted
only two days before the complaint was filed, and made only small
changes in the statutory provisions relating to legislative
apportionment, which had been last amended in 1958, the evidence
submitted covered both the present and the last previous
apportionments. Defendants introduced various exhibits showing the
numbers of military and military-related personnel in the City of
Norfolk and in Arlington and Fairfax Counties, disparities from
population-based representation among the various States in the
Federal Electoral College, and results of a comparative study of
state legislative apportionment which show Virginia as ranking
eighth among the States in population-based legislative
representativeness, as reapportioned in 1962.
Page 377 U. S. 683
On November 28, 1962, the District Court, with one judge
dissenting, sustained plaintiffs' claim and entered an
interlocutory order holding the apportionment of the Virginia
Legislature violative of the Federal Constitution.
213 F.
Supp. 577. The Court refused to dismiss the case or stay its
action on the ground, asserted by defendants, that plaintiffs
should be required first to procure the views of the state courts
on the validity of the apportionment scheme. Instead, it held that,
since neither the 1962 legislation nor the relevant state
constitutional provisions were ambiguous, no question of state law
necessitating abstention by the Federal District Court was
presented. In applying the Equal Protection Clause to the Virginia
apportionment scheme, the Court stated that, although population is
the predominant consideration, other factors may be of some
relevance "in assaying the justness of the apportionment." Stating
that the Federal Constitution requires a state legislative
apportionment to "accord the citizens of the State substantially
equal representation," the Court held that the inequalities found
in the statistical information relating to the population of the
State's various legislative districts, if unexplained, sufficiently
showed an "invidious discrimination" against plaintiffs and those
similarly situated. The Court rejected any possibility of different
bases of representation being applicable in the two houses of the
Virginia Legislature, stating that, in Virginia, each house has "a
direct, indeed the same, relation to the people," and that the
principal present-day justification for bicameralism in state
legislatures is to insure against precipitate action by imposing
greater deliberation upon proposed legislation. Because of the
gross inequalities in representation among various districts in
both houses of the Virginia Legislature, the Court put the burden
of explanation on defendants, and found that they had failed to
meet it. Consequently, the Court concluded that the
discrimination
Page 377 U. S. 684
against Arlington and Fairfax Counties and the City of Norfolk
was a grave and "constitutionally impermissible" deprivation,
violative of the Equal Protection Clause of the Fourteenth
Amendment.
With respect to relief, the Court stated that, while it would
have preferred that the General Assembly itself correct the
unconstitutionality of the 1962 apportionment legislation, it would
not defer deciding the case until after the next regular session of
the Virginia Legislature in January, 1964, because senators elected
in November, 1963, would hold office until 1968, and delegates
elected in 1963 would serve until 1966. Deferring action would thus
result in unreasonable delay in correcting the injustices in the
apportionment of the Senate and the House of Delegates, concluded
the Court.
The District Court's interlocutory order declared that the 1962
apportionment violated the Equal Protection Clause, and accordingly
was void, and of no effect. It also restrained and enjoined
defendants from proceeding with the conducting of elections under
the 1962 legislation, but stayed the operation of the injunction
until January 31, 1963, so that either the General Assembly could
act or an appeal could be taken to this Court, provided that, if
neither of these steps was taken, plaintiffs might apply to the
District Court for further relief. Finally, the court below
retained jurisdiction of the case for the entry of such orders as
might be required.
An appeal to this Court was timely noted by defendants. On
application by appellants, THE CHIEF JUSTICE, on December 15, 1962,
granted a stay of the District Court's injunction pending final
disposition of the case by this Court. Because of this stay, the
November, 1963, election of members of the Virginia Legislature was
conducted under the existing statutory provisions. We noted
probable jurisdiction on June 10, 1963. 374 U.S. 803.
Page 377 U. S. 685
II
The Virginia Constitution provides for a Senate of not more than
40 nor less than 33 members, in Art. IV, § 41, and for a House of
Delegates of not more than 100 nor less than 90 seats, in Art. IV,
§ 42. Senators are elected quadrennially, and delegates biennially.
At all relevant times, state statutes have fixed the number of
senators at 40 and the number of delegates at 100. Pursuant to the
state constitutional requirement of legislative reapportionment at
least decennially, contained in Art. IV, § 43, the General Assembly
has reapportioned senatorial and House seats in 1932, 1942, and
1952, as well as in 1962, and, in 1958, the apportionment statutes
were amended. [
Footnote 1] The
Virginia Constitution contains no express
Page 377 U. S. 686
standards, however, for the apportionment of legislative
representation, and leaves the task of establishing districts
solely up to the discretion of the legislature.
With respect to political subdivisions, Virginia has 98 counties
and 32 independent cities. Despite the absence of any specific
provisions in the State Constitution, population has generally been
traditionally regarded as the most important factor for legislative
consideration in reapportioning and redistricting. Because cities
and counties have consistently not been split or divided for
purposes of legislative representation, multi-member districts have
been utilized for cities and counties whose populations entitle
them to more than a single representative, resulting in there
always being less than 100 delegate districts and less than 40
senatorial districts. And, because of a tradition of respecting the
integrity of the boundaries of cities and counties in drawing
district lines, districts have been constructed only of
combinations of counties and cities, and not by pieces of them.
This has resulted in the periodic utilization of floterial
districts [
Footnote 2]
Page 377 U. S. 687
where contiguous cities or counties cannot be combined to yield
population totals reasonably close to a population ratio figure
determined by dividing the State's total population by the number
of seats in the particular legislative body. Various other factors,
in addition to population, which have historically been considered
by Virginia Legislatures in enacting apportionment statutes include
compactness and contiguity of territory in forming districts,
geographic and topographic features, and community of interests
among people in various districts.
Section 24-14 of the Virginia Code, as amended in 1962, provides
for the apportionment of the Virginia Senate, and divides the State
into 36 senatorial districts for the allocation of the 40 seats in
that body. With a total state population of 3,966,949, according to
the 1960 census, and 40 Senate seats, the ideal ratio would be one
senator for each 99,174 persons. Under the 1962 statute, however,
Arlington County is given but one senator for its 163,401 persons,
only .61 of the representation to which it would be entitled on a
strict population basis. The City of Norfolk has only .65 of its
ideal share of senatorial representation, with two senators for a
population of 305,872. And Fairfax County (including the cities of
Fairfax and Falls Church), with two senators for 285,194 people,
has but .70 of its ideal representation in the Virginia Senate. In
comparison, the smallest senatorial district, with respect to
population, has only 61,730, and the next smallest 63,703.
[
Footnote 3] Thus, the maximum
population
Page 377 U. S. 688
variance ratio between the most populous and least populous
senatorial districts is 2.65 to 1. Under the 1962 senatorial
apportionment, applying 1960 population figures, approximately
41.1% of the State's total population reside in districts electing
a majority of the members of that body. [
Footnote 4]
Apportionment of seats in the Virginia House of Delegates is
provided for in § 24-12 of the Virginia Code, as amended in 1962,
which creates 70 House districts and distributes the 100 House
seats among them. Dividing the State's total 1960 population by 100
results in an ideal ratio of one delegate for each 39,669 persons.
Fairfax County, with a population of 285,194, is allocated only
three House seats under the 1962 apportionment provisions, however,
thus being given only .42 of its ideal representation. While the
average population per delegate in Fairfax County is 95,064, Wythe
County, with only 21,975 persons, and Shenandoah County, with a
population of only 21,825, are each given one seat in the Virginia
House. [
Footnote 5] The maximum
population variance
Page 377 U. S. 689
ratio between the most populous and least populous House
districts is thus 4.36 to 1. The City of Norfolk, with 305,872
people, is given only six House seats, and Arlington County, with a
population of 163,401, is allocated only three. Under the 1962
reapportionment of the House of Delegates, 40.5% of the State's
population live in districts electing a majority of the House
members. Twenty-seven House districts have more than three times
the representation of the people of Fairfax County, 12 districts
have twice the representation of Arlington County, and six, twice
that of Norfolk.
No adequate political remedy to obtain legislative
reapportionment appears to exist in Virginia. [
Footnote 6] No initiative procedure is provided
for under Virginia law. Amendment of the State Constitution or the
calling of a constitutional convention initially requires the vote
of a majority of both houses of the Virginia General Assembly.
[
Footnote 7] Only after such
legislative approval is obtained is such a measure submitted to the
people for a referendum vote. Legislative apportionment questions
do not appear to have been traditionally regarded as nonjusticiable
by Virginia state courts, however, [
Footnote 8] and appellees could
Page 377 U. S. 690
possibly have sought and obtained relief in a state court as
well as in a Federal District Court. [
Footnote 9]
III
In
Reynolds v. Sims, ante, p.
377 U. S. 533, we
held that the Equal Protection Clause requires that seats in both
houses of a bicameral state legislature must be apportioned
substantially on a population basis. Neither of the houses of the
Virginia General Assembly, under the 1962 statutory provisions here
attacked, is apportioned sufficiently on a population basis to be
constitutionally sustainable. Accordingly, we hold that the
District Court properly found the Virginia legislative
apportionment invalid.
Appellants' contention that the court below should have
abstained so as to permit a state court to decide the questions of
state law involved in this litigation is without merit. Where a
federal court's jurisdiction is properly invoked, and the relevant
state constitutional and statutory provisions are plain and
unambiguous, there is no necessity for the federal court to abstain
pending determination of the state law questions in a state court.
McNeese v. Board of Education, 373 U.
S. 668. This is especially so where, as here, no state
proceeding had been
Page 377 U. S. 691
instituted or was pending when the District Court's jurisdiction
was invoked. We conclude that the court below did not err in
refusing to dismiss the proceeding or stay its action pending
recourse to the state courts.
Undoubtedly the situation existing in Virginia with respect to
legislative apportionment differs not insignificantly from that in
Alabama. In contrast to Alabama, in Virginia, the legislature has
consistently reapportioned itself decennially, as required by the
State Constitution. Nevertheless, state legislative
malapportionment, whether resulting from prolonged legislative
inaction or from failure to comply sufficiently with federal
constitutional requisites, although reapportionment is accomplished
periodically, falls equally within the proscription of the Equal
Protection Clause.
We reject appellants' argument that the underrepresentation of
Arlington, Fairfax, and Norfolk is constitutionally justifiable
since it allegedly resulted in part from the fact that those areas
contain large numbers of military and military-related personnel.
Discrimination against a class of individuals, merely because of
the nature of their employment, without more being shown, is
constitutionally impermissible. Additionally, no showing was made
that the Virginia Legislature in fact took such a factor into
account in allocating legislative representation. [
Footnote 10] And state policy, as evidenced
by Virginia's election laws, actually favors and fosters voting by
military and military-related personnel. [
Footnote 11] Furthermore, even if
Page 377 U. S. 692
such persons were to be excluded in determining the populations
of the various legislative districts, the discrimination against
the disfavored areas would hardly be satisfactorily explained,
because, after deducting military and military-related personnel,
the maximum population variance ratios would still be 2.22 to 1 in
the Senate and 3.53 to 1 in the House.
We also reject appellants' claim that the Virginia apportionment
is sustainable as involving an attempt to balance urban and rural
power in the legislature. Not only does this explanation lack legal
merit, but it also fails to conform to the facts. Some Virginia
urban areas, such as Richmond, by comparison with Arlington,
Fairfax and Norfolk, appear to be quite adequately represented in
the General Assembly. And, for the reasons stated in
Reynolds, [
Footnote
12] in rejecting the so-called federal analogy, and in
Gray
v. Sanders, 372 U. S. 368,
372 U. S. 378,
appellants' reliance on an asserted analogy to the deviations from
population in the Federal Electoral College is misplaced. The fact
that the maximum variances in the populations of various state
legislative districts are less than the extreme deviations from a
population basis in the composition of the Federal Electoral
College fails to provide a constitutionally cognizable basis for
sustaining a state apportionment scheme under the Equal Protection
Clause.
We find it unnecessary and inappropriate to discuss questions
relating to remedies at the present time. [
Footnote 13]
Page 377 U. S. 693
Since the next election of Virginia legislators will not occur
until 1965, ample time remains for the Virginia Legislature to
enact a constitutionally valid reapportionment scheme for purposes
of that election. After the District Court has provided the
Virginia Legislature with an adequate opportunity to enact a valid
plan, it can then proceed, should it become necessary, to grant
relief under equitable principles to insure that no further
elections are held under an unconstitutional scheme. Since the
District Court stated that it was retaining jurisdiction and that
plaintiffs could seek further appropriate relief, the court below
presumably intends to take further action should the Virginia
Legislature fail to act promptly in remedying the constitutional
defects in the State's legislative apportionment plan. We therefore
affirm the judgment of the District Court on the merits of this
litigation, and remand the case for further proceedings consistent
with the views stated here and in our opinion in
Reynolds v.
Sims.
It is so ordered.
MR. JUSTICE CLARK concurs in the affirmance for the reasons
stated in his concurring opinion in
Reynolds v. Sims,
ante, p.
377 U.S. 587,
decided this date.
[For dissenting opinion of MR. JUSTICE HARLAN,
see
ante, p.
377 U.S.
589.]
[
Footnote 1]
Reapportionment in 1952 was accomplished only after the Governor
convened a special session of the Virginia Legislature for that
purpose, since the legislature had adjourned without enacting any
statutes reallocating representation. In anticipation of the
constitutional mandate to reapportion in 1962, the Virginia
Governor, in January 1961, appointed a commission on redistricting.
In doing its work, this commission employed the assistance of the
Bureau of Public Administration of the University of Virginia.
Suggesting that Senate and House districts should be, as nearly as
practicable, equal in population, the Bureau submitted two
alternative plans for the apportionment of the House and three
alternative plans for the apportionment of Senate seats. These
plans all followed the various criteria traditionally considered in
previous apportionments, and complied with the constitutionally
prescribed size limitations on both of the houses. In late 1961,
the commission filed its report recommending a redistricting plan
different from any of the plans submitted by the Bureau. Its plan,
based more on political compromise than any of the Bureau's
suggested plans, deviated further from population-based
representation than any of the Bureau's proposals. At its 1962
regular session, the Virginia General Assembly completely
disregarded both the commission report and the plans prepared by
the Bureau, and adopted apportionment schemes of its own for each
house, in practical effect making only minimal changes in the
existing statutory provisions. These enactments, of course, are the
ones principally complained of by appellees in this litigation.
[
Footnote 2]
The term "floterial district" is used to refer to a legislative
district which includes within its boundaries several separate
districts or political subdivisions which independently would not
be entitled to additional representation, but whose conglomerate
population entitles the entire area to another seat in the
particular legislative body being apportioned.
See Baker v.
Carr, 369 U. S. 186,
369 U.S. 256 (CLARK, J.,
concurring). As an example, the City of Lynchburg, with a 1960
population of 54,790, is itself allocated one seat in the Virginia
House of Delegates under the 1962 apportionment plan. Amherst
County, with a population of only 22,953, is not given any
independent representation in the Virginia House. But the City of
Lynchburg and Amherst County are combined in a floterial district
with a total population of 77,743. Presumably, it was felt that
Lynchburg was entitled to some additional representation in the
Virginia House since its population significantly exceeded the
ideal House district size of 36,669. However, since Lynchburg's
population did not approach twice that figure, it was apparently
decided that Lynchburg was not entitled, by itself, to an added
seat. Adjacent Amherst County, with a population substantially
smaller than the ideal district size, was presumably felt not to be
entitled to a separate House seat. The solution was the creation of
a floterial district comprising the two political subdivisions,
thereby according Lynchburg additional representation and giving
Amherst County a voice in the Virginia House without having to
create separate additional districts for each of the two political
subdivisions.
[
Footnote 3]
In illustrating the disparities from population-based
representation in the apportionment of Senate seats, the District
Court included in its opinion a chart showing the composition (by
counties and cities) and populations of, and the number of senators
allotted to, various senatorial districts, and comparing these
figures with the senatorial representation given Arlington, Fairfax
and Norfolk. 213 F. Supp. at 581-582.
[
Footnote 4]
Appellees have pointed out, however, that, since seats in the
Virginia Legislature are reapportioned decennially, and since the
allegedly underrepresented districts are those whose populations
are increasing more rapidly than the allegedly overrepresented
ones, the disparities from population-based representation in both
houses of the Virginia Legislature will continually increase
throughout the 10-year period until the next reapportionment.
[
Footnote 5]
In discussing deviations from population-based representation in
the allocation of seats in the House of Delegates, the District
Court included, as part of its opinion, a chart showing the
populations of and the number of seats given to certain House
districts, and comparing these figures with the House
representation accorded Arlington, Fairfax and Norfolk. 213 F.
Supp. at 582-584.
[
Footnote 6]
For a discussion of the lack of federal constitutional
significance of the presence or absence of an available political
remedy,
see Lucas v. Forty-Fourth General Assembly of Colorado,
post, pp.
377 U. S.
736-737, decided also this date.
[
Footnote 7]
Va.Const., Art. XV, §§ 196, 197.
[
Footnote 8]
In
Brown v. Saunders, 159 Va. 28, 166 S.E. 105 (1932),
the Supreme Court of Appeals of Virginia held that a congressional
districting statute enacted by the Virginia Legislature was
invalid, since it conflicted with Art. IV, § 55, of the State
Constitution, which requires congressional districts to have "as
nearly as practicable, an equal number of inhabitants." Of course,
involved in that case was a specific state constitutional
requirement relating to congressional districting, whereas no such
detailed state requirements exist with respect to apportionment of
seats in the Virginia Legislature. Appellants have argued, however,
that this decision indicates that Virginia courts will also
adjudicate questions relating to the validity of the State's
legislative apportionment scheme under the provisions of the
Federal Constitution.
[
Footnote 9]
However, in
Tyler v. Davis, a case involving a suit
instituted on March 26, 1963, almost four months after the District
Court's decision in the instant case, the Circuit Court of the City
of Richmond dismissed on the merits an action challenging the
apportionment of seats in the Virginia Legislature. Although the
state court found that it had jurisdiction and that the questions
raised were justiciable in nature, it dismissed the complaint on
the ground that plaintiffs had failed to show that the scheme for
apportioning seats in the Virginia Legislature was an invidiously
discriminatory one violative of the Equal Protection Clause.
[
Footnote 10]
See 213 F. Supp. at 584.
[
Footnote 11]
Virginia's election laws enable persons in the armed forces to
vote without registration or payment of poll tax. Va.Code Ann.,
1950 (Repl. Vol. 1964) § 24-23.1. While the literal language of
this provision grants the privilege to those "in active service . .
. in time of war," the Virginia State Board of Electors is applying
it currently. Although the more stationing of military personnel in
the State does not give them residence, Virginia election officials
interpret the applicable statutory provisions to mean that
residence for military personnel is determined in the same manner
as for all other citizens. Military personnel and members of their
families who have been residents of Virginia for a year, residents
of a county, city or town for six months, and residents of a
precinct for 30 days are entitled to vote. Military personnel are
not included in the categories of persons disabled from voting.
Va.Code Ann., 1950 (Repl. Vol. 1964) § 24-18.
[
Footnote 12]
See Reynolds v. Sims, ante, pp.
377 U.S. 571-576.
[
Footnote 13]
See id. at
377 U.S.
585.
MR. JUSTICE STEWART.
In this case, the District Court recognized that "population is
not . . . the sole or definitive measure of districts when taken by
the Equal Protection Clause." 213 F. Supp. at 584. In reaching its
decision, the court made clear that it did not "intend to say that
there cannot be wide differences of population in districts if a
sound reason can be advanced for the discrepancies."
Id.
at
Page 377 U. S. 694
585. The District Court, however, could find "no rational basis
for the disfavoring of Arlington, Fairfax and Norfolk."
Ibid. In my opinion, the appellants have failed to show
that the trial court erred in reaching this conclusion.
Accordingly, in keeping with the view expressed in my dissenting
opinion in
Lucas v. Forty-Fourth General Assembly of Colorado,
post, p.
377 U. S. 744,
I would affirm the District Court's judgment holding that, to the
extent a state legislative apportionment plan is conclusively shown
to have no rational basis, such a plan violates the Equal
Protection Clause.