Missouri's 1967 congressional redistricting statute created
districts which varied from the ideal, based on 1960 census
figures, by 12,260 (2.84%) below to 13,542 (3.13%) above. The
District Court found that the state legislature had not relied on
the census reports, but used less accurate data, that it had
rejected a plan with smaller variances, and that, by simply
switching some counties from one district to another, it would have
produced a plan with markedly reduced variances, and accordingly
held that the statute did not meet the constitutional standard of
equal representation "as nearly as practicable" and that the State
failed to provide acceptable justification for the variances.
Held:
1. Art. I, § 2, requires that States create congressional
districts which provide equal representation for equal numbers of
people with
"only the limited population variances which are unavoidable
despite a good faith effort. to achieve absolute equality, or for
which justification is shown."
Pp.
394 U. S.
530-532.
(a) The establishment of an acceptable
de minimis
variance would be arbitrary, inconsistent with the "as nearly as
practicable" standard commanded by Art. I, § 2, and would encourage
legislators to strive for the
de minimis range, rather
than for equality. P.
394 U. S.
531
(b) The population variances among the Missouri congressional
districts were not unavoidable. Pp.
394 U. S.
531-532.
2. Unless population variances among the districts are shown to
have resulted despite the State's good faith effort to achieve
equality, the State must justify each variance, no matter how
small, and Missouri has not justified the variances here. Pp.
394 U. S. 531,
394 U. S.
533-536.
Page 394 U. S. 527
(a) Variances based on the creation of districts with specific
interest orientations are contrary to the constitutional
requirement of equal representation. P.
394 U. S.
533.
(b) Consideration of practical or partisan politics cannot
justify population disparities. Pp.
394 U. S.
533-534.
(c) Even assuming that apportionment may be based on eligible
voter population, rather than total population, Missouri made no
serious attempt to ascertain the number of eligible voters in each
district and to apportion on that basis. P.
394 U. S.
534-535.
(d) Where population shifts can be accurately predicted, States
may properly consider them and apply them, not as Missouri has
done, but throughout the State in a systematic manner. P.
394 U. S.
535.
(e) Claims that geographic compactness may require deviations
from equality are generally unconvincing, and here Missouri's claim
of compactness is based merely on the unaesthetic appearance of a
congressional boundaries map that would result from changes which
would achieve greater equality. Pp.
394 U. S.
535-536.
279 F.
Supp. 952, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
In
Wesberry v. Sanders, 376 U. S.
1 (1964), we held that "[w]hile it may not be possible
[for the States] to draw congressional districts with mathematical
precision,"
id. at 18, Art. I, § 2, of the Constitution
requires that "as nearly as is practicable one man's vote in a
congressional
Page 394 U. S. 528
election is to be worth as much as another's."
Id. at
376 U.S. 7-8. We are
required in these cases to elucidate the "as nearly as practicable"
standard.
The Missouri congressional redistricting statute challenged in
these cases resulted from that State's second attempt at
congressional redistricting since
Wesberry was decided. In
1965, a three-judge District Court for the Western District of
Missouri declared that the Missouri congressional districting Act
then in effect was unconstitutional under
Wesberry, but
withheld any judicial relief "until the Legislature of the State of
Missouri has once more had an opportunity to deal with the problem.
. . ."
Preisler v. Secretary of State of
Missouri, 238 F.
Supp. 187, 191. Thereafter, the General Assembly of Missouri
enacted a redistricting statute, but this statute too was declared
unconstitutional. The District Court, however, retained
jurisdiction to review any further plan that might be enacted.
Preisler v. Secretary of State of Missouri, 257 F.
Supp. 953 (1966),
aff'd sub nom. Kirkpatrick v.
Preisler, 385 U. S. 450
(1967). In 1967, the General Assembly enacted the statute under
attack here, Mo.Rev.Stat., c. 128 (Cum.Supp. 1967), and the
Attorney General of Missouri moved in the District Court for a
declaration sustaining the Act and an order dismissing the
case.
Based on the best population data available to the legislature
in 1967, the 1960 United States census figures, absolute population
equality among Missouri's 10 congressional districts would mean a
population of 431,981 in each district. The districts created by
the 1967 Act, however, varied from this ideal within a range of
12,260 below it to 13,542 above it. The difference between the
least and most populous districts was thus 25,802. In percentage
terms, the most populous district was 3.13%
Page 394 U. S. 529
above the mathematical ideal, and the least populous was 2.84%
below. [
Footnote 1]
The District Court found that the General Assembly had not, in
fact, relied on the census figures, but instead had based its plan
on less accurate data. In addition, the District Court found that
the General Assembly had rejected a redistricting plan submitted to
it which provided for districts with smaller population variances
among them. Finally, the District Court found that the simple
device of switching some counties from one district to another
would have produced a plan with markedly reduced variances among
districts. Based on these findings, the District Court, one judge
dissenting, held that the 1967 Act did not meet the constitutional
standard of equal representation for equal numbers of people "as
nearly as practicable," and that the State had failed to make any
acceptable justification for the variances.
279 F.
Supp. 952 (1967). We noted
Page 394 U. S. 530
probable jurisdiction, but stayed the District Court's judgment
pending appeal and expressly authorized the State "to conduct 1968
congressional elections under and pursuant to [the] 1967 . . . Act.
. . ." 390 U.S. 939 (1968). We affirm.
Missouri's primary argument is that the population variances
among the districts created by the 1967 Act are so small that they
should be considered
de minimis, and, for that reason, to
satisfy the "as nearly as practicable" limitation and not to
require independent justification. Alternatively, Missouri argues
that justification for the variances was established in the
evidence: it is contended that the General Assembly provided for
variances out of legitimate regard for such factors as the
representation of distinct interest groups, the integrity of county
lines, the compactness of districts, the population trends within
the State, the high proportion of military personnel, college
students, and other nonvoters in some districts, and the political
realities of "legislative interplay."
I
We reject Missouri's argument that there is a fixed numerical or
percentage population variance small enough to be considered
de
minimis and to satisfy without question the "as nearly as
practicable" standard. The whole thrust of the "as nearly as
practicable" approach is inconsistent with adoption of fixed
numerical standards which excuse population variances without
regard to the circumstances of each particular case. The extent to
which equality may practicably be achieved may differ from State to
State and from district to district. Since "equal representation
for equal numbers of people [is] the fundamental goal for the House
of Representatives,"
Wesberry v. Sanders, supra, at
376 U. S. 18, the
"as nearly as practicable" standard requires that the State make a
good faith effort to achieve precise mathematical
Page 394 U. S. 531
equality.
See Reynolds v. Sims, 377 U.
S. 533,
377 U.S.
577 (1964). Unless population variances among congressional
districts are shown to have resulted despite such effort, the State
must justify each variance, no matter how small.
There are other reasons for rejecting the
de minimis
approach. We can see no nonarbitrary way to pick a cut-off point at
which population variances suddenly become
de minimis.
Moreover, to consider a certain range of variances
de
minimis would encourage legislators to strive for that range,
rather than for equality as nearly as practicable. The District
Court found, for example, that, at least one leading Missouri
legislator deemed it proper to attempt to achieve a 2% level of
variance, rather than to seek population equality.
Equal representation for equal numbers of people is a principle
designed to prevent debasement of voting power and diminution of
access to elected representatives. Toleration of even small
deviations detracts from these purposes. Therefore, the command of
Art. I, § 2, that States create congressional districts which
provide equal representation for equal numbers of people permits
only the limited population variances which are unavoidable despite
a good faith effort to achieve absolute equality, or for which
justification is shown.
Clearly, the population variances among the Missouri
congressional districts were not unavoidable. Indeed, it is not
seriously contended that the Missouri Legislature came as close to
equality as it might have come. The District Court found that, to
the contrary, in the two reapportionment efforts of the Missouri
Legislature since
Wesberry,
"the leadership of both political parties in the Senate and the
House were given nothing better to work with than a makeshift bill
produced by what has been candidly recognized to be no more than .
. . an expedient political compromise."
279 F. Supp. at 966. Legislative
Page 394 U. S. 532
proponents of the 1967 Act frankly conceded at the District
Court hearing that resort to the simple device of transferring
entire political subdivisions of known population between
contiguous districts would have produced districts much closer to
numerical equality. The District Court found, moreover, that the
Missouri Legislature relied on inaccurate data in constructing the
districts, and that it rejected without consideration a plan which
would have markedly reduced population variances among the
districts. Finally, it is simply inconceivable that population
disparities of the magnitude found in the Missouri plan were
unavoidable. [
Footnote 2] The
New York apportionment plan of regions divided into districts of
almost absolute population equality described in
Wells v.
Rockefeller, post at
394 U. S.
545-546, provides striking evidence that a state
legislature which tries can achieve almost complete numerical
equality among all the State's districts. In sum, "it seems quite
obvious that the State could have come much closer to providing
districts of equal population than it did."
Swann v.
Adams, 385 U. S. 440,
385 U. S. 445
(1967).
We therefore turn to the question whether the record establishes
any legally acceptable justification for the population variances.
It was the burden of the State "to present . . . acceptable reasons
for the variations among the populations of the various . . .
districts. . . ."
Swann v. Adams, supra, at
385 U. S.
443-444.
Page 394 U. S. 533
II
We agree with the District Court that Missouri has not
satisfactorily justified the population variances among the
districts.
Missouri contends that variances were necessary to avoid
fragmenting areas with distinct economic and social interests, and
thereby diluting the effective representation of those interests in
Congress. But to accept population variances, large or small, in
order to create districts with specific interest orientations is
antithetical to the basic premise of the constitutional command to
provide equal representation for equal numbers of people.
"[N]either history alone, nor economic or other sorts of group
interests, are permissible factors in attempting to justify
disparities from population-based representation. Citizens, not
history or economic interests, cast votes."
Reynolds v. Sims, supra, at
377 U.S. 579-580.
See also Davis v.
Mann, 377 U. S. 678,
377 U. S. 692
(1964).
We also reject Missouri's argument that
"[t]he reasonableness of the population differences in the
congressional districts under review must . . . be viewed in the
context of legislative interplay. The legislative leaders all
testified that the act in question was, in their opinion, a
reasonable legislative compromise. . . . It must be remembered . .
. that practical political problems are inherent in the enactment
of congressional reapportionment legislation. [
Footnote 3]"
We agree with the District Court that "the rule is one of
practicability', rather than political `practicality.'" 279 F.
Supp. at 989. Problems created by partisan politics cannot justify
an apportionment which does not otherwise pass constitutional
muster.
Similarly, we do not find legally acceptable the argument that
variances are justified if they necessarily result from a State's
attempt to avoid fragmenting political
Page 394 U. S. 534
subdivisions by drawing congressional district lines along
existing county, municipal, or other political subdivision
boundaries. The State's interest in constructing congressional
districts in this manner, it is suggested, is to minimize the
opportunities for partisan gerrymandering. But an argument that
deviations from equality are justified in order to inhibit
legislators from engaging in partisan gerrymandering [
Footnote 4] is no more than a variant of the
argument, already rejected, that considerations of practical
politics can justify population disparities.
Missouri further contends that certain population variances
resulted from the legislature's taking account of the fact that the
percentage of eligible voters among the total population differed
significantly from district to district -- some districts contained
disproportionately large numbers of military personnel stationed at
bases maintained by the Armed Forces and students in attendance at
universities or colleges. There may be a question whether
distribution of congressional seats except according to total
population can ever be permissible under Art. I, § 2. But assuming
without deciding that apportionment may be based on eligible voter
population, rather than total population, the Missouri plan is
still unacceptable. Missouri made no attempt to ascertain the
Page 394 U. S. 535
number of eligible voters in each district and to apportion
accordingly. At best, it made haphazard adjustments to a scheme
based on total population: overpopulation in the Eighth District
was explained away by the presence in that district of a military
base and a university; no attempt was made to account for the
presence of universities in other districts or the disproportionate
numbers of newly arrived and short-term residents in the City of
St. Louis. Even as to the Eighth District, there is no indication
that the excess population allocated to that district corresponds
to the alleged extraordinary additional numbers of noneligible
voters there.
Missouri also argues that population disparities between some of
its congressional districts result from the legislature's attempt
to take into account projected population shifts. We recognize that
a congressional districting plan will usually be in effect for at
least 10 years and five congressional elections. Situations may
arise where substantial population shifts over such a period can be
anticipated. Where these shifts can be predicted with a high degree
of accuracy, States that are redistricting may properly consider
them. By this we mean to open no avenue for subterfuge. Findings as
to population trends must be thoroughly documented and applied
throughout the State in a systematic, not an
ad hoc,
manner. Missouri's attempted justification of the substantial
underpopulation in the Fourth and Sixth Districts falls far short
of this standard. The District Court found
"no evidence . . . that the . . . General Assembly adopted any
policy of population projection in devising Districts 4 and 6, or
any other district, in enacting the 1967 Act."
279 F. Supp. at 983.
Finally, Missouri claims that some of the deviations from
equality were a consequence of the legislature's attempt to ensure
that each congressional district would be geographically compact.
However, in
Reynolds v. Sims,
Page 394 U. S. 536
supra at
377 U.S.
580, we said,
"Modern developments and improvements in transportation and
communications make rather hollow, in the mid-1960's, most claims
that deviations from population-based representation can validly be
based solely on geographical considerations. Arguments for allowing
such deviations in order to insure effective representation for
sparsely settled areas and to prevent legislative districts from
becoming so large that the availability of access of citizens to
their representatives is impaired are today, for the most part,
unconvincing."
In any event, Missouri's claim of compactness is based solely
upon the unaesthetic appearance of the map of congressional
boundaries that would result from an attempt to effect some of the
changes in district lines which, according to the lower court,
would achieve greater equality. A State's preference for pleasingly
shaped districts can hardly justify population variances.
Affirmed.
[For dissenting opinion of MR. JUSTICE HARLAN,
see
post, p.
394 U. S.
549.]
[For dissenting opinion of MR. JUSTICE WHITE,
see post,
p.
394 U. S.
553.]
* Together with No. 31,
Heinkel et al. v. Preisler et
al., also on appeal from the same court.
[
Footnote 1]
The redistricting effected by the 1967 Act, based on a
population of 4,319,813 according to the 1960 census, is as
follows:
bwm:
% Variation
District No. Population From Ideal
One 439,746 + 1.80
Two 436,448 + 1.03
Three 436,099 + O.95
Four 419,721 - 2.84
Five 431,178 - O.19
Six 422,238 - 2.26
Seven 436,769 + 1.11
Eight 445,523 + 3.13
Nine 428,223 - O.87
Ten 423,868 - 1.88
Ideal population per district. . . . . . . . . . . . . . . . . .
. 431,981
Average variation from ideal . . . . . . . . . . . . . . . . . .
. 1.6%
Ratio of largest to smallest district. . . . . . . . . . . . . .
. 1.06 to 1
Number of districts within 1.88% of ideal. . . . . . . . . . . .
. 7
Population difference between largest and smallest districts . .
. 25,802
ewm:
[
Footnote 2]
Contrary to appellants' assertion, we have not sustained the
constitutionality of any congressional districting plan with
population variances of the magnitude found in the Missouri plan.
In
Connor v. Johnson, 386 U. S. 483
(1967), the only issue presented to this Court was whether the
districting plan involved racial gerrymandering.
Alton v.
Tawes, 384 U. S. 315
(1966), and
Kirk v. Gong, 389 U.
S. 574 (1968), involved situations where the lower
courts themselves had reapportioned the districts on an emergency
basis, and our affirmances were based on agreement with the use of
the plans in that circumstance, and not on any view that the plans
in question achieved equality as nearly as practicable.
[
Footnote 3]
Brief for Appellants 37-38.
[
Footnote 4]
It is dubious, in any event, that the temptation to gerrymander
would be much inhibited, since the legislature would still be free
to choose which of several subdivisions, all with their own
political complexion, to include in a particular congressional
district. Besides, opportunities for gerrymandering are greatest
when there is freedom to construct unequally populated
districts.
"[T]he artistry of the political cartographer is put to its
highest test when he must work with constituencies of equal
population. At such times, his skills can be compared to those of a
surgeon, for both work under fixed and arduous rules. However, if
the mapmaker is free to allocate varying populations to different
districts, then the butcher's cleaver replaces the scalpel, and the
results reflect sharply the difference in the method of
operation."
A. Hacker, Congressional Districting 59 (1964 rev. ed.).
MR. JUSTICE FORTAS, concurring.
I concur in the judgment of the Court in these cases, but I
cannot subscribe to the standard of near-perfection which the Court
announces as obligatory upon state legislatures facing the
difficult problem of reapportionment for congressional
elections.
In
Wesberry v. Sanders, 376 U. S.
1 (1964), this Court recognized that "it may not be
possible to draw congressional districts with mathematical
precision," and it held that the Constitution requires that they be
drawn so that, "as nearly as is practicable," each
representative
Page 394 U. S. 537
should cast a vote on behalf of the same number of people.
The Court now not only interprets "as nearly as practicable" to
mean that the State is required to "make a good faith effort to
achieve precise mathematical equality," but it also requires that
any remaining population disparities "no matter how small," be
justified. It then proceeds to reject,
seriatim, every
type of justification that has been -- possibly, every one that
could be -- advanced.
I agree that the state legislatures should be required to make
"a good faith effort to achieve" a result that allocates the
population or the residents [
Footnote
2/1] of the State in roughly equal numbers to each district,
based upon some orderly and objective method. [
Footnote 2/2] In my view, the State could properly
arrive at figures for current population by taking the latest
census returns and making modifications to allow for population
movements since the last census (which the Court seems to find
acceptable). It could also, in my opinion, discount the census
figures to take account of the presence of significant transient or
nonresident population in particular areas (an adjustment as to
which the Court indicates doubt). If the State should proceed on
some appropriate population
Page 394 U. S. 538
basis such as I have suggested, producing approximately equal
districts, trial courts, in my judgment, would be justified in
declining to disapprove the result merely because of small
disparities, in the absence of evidence of gerrymandering -- the
deliberate and arbitrary distortion of district boundaries and
populations for partisan or personal political purposes.
In considering whether the State has "approximated" an equal
division and allocation of the population, I sympathize with the
majority's view that a
de minimis rule of allowable
disparities tends to demean in theory and in practice the
constitutional objective because it suggests that it is not
necessary even to aim at equality. On the other hand, to reject
de minimis as a statement of the limits on the rule of
equality should not lead us to toss aside the wise recognition of
the inscrutability of fact and the imperfection of man which is
implicit in the
Wesberry standard: "as nearly as
practicable." This phrase does not refer merely to arithmetical
possibilities. Arithmetically, it is possible to achieve division
of a State into districts of precisely equal size, as measured by
the decennial census or any other population base. To carry out
this theoretical possibility, however, a legislature might have to
ignore the boundaries of common sense, running the congressional
district line down the middle of the corridor of an apartment house
or even dividing the residents of a single-family house between two
districts. The majority opinion does not suggest so extreme a
practical application of its teaching, and I mention it only
because the example may dramatize the fallacy of inflexible
insistence upon mathematical exactness, with no tolerance for
reality.
Whatever might be the merits of insistence on absolute equality
if it could be attained, the majority's pursuit of precision is a
search for a will-o'-the-wisp. The fact is that any solution to the
apportionment and districting
Page 394 U. S. 539
problem is, at best, an approximation because it is based upon
figures which are always to some degree obsolete. No purpose is
served by an insistence on precision which is unattainable because
of the inherent imprecisions in the population data on which
districting must be based. The base to which Missouri's legislature
should have adhered precisely, according to the majority, is the
1960 decennial census. The legislature's plan here under review was
enacted in 1967. Assuming perfect precision for the 1960 census
when taken, [
Footnote 2/3] by 1967,
because of the movement of population within the State as
Page 394 U. S. 540
well as in-and-out migration, substantial disparities had arisen
between the real distribution of population in the State and that
reflected in the 1960 census base here so zealously protected by
the Court. [
Footnote 2/4]
Nothing that I have said should be taken as indicating that I do
not believe that the
Wesberry standard requires a high
degree of correspondence between the demonstrated population or
residence figures and the district divisions. Nor would I fix, at
least at this relatively early stage of the reapportionment effort,
a percentage figure for permissible variation. [
Footnote 2/5]
In the present cases, however, I agree that the judgment of the
District Court should be affirmed. The history of this
reapportionment and of the legislature's failure to comply with the
plain and patient directions of the three-judge District Court and
the failure of the legislature to use either accurate 1960 census
figures or other systematically obtained figures for all the
districts -- these factors strongly support the District Court's
refusal
Page 394 U. S. 541
to accept the Missouri plan. It is true that, on the average,
there was only a 1.6% variation from what the majority quaintly
calls the "ideal" (meaning the 1960 census figures), and in only
three of the 10 districts was there a variation of 2% or more, and
it is also true that there is no finding of gerrymandering. But
regardless of the possibility that variances within this range
might in some situations be considered tolerable within
Wesberry's standard, I agree that we should sustain the
District Court's rejection of the plan in light of the history of
the cases and the record of the plan's preparation.
[
Footnote 2/1]
I would find it constitutionally entirely acceptable for a State
to base its apportionment on numbers of residents, rather than
total population, in each district at the time the districts are
established. This would permit adjustments to take account, for
example, of distortions resulting from large numbers of
nonresidents at military installations or colleges in an area.
[
Footnote 2/2]
In
Avery v. Midland County, 390 U.
S. 474,
390 U. S. 495
(1968), I argued in a dissenting opinion that consideration of
disparate local interests might be appropriate with respect to
defining certain types of local government units exercising limited
governmental powers. I noted there, however, that the same factors
could not justify departing from the one man, one vote theory in
state legislatures -- or, I might now add, congressional districts
-- because of the general and basic nature of the function
performed.
[
Footnote 2/3]
The basic enumeration error in the census -- that is, the
variation which would be observed between successive enumerations
of the same area -- is very low. Second surveys of selected areas,
conducted by specially trained enumerators, produced counts varying
by only about 1% for the whole population from the counts of the
regular enumerators. For particular groups in the population, the
variance was significantly larger.
See U.S. Bureau of the
Census, Evaluation and Research Program of the U.S. Censuses of
Population and Housing, 1960, "Accuracy of Data on Population
Characteristics as Measured by Re-interviews," Ser. ER-60, No. 4
(1964), Table 24, p. 22.
Far more significant than variations between successive
enumerations are errors -- virtually all undercountings -- which
are produced by the inherent limitations of the enumerating system.
A Census Bureau estimate indicates that the 1960 census counted
only 96.9% of the whole population, 3.1% of the people not being
found and counted by the enumerators. Undercounting was not evenly
distributed over the whole population. Instead, members of certain
groups, notably young adult Negroes, were far more likely to be
missed by the enumerators. For nonwhites in all age groups, the
census was estimated to understate the actual population by 9.5%.
For young adult Negro males, undercounting reached nearly 20% for
some five-year age groups.
See generally, Siegel,
Completeness of Coverage of the Nonwhite Population in the 1960
Census and Current Estimates, and Some Implications, Report,
Conference on Social Statistics and the City (Washington, D.C. June
22-23, 1967) 13 (Heer ed., 1968). Because the heavily undercounted
groups are not evenly distributed over the country, the
differential rates of undercounting produce divergences between the
actual relative populations of particular areas and those indicated
by the census.
[
Footnote 2/4]
The Census Bureau has estimated that, of Missouri's 114
counties, 50 lost population between 1960 and 1966, while 64
gained. The independent city of St. Louis lost 57,900, or 7.7%; St.
Louis County gained 146,000 or 20.8%. Outside St. Louis City and
County, the absolute change ranged from a 22,100 increase in St.
Charles County to a 7,100 decrease in Dunklin County. The
percentage change ranged from a 41.7% increase in St. Charles
County to a 21.4% decrease in Holt County. Estimates of the
Population of Counties: July 1, 1966 (Report No. 3), Current
Population Reports, Population Estimates, Ser. P-25, No. 407
(Bureau of the Census, October 10, 1968) 11-13.
[
Footnote 2/5]
Cf. Reynolds v. Sims, 377 U. S. 633,
377 U.S. 578 (1964):
"For the present, we deem it expedient not to attempt to spell
out any precise constitutional tests. What is marginally
permissible in one State may be unsatisfactory in another,
depending on the particular circumstances of the case. Developing a
body of doctrine on a case-by-case basis appears to us to provide
the most satisfactory means of arriving at detailed constitutional
requirements in the area of state legislative apportionment."