New York's 1968 congressional districting statute treated seven
sections of the State as homogeneous regions and divided each of
these regions into districts of virtually identical population.
Thirty-one of the 41 districts were thus constructed, with the
remaining 10 composed of groupings of whole counties. The most
populous district had more than 26,000 (6.488%) above the mean
population, while the smallest district had over 27,000 (6.608%)
below the mean. The District Court sustained the statute, stating
that the plan afforded the voters "an opportunity to vote in the
1968 and 1970 elections on the basis of population equality within
reasonably comparable districts."
Held:
1. The holding of
Kirkpatrick v. Preisler, ante, p.
394 U. S. 526,
that
"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,"
requires equalized population in all districts, and is not
satisfied by equalizing population only within defined sub-states.
P.
394 U. S.
546.
(a) There is no claim that New York made a good faith effort to
achieve precise mathematical equality among its 41 districts. P.
394 U. S.
546.
(b) "[T]o 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."
Kirkpatrick v. Preisler, supra, at
394 U. S. 533.
P.
394 U. S.
546.
(c) Variances cannot be justified by the fact that some
districts are constructed of entire counties. P.
394 U. S.
546.
2. In view of the ample time remaining to promulgate a
constitutional plan prior to the 1970 election, as distinguished
from the 1968 election, the District Court's judgment is reversed
insofar as it approved the plan for the 1970 election. P.
394 U. S.
547.
281 F.
Supp. 821, reversed in part and remanded.
Page 394 U. S. 543
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case was argued with
Kirkpatrick v. Preisler,
ante, p.
394 U. S. 526,
which affirmed the judgment of a three-judge District Court
declaring invalid Missouri's 1967 congressional districting
statute. Before us here is a judgment of a three-judge District
Court for the Southern District of New York which sustained the
validity of New York's 1968 congressional districting statute,
N.Y.Laws 1968, c. 8.
281 F.
Supp. 821 (1968). In 1967, that court had struck down an
earlier districting statute apportioning New York's 41
congressional seats and had retained jurisdiction of the case
pending action by the New York Legislature to redress the plan's
deficiencies. The court recognized that a thorough revision of
district lines might not be possible in time for the upcoming 1968
congressional election, but concluded nevertheless that "[t]here
are enough changes which can be superimposed on the present
districts to cure the most flagrant inequalities."
273 F.
Supp. 984, 992,
aff'd, 389 U.
S. 421 (1967).
On February 28, 1968, a month and a half after the New York
Legislature reconvened, the districting statute presently under
attack was enacted. After a hearing, the three-judge court, on
March 20, 1968, sustained the statute, stating that the districting
plan afforded New York voters "an opportunity to vote in the 1968
and 1970 elections on a basis of population equality within
reasonably comparable districts."
281 F.
Supp. at 826.
Page 394 U. S. 544
We noted probable jurisdiction. 393 U.S. 819 (1968). We reverse
insofar as the judgment of the District Court sustains the plan for
use in the 1970 congressional election.
Appellant levels two constitutional attacks against the statute:
(1) that the statute violates the equal population principle of
Wesberry v. Sanders, 376 U. S. 1 (1964),
and (2) that the statute represents a systematic and intentional
partisan gerrymander violating Art. I, § 2, of the Constitution and
the Fourteenth Amendment. We do not reach, and intimate no view
upon the merits of, the attack upon the statute as a
constitutionally impermissible gerrymander. We hold that reversal
of the District Court's judgment is compelled by our decision today
in
Kirkpatrick v. Preisler, supra, which elucidates the
command of
Wesberry that congressional districting meet
the standard of equal representation for equal numbers of people as
nearly as is practicable.
The District Court correctly held in its 1967 opinion that
"there is a burden on the proponent of any districting plan to
justify deviations from equality." 273 F. Supp. at 987. The
District Court took no testimony on the question of justification
at the hearing held to consider the 1968 statute. Recognizing that
the statute, which was enacted with virtually no debate on its
merits in either house of the New York Legislature, was the work of
a Joint Legislative Committee, the court's 1968 opinion refers to
the Report of the Joint Committee as the source of the
justifications relied upon as sufficient to sustain the population
disparities created by the plan. 281 F. Supp. at 823-824. We have
been referred to the same source.
The Report recites that the Committee "gave priority to the
population totals in the several districts" as they appeared in the
1960 decennial census, and that "very limited" consideration was
given to population shifts within the State since 1960. The Report
recites further
Page 394 U. S. 545
that
"[o]ther considerations were the geographical conformation of
the area to be districted, the maintenance of county integrity, the
facility by which the various Boards of Elections can 'tool up' for
the forthcoming [1968] primary election, equality of population
within the region, and equality of population throughout the
state."
Interim Report of the Joint Legislative Committee on
Reapportionment of N.Y. State Legislature (1968).
The heart of the scheme, however, lay in the decision to treat
seven sections of the State as homogeneous regions and to divide
each region into congressional districts of virtually identical
population. Thirty-one of New York's 41 congressional districts
were constructed on that principle. The remaining 10 districts were
composed of groupings of whole counties. A chart showing the
population of each district under the 1968 statute appears in the
394
U.S. 542app|>Appendix to this opinion. The seven regions
are: (a) Suffolk and Nassau Counties on Long Island, with five
districts having an average population of 393,391 and a maximum
deviation from that average of 208; (b) Queens County with four
districts having an average population of 434,672 and a maximum
deviation from that average of 120; (c) Kings County plus a
district made up of part of Kings and part of Queens, and a
district made up of Richmond County and part of Kings, with seven
districts having an average population of 417, 171 and a maximum
deviation from that average of 307; (d) New York and Bronx Counties
with eight districts having an average population of 390,415 and a
maximum deviation from that average of 496; (e) Westchester and
Putnam Counties, with two districts having an average population of
420,307 and a maximum deviation from that average of 161; (f) Wayne
plus part of Monroe and the remainder of Monroe plus four other
counties with two districts having an average population of 410,688
and a maximum deviation from
Page 394 U. S. 546
that average of 256, and (g) Erie and Niagara Counties with
three districts having an average population of 435,652 and a
maximum deviation fro that average of 228. The 10 remaining "North
country" districts were composed of groupings of whole
counties.
It is clear that our decision in
Kirkpatrick v. Preisler,
supra, compels the conclusion that this scheme is
unconstitutional. We there held, at
394 U. S. 531,
that
"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."
The general command, of course, is to equalize population in all
the districts of the State, and is not satisfied by equalizing
population only within defined sub-states. New York could not and
does not claim that the legislature made a good faith effort to
achieve precise mathematical equality among its 41 congressional
districts. Rather, New York tries to justify its scheme of
constructing equal districts only within each of seven sub-states
as a means to keep regions with distinct interests intact. But we
made clear in
Kirkpatrick that
"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."
To accept a scheme such as New York's would permit groups of
districts with defined interest orientations to be overrepresented
at the expense of districts with different interest orientations.
Equality of population among districts in a substate is not a
justification for inequality among all the districts in the
State.
Nor are the variations in the "North country" districts
justified by the fact that these districts are constructed of
entire counties.
Kirkpatrick v. Preisler, supra.
Page 394 U. S. 547
We appreciate that the decision of the District Court did not
rest entirely on an appraisal of the merits of the New York plan.
As noted earlier, when the three-judge District Court in 1967 held
the then-existing districting plan unconstitutional, it recognized
that the imminence of the 1968 election made redistricting an
unrealistic possibility, and therefore said only that "[t]here are
enough changes which can be superimposed on the present districts
to cure the most flagrant inequalities." 273 F. Supp. at 992. On
February 26, 1968, the New York Legislature enacted the plan before
us. On March 20, 1968, the District Court approved the plan for
both the 1968 and 1970 congressional elections. Since the 1968
primary election was only three months away on March 20, we cannot
say that there was error in permitting the 1968 election to proceed
under the plan despite its constitutional infirmities.
See
Kilgarlin v. Hill, 386 U. S. 120,
386 U. S. 121
(1967);
Martin v. Bush, 376 U. S. 222, 223
(1964);
Kirkpatrick v. Preisler, 390 U.S. 939 (1968). But
ample time remains to promulgate a plan meeting constitutional
standards before the election machinery must be set in motion for
the 1970 election. We therefore reverse the judgment of the
District Court insofar as it approved the plan for use in the 1970
election and remand the case for the entry of a new judgment
consistent with this opinion.
It is so ordered.
|
394
U.S. 542app|
APPENDIX TO OPINION OF THE COURT
POPULATION OF NEW YORK'S CONGRESSIONAL DISTRICTS
UNDER 1968 PLAN.
C.D. Dev. % Description.
1 393,585 -3.845 Part of Suffolk.
2 393,874 -3.874 Part of Suffolk, Part of Nassau.
3 303,434 -3.882 Part of Nassau.
4 393,183 -3.943 Part of Nassau.
5 393,288 -3.918 Part of Nassau.
Page 394 U. S. 548
6 434,615 +6.178 Part of Queens.
7 434,750 +6.212 Part of Queens.
8 434,552 +6.163 Part of Queens.
9 434,770 +6.217 Part of Queens.
10 417,122 +1.905 Part of Queens, Part of Kings.
11 417,090 +1.897 Part of Kings.
12 417,298 +1.948 Part of Kings.
13 417,040 +1.885 Part of Kings.
14 417,080 +1.895 Part of Kings.
15 417,090 +1.898 Part of Kings.
16 417,478 +1.992 Richmond, Part of Kings.
17 390,742 -4.540 Part of New York.
18 390,861 -4.511 Part of New York.
19 390,023 -4.715 Part of New York.
20 390,363 -4.632 Part of New York.
21 390,552 -4.586 Part of New York, Part of Bronx.
22 390,492 -4.601 Part of Bronx.
23 390,228 -4.665 Part of Bronx.
24 390,057 -4.707 Part of Bronx.
25 420,146 +2.644 Putnam, Part of Westchester.
26 420,467 +2.722 Part of Westchester.
27 409,349 Rockland, Orange, Sullivan, Delaware.
28 396,122 -3.225 Dutchess, Ulster, Columbia, Greene,
Schoharie.
29 425,822 +4.031 Albany, Schenectady.
30 415,030 +1.394 Renesselaer, Saratoga, Washington, Warren,
Fulton, Hamilton, Essex.
31 425,905 +4.051 Clinton, St.Lawrence, Jefferson, Lewis,
Franklin, Oswego.
32 385,406 -5.843 Oneida, Madison, Herkimer.
33 415,333 +1.468 Chemung, Broome, Tioga, Tompkins.
34 423,028 +3.348 Onondaga.
35 386,148 -5.662 Ontario, Yates, Seneca, Cayuga, Cortland,
Chenango, Otsego, Montgomery.
36 410,943 +O.396 Part of Monroe, Wayne.
37 410,432 +O.271 Part of Monroe, Orleans, Genesee,
Wyoming, Livingston.
38 382,277 -6.608 Chautauqua, Cattaraugus, Allegany,
Steuben, Schuyler.
39 435,393 +6.369 Part of Erie.
40 435,684 +6.440 Part of Erie, Niagara.
41 435,880 +6.488 Part of Erie.
Page 394 U. S. 549
State Mean. . . . . . . . . . . . . . . . . . . . . . . .
409,324
Largest District (41st C. D.) . . . . . . . . . . . . . .
435,880
Smallest District (38th C. D.). . . . . . . . . . . . . .
382,277
Citizen Population Variance (largest district population
divided by the smallest district population). . . . .1.139 to
1
Maximum Deviation above State Mean. . . . . . . . . . . .
6.488%
Maximum Deviation below State Mean. . . . . . . . . . . .
6.608%
MR. JUSTICE FORTAS, concurring.
I concur in the judgment of the Court and in its opinion except
to the extent that the opinion relies upon the Court's opinion in
the Missouri redistricting cases,
Kirkpatrick v. Preisler,
ante, p.
394 U. S. 526,
which I have not joined for the reasons stated in my concurring
opinion in those cases.
New York does not attempt to defend its plan as a good faith
effort to achieve districts of approximate equality. It argues that
it devised a plan based upon the grouping of districts into
regions. I agree with the majority that, for purposes of the
congressional districting here involved, the State may not
substantially or grossly disregard population or residence figures
in order to recognize regional groupings within the State.
See my dissent in
Avery v. Midland County,
390 U. S. 474,
390 U. S. 495
(1968).
MR. JUSTICE HARLAN, with whom MR. JUSTICE STEWART joins,
dissenting.
*
Whatever room remained under this Court's prior decisions for
the free play of the political process in matters of
reapportionment is now all but eliminated by today's Draconian
judgments. Marching to the nonexistent "command of Art. I, § 2" of
the Constitution, [
Footnote 1]
the Court now transforms a political slogan
Page 394 U. S. 550
into a constitutional absolute. Strait indeed is the path of the
righteous legislator. Slide rule in hand, he must avoid all thought
of county lines, local traditions, politics, history, and
economics, so as to achieve the magic formula: one man, one
vote.
As my Brothers WHITE and FORTAS demonstrate, insistence on
mathematical perfection does not make sense even on its own terms.
Census figures themselves are inexact; our mobile population
rapidly renders them obsolete; large groups of ineligible voters
are unevenly distributed throughout the State. Nevertheless, the
Court refuses to permit any room for legislative common sense to
compensate for Census Bureau inadequacies. If no "scientific" data
are available to justify a divergence from census figures, the
Court holds that nothing can be done -- "we mean to open no avenue
for subterfuge."
Kirkpatrick v. Preisler, ante at
394 U. S.
535.
This all-pervasive distrust of the legislative process is
completely alien to established notions of judicial review.
See Butler v.
Pennsylvania, 10 How. 402 (1851);
Davis v.
Department of Labor, 317 U. S. 249
(1942);
Flemming v. Nestor, 363 U.
S. 603 (1960). Nor does it have precedent in the prior
reapportionment decisions themselves.
"
Reynolds v. Sims . . . recognized that mathematical
exactness is not required in state apportionment plans.
De
minimis deviations are unavoidable. . . ."
Swann v. Adams, 385 U. S. 440,
385 U. S. 444
(1967);
see also Wesberry v. Sanders, 376 U. S.
1,
376 U. S. 18
(1964). [
Footnote 2]
Page 394 U. S. 551
Even more important, the Court's exclusive concentration upon
arithmetic blinds it to the realities of the political process, as
the
Rockefeller case makes so clear. The fact of the
matter is that the rule of absolute equality is perfectly
compatible with "gerrymandering" of the worst sort. A computer may
grind out district lines which can totally frustrate the popular
will on an overwhelming number of critical issues. The legislature
must do more than satisfy one man, one vote; it must create a
structure which will, in fact, as well as theory be responsive to
the sentiments of the community. On the record before us, however,
there is absolutely no indication that the New York Legislature can
satisfy this Court's demand for absolute equality and yet create a
structure which will permit New York's multitude of political
groups to have a fair chance at having their voices heard in
Congress.
Even the appellant himself does not suggest that it is possible
to create a proper apportionment plan which is at the same time
consistent with the demands of perfect mathematical equality. The
plan he advances contemplates a maximum deviation of 4.7% from the
state average, which represents an improvement of only 1.9
percentage points on the State's 6.6% deviation. Moreover, under
the State's plan, a majority of the congressional delegation can
represent no less than 49.3% of the population. The appellant's
scheme "improves" this figure by 0.5%, increasing the number to
49.8%.
See Appellant's Appendix D. Perfection, however, is
still 0.2% away.
Although the appellant's plan offers such marginal benefits of
voting egalitarianism, and although the record contains no
suggestion of any other plan which even arguably permits the
coherent expression of the popular will, the Court rejects the
legislature's considered proposal simply because it seeks to remain
true to traditional
Page 394 U. S. 552
county and regional lines. In doing so, the majority ignores the
salutary warning to be found in
Reynolds v. Sims,
377 U. S. 533,
377 U.S. 578-579
(1964):
"Indiscriminate districting, without any regard for political
subdivision or natural or historical boundary lines, may be little
more than an open invitation to partisan gerrymandering."
Yet, today the Court condemns the legislature's approach because
it
"permit[s] groups of districts with defined interest
orientations to be overrepresented at the expense of districts with
different interest orientations."
Ante at
394 U. S. 546.
Of course, all districting decisions inevitably involve choices
between different interest groups. But as
Reynolds
recognized, legislatures prefer to follow traditional county and
regional lines so that the demands of blatant partisanship will be
tempered by the constraints of history and tradition. If the Court
believes it has struck a blow today for fully responsive
representative democracy, it is sorely mistaken. Even more than in
the past, district lines are likely to be drawn to maximize the
political advantage of the party temporarily dominant in public
affairs.
We do not deal here with the hopelessly malapportioned
legislature unwilling to set its own house in order. Rather, the
question before us is whether the Constitution requires that
mathematics be a substitute for common sense in the art of
statecraft. As I do not think that the apportionment plans
submitted by the States of New York and Missouri can properly be
regarded as offensive to the requirement of equality imposed in
Wesberry -- a case whose constitutional reasoning I still
find it impossible to swallow, but by whose dictate I consider
myself bound -- I dissent.
I would reverse the judgments of the District Court in the
Missouri cases and affirm the decision of the District Court in the
New York case.
Page 394 U. S. 553
* [This opinion applies also to No. 30,
Kirkpatrick v.
Preisler, ante, p.
394 U. S.
526.]
[
Footnote 1]
See ante at
394 U. S. 546;
Kirkpatrick v. Preisler, ante at
394 U. S. 531.
I have discussed in my dissenting opinion in
Wesberry v.
Sanders, 376 U. S. 1,
376 U. S. 20
(1964), the extraordinary historical leap involved in reading the
straightforward constitutional provision that "The House of
Representatives shall be composed of Members chosen every second
Year by the People of the several States . . ." as a command for
equal districts.
[
Footnote 2]
While
Wesberry cautions that "it may not be possible to
draw congressional districts with mathematical precision," 376 U.S.
at
376 U. S. 18, it
did not attempt to delineate the extent to which the States may
properly deviate from the "ideal."
MR. JUSTICE WHITE, dissenting.*
I have consistently joined the Court's opinions which establish
as one of the ground rules for legislative districting that single
member districts should be substantially equal in population. I
would not now dissent if the Court's present judgments represented
a measurable contribution to the ends which I had thought the Court
was pursuing in this area, or even if I thought the opinions not
very useful but not harmful either. With all due respect, however,
I am firmly convinced that the Court's new rulings are unduly rigid
and unwarranted applications of the Equal Protection Clause which
will unnecessarily involve the courts in the abrasive task of
drawing district lines.
Accepting for constitutional purposes that a State may assign
the task of apportioning its legislature or congressional
delegation to the legislature itself, I would not quibble with the
legislative judgment if variations between districts were
acceptably small. And I would be willing to establish a population
variation figure which if not exceeded would normally not call for
judicial intervention. As a rule of thumb, a variation between the
largest and the smallest district of no more than 10% to 15% would
satisfy me, absent quite unusual circumstances not present in any
of these cases. At the very least, at this trivial level, I would
be willing to view state explanations of the variance with a more
tolerant eye.
This would be far more reasonable than the Court's demand for an
absolute but illusory equality or for an apportionment plan which
approaches this goal so nearly that no other plan can be suggested
which would come
Page 394 U. S. 554
nearer. As MR. JUSTICE FORTAS demonstrates, the 1960 census
figures were far from accurate when they were compiled by
professional enumerators. and statisticians bent on precision, in
1960. Massive growth and shifts in population since 1960 made the
1960 figures even more inaccurate by 1967. That is why a new census
is taken every 10 years. When the Court finds a 3% variation from
substantially inexact figures constitutionally impermissible it is
losing perspective and sticking at a trifle.
It also seems arbitrary for the majority to discard the
suggestion of
Reynolds v. Sims, 377 U.
S. 533 (1964), that, if a legislature seeks an
apportionment plan which respects the boundaries of political
subdivisions, some variations from absolute equality would be
constitutionally permissible. Of course,
Reynolds involved
state legislative apportionment and took pains to say that there
may be more leeway in that context. But the Court invokes
Reynolds today and in no way distinguishes federal from
state districting.
Reynolds noted that
"[i]ndiscriminate districting, without any regard for political
subdivision or natural or historical boundary lines, may be little
more than an open invitation to partisan gerrymandering."
377 U.S. at
377 U.S.
578-579. The Court nevertheless now rules that regard for
these boundaries is no justification for districts which vary no
more than 3% from the norm where another plan which may have no
regard for district lines reduces the variation to an even smaller
figure. I have similar objections to the Court's rejection of
geographical compactness as an acceptable justification for minor
variations among congressional districts. This rejection of the
virtues of compactness will not be lost on those who would use
congressional and legislative districting to bury their political
opposition.
In reality, of course, districting is itself a gerrymandering in
the sense that it represents a complex blend of
Page 394 U. S. 555
political, economic, regional, and historical considerations. In
terms of the gerrymander, the situation will not be much different
if equality means what it literally says -- a zero variation --
rather than only "substantial" equality which would countenance
some variations among legislative districts. Either standard will
prevent a minority of the population or a minority party from
consistently controlling the state legislature or a congressional
delegation, and both are powerful forces toward equalizing voter
influence on legislative performance. In terms of effective
representation for all voters, there are only minuscule differences
between the two standards. But neither rule can alone prevent
deliberate partisan gerrymandering if that is considered an evil
which the Fourteenth Amendment should attempt to proscribe.
Today's decisions, on the one hand, require precise adherence to
admittedly inexact census figures, and, on the other, downgrade a
restraint on a far greater potential threat to equality of
representation, the gerrymander. Legislatures intent on minimizing
the representation of selected political or racial groups are
invited to ignore political boundaries and compact districts so
long as they adhere to population equality among districts using
standards which we know and they know are sometimes quite
incorrect. I see little merit in such a confusion of
priorities.
Moreover, today's decisions will lead to an unnecessary
intrusion of the judiciary into legislative business. It would be
one thing if absolute equality were possible. But, admittedly, it
is not. The Court may be groping for a clean-cut,
per se
rule which will minimize confrontations between courts and
legislatures while also satisfying the Fourteenth Amendment. If so,
the Court is wide of the mark. Today's results simply shift the
area of dispute a few percentage points down the scale; the
Page 394 U. S. 556
courts will now be engaged in quibbling disputes over such
questions as whether a plan with a 1% variation is "better" than
one with a larger variation, say 1.1% or even 2%. If county and
municipal boundaries are to be ignored, a computer can produce
countless plans for absolute population equality, one differing
very little from another, but each having its own very different
political ramifications. Ultimately, the courts may be asked to
decide whether some families in an apartment house should vote in
one district and some in another, if that would come closer to the
standard of apparent equality. Using the spacious language of the
Equal Protection Clause to inject the courts into these minor
squabbles is an unacceptable preemption of the legislative
function. Not only will the Court's new rule necessarily
precipitate a new round of congressional and legislative
districting, but also I fear that, in the long run, the courts,
rather than the legislatures or nonpartisan commissions, will be
making most of the districting decisions in the several States.
Since, even at best, with compact and equal districts, the final
boundary lines unavoidably have significant political
repercussions, the courts should not draw district lines themselves
unnecessarily. I therefore dissent.
* [This opinion applies also to No. 30,
Kirkpatrick v.
Preisler, ante, p.
394 U. S.
526.]