The Hawaii Constitution provides that three small counties elect
15 of 25 state senators, while the fourth county (Oahu), with 79%
of the State's population, elects 10. Under an apportionment
authorized by the Constitution, Oahu has been allocated 36 of the
51 seats in the state house of representatives, the representatives
being elected from multi-member districts apportioned on the basis
of the number of registered voters in each. Suit was brought in
federal district court attacking the apportionment plan. The
District Court held the senate, but not the house, apportionment
unconstitutional, and directed the legislature to submit to the
voters the question of a convention to amend the constitution. On
motion of intervening legislators, it modified its order to require
the enactment of three statutes: (1) an interim senate
apportionment plan, using registered voters as a basis, to be
submitted to the court, for use in the 1966 election, (2) a
constitutional amendment embodying pertinent provisions of the
interim plan for submission to the voters at that election, and (3)
submission to the electorate of the question of calling a
constitutional convention. The senate apportionment plan adopted by
the legislature allocated 19 of the 25 senators to Oahu on the
basis of registered voters. The senators were to be elected from
five multi-member districts. The District Court, while expressly
approving the use of a registered voters basis, disapproved the
plan because of the failure to create single member districts, and
reinstated its earlier order requiring immediate resort to the
convention method.
Held:
1. In permitting legislative action, the District Court should
have allowed legislative review of the entire apportionment scheme,
without restricting the available choices for interim and permanent
plans. Pp.
384 U. S.
83-86.
Page 384 U. S. 74
2. The proposed senate reapportionment plan, together with the
existing house apportionment, constitutes an interim arrangement
which has not been shown to fall short of federal standards. Pp.
384 U. S.
85-97.
(a) The Equal Protection Clause does not require that at least
one house of a bicameral legislature consist of single member
districts. The legislative choice of multi-member districts is
subject to constitutional challenge only upon a showing that the
plan was designed to or would operate to minimize or cancel out the
voting strength of racial or political groups, and no such showing
was made. Pp.
384 U. S.
88-89.
(b) Although both houses of the legislature must be apportioned
substantially on a population basis, the Equal Protection Clause
does not require the use of total population figures derived from
the federal census as the only standard to measure substantial
population equivalency. Pp.
384 U. S.
90-92.
(c) Hawaii's registered voters basis, depending in part upon
political activity and chance factors, is not itself a permissible
population basis, but may be used so long as it produces a
distribution of legislators not substantially different from that
which would result from use of a permissible population basis. Pp.
384 U. S.
92-93.
(d) Hawaii's special population problems, including large
concentrations of military and other transients centered on Oahu,
suggest that state citizen population, rather than total
population, is the appropriate comparative guide. Pp.
384 U. S.
94-95.
(e) The registered voters basis is acceptable for the interim
plan in view of the District Court's conclusion that the
apportionment achieved by its use substantially approximated that
which would have occurred had state citizen population been the
guide. Pp.
384 U. S.
95-96.
3. The District Court is directed on remand to enter an order
adopting the proposed senate reapportionment plan plus the existing
house apportionment as an interim legislative apportionment for
Hawaii, and retaining jurisdiction for such further proceeding as
may be appropriate after the 1966 general elections have been held.
P.
384 U. S.
98.
238 F.
Supp. 468,
240 F.
Supp. 724, vacated and remanded.
Page 384 U. S. 75
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This reapportionment case was brought in the District Court of
Hawaii by residents and qualified voters of the City and County of
Honolulu, appellees in each of the three appeals consolidated here.
They alleged that Hawaii's legislative apportionment was
unconstitutional under our decisions in
Reynolds v. Sims,
377 U. S. 533, and
companion cases. [
Footnote 1]
William S. Richardson, Lieutenant Governor of Hawaii, also an
appellee in all three appeals, was named defendant in his capacity
as the state officer responsible for supervising state elections.
John A. Burns, Governor of Hawaii, appellant in No. 318, intervened
as a party plaintiff. Members of the State
Page 384 U. S. 76
House of Representatives, appellants in No. 323, and members of
the State Senate, appellants in No. 409, intervened as parties
defendant.
Under the Hawaii Constitution, adopted in 1950 and put into
effect upon admission to statehood in 1959, the State is divided
into four major counties, referred to in the State Constitution as
"basic areas." Each county is made up of a group of islands,
separated from each of the other counties by wide and deep ocean
waters. The principal island of the City and County of Honolulu,
the most populous county, is the island of Oahu. It is the State's
industrial center, principal tourist attraction, and site of most
of the many federal military establishments located in the State.
In 1960, 79% of the State's population lived there. The three other
counties, primarily rural and agricultural, are Hawaii County, Maui
County, and Kauai County. [
Footnote
2]
The apportionment article of the State Constitution was framed
to assure that the three small counties would choose a controlling
majority of the State Senate, and that the population center, Oahu,
would control the State House of Representatives. Thus, Art. III, §
2, of the State Constitution apportions a 25-member senate among
six fixed senatorial districts, assigning a specified number of
seats to each. Fifteen senate seats, a controlling majority, are
allocated among Hawaii, Kauai and
Page 384 U. S. 77
Maui Counties, and 10 seats are assigned to Oahu. Alteration of
this apportionment is made very difficult by a provision
"that no constitutional amendment altering . . . the
representation from any senatorial district in the senate shall
become effective unless it shall also be approved by a majority of
the votes tallied upon the question in each of a majority of the
counties. [
Footnote 3]"
3 Hawaii Const., Art. XV, § 2, � 6.
For the State House of Representatives, on the other hand, the
State Constitution establishes 18 representative districts, 10 of
which are on Oahu, and requires the Governor to apportion the
51-member body among these districts on the basis of the number of
voters registered in each. The first apportionment occurred in
1959, just prior to statehood, and was based on registration
figures for the 1958 territorial election. It produced 13
multi-member representative districts and five single member
districts, and allocated 36 representatives, a controlling
majority, to Oahu. [
Footnote 4]
The Governor is required to reapportion
Page 384 U. S. 78
the State decennially, a duty which may be enforced by mandamus
from the State Supreme Court.
This apportionment scheme was first attacked in the Supreme
Court of Hawaii within a month after we decided
Reynolds v.
Sims. That court refused to pass on the validity of the
apportionment at that time. It noted the imminence of the 1964
election, and stated its belief that, consistent with the Hawaii
Constitution, judicial proceedings should await legislative
proposals for a constitutional amendment or a constitutional
convention.
Guntert v. Richardson, 47 Haw. 662,
394 P.2d 444.
Compare Reynolds v. Sims, 377 U.S. at
377 U.S. 585. A special legislative
session was then called by the Governor to consider
reapportionment. It failed to act.
This suit was brought on August 13, 1964. A three-Judge court
was convened, as required by 28 U.S.C. §§ 2281, 2284 (1964 ed.).
Interim relief was denied in view of the pendency of the 1964
elections, and hearings were set for January, 1965. The court
published its first decision and order on February 17, 1965.
238 F.
Supp. 468. That order declared all provisions of the
apportionment plan contained in the Hawaii Constitution valid under
the Equal Protection Clause except the mentioned provisions
relating to the apportionment of the State Senate. These were
affirmatively declared to be invalid and unconstitutional.
In the February 17 order, the District Court decided not to
fashion its own reapportionment plan for the senate. Nor did it
instruct the legislature to reapportion the senate or to propose
constitutional amendments for that purpose. [
Footnote 5] Instead, it directed the legislature
to submit
Page 384 U. S. 79
to the electorate at an immediate special election the question,
"Shall there be a convention to propose a revision of or amendments
to the Constitution?" The legislature was also directed to
establish the convention procedures according to a timetable the
court set. [
Footnote 6] The
court retained jurisdiction for all purposes, including that of
itself reapportioning the senate in the event of
Page 384 U. S. 80
a negative vote on the question, failure of the convention to
adopt a suitable amendment, or rejection by the electorate of the
amendment adopted by the convention.
The court chose the convention route over the legislative route
for two reasons. Under the Hawaii Constitution, all elections
necessary to adoption of amendments proposed by a constitutional
convention may be held on a special basis. Legislative proposals,
on the other hand, may be submitted only at a general election. In
starting the machinery necessary for a convention, the court hoped
that a valid permanent plan could be presented to the electorate
and adopted before the next general election, to be held in 1966.
The second reason was that the court doubted that the legislature
would be able to agree on an amendment proposal for reapportioning
the senate, in view of the failure of the previously called
legislative special session to act.
The special elections necessary under the court's order,
however, entailed substantial expense. On motion of the intervening
legislators, which showed substantial progress towards a
legislative proposal for amendment, the court, on March 9, 1965,
modified its order. As suggested by the parties, it suspended the
February 17 order, and instead required the legislature to enact
three separate statutes before turning to regular legislative
business. One statute was to propose an interim senate
apportionment plan, using registered voters as a basis, to be
submitted to the court. If approved, it would be adopted by the
court as its plan for use in the 1966 general election. The second
statute was to propose a constitutional amendment embodying
pertinent provisions of the interim plan, to be submitted to the
people for approval at that election. The third statute was to
submit the question of calling a constitutional convention to the
electorate at the 1966 general election.
Page 384 U. S. 81
Three statutes were enacted. H.B. 987, the only one of these
measures before us, [
Footnote
7] proposed an interim plan of apportionment for the senate. 1
Hawaii Sess.Laws 1965, Act 281. The plan followed the pattern for
house apportionment. It established eight senatorial districts,
five on Oahu. As required by the court's order, the 25 senators
were to be apportioned on the basis of registered voters. [
Footnote 8] Using figures derived from
registration for the 1964 general elections, Oahu was allocated 19
out of the 25 senators, a controlling majority.
Under the total apportionment scheme which resulted from this
enactment, Oahu would not have any single-member districts in
either the house or the senate. The distribution of registered
voters in Oahu is such that Oahu's 10 representative districts have
two to six representatives each, and its five senatorial districts
each would have either three or four senators. Hawaii County would
be a single senatorial district represented by three senators, and
have five representative districts, four choosing a single
representative and the fifth electing three. Maui County would be a
single senatorial district electing two senators and have two
representative districts, one electing four, and the other a single
representative.
Page 384 U. S. 82
Kauai County would be a single senatorial and a single
representative district electing one senator and three
representatives. Thus, Oahu, with 79% of total population, would
elect 76% of the senate, 19 of 25 senators, and 71% of the house,
36 of 51 representatives.
The new senate apportionment scheme was submitted to the court
immediately upon passage. By opinion and order of April 28, 1965,
the District Court disapproved it, and reinstated the provision of
its earlier order requiring immediate resort to the convention
method. [
Footnote 9]
240 F.
Supp. 724. It expressly approved the use of the registered
voters measure of population. Its disapproval was based on the
legislative decision not to create single-member senatorial
districts for Oahu, but merely to increase the number of
multi-member senatorial districts on that island from two to five.
It was not contended that the apportionment failed to meet the
standard of
Reynolds v. Sims if the use of multi-member
districts and the use of registered voters as the apportionment
base did not offend the Equal Protection Clause. [
Footnote 10]
In May, 1965, the Governor filed a notice of appeal to this
Court from certain provisions of the two orders, and thereafter the
participating senators and representatives also filed notices of
appeal from parts of the orders. [
Footnote 11]
Page 384 U. S. 83
We noted probable jurisdiction, and consolidated the appeals for
argument. 382 U.S. 807. We set aside and vacate both orders and
remand for further proceedings consistent with this opinion.
I
All parties concede the invalidity of the provisions of Art.
III, § 2, apportioning the senate on the basis of geography, rather
than population, and of the provision of Art. XV, § 2, � 6,
requiring a majority vote of the electorate in each of a majority
of the counties to amend senatorial apportionment established by
the constitution. The District Court concluded that, as a matter of
state law, the house and senate apportionment plans were severable.
Compare Lucas v. Colorado General Assembly, 377 U.
S. 713,
377 U. S. 735.
Even so,
Maryland Committee v. Tawes, 377 U.
S. 656, holds that a court, in reviewing an
apportionment plan, must consider the scheme as a whole. Implicit
in this principle is the further proposition that the body creating
an apportionment plan in compliance with a judicial order should
ordinarily be left free to devise proposals for apportionment on an
overall basis. The Governor argues that the District Court
committed "fundamental error" in preventing the Hawaii Legislature
from engaging in such deliberations, and that, for that reason
alone, the legislative product was inevitably tinged with
constitutional error.
We agree that, once the District Court decided to permit
legislative action, it could and should have made clear to the
Hawaii Legislature that it could propose modification of the house
as well as the senate plan, both as to the interim apportionment to
be adopted under
Page 384 U. S. 84
court order and as to proposals for permanent reapportionment
through constitutional amendment. That approach would have enabled
the legislature to channel its efforts to permanent, rather than
temporary, change. Indeed, the failure to invite such thoroughgoing
consideration was particularly unfortunate in connection with the
court's requirement in its order of March 9 that the Hawaii
Legislature prepare constitutional amendments for a permanent
apportionment plan. By directing that the permanent plan
incorporate the interim reapportionment plan, and by restricting
the choices available to the legislature in adopting an interim
plan, the court put significant restraints on the legislature's
deliberations about permanent apportionment. It seemed not only to
limit the legislature to consideration of senate apportionment, but
also to require that a registered voters basis be used for that
apportionment. These constraints, together with the District
Court's action in explicitly sustaining the constitutionality of
the house apportionment in its order of February 17, may have
limited the opportunities of the legislature to construct the total
scheme of apportionment best suited to the State's needs. [
Footnote 12] Our decision in
Reynolds v. Sims emphasized
Page 384 U. S. 85
that
"legislative 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 in a
timely fashion after having had an adequate opportunity to do
so."
377 U.S. at
377 U.S.
586. Until this point is reached, a State's freedom of
choice to devise substitutes for an apportionment plan found
unconstitutional either as a whole or in part should not be
restricted beyond the clear commands of the Equal Protection
Clause.
We are dealing here, however, only with the interim plan. The
State remains free to adopt other plans for apportionment, and the
present interim plan will remain in effect for no longer time than
is necessary to adopt a permanent plan. The 1966 general elections
are imminent, and election machinery must be put into operation
before further proceedings could be completed. In this context, the
question of embarrassment of state legislative deliberations may be
put aside. For present purposes, H.B. 987 may be treated together
with the existing house apportionment as a new, overall proposal
for interim apportionment. The only question for us is whether,
viewing the resulting plan in its entirety
Page 384 U. S. 86
and without regard to its history, it fall short of federal
constitutional standards. We conclude for reasons to be stated that
H.B. No. 987 and the existing house apportionment together
constitute an interim legislative apportionment which has not been
shown to fall short of federal standards. We direct the District
Court to enter an order appropriate to adopt the plan as the
court's own for legislative apportionment applicable to the 1966
election, and thereafter until a constitutional permanent plan is
adopted, constitutional deficiencies in the interim plan are shown
or another interim plan for reapportionment of the Hawaii
Legislature suggested by the legislature is approved by the
court.
II
The April 28 opinion began analysis in terms of the interim
senate apportionment plan's effect upon representation in the
State's scheme of representation as a whole. The District Court was
not concerned with population disparities, however, but with what
it considered to be a difference in representational effectiveness
between multi-member and single member legislative districts.
[
Footnote 13] In an informal
memorandum circulated among
Page 384 U. S. 87
the parties in early April, the District Court had advised the
legislature of its doubts concerning the validity of a multi-member
senatorial districting plan, saying:
"We believe that the Senate should be redistricted into single
senatorial districts, although we may approve two-member districts
if and only if the legislature can affirmatively show substantial
reasons therefor. There may very well be valid reasons for one or
two 2-member districts in the neighboring islands, but we perceive
no justification whatsoever for other than single member districts
on the Island of Oahu, particularly the heavily populated areas
thereof."
The opinion of April 28 clearly reveals that the court was still
convinced that only single member senatorial districting on Oahu
would be appropriate. It felt, for example, that the legislature
had "built monoliths" into the districting scheme by making the
boundaries of the third senatorial district and the eighth
representative district one and the same, thus enabling the same
constituency to elect four representatives and three senators, and
by fashioning the sixth senatorial district almost entirely from
the fifteenth representative district, from which six
representatives and four senators would be elected. It also felt
that, in setting up the senatorial districts on Oahu, the
legislature had not taken into account "community of interests,
community of problems, socio-economic status, political and racial
factors"; and, finally, that
"the legislature's adamant insistence on three and four-member
senatorial districting was the conscious or unconscious -- though
not unnatural -- reluctance of the affected senators to carve out
single member districts which thereafter would in all probability
result in a political 'duel to the death' with a fellow and
neighbor senator."
240 F. Supp. at 730-731.
Page 384 U. S. 88
But the Equal Protection Clause does not require that at least
one house of a bicameral state legislature consist of single member
legislative districts;
see Fortson v. Dorsey, 379 U.
S. 433. Where the requirements of
Reynolds v.
Sims are met, apportionment schemes including multi-member
districts will constitute an invidious discrimination only if it
can be shown that,
"designedly or otherwise, a multi-member constituency
apportionment scheme, under the circumstances of a particular case,
would operate to minimize or cancel out the voting strength of
racial or political elements of the voting population."
Id. at
379 U. S.
439.
It may be that this invidious effect can more easily be shown
if, in contrast to the facts in
Fortson, districts are
large in relation to the total number of legislators, if districts
are not appropriately subdistricted to assure distribution of
legislators that are resident over the entire district, or if such
districts characterize both houses of a bicameral legislature,
rather than one. But the demonstration that a particular
multi-member scheme effects an invidious result must appear from
evidence in the record.
Cf. McGowan v. Maryland,
366 U. S. 420.
That demonstration was not made here. [
Footnote 14] In relying on conjecture as to the
effects of multi-member districting, rather than demonstrated fact,
the court acted in a manner more appropriate to the body
responsible for drawing up the districting plan. Speculations do
not supply evidence that the multi-member districting was designed
to have or had the invidious effect necessary to a judgment of
Page 384 U. S. 89
the unconstitutionality of the districting. Indeed, while it
would have been better had the court not insisted that the
legislature "justify" its proposal, except insofar as it thus
reserved to itself the ultimate decision of constitutionality
vel non, the legislature did assign reasons for its
choice. [
Footnote 15] Once
the District Court had decided, properly, not to impose its own
senate apportionment, but to allow the legislature to frame one,
such judgments were exclusively for the legislature to make. They
were subject to constitutional challenge only upon a demonstration
that the interim apportionment, although made on a proper
population basis, was designed to, or would operate to, minimize or
cancel out the voting strength of racial or political elements of
the voting population. [
Footnote
16]
Page 384 U. S. 90
III
The dispute over use of distribution according to registered
voters as a basis for Hawaiian apportionment arises because of the
sizable differences in results produced by that distribution in
contrast to that produced by the distribution according to the
State's total population, as measured by the federal census
figures. In 1960, Oahu's share of Hawaii's total population was
79%. Its share of persons actually registered was 73%. On the basis
of total population, Oahu would be assigned 40 members of the
51-member house of representatives; on the basis of registered
voters, it would be entitled to 37 representatives. [
Footnote 17] Probably because of uneven
distribution of military residents -- largely unregistered -- the
differences among various districts on Oahu are even more striking.
For example, on a total population basis, Oahu's ninth and tenth
representative districts would be entitled to 11 representatives,
and the fifteenth and sixteenth representative districts would be
entitled to eight. On a registered
Page 384 U. S. 91
voter basis, however, the ninth and tenth districts claim only
six representatives, and the fifteenth and sixteenth districts are
entitled to 10. [
Footnote
18]
The holding in
Reynolds v. Sims, as we characterized it
in the other cases decided on the same day, is that "both houses of
a bicameral state legislature must be apportioned substantially on
a population basis." [
Footnote
19] We start with the proposition that the Equal Protection
Clause does not require the States to use total population figures
derived from the federal census as the standard by which this
substantial population equivalency is to be measured. Although
total population figures were, in fact, the basis of comparison in
that case and most of the others decided that day, our discussion
carefully left open the question what population was being referred
to. At several points, we discussed substantial equivalence in
terms of voter population or citizen population, making no
distinction between the acceptability of such a test and a test
based on total population. [
Footnote 20] Indeed, in
WMCA, Inc. v. Lomenzo,
377 U. S. 633,
decided the same day, we treated an apportionment based upon United
States citizen population as presenting problems
Page 384 U. S. 92
no different from apportionments using a total population
measure. Neither in
Reynolds v. Sims nor in any other
decision has this Court suggested that the States are required to
include aliens, transients, short-term or temporary residents, or
persons denied the vote for conviction of crime in the
apportionment base by which their legislators are distributed and
against which compliance with the Equal Protection Clause is to be
measured. [
Footnote 21] The
decision to include or exclude any such group involves choices
about the nature of representation with which we have been shown no
constitutionally founded reason to interfere. Unless a choice is
one the Constitution forbids,
cf., e.g., Carrington v.
Rash, 380 U. S. 89, the
resulting apportionment base offends no constitutional bar, and
compliance with the rule established in
Reynolds v. Sims
is to be measured thereby. Use of a registered voter or actual
voter basis presents an additional problem. Such a basis depends
not only upon criteria such as govern state citizenship, but also
upon the extent of political activity of those eligible to register
and vote. Each is thus susceptible to improper influences by which
those in political power might be able to perpetuate
underrepresentation of groups constitutionally entitled to
participate in the electoral process
Page 384 U. S. 93
or perpetuate a "ghost of prior malapportionment." [
Footnote 22] Moreover,
"fluctuations in the number of registered voters in a given
election may be sudden and substantial, caused by such fortuitous
factors as a peculiarly controversial election issue, a
particularly popular candidate, or even weather conditions."
Ellis v. Mayor & City Council of Baltimore, 352
F.2d 123, 130 (C.A.4th Cir.1965). [
Footnote 23] Such effects must be particularly a matter
of concern where, as in the case of Hawaii apportionment,
registration figures derived from a single election are made
controlling for as long as 10 years. In view of these
considerations, we hold that the present apportionment satisfies
the Equal Protection Clause only because, on this record, it was
found to have produced a distribution of legislators not
substantially different from that which would have resulted from
the use of a permissible population basis.
As the District Court noted, the 1950 constitutional convention
discussed three possible measures, total population, state citizen
population, and number of registered voters, in considering how the
State House of Representatives should be apportioned. Apportionment
under the Organic Act had been on the basis of citizen population;
this had proved difficult to administer because statistics were not
readily available. Total population was disfavored because the
census tracts, by which it is determined and reported, did not
necessarily comport with traditional local boundaries. Registered
voters was chosen as a reasonable approximation of both citizen and
total population -- readily determinable, conveniently
Page 384 U. S. 94
broken down by election district, and a measure which, as
against total population, somewhat favored the other islands over
Oahu. It is fair to say that the convention report reflected that
citizen population, as much as total population, was the basis
against which a registered voters standard was compared.
Hawaii's special population problems might well have led it to
conclude that state citizen population, rather than total
population, should be the basis for comparison. The District Court
referred to the continuing presence in Hawaii of large numbers of
the military:
"Hawaii has become the United States' military bastion for the
entire Pacific, and the military population in the State fluctuates
violently as the Asiatic spots of trouble arise and disappear. If
total population were to be the only acceptable criterion upon
which legislative representation could be based, in Hawaii, grossly
absurd and disastrous results would flow. . . ."
238 F. Supp. at 474. [
Footnote 24] Similarly, the court referred to the
distortion in census figures attributable to
"the large number of tourists who continually flow in and out of
the State and who . . . , for census purposes, are initially, at
least, counted as part of Hawaii's census population. . . ."
Id. at 475. (Footnote omitted.) Both the tourists and
the military tend to be highly concentrated on Oahu, and, indeed,
are largely confined to particular regions of that island. Total
population figures may thus constitute a substantially distorted
reflection of the distribution of state citizenry. If so, a finding
that registered voters distribution does
Page 384 U. S. 95
not approximate total population distribution is insufficient to
establish constitutional deficiency. It is enough if it appears
that the distribution of registered voters approximates
distribution of state citizens or another permissible population
base.
Because state citizen population figures are hard to obtain or
extrapolate, a comparison of the results which would be obtained by
use of such figures with the results obtained by using registered
voter figures is difficult. But the District Court found that
military population of Oahu, and its distribution over that island,
was sufficient to explain the already noted differences between
total population and registered voters apportionments, both as
among Hawaii's four counties and as among Oahu's representative
districts. The District Court noted
"that there is nothing in the State Constitution or the Hawaii
statutes which
per se excludes members of the armed forces
from establishing their residence in Hawaii and thereafter becoming
eligible to vote. This court finds no scheme in Hawaii's
Constitution or in the statutes implementing the exercise of
franchise which is aimed at disenfranchising the military or any
other group of citizens."
238 F. Supp. at 475. No issue was raised in the proceedings
before it that military men had been excluded improperly from the
apportionment base. [
Footnote
25]
Page 384 U. S. 96
Moreover, the District Court stressed that Hawaii's Constitution
and laws actively encourage voter registration. A high proportion
of the possible voting population is registered, [
Footnote 26] and
"strong drives to bring out the vote have resulted in a vote of
from 88% to 93.6% of all registered voters during the elections of
1958, 1959, 1960 and 1962."
Id. at 476 (footnote omitted). In these circumstances,
we find no demonstrated error in the District Court's conclusion
that the apportionment achieved by use of a registered voters basis
substantially approximated that which would have appeared had state
citizen population been the guide.
We are not to be understood as deciding that the validity of the
registered voters basis as a measure has been established for all
time or circumstances, in Hawaii or elsewhere. The District Court
was careful to disclaim any holding that it was a "perfect basis."
We agree. It may well be that reapportionment more frequently than
every 10 years, perhaps every four or eight years, would better
avoid the hazards of its use. Use of presidential election year
figures might both assure a high level of participation and reduce
the likelihood that varying degrees of local interest in the
outcome of the election would produce different patterns of
political activity over
Page 384 U. S. 97
the State. Other measures, such as a system of permanent
personal registration, might also contribute to the stability and
accuracy of the registered voters figure as an apportionment basis.
Future litigation may reveal infirmities, temporary or permanent,
not established by the present record. [
Footnote 27] We hold that, with a view to its interim
use, Hawaii's registered voter basis does not, on this record, fall
short of constitutional standards.
IV
Our conclusion that the interim apportionment should apply to
the 1966 election requires that the provisions of the order of
February 17 mandating an immediate special election on the question
of calling a constitutional convention should remain inoperative.
The imminence of the 1966 elections precludes any further action
pending that event. But the question remains what role the District
Court has in bringing about a permanent reapportionment as promptly
as reasonably may be after that election. We believe it should
retain jurisdiction of the case to take such further proceedings as
may be appropriate in the event a permanent reapportionment is not
made effective. We note that the electorate will vote at the 1966
election on the question whether a constitutional convention should
be convened. We see no reason, however, why the newly elected
legislature should either be compelled to propose amendments or be
precluded from proposing them. The legislature will doubtless
Page 384 U. S. 98
find reason enough to act in the fact that the District Court
will retain jurisdiction over the cause to take any action that may
be appropriate pending the adoption of a permanent reapportionment
which complies with constitutional standards. Such action may
include further inquiry into the constitutionality of the present
plan in its operation, consideration of substitute interim plans
for apportioning the house and senate that might be submitted by
the legislature in the event of failure of proposals for
constitutional amendment, or judicial apportionment if the present
plan is shown to be constitutionally deficient and no acceptable
substitute is forthcoming.
The District Court is accordingly directed on remand to enter an
appropriate order (1) adopting H.B. No. 987 and the existing house
apportionment as an interim legislative apportionment for Hawaii
and (2) retaining jurisdiction of the cause for all purposes.
Our judgment shall issue forthwith.
Vacated and remanded.
MR. JUSTICE FORTAS took no part in the consideration or decision
of this case.
* Together with No. 323,
Cravalho et al. v. Richardson et
al., and No. 409,
Abe et al. v. Richardson et al.,
also on appeal from the same court.
[
Footnote 1]
WMCA, Inc. v. Lomenzo, 377 U.
S. 633;
Maryland Committee v. Tawes,
377 U. S. 656;
Davis v. Mann, 377 U. S. 678;
Roman v. Sincock, 377 U. S. 695, and
Lucas v. Colorado General Assembly, 377 U.
S. 713.
[
Footnote 2]
Kalawao, a Hansen's disease treatment area, is considered a
fifth county for some purposes. However, its residents are
considered part of Maui County for political purposes, and vote in
that county for state legislators. We therefore treat only the four
major counties, or basic areas, in this opinion. The State's 1960
population of 632,772 was divided among these four counties as
follows: City and County of Honolulu, 500,409; Hawaii County,
61,332; Maui County, 42,855, and Kauai County, 28,176. The
population of the small outlying islands other than Oahu which
comprise the City and County of Honolulu is negligible. We
therefore refer to that county hereafter as Oahu.
[
Footnote 3]
The District Court found that
"this proviso was specifically inserted in order to freeze
representation in the senate, and it gave to the rural counties
what amounted to the right of veto over any attempt to change the
representative makeup of the senate."
238 F.
Supp. 468, 472.
[
Footnote 4]
Hawaii uses the method of equal proportions to distribute
legislators first among the four counties and then among the
districts within each county. This is the same method as used in
apportioning the members of the House of Representatives of the
United States Congress. Complex mathematically, it determines a
priority order in which legislators are to be assigned among
various competing districts. The system is discussed in
Schmeckebier, The Method of Equal Proportions, 17 Law &
Contemp.Prob. 302 (1952). Use of this method will not necessarily
result in a constitutional apportionment. It is the distribution of
legislators, rather than the method of distributing legislators,
that must satisfy the demands of the Equal Protection Clause. No
claim is made, however, that the effect of applying the method in
Hawaii in this case was to deny any person equal protection of the
laws by creating representative districts substantially unequal in
size.
[
Footnote 5]
The court doubted whether the legislature itself had authority
under state law to adopt an interim apportionment plan, in view of
the decision in
Guntert v. Richardson, supra. The Hawaii
Constitution authorizes the legislature to propose constitutional
amendments to the electorate either upon passage by a two-thirds
vote of both houses of the legislature or upon passage by a
majority vote of both houses in each of two successive legislative
sessions. The Hawaii Constitution also authorizes the legislature
to submit to the people the question of calling a constitutional
convention, either at a general election or at a special election
called for that purpose. Hawaii Const., Art. XV, § 3.
[
Footnote 6]
Paragraph 4 of the court's order provided:
"4. This court will not interfere with the convening or
conducting of the business of the Third State Legislature in
regular session in 1965, save and except that the parties herein
are hereby enjoined from taking final action upon any legislation,
except such actions as are necessary to organize the respective
houses at such session and appropriate funds for the session, until
legislation, pursuant to the provision of Article XV of said
Constitution providing for the submission to the people of Hawaii,
by special election to be held not later than August 1, 1965, the
question: 'shall there be a convention to propose a revision of or
amendments to the Constitution?,' and for any and all acts required
by law to implement such legislation, has been enacted into law.
Such legislation shall also provide that, if the vote be in the
constitutional affirmative, then a special election shall be held
not later than September 15, 1965, to elect delegates to the
convention in the manner provided in the Constitution. Such
legislation may include legislative action under Article XV,
Section 2, 4th paragraph, of the Constitution. Such legislation
shall further provide that the convention convene not later than
October 15, 1965, and that it conclude its deliberation in time to
submit its proposed constitutional amendments to the electorate of
Hawaii at a special election to be held not later than January 30,
1966, including (but not limiting the convention thereto)
provisions therein for reapportioning the Senate of Hawaii on a
constitutionally valid basis. Such legislation shall also
appropriate and make available funds for the expenses of such
elections and convention."
238 F. Supp. at 479.
[
Footnote 7]
H.B. 986, 1 Hawaii Sess.Laws 1965, Act 280, provides for
submission to the electorate in the 1966 general election of the
question whether a constitutional convention should be called. H.B.
773, 1 Hawaii Sess.Laws 1965, p. 483, proposing a constitutional
amendment in the same form as the interim plan, was passed by only
a majority vote in the senate, and hence must be acted on again
before it can be submitted to the people for adoption or rejection.
See n 5,
supra. In view of the constraints placed on the
legislature in adopting this proposal, we think the District Court,
on remand, should make no attempt to require any further action on
this measure.
See 384 U. S.
infra.
[
Footnote 8]
The method of equal proportions was to be used for apportioning
the senate, as well as the house.
See n 4,
supra.
[
Footnote 9]
On May 21, 1965, MR. JUSTICE DOUGLAS stayed this action pending
our determination of these appeals.
[
Footnote 10]
We are not to be understood as agreeing with the District Court,
insofar as it may have rested its decision on the view that use of
the method of equal proportions itself saved the plan from
constitutional challenge based on
Reynolds v. Sims. 240 F.
Supp. at 727.
See n 4,
supra.
[
Footnote 11]
These notices were timely filed. The February 17 opinion was not
formally entered until April 9, 1965. The second decision was dated
and entered April 28, 1965. Notices of appeal were filed May 3 and
7, 1965. Whether judged by the date of entry,
United States v.
Hark, 320 U. S. 531;
Fed.Rule Civ.Proc. 58, or by the fact that the order incorporated
in the decision of February 17 was not finally made effective until
the decision of April 28,
United States v. Crescent Amusement
Co., 323 U. S. 173,
323 U. S. 177,
the appeals from the decision announced February 17 were timely. 28
U.S.C. § 2101(b) (1964 ed.).
[
Footnote 12]
We have not overlooked the fact that the limitations were
suggested by the legislators themselves. Nevertheless, consistently
with
Maryland Committee v. Tawes, the District Court
should have indicated to the legislators that they possessed the
same broad scope of inquiry as the court had said in its opinion of
February 17 was open to a constitutional convention. It had
suggested there that there might be appropriately considered by the
convention:
"1. Whether [Hawaii] will continue to use registered voters as
the apportionment basis, or change it to State citizen population
eligible to vote (
i.e., voter population), or citizen
population, or total population."
"2. Whether it is better to have one or both houses of the
legislature composed of single member representative districts, or
to have and justify one or both houses composed, in whole or in
part, of multi-member or floterial districts."
"3. Whether decennial reapportionment of either or both houses
should be made on or before June 1st of the year preceding the
Federal census -- as is now the case -- or on a date soon after the
taking of such census."
"4. Whether the representative district lines should remain
substantially as they now are or whether ultimately (
i.e.,
after 1970) there should be redistricting in such a manner that the
census tracts and representative districts can be coordinated for
the statistical purposes necessary to implement the changes (if
any) made in the basis of reapportionment."
238 F. Supp. at 478.
[
Footnote 13]
"In reapportioning and redistricting the senate, both houses
overlooked the fact that, to be valid, the makeup of the senate
must positively complement the makeup of the house, to provide the
vital equality of voter representation. Both houses of the
legislature seemingly forgot that the schemes of districting each
house, when conjoined, must offer compensating advantages to the
voters -- not only to those voters within each representative
district, be it senate or house, but to all voters throughout the
State. While there perforce must be some overlap of representation
with the several senate and house districts, that overlap must not
be such as to concentrate and intensify the voting power of a
single senatorial-representative district to the point that the
voters therein have a built-in disproportionate representational
advantage over any other voters of the State."
240 F. Supp. at 729.
[
Footnote 14]
Appellant Burns concedes in his brief that, "[i]n the case of
the Hawaii House multi-member districts, extensive proofs were not
put in as to the details of the submergence of minorities." There
may, for example, be merit in the argument that, by encouraging
block voting, multi-member districts diminish the opportunity of a
minority party to win seats. But such effects must be demonstrated
by evidence.
[
Footnote 15]
As stated in the court's opinion, the legislature's proffered
justifications were:
"(1) single member districts would tend to cause the senators
therefrom to be concerned with localized issues and ignore the
broader issues facing the State, and therefore it might fragment
the approach to statewide problems and programs to the detriment of
the State; (2) historically, the members of the house had
represented smaller constituencies than members of the senate, and
tradition and experience bad proved the balance desirable; (3)
multi-member districts would increase the significance of an
individual's vote by focusing his attention on the broad spectrum
of major community problems, as opposed to those of more limited
and local concern; (4) to set up single member districts would
compound the more technical and more intricate problem of drawing
the boundaries; (5) population shifts would more drastically affect
the boundaries of many smaller single member districts -- to a
greater degree than would be found in larger multi-member
districts, citing Oahu's population boom and subdivision
development."
240 F. Supp. at 727.
[
Footnote 16]
We reject the suggestion that the districts are arbitrarily or
invidiously defined. 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. And we find no support for this suggestion in the
present wide variances in size among the Oahu representative
districts. This distribution is governed by the population shifts
which have occurred since the district boundaries were first
defined. In the initial apportionment, the six representative
districts comprising the fifth senatorial district each contained
two or three representatives -- two in the geographically large,
relatively rural districts and three in urban districts. The four
representative districts comprising the fourth senatorial district
contained three to six representatives; these districts comprised
the heart of residential Honolulu, and were understandably compact.
Whether one surmises that the drafters were leaving room for
expansion in the less populous districts or drawing district lines
as a function of size, as well as population, no irrationality
appears from the distribution. It is relevant to note that the
Hawaii Legislature was dominated by multi-member districts in both
houses before statehood. This feature this did not originate with
the senate plan here under consideration.
[
Footnote 17]
This figure is calculated using 1960 figures; in the
apportionment of 1959, Oahu was assigned 36 representatives on the
basis of 1958 registration figures.
[
Footnote 18]
Thus, in 1960, the ninth and tenth districts contained 28% of
Oahu's population, but only 17% of its registered voters; the
fifteenth and sixteenth districts, with only 21% of island
population, contained 29% of island registered voters.
[
Footnote 19]
E.g., WMCA, Inc. v. Lomenzo, 377 U.S. at
377 U. S. 653;
Maryland Committee v. Tawes, 377 U.S. at
377 U. S.
674.
[
Footnote 20]
Thus, we spoke of "[t]he right of a citizen to equal
representation, and to have his vote weighted equally with those of
all other citizens. . . ."
Reynolds v. Sims, 377 U.S. at
377 U.S. 576. We also said:
"[I]t 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.
"[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."
Id. at
377 U.S.
579.
[
Footnote 21]
In
Davis v. Mann, 377 U.S. at
377 U. S. 691,
we rejected an argument that underrepresentation of three political
subdivisions in Virginia was
"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."
See also Carrington v. Rash, 380 U. S.
89. Where the exclusion is of those not meeting a
State's residence requirements, however, different principles
apply. The difference between exclusion of all military and
military-related personnel and exclusion of those not meeting a
State's residence requirements is a difference between an arbitrary
and a constitutionally permissible classification.
[
Footnote 22]
Buckley v. Hoff, 243 F.
Supp. 873, 876 (D.C.Vt.1965).
[
Footnote 23]
Ellis disapproved a registered voters basis for
apportioning the governing council of Baltimore, Maryland. The
Court of Appeals held that this basis was permissible only if it
yielded results substantially approximating those obtained by use
of a total population base.
[
Footnote 24]
For example, at one point during World War II, the military
population of Oahu constituted about one-half the population of the
Territory. If total population were used in such a situation, the
permanent residents living in districts including military bases
might have substantially greater voting power than the electors of
districts not including such bases. Indeed, in view of this
possibility, appellant Burns concedes that a "nontransient" figure,
as well as total population, might be used for apportionment
purposes.
[
Footnote 25]
Appellant Burns urges here that the apportionment base for the
house, registered voter figures from the 1958 general election, is
infected by such an exclusion. Hawaii was then a Territory, and
registration was governed by 48 U.S.C. § 619 (1958 ed.), which
provided:
"No person shall be allowed to vote who is in the Territory by
reason of being in the Army or Navy or by reason of being attached
to troops in the service of the United States."
Such a restriction, if imposed by a State, would violate the
Equal Protection Clause.
Carrington v. Rash, 380 U. S.
89. The statute no longer applies, but its effect
persists in the house apportionment. The number of registered
voters in the districts where Oahu's major military bases are
located has increased twice as much as registration in the other
Oahu districts and more than three times as much as state
population since 1958. Reapportionment of the house now on a
registered voters basis would work a substantial realignment of the
State's representative districts. If it can be shown that this is
so principally because military men now have a vote they were once
denied, rather than because of simple population shifts, an
immediate interim adjustment of house apportionment might be
merited. Time does not permit the necessary hearings to be had
before the 1966 elections, but requiring such hearings is certainly
within the court's authority under its continuing jurisdiction
thereafter.
[
Footnote 26]
The District Court found the figure to be 87.1%. Even if an
asserted error in statistics is corrected, the figure exceeds
80%.
[
Footnote 27]
Note 25 supra.
An attempt was made to show that registration percentages among low
income residents of Oahu were substantially lower than among other
resident groups. It is unclear to what extent these statistics
reflect military pay scales. Thus, they may be an unfair
representation of state citizen registration patterns. Moreover, no
substantial effect in submerging the political voice of this group
appears. Of course, this issue may be reexamined should further
hearings be held in exercise of the court's continuing
jurisdiction.
MR. JUSTICE HARLAN, concurring in the result.
Because judicial responsibility requires me, as I see things, to
bow to the authority of
Reynolds v. Sims, 377 U.
S. 533, despite my original and continuing belief that
the decision was constitutionally wrong (
see my dissenting
opinion, 377 U.S. at
377 U.S.
589 et seq.), I feel compelled to concur in the
Court's disposition of this case. Even under
Reynolds,
however, I cannot agree with the rationale, elaborated in
384 U. S. by
which Hawaii's registered voter base is sustained. As I read
today's opinion, registered voter figures are an acceptable basis
for apportionment only so long as they
Page 384 U. S. 99
substantially approximate the results that would be reached
under some other type of population-based scheme of
apportionment.
Many difficult questions of judgment, relating both to policy
and to administrative convenience, must be resolved by a State in
determining what statistics to use in establishing its
apportionment plan. I would not read
Reynolds as
precluding a State from apportioning its legislature on any
rational basis consistent with
Reynolds' philosophy that
"people," not other interests, must be the basis of state
legislative apportionment. I think apportionment on the basis of
registered voters is a rational system of this type, and that it is
therefore permissible under
Reynolds regardless of
whether, in the particular case, it approximates some other kind of
a population apportionment.
MR. JUSTICE STEWART, concurring in the judgment.
At the time Reynolds v. Sims was decided, I expressed the belief
that
"the Equal Protection Clause demands but two basic attributes of
any plan of state legislative apportionment. First, it demands
that, in the light of the State's own characteristics and needs,
the plan must be a rational one. Secondly, it demands that the plan
must be such as not to permit the systematic frustration of the
will of a majority of the electorate of the State."
Lucas v. Colorado General Assembly, 377 U.
S. 713, at pp.
377 U. S.
753-754 (dissenting opinion).
Time has not changed my views. I still believe the Court
misconceived the requirements of the Equal Protection Clause in
Reynolds v. Sims and its companion cases. But so long as
those cases remain the law, I must bow to them. And, even under
those decisions, there is surely room for at least as much
flexibility as the Court today accords to Hawaii. Accordingly, I
concur in the judgment.