The Virginia General Assembly in 1971 reapportioned the State
for the election of state delegates and senators. The apportionment
statutes, on challenge by appellees, were invalidated by a
three-judge District Court, which ruled the reapportionments
impermissible violations of the "one person, one vote" principle.
The court substituted its own electoral districts, reducing to
about 10% the percentage variation from the ideal district from the
approximately 16% variation permitted by the legislature's plan
but, contrary to that plan, in many instances not following
political subdivision lines.
Held:
1. Reapportionment of electoral districts for Virginia's House
of Delegates complied with the Equal Protection Clause of the
Fourteenth Amendment, since the legislature's maximum population
percentage variation, which was not excessive, resulted from the
State's rational objective of preserving the integrity of political
subdivision lines. Pp.
410 U. S.
320-330.
(a) In the implementation of the basic constitutional principle
that both houses of a bicameral state legislature be apportioned
substantially on a population basis (
Reynolds v. Sims,
377 U. S. 533),
more flexibility is permissible with respect to state legislative
reapportionment than with respect to congressional redistricting.
Pp.
410 U. S.
320-325.
(b) The State's objective of preserving the integrity of
political subdivision lines is rational, since it furthers the
legislative purpose of facilitating enactment of statutes of purely
local concern and preserves for the voters in the political
subdivisions a voice in the state legislature on local matters. Pp.
410 U. S.
325-328.
(c) Given the wider constitutional latitude in state legislative
reapportionment, the population disparities reflected in the
legislature's
Page 410 U. S. 316
maximum percentage deviation are within tolerable constitutional
limits. Pp.
410 U. S.
328-330.
2. The establishment by the legislature of three numerically
ideal senatorial electoral districts by assigning to one of them
about 36,700 persons who were "home-ported" at the U.S. Naval
Station, Norfolk, regardless of where they actually resided,
because that is where they were counted on official census tracts,
was constitutionally impermissible discrimination against military
personnel,
cf. Davis v. Mann, 377 U.
S. 678; and the District Court, which was under severe
time pressures, did not abuse its discretion in prescribing an
interim plan of combining the three districts into one multi-member
district. Pp.
410 U. S.
330-333.
330 F.
Supp. 1138, affirmed in part, reversed in part.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined.
BRENNAN, J., filed an opinion concurring in part and dissenting in
part, in which Douglas and MARSHALL, JJ., joined,
post, p.
410 U. S. 333.
POWELL, J., took no part in the consideration or decision of the
cases.
Page 410 U. S. 317
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Acting pursuant to the mandate of its newly revised state
constitution, [
Footnote 1] the
Virginia General Assembly enacted statutes apportioning the State
for the election of members of its House of Delegates [
Footnote 2] and Senate. [
Footnote 3] Two suits were brought
challenging the constitutionality of the House redistricting
statute on the grounds that there were impermissible population
variances in the districts, that the multi-member districts diluted
representation, [
Footnote 4]
and that the use of multi-member districts
Page 410 U. S. 318
constituted racial gerrymandering. [
Footnote 5] The Senate redistricting statute was attacked
in a separate suit, which alleged that the city of Norfolk was
unconstitutionally split into three districts, allocating Navy
personnel "home-ported" in Norfolk to one district and isolating
Negro voters in one district. Three three-judge district courts
were convened to hear the suits pursuant to 28 U.S.C. §§ 2281 and
2284. The suits were consolidated and heard by the four judges who
variously made up the three three-judge panels.
The consolidated District Court entered an interlocutory order
that,
inter alia, declared the legislative reapportionment
statutes unconstitutional and enjoined the holding of elections in
electoral districts other than those established by the court's
opinion.
Howell v. Mahan, 330
F. Supp. 1138, 1150 (ED Va.1971). Appellant, the Secretary of
the State Board of Elections and its members and the city of
Virginia Beach, have appealed directly to this Court from those
portions of the court's order, invoking our jurisdiction under 28
U.S.C. § 1253.
I
The statute apportioning the House provided for a combination of
52 single member, multi-member, and floater delegate districts from
which 100 delegates would
Page 410 U. S. 319
be elected. As found by the lower court, the ideal district in
Virginia consisted of 46,485 persons per delegate, and the maximum
percentage variation from that ideal under the Act was 16.4% -- the
12th district being overrepresented by 6.8% and the 16th district
being underrepresented by 9.6%. [
Footnote 6] The population ratio between these two
districts was 1.18 to 1. The average percentage variance under the
plan was +3.89%, and the minimum population percentage necessary to
elect a majority of the House was 49.29%. Of the 52 districts, 35
were within 4% of perfection and nine exceeded a 6% variance from
the ideal. With one exception, the delegate districts followed
political jurisdictional lines of the counties and cities. That
exception, Fairfax County, was allotted 10 delegates but was
divided into two five-member districts.
Relying on
Kirkpatrick v. Preisler, 394 U.
S. 526 (1969),
Wells v. Rockefeller,
394 U. S. 542
(1969), and
Reynolds v. Sims, 377 U.
S. 533 (1964), the District Court concluded that the
16.4% variation was sufficient to condemn the House statute under
the "one person, one vote" doctrine. While it noted that the
variances were traceable to the desire of the General Assembly to
maintain the integrity of traditional county and city boundaries,
and that it was impossible to draft district lines to overcome
unconstitutional disparities and still maintain
Page 410 U. S. 320
such integrity, it held that the State proved no governmental
necessity for strictly adhering to political subdivision lines.
Accordingly, it undertook its own redistricting and devised a plan
having a percentage variation of slightly over 10% from the ideal
district, a percentage it believed came "within passable
constitutional limits as
a good faith effort to achieve
absolute equality.' Kirkpatrick v. Preisler. . . ."
Howell v. Mahan, 330 F. Supp. at 1147-1148.
Appellants contend that the District Court's reliance on
Kirkpatrick v. Preisler, supra, and
Wells v.
Rockefeller, supra, in striking down the General Assembly's
reapportionment plan was erroneous, and that proper application of
the standards enunciated in
Reynolds v. Sims, supra, would
have resulted in a finding that the statute was constitutional.
In
Kirkpatrick v. Preisler and
Wells v.
Rockefeller, this Court invalidated state reapportionment
statutes for federal congressional districts having maximum
percentage deviations of 5.97% and 13.1%, respectively. The express
purpose of these cases was to elucidate the standard first
announced in the holding of
Wesberry v. Sanders,
376 U. S. 1 (1964),
that
"the command of Art. I, § 2, that Representatives be chosen 'by
the People of the several States' means that, as nearly as is
practicable, one man's vote in a congressional election is to be
worth as much as another's."
Id. at
376 U.S.
7-8 (footnotes omitted). And it was concluded that that
command
"permits only the limited population variances which are
unavoidable despite a good faith effort to achieve absolute
equality, or for which justification is shown."
Kirkpatrick v. Preisler, supra, at
394 U. S. 531.
The principal question thus presented for review is whether or not
the Equal Protection Clause of the Fourteenth Amendment likewise
permits only "the limited population variances which are
unavoidable despite a good
Page 410 U. S. 321
faith effort to achieve absolute equality" in the context of
state legislative reapportionment. [
Footnote 7]
This Court first recognized that the Equal Protection Clause
requires both houses of a bicameral state legislature to be
apportioned substantially on a population basis in
Reynolds v.
Sims, supra. In so doing, it suggested that in the
implementation of the basic constitutional principle -- equality of
population among the districts -- more flexibility was
constitutionally permissible with respect to state legislative
reapportionment than in congressional redistricting.
Id.
at
394 U. S. 578.
Consideration was given to the fact that, almost invariably, there
is a significantly larger number of seats in state legislative
bodies to be distributed within a State than congressional seats,
and that, therefore, it may be feasible for a State to use
political subdivision lines to a greater extent in establishing
state legislative districts than congressional districts while
still affording adequate state-wide representation.
Ibid.
Another possible justification for deviation from population-based
representation in state legislatures was stated to be:
"[T]hat of insuring some voice to political subdivisions, as
political subdivisions. Several factors make more than
insubstantial claims that a State can rationally consider according
political subdivisions some independent representation in at least
one body of the state legislature, as long as the basic standard of
equality of population among districts is maintained. Local
governmental entities are frequently charged with various
responsibilities incident to the operation of state government. In
many States much of the legislature's activity involves the
enactment of so-called local legislation, directed only
Page 410 U. S. 322
to the concerns of particular political subdivisions. And a
State may legitimately desire to construct districts along
political subdivision lines to deter the possibilities of
gerrymandering. . . ."
Id. at
394 U. S.
580-581. The Court reiterated that the overriding
objective in reapportionment 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
394 U. S.
579.
By contrast, the Court in
Wesberry v. Sanders, supra,
recognized no excuse for the failure to meet the objective of equal
representation for equal numbers of people in congressional
districting other than the practical impossibility of drawing equal
districts with mathematical precision. Thus, whereas population
alone has been the sole criterion of constitutionality in
congressional redistricting under Art. I, § 2, broader latitude has
been afforded the States under the Equal Protection Clause in state
legislative redistricting because of the considerations enumerated
in
Reynolds v. Sims, supra. The dichotomy between the two
lines of cases has consistently been maintained. In
Kirkpatrick
v. Preisler, for example, one asserted justification for
population variances was that they were necessarily a result of the
State's attempt to avoid fragmenting political subdivisions by
drawing congressional district lines along existing political
subdivision boundaries. This argument was rejected in the
congressional context. But in
Abate v. Mundt, 403 U.
S. 182 (1971), an apportionment for a county legislature
having a maximum deviation from equality of 11.9% was upheld in the
face of an equal protection challenge, in part because New York had
a long history of maintaining the integrity of existing local
government units within the county.
Page 410 U. S. 323
Application of the "absolute equality" test of
Kirkpatrick and
Wells to state legislative
redistricting may impair the normal functioning of state and local
governments. Such an effect is readily apparent from an analysis of
the District Court's plan in this case. Under Art. VII, §§ 2 and 3
of Virginia's Constitution, the General Assembly is given extensive
power to enact special legislation regarding the organization of,
and the exercise of governmental powers by, counties, cities,
towns, and other political subdivisions. The statute redistricting
the House of Delegates consistently sought to avoid the
fragmentation of such subdivisions, assertedly to afford them a
voice in Richmond to seek such local legislation.
The court's reapportionment, based on its application of
Kirkpatrick and
Wells, resulted in a maximum
deviation of slightly over 10%, [
Footnote 8] as compared with the roughly 16% maximum
variation found in the plan adopted by the legislature. But to
achieve even this limit of variation, the court's plan extended
single and multi-member districts across subdivision lines in 12
instances, substituting population equality for subdivision
representation. Scott County, for example, under the Assembly's
plan was placed in the first district, and its population of 24,376
voted with the 76,346 persons in Dickinson, Lee, and Wise Counties
for two delegates. The district thus established deviated by 8.3%
from the ideal. The court transferred five of Scott County's
enumeration districts, containing 6,063 persons, to the contiguous
second district composed of the city of Bristol, and Smyth and
Washington Counties, population 87,041. Scott County's
representation was thereby substantially reduced in the first
district, and all but nonexistent in the second district.
Page 410 U. S. 324
The opportunity of its voters to champion local legislation
relating to Scott County is virtually nil. The countervailing
benefit resulting from the court's readjustment is the fact that
the first district's deviation from the ideal is now reduced to
1.8%.
The city of Virginia Beach saw its position deteriorate in a
similar manner under the court-imposed plan. Under the legislative
plan, Virginia Beach constituted the 40th district and was
allocated three delegates for its population of 172,106. The
resulting underrepresentation was cured by providing a floterial
district, the 42d, which also included portions of the cities of
Chesapeake and Portsmouth. Under the court's plan, the 42d district
was dissolved. Of its 32,651 persons that constituted the deviation
from the ideal for the 40th district, 3,515 were placed in the
40th, and 29,136 were transferred to Norfolk's 39th district. The
39th district is a multi-member district that includes the 307,951
persons who make up the population of the city of Norfolk. Thus,
those Virginia Beach residents who cast their vote in the 39th
district amount to only 8.6% of that district's population. In
terms of practical politics, Virginia Beach complains that such
representation is no representation at all so far as local
legislation is concerned, and that those 29,136 people transferred
to the 39th district have in that respect been effectively
disenfranchised.
We conclude, therefore, that the constitutionality of Virginia's
legislative redistricting plan was not to be judged by the more
stringent standards that
Kirkpatrick and
Wells
make applicable to congressional reapportionment, but instead by
the equal protection test enunciated in
Reynolds v. Sims,
supra. We reaffirm its holding that
"the Equal Protection Clause requires that a State make an
honest and good faith effort to construct districts, in both houses
of its legislature, as nearly of equal
Page 410 U. S. 325
population as is practicable."
377 U.S. at
377 U.S.
577. We likewise reaffirm its conclusion that
"[s]o long as the divergences from a strict population standard
are based on legitimate considerations incident to the effectuation
of a rational state policy, some deviations from the
equal-population principle are constitutionally permissible with
respect to the apportionment of seats in either or both of the two
houses of a bicameral state legislature."
Id. at
377 U.S.
579.
The asserted justification for the divergences in this case --
the State's policy of maintaining the integrity of political
subdivision lines -- is not a new one to this Court. In
Davis
v. Mann, 377 U. S. 678,
377 U. S. 686
(1964), it was noted:
"Because cities and counties have consistently not been split or
divided for purposes of legislative representation, multi-member
districts have been utilized for cities and counties whose
populations entitle them to more than a single representative. . .
. And, because of a tradition of respecting the integrity of the
boundaries of cities and counties in drawing district lines,
districts have been constructed only of combinations of counties
and cities and not by pieces of them. . . ."
The then-existing substantial deviation in the apportionment of
both Houses defeated the constitutionality of Virginia's
districting statutes in that case, but the possibility of
maintaining the integrity of political subdivision lines in
districting was not precluded so long as there existed
"such minor deviations only as may occur in recognizing certain
factors that are free from any taint of arbitrariness or
discrimination."
Roman v. Sincock, 377 U. S. 695,
377 U. S. 710
(1964).
We are not prepared to say that the decision of the people of
Virginia to grant the General Assembly the power to enact local
legislation dealing with the political
Page 410 U. S. 326
subdivisions is irrational. And if that be so, the decision of
the General Assembly to provide representation to subdivisions
qua subdivisions in order to implement that constitutional
power is likewise valid when measured against the Equal Protection
Clause of the Fourteenth Amendment. The inquiry then becomes
whether it can reasonably be said that the state policy urged by
Virginia to justify the divergences in the legislative
reapportionment plan of the House is, indeed, furthered by the plan
adopted by the legislature, and whether, if so justified, the
divergences are also within tolerable limits. For a State's policy
urged in justification of disparity in district population, however
rational, cannot constitutionally be permitted to emasculate the
goal of substantial equality.
There was uncontradicted evidence offered in the District Court
to the effect that the legislature's plan, subject to minor
qualifications, "produces the minimum deviation above and below the
norm, keeping intact political boundaries. . . ." (Defendants'
Exhibit 8.) That court itself recognized that equality was
impossible if political boundaries were to be kept intact in the
process of districting. But it went on to hold that, since the
State "proved no governmental necessity for strictly adhering to
political subdivision lines," the legislative plan was
constitutionally invalid.
Howell v. Mahan, supra, at 1140.
As we noted above, however, the proper equal protection test is not
framed in terms of "governmental necessity," but instead in terms
of a claim that a State may "rationally consider."
Reynolds v.
Sims, supra, at
377 U.S.
580-581.
The District Court intimated that one reason for rejecting the
justification for divergences offered by the State was its
conclusion that the legislature had not, in fact, implemented its
asserted policy, "as witness the division of Fairfax County."
Howell v. Mahan, supra,
Page 410 U. S. 327
at 1140. But while Fairfax County was divided, it was not
fragmented. And had it not been divided, there would have been one
ten-member district in Fairfax County, a result that this Court
might we'll have been thought to disfavor as a result of its
opinion in
Connor v. Johnson, 402 U.
S. 690,
402 U. S. 692
(1971). The State can scarcely be condemned for simultaneously
attempting to move toward smaller districts and to maintain the
integrity of its political subdivision lines.
Appellees argue that the traditional adherence to such lines is
no longer a justification since the Virginia constitutional
provision regarding reapportionment, Art, II, § 6,
supra,
n 1, neither specifically
provides for apportionment along political subdivision lines nor
draws a distinction between the standards for congressional and
legislative districting. The standard in each case is described in
the "as nearly as is practicable" language used in
Wesberry v.
Sanders, supra, and
Reynolds v. Sims, supra. But, as
we have previously indicated, the latitude afforded to States in
legislative redistricting is somewhat broader than that afforded to
them in congressional redistricting. Virginia was free as a matter
of federal constitutional law to construe the mandate of its
Constitution more liberally in the case of legislative
redistricting than in the case of congressional redistricting, and
the plan adopted by the legislature indicates that it has done
so.
We also reject the argument that, because the State is not
adhering to its tradition of respecting the boundaries of political
subdivisions in congressional and State Senate redistricting, it
may not do so in the case of redistricting for the House of
Delegates. Nothing in the fact that Virginia has followed the
constitutional mandate of this Court in the case of congressional
redistricting, or that it has chosen in some instances to ignore
political subdivision lines in the case of the State Senate,
Page 410 U. S. 328
detracts from the validity of its consistently applied policy to
have at least one house of its bicameral legislature responsive to
voters of political subdivisions as such. [
Footnote 9]
We hold that the legislature's plan for apportionment of the
House of Delegates may reasonably be said to advance the rational
state policy of respecting the boundaries of political
subdivisions. The remaining inquiry is whether the population
disparities among the districts that have resulted from the pursuit
of this plan exceed constitutional limits. We conclude that they do
not.
The most stringent mathematical standard that has heretofore
been imposed upon an apportionment plan for a state legislature by
this Court was enunciated in
Swann v. Adams, 385 U.
S. 440 (1967), where a scheme having a maximum deviation
of 26% was disapproved. In that case, the State of Florida offered
no evidence at the trial level to support the challenged variations
with respect to either the House or Senate.
Id. at
385 U. S. 446.
The Court emphasized there that "the fact that a 10% or 15%
variation from the norm is approved in one State has little bearing
on the validity of a similar variation in another State."
Id. at
385 U. S. 445.
We therefore find the citations to numerous cases decided by state
and lower
Page 410 U. S. 329
federal courts to be of limited use in determining the
constitutionality of Virginia's statute. The relatively minor
variations present in the Virginia plan contrast sharply with the
larger variations in state legislative reapportionment plans that
have been struck down by previous decisions of this Court.
See,
e.g., Reynolds v. Sims, supra; Swann v. Adams, supra; and
Kilgarlin v. Hill, 386 U. S. 120
(1967).
Neither courts nor legislatures are furnished any specialized
calipers that enable them to extract from the general language of
the Equal Protection Clause of the Fourteenth Amendment the
mathematical formula that establishes what range of percentage
deviations is permissible, and what is not. The 16-odd percent
maximum deviation that the District Court found to exist in the
legislative plan for the reapportionment of the House is
substantially less than the percentage deviations that have been
found invalid in the previous decisions of this Court. While this
percentage may well approach tolerable limits, we do not believe it
exceeds them. Virginia has not sacrificed substantial equality to
justifiable deviations.
The policy of maintaining the integrity of political subdivision
lines in the process of reapportioning a state legislature, the
policy consistently advanced by Virginia as a justification for
disparities in population among districts that elect members to the
House of Delegates, is a rational one. It can reasonably be said,
upon examination of the legislative plan, that it does in fact,
advance that policy. The population disparities that are permitted
thereunder result in a maximum percentage deviation that we hold to
be within tolerable constitutional limits. We, therefore, hold the
General Assembly's plan for the reapportionment of the House of
Delegates constitutional and reverse the District Court's
conclusion
Page 410 U. S. 330
to the contrary. We also affirm
Weinberg v. Prichard et
al., No. 71-444, held pending this disposition. [
Footnote 10]
II
The General Assembly divided the State into 40 single member
senatorial districts. Under the plan, a portion of the city of
Virginia Beach was added to the city of Norfolk and the entire area
was divided into three single member districts, which the court
below found conformed almost ideally, numerically, to the "one
person, one vote" principle. But all naval personnel "home-ported"
at the U.S. Naval Station, Norfolk, about 36,700 persons, were
assigned to the Fifth Senatorial District because that is where
they were counted on official census tracts. [
Footnote 11] It was undisputed that only about
8,100 of such
Page 410 U. S. 331
personnel lived aboard vessels assigned to the census tract
within the Fifth District. The court had before it evidence that
about 18,000 lived outside the Fifth District but within the
Norfolk and Virginia Beach areas that, if true, indicated a
malapportionment with respect to such personnel. [
Footnote 12] Lacking survey data
sufficiently precise to permit the creation of three single member
districts more closely representing the actual population, the
court corrected the disparities by establishing one multi-member
district composed of the Fifth, Sixth, and Seventh Districts,
encompassing the city of Norfolk and a portion of Virginia Beach.
Howell v. Mahan, supra.
Appellants charge that the District Court was not justified in
overturning the districts established by the General Assembly,
since the Assembly validly used census tracts in apportioning the
area and that the imposition by the court of a multi-member
district contravened the valid legislative policy in favor of
single member districts. We conclude that under the unusual, if not
unique, circumstances in this case the District Court did not err
in declining to accord conclusive weight to the legislative
reliance on census figures. That court justifiably found
Page 410 U. S. 332
that with respect to the three single member districts in
question, the legislative plan resulted in both significant
population disparities and the assignment of military personnel to
vote in districts in which they admittedly did not reside. Since
discriminatory treatment of military personnel in legislative
reapportionment is constitutionally impermissible,
Davis v.
Mann, supra, at
377 U. S. 691,
we hold that the interim relief granted by the District Court as to
the State Senate was within the bounds of the discretion confided
to it.
Application of interim remedial techniques in voting rights
cases has largely been left to the district courts.
Reynolds v.
Sims, supra, at
377 U.S.
585. The courts are bound to apply equitable considerations
and in
Reynolds it was stated that
"[i]n awarding or withholding immediate relief, a court is
entitled to and should consider the proximity of a forthcoming
election and the mechanics and complexities of state election laws.
. . ."
Ibid.
The court below was faced with severe time pressures. The
reapportionment plans were first forwarded to the Attorney General
on March 1, 1971. By April 7, these three cases had been filed and
consolidated. The first hearing was scheduled for May 24, but on
May 7, the Attorney General interposed his objections pursuant to
the Voting Rights Act. As a result, the May 24 hearing was largely
devoted to arguing about the effect of such objections and after
that hearing, the court directed the cases to be continued until
June 15. It also postponed the primary elections, which had been
set for June 8, until September 14. The cases were finally heard on
June 16, and the court's interlocutory order was entered on July 2,
just two weeks prior to the revised July 16 filing deadline for
primary candidates.
Prior to the time the court acted, this Court had handed down
Whitcomb v. Chavis, 403 U. S. 124
(1971), recognizing that multi-member districts were not
per
se
Page 410 U. S. 333
violative of the Equal Protection Clause. The court
conscientiously considered both the legislative policy and this
Court's admonition in
Connor v. Johnson, supra, that in
fashioning apportionment remedies, the use of single-member
districts is preferred. But it was confronted with plausible
evidence of substantial malapportionment with respect to military
personnel, the mandate of this Court that voting discrimination
against military personnel is constitutionally impermissible,
Davis v. Mann, supra, at
377 U. S.
691-692, and the fear that too much delay would have
seriously disrupted the fall 1971 elections. Facing as it did this
singular combination of unique factors, we cannot say that the
District Court abused its discretion in fashioning the interim
remedy of combining the three districts into one multi-member
district. [
Footnote 13] We,
therefore, affirm the order of that Court insofar as it dealt with
the State Senate.
Affirmed in part, reversed in part.
MR. JUSTICE POWELL took no part in the consideration or decision
of these cases.
* Together with No. 71-373,
City of Virginia Beach v. Howell
et al., on appeal from the same court, and No. 71-444,
Weinberg v. Prichard et al., on appeal from the same court
but not argued.
See n 10
infra.
[
Footnote 1]
Article II, § 6, of the Revised Virginia Constitution
provides:
"Members of the House of Representatives of the United States
and members of the Senate and of the House of Delegates of the
General Assembly shall be elected from electoral districts
established by the General Assembly. Every electoral district shall
be composed of contiguous and compact territory and shall be so
constituted as to give, as nearly as is practicable, representation
in proportion to the population of the district. The General
Assembly shall reapportion the Commonwealth into electoral
districts in accordance with this section in the year 1971 and
every ten years thereafter."
"Any such reapportionment law shall take effect immediately and
not be subject to the limitations contained in Article IV, Section
13, of this Constitution."
[
Footnote 2]
Va.Code. Ann. § 24.1-12.1 (Supp. 1972).
[
Footnote 3]
Va.Code Ann. § 24.1-14.1, as amended by c. 246, Acts of
Assembly, June 14, 1971.
[
Footnote 4]
The reapportionment statutes were originally passed on March 1,
1971. On May 7, 1971, the Attorney General of the United States,
acting pursuant to § 5 of the Voting Rights Act of 1965, 79 Stat.
439, 42 U.S.C. § 1973c, interposed objections to both the House and
the Senate plans. Objections to the House plan were based on the
use of five multi-member districts in certain metropolitan areas.
Between his interposition and the trial of these cases, this Court
decided
Whitcomb v. Chavis, 403 U.
S. 124 (1971), and the Attorney General's objections to
the House plan were subsequently withdrawn. The objection of the
Senate plan was cured by the amendment contained in c. 246,
supra, n 3.
[
Footnote 5]
The Court initially noted probable jurisdiction in the related
case of
Thornton v. Prichard, No. 71-553. This appeal
primarily involved the question of whether or not the multi-member
districts had a discriminatory effect on the rights of Negro voters
under § 5 of the Voting Rights Act,
supra, n 4, as well as under the Fourteenth and
Fifteenth Amendments. On appellant's own motion, this appeal was
dismissed, 409 U.S. 802.
[
Footnote 6]
These are the figures found by the District Court. Appellee
DuVal argues that another method of computation involving
Virginia's floterial districts results in a maximum deviation of
23.6%. The State and the city of Virginia Beach disputed that the
deviation for the district relied on by DuVal for his figure was as
much as claimed. The lower court made no finding on that dispute,
concluding that the 16.4% variation was "sufficient to condemn the
plan."
330 F.
Supp. 1138, 1139-1140. We decline to enter this imbroglio of
mathematical manipulation, and confine our consideration to the
figures actually found by the court and used to support its holding
of unconstitutionality.
[
Footnote 7]
In
Connor v. Williams, 404 U.
S. 549 (1972), we expressly re served decision on this
issue.
[
Footnote 8]
The lower court concluded that its spread was only slightly over
7%, but in its arithmetic it did not consider two counties because
of their asserted isolation from the remainder of the State.
Howell v. Mahan, 330 F.
Supp. 1138, 1147 n. 8.
[
Footnote 9]
Appellees also contend that it is clear the State has abandoned
its traditional adherence to political subdivision boundaries,
since it provided in the reapportionment statute that districts
shall not change even though boundaries do as a result of
annexation, for example. The short answer is that the General
Assembly had the dual goal of maintaining such lines and providing
for population equality. Reapportionment was only constitutionally
required every 10 years between redistricting, and it was the
Assembly's decision that, if during the 10 years between
redistricting one of its goals should conflict with the other, the
one based on known population variances should prevail. Such a
determination does not render constitutionally defective an
otherwise valid plan.
[
Footnote 10]
In this companion case, appellant Weinberg challenges the order
of the District Court insofar as it sustains the validity of the
22d and 23d districts established in the House of Delegates
apportionment statute. He argues that in court-ordered
reapportionment, this Court ought to exercise its supervisory power
to require more equality than would be required from legislative
reapportionment. He also contends that the method of computation of
floterial district deviations utilized by the District Court was
erroneous. Since the House of Delegates apportionment statute is
constitutional, and since the deviation for the 23d district under
appellant's method of computation is only 3.9%, substantially lower
than the approximately 1% deviation today upheld, we affirm those
portions of the judgment appealed from in No. 71-444.
[
Footnote 11]
Such personnel were attached to ships "home-ported" at Norfolk
and they were enumerated in Census Tract 000999, a location
encompassing a series of ship piers. They were counted that way in
accordance with instructions from the Director of the Bureau of the
Census, George H. Brown. All ship commanders were directed to
obtain an enumeration of all personnel assigned to their ships.
Specifically, his instructions provided that ship commanders were
to:
"Include all married personnel in the enumeration even though
they may be home with their families on 1 April. Wives of personnel
assigned to vessels will be instructed not to include their
husbands when they complete their census forms."
Thus, even though Navy personnel assigned to ships "home-ported"
at Norfolk might have lived outside the Fifth Senatorial District
with their wives and families, for census purposes they were
assigned to that District.
The legislative use of this census enumeration to support a
conclusion that all of the Navy personnel on a ship actually
resided within the state senatorial district in which the ship was
docked placed upon the census figures a weight that they were not
intended to bear. The Navy itself used as a "rule of thumb" an
estimate that 50% of such personnel occupied housing units on
shore.
[
Footnote 12]
The District Court found that the remaining 10,000 lived off the
base but within the Fifth Senatorial District.
[
Footnote 13]
We note that the order appealed from is interlocutory and the
lower court has retained jurisdiction. There is nothing in its
order to prevent the Virginia General Assembly from enacting an
apportionment plan for the Fifth, Sixth, and Seventh Districts
which differs from that ordered by the court, but is nonetheless
consistent with constitutional requirements.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, concurring in part and dissenting in
part.
I agree with the Court in No. 71-373,
City of Virginia Beach
v. Howell, that the joinder by the District Court of three
senatorial districts in the Norfolk-Virginia Beach area to create
one multi-member senatorial district for the 1971 election was
permissible under the special circumstances
Page 410 U. S. 334
of this case.
Cf. Whitcomb v. Chavis, 403 U.
S. 124,
403 U. S.
176-179 (1971) (Douglas, J., concurring and dissenting);
see Fortson v. Dorsey, 379 U. S. 433,
379 U. S. 439
(1965);
Burns v. Richardson, 384 U. S.
73,
384 U. S. 88
(1966). I dissent, however, in No. 71-364,
Mahan v.
Howell, from the Court's action in setting aside the District
Court's finding that the apportionment of the State House of
Delegates violated the Equal Protection Clause of the Fourteenth
Amendment.
The Court approves a legislative apportionment plan that is
conceded to produce a total deviation of at least 16.4% from the
constitutional ideal. [
Footnote
2/1] Of course,
"the fact that a 10% or 15% variation from the norm is approved
in one State has little bearing on the validity of a similar
variation in another State."
Swann v. Adams, 385 U. S. 440,
385 U. S. 445
(1967). "What is marginally permissible in one State may be
unsatisfactory in another, depending on the particular
circumstances of the case."
Reynolds v. Sims, 377 U.
S. 533,
377 U.S.
578 (1964). Since every reapportionment case presents as its
factual predicate a unique combination of circumstances, decisions
upholding or invalidating a legislative plan cannot normally have
great precedential significance.
Abate v. Mundt,
403 U. S. 182,
403 U. S. 189
(1971) (BRENNAN, J., dissenting). But language in the Court's
opinion today suggests that more may be at stake than the
application of well established principles to a novel set of facts.
In my view, the problem in the case before us is in no sense one of
first impression, but is squarely controlled by our prior
decisions.
See Kirkpatrck v. Preisler, 394 U.
S. 526 (1969);
Swann v. Adams, supra; Reynolds v.
Sims, supra; Davis v. Mann, 377 U. S. 678
(1964);
Roman v.
Page 410 U. S. 335
Sincock, 377 U. S. 695
(1964). It is appropriate, therefore, to call to mind again the
controlling principles and to show that, properly applied to the
facts of the case before us, they preclude a reversal of the
District Court's decision.
I
Virginia's recently amended Constitution provides that
"members of the Senate and of the House of Delegates of the
General Assembly shall be elected from electoral districts
established by the General Assembly,"
and
"[e]very electoral district shall be composed of contiguous and
compact territory and shall be so constituted as to give, as nearly
a is practicable, representation in proportion to the population of
the district."
Art. II, § 6. Pursuant to that requirement, the General Assembly
in 1971 divided the Commonwealth into 52 legislative districts from
which the 100 members of the House of Delegates were to be
elected.
On the basis of 1970 census figures, which set the population of
the Commonwealth at 4,648,494, each delegate should ideally
represent 46,485 persons. While the legislature's plan does not
disregard constitutional requirements to the flagrant extent of
many earlier cases, [
Footnote 2/2]
it does, nevertheless, demonstrate a systematic pattern of
substantial deviation from the constitutional ideal. Under the 1971
plan, more than 25% of the delegates would be elected from
districts in which the population deviates from the ideal by more
than 5%. Almost 60% of the delegates would represent districts that
deviate by more than 3%. Four legislators would be elected from
districts that are overrepresented or underrepresented by more than
8%. And the maximum deviation -- the
Page 410 U. S. 336
spread between the most overrepresented and the most
underrepresented districts -- would be at least 16.4%, and might be
as high as 23.6%, depending on the method of calculation.
Assuming a maximum deviation of 16.4%, the legislature's plan is
still significantly less representative than many plans previously
struck down by state and lower federal courts. [
Footnote 2/3] Appellees maintain, however, that the
total deviation, properly computed, is in fact, 23.6% -- a figure
closely approximating the 25.65% deviation that led us to
invalidate the Senate plan in
Swann v. Adams, supra, the
26.48% deviation that led us to invalidate the House plan in
Kilgarlin v. Hill, 386 U. S. 120
(1967), and the 24.78% deviation that led us to invalidate the
House plan in
Whitcomb v. Chavis, 403 U.
S. 124,
403 U. S.
161-163 (1971). Appellees arrive at the figure of 23.6%
by taking into account the deviations in floterial districts,
see App. 81-83, and appellants seem to concede that 23.6%
is an accurate indicator of the total deviation.
See Brief
for Appellant Commonwealth of Virginia 7. [
Footnote 2/4]
Page 410 U. S. 337
The District Court pointed out that the "range of deviation may
exceed 16.4%,"
330 F.
Supp. 1138, 1139 n. 1 (ED Va.1971), but it had no occasion to
consider whether 23.6% was the more accurate figure because of its
finding that, "[u]nder either mode of calculation . . . , the
state-wide range of deviation will not pass constitutional muster."
Ibid. Although conceding that the District Court did not
reject or disparage appellees' assertion of a 23.6% deviation, the
Court nevertheless reaches the perplexing conclusion that we
"confine our consideration to the figures actually found by the
court and used to support its holding of unconstitutionality" --
16.4%.
Ante at
410 U. S. 319,
n. 6. But if the legislature's plan does, in fact, "pass
constitutional muster" on the assumption of a 16.4% deviation, then
it is surely fair to ask whether the plan would still be valid
assuming a total deviation of 23.6%. The Court refuses either to
confront the question directly or to render it moot by determining
that the figure of 23.6% is irrelevant because improperly derived.
Instead, it attempts to obscure the issue by contending that the
Commonwealth and the city of Virginia Beach disputed appellees'
assertion of a 23.6% total deviation. That contention is wholly
incorrect. Neither in the answers filed in the District Court, nor
in the briefs, nor at oral argument did the Commonwealth or the
city of Virginia Beach quarrel with appellee's method of
calculating the deviation in floterial districts.
See
410
U.S. 315fn2/4|>n. 4,
supra. The Court's refusal to
consider the question can only mean that appellees have the option
of reopening this litigation in the District Court in an attempt to
persuade that court that the true measure of the
Page 410 U. S. 338
deviation is 23.6% and that a deviation of this order is fatal
to the Commonwealth's plan.
In my view, there is no need to prolong this litigation by
resolution in the court below of an issue that this Court should,
but inexplicably does not, decide. The District Court correctly
held that deviations of the magnitude of even 16.4% are sufficient
to invalidate the legislature's plan. And that court added -- again
correctly -- that,
"[i]n reapportionment cases, the burden is on the State to
justify deviations from parity by 'legitimate considerations
incident to the effectuation of a rational state policy.'
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 579 (1964);
see Swann v.
Adams, 385 U. S. 440,
385 U. S.
444 (1967). The State has proved no governmental
necessity for strictly adhering to political subdivision
lines."
330 F. Supp. at 1140. Accordingly, the District Court
promulgated its own apportionment plan, which significantly reduced
the extent of deviation.
Under the District Court's plan, the maximum deviation would be
7.2%, [
Footnote 2/5] excluding one
district which is geographically isolated from the mainland of the
Commonwealth. [
Footnote 2/6] And,
even including that isolated district, the maximum total deviation
would not exceed 10.2%. But the substantial reduction in the
maximum deviation does not, in itself, make clear the full measure
of the improvement achieved by the District Court's plan. The
number of delegates whose districts deviate from the norm by 3% or
more would be almost cut in
Page 410 U. S. 339
half, from 58 to 32. And of the 32 districts still exceeding the
3% mark, only one -- the geographically isolated district -- would
exceed the mean by more than 3.7%. In short, while the District
Court did not achieve its stated goal of "perfect mathematical
division" because of the "multiplicity of delegates, the geography
of the State and the diversity of population concentrations," 330
F. Supp. at 1147, its plan would still produce measurably greater
equality of representation.
Appellants necessarily concede that the District Court's plan
would reduce the inequality in population per district, but they
defend the legislature's plan on the ground that "tolerance of
political jurisdictional lines is justification for some
deviation," Brief for Appellant Commonwealth of Virginia 24. They
maintain that the legislature's plan achieved the highest degree of
equality possible without fragmenting political subdivisions. The
principal question presented for our decision is whether, on the
facts of this case, an asserted state interest in preserving the
integrity of county lines can justify the resulting substantial
deviations from population equality.
II
The holdings of our prior decisions can be restated in two
unequivocal propositions. First, the paramount goal of
reapportionment must be the drawing of district lines so as to
achieve precise equality in the population of each district.
[
Footnote 2/7]
"[T]he Equal Protection Clause requires that a State make an
honest and good faith effort to construct districts, in both houses
of its legislature, as nearly of
Page 410 U. S. 340
equal population as is practicable."
Reynolds v. Sims, 377 U.S. at
377 U.S. 577;
see also Kirkpatrick
v. Preisler, 394 U.S. at
394 U. S. 531.
The Constitution does not permit a State to relegate considerations
of equality to secondary status and reserve as the primary goal of
apportionment the service of some other state interest.
Second, it is open to the State, in the event that it should
fail to achieve the goal of population equality, to attempt to
justify its failure by demonstrating that precise equality could
not be achieved without jeopardizing some critical governmental
interest. The Equal Protection Clause does not exalt the principle
of equal representation to the point of nullifying every competing
interest of the State. But we have held firmly to the view that
variations in weight accorded each vote can be approved only where
the State meets its burden of presenting cogent reasons in
explanation of the variations, and even then only where the
variations are small.
See, e.g., Abate v. Mundt,
403 U. S. 182
(1971);
Kirkpatrick v. Preisler, supra; Swann v. Adams,
supra.
The validity of these propositions and their applicability to
the case before us are not at all diminished by the fact that
Kirkpatrick v. Preisler and
Wells v. Rockefeller,
394 U. S. 542
(1969) -- two of the many cases in which the propositions were
refined and applied -- concerned the division of States into
federal congressional districts, rather than legislative
reapportionment. Prior to today's decision, we have never held that
different constitutional standards are applicable to the two
situations. True, there are significant differences between
congressional districting and legislative apportionment, and we
have repeatedly recognized those differences. In
Reynolds v.
Sims, for example, we termed "more than insubstantial" the
argument that
"a State can rationally consider according political
subdivisions some independent representation in at least one
body
Page 410 U. S. 341
of the state legislature, as long as the basic standard of
equality of population among districts is maintained."
377 U.S. at
377 U.S.
580.
See also id. at
377 U.S. 578;
Abate v. Mundt,
supra. But the recognition of these differences is hardly
tantamount to the establishment of two distinct controlling
standards. What our decisions have made clear is that certain state
interests that are pertinent to legislative reapportionment can
have no possible relevance to congressional districting. Thus, the
need to preserve the integrity of political subdivisions as
political subdivisions may, in some instances, justify small
variations in the population of districts from which state
legislators are elected. But that interest can hardly be asserted
in justification of malapportioned congressional districts.
Kirkpatrick v. Preisler, supra. While the State may have a
broader range of interests to which it can point in attempting to
justify a failure to achieve precise equality in the context of
legislative apportionment, it by no means follows that the State is
subject to a lighter burden of proof or that the controlling
constitutional standard is in any sense distinguishable.
Our concern in
Kirkpatrick v. Preisler was with the
constitutional requirement that "as nearly as is practicable one
man's vote in a congressional election is to be worth as much as
another's."
Wesberry v. Sanders, 376 U. S.
1,
376 U.S. 7-8
(1964). We rejected the State'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. . . .
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 equality.
See Reynolds
v. Sims, 377 U. S. 533,
377 U.S. 577 (1964)."
Kirkpatrick v. Preisler,
Page 410 U. S. 342
supra at
394 U. S.
530-531. Moreover, we held,
id. at
394 U. S. 532,
that "[i]t 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."
The principles that undergirded our decision in
Kirkpatrick
v. Preisler are the very principles that supported our
decision in
Swann v. Adams, a case involving the
apportionment of a state legislature. The opinion in
Kirkpatrick does not suggest that a different standard
might be applicable to congressional districting. On the contrary,
the "as nearly as practicable" standard with which we were
concerned is identical to the standard that
Reynolds v.
Sims specifically made applicable to controversies over state
legislative apportionment.
See Reynolds v. Sims, supra, at
377 U.S. 577.
See also
Hadley v. Junior College District, 397 U. S.
50,
397 U. S. 56
(1970). And the holding in
Kirkpatrick that the State must
bear the burden of justifying deviations from population equality
not only rested squarely and exclusively on our holding in
Swann v. Adams, but even defined the test by quotation
from
Swann. See Kirkpatrick v. Preisler, supra,
at
394 U. S.
532.
In
Swann v. Adams, we held that variations in the
population of legislative districts must be justified by the State
by presentation of "acceptable reasons for the variations." 385
U.S. at
385 U. S. 443.
And a comparison of the opinion for the Court in
Swann
with the views expressed by two Justices in dissent,
see Swann
v. Adams, supra, at
385 U. S.
447-448 (Harlan, J., dissenting), decisively refutes any
suggestion that unequal representation will be upheld so long as
some rational basis for the discrimination can be found. A showing
of necessity, not rationality is what our decision in
Swann requires.
If
Swann does not establish the point with sufficient
clarity, then surely our decision in
Kilgarlin
v. Hill, 386
Page 410 U. S. 343
U.S. 120 (1967), where we elucidated and applied the principles
of Swann, removes all doubt. There, the District Court had
sustained the state apportionment plan on two grounds, one of which
we termed a "burden of proof" ruling. The lower court held that
appellants
"had the burden not only of demonstrating the degree of variance
from the equality principle, but also of 'negat[ing] the existence
of any state of facts which would sustain the constitutionality of
the legislation.'
252 F.
Supp. 404, 414."
Id. at
386 U. S. 122.
We squarely rejected that statement of the controlling legal
standard, and held that, under
Swann v. Adams,
"it is quite clear that, unless satisfactorily justified by the
court or by the evidence of record, population variances of the
size and significance evident here [a total deviation of 26.48%]
are sufficient to invalidate an apportionment plan."
Ibid. We also rejected the District Court's second
ground of decision: namely, that the deviations were amply
justified by the State's attempt, wherever possible, to respect
county boundaries. Significantly, the opinion stated that
"[w]e are doubtful . . . that the deviations evident here are
the kind of 'minor' variations which
Reynolds v. Sims
indicated might be justified by local policies counseling the
maintenance of established political subdivisions in apportionment
plans.
377
U. S. 533,
377 U.S.
578-579. But we need not reach that constitutional question,
for we are not convinced that the announced policy of the State of
Texas
necessitated the range of deviations between
legislative districts which is evident here."
Id. at
386 U. S. 123
(emphasis supplied).
III
I would affirm the District Court's decision because, on this
record, the Commonwealth of Virginia failed -- just as the State of
Florida failed in
Swann v. Adams and the State of Texas
failed in
Kilgarlin v. Hill -- to justify substantial
Page 410 U. S. 344
variations in the population of the districts from which members
of the House of Delegates are elected. The panel that heard the
case below consisted of four judges, all from Virginia, and I share
their unanimous view that the Commonwealth failed to prove that the
variations were justified by a need to insure representation of
political subdivisions or a need to respect county boundaries in
the drawing of district lines.
If variations in the population of legislative districts are to
be upheld, the Court must determine, before turning to the
justifications that are asserted in defense of the variations, that
they are "free from any taint of arbitrariness or discrimination."
Ante at
410 U. S. 325,
quoting from
Roman v. Sincock, 377 U.S. at
377 U. S. 710.
Appellees alleged before the District Court that the legislature's
reapportionment plan did indeed discriminate against one region of
the State the Northern Virginia suburbs of Washington, D.C. Each
House seat in Northern Virginia would be underrepresented by an
average of 4.3% under the 1971 plan, and several would be
underrepresented by as much as 6.3%. In view of what it termed the
"pervasive under-representation in districts in Northern Virginia,"
330 F. Supp. at 1146, the District Court ordered the transfer of
one delegate out of the systematically overrepresented Tidewater
region and into Northern Virginia.
In
Abate v. Mundt, supra, at
403 U. S.
185-186, we pointed out that we have
"never suggested that certain geographic areas or political
interests are entitled to disproportionate representation. . .
."
"Accordingly, we have underscored the danger of apportionment
structures that contain a built-in bias tending to favor particular
geographic areas or political interests or which necessarily will
tend to favor, for example, less populous districts over their
more
Page 410 U. S. 345
highly populated neighbors,
see Hadley v. Junior College
District, 397 U. S. 50,
397 U. S.
57-58 (1970)."
The District Court found as a fact that the 1971 plan did
include a "built-in bias tending to favor [a] particular geographic
area." Conveniently, the Court discerns no need even to acknowledge
this critical finding of fact, and sets it aside without
explanation. We have no basis for concluding that the finding is
clearly erroneous, and that finding requires an affirmance of the
District Court's decision without regard to the Commonwealth's
asserted justifications for the inequalities in district
population.
But even assuming that the Commonwealth's plan can be considered
free of any "taint of arbitrariness or discrimination," appellants
have failed to meet their burden of justifying the inequalities.
They insist that the legislature has followed a consistent practice
of drawing district lines in conformity with county boundaries. But
a showing that a State has followed such a practice is still a long
step from the necessary showing that the State
must follow
that practice. Neither in the Virginia Constitution nor in any Act
of the Assembly has Virginia explicitly indicated any interest in
preserving the integrity of county lines or in providing
representation of political subdivisions as political subdivisions.
Cf. Reynolds v. Sims, supra, at
377 U.S. 580-581. On the contrary, the
Constitution establishes a single standard for both legislative
apportionment and congressional districting, and that standard
requires only that lines be drawn so as to insure, "as nearly as is
practicable," representation in proportion to population. [
Footnote 2/8]
Page 410 U. S. 346
And the origins of the constitutional provision make clear that
equality in district population, not the representation of
political subdivisions, is the Commonwealth's preeminent goal.
[
Footnote 2/9]
Moreover, in asserting its interest in preserving the integrity
of county boundaries, the Commonwealth offers nothing more than
vague references to "local legislation," without describing such
legislation with precision, without indicating whether such
legislation amounts to a significant proportion of the
legislature's business, and without demonstrating that the District
Court's plan would materially affect the treatment of such
legislation. [
Footnote 2/10]
Page 410 U. S. 347
The Court assumes that county representation is an important
goal of Virginia's reapportionment plan,
ante at
410 U. S.
326-328, and appellants suggest that the plan can be
justified, at least in part, by the effort "to. give an independent
voice to the cities and counties [the legislature] daily governs."
Brief for Appellant Commonwealth of Virginia 33. If county
representation is indeed the Commonwealth's goal, then the
apportionment plan adopted in 1971 itself falls far short of that
objective. Appellants describe the problem in the following
terms:
"Under the Court's plan, a situation could arise where the 1602
citizens of Wythe County, Virginia, who were placed in the Sixth
Legislative District are opposed to local legislation pending in
the General Assembly for their county. They must voice such
opposition to the delegates representing 91,620 other persons in
the Sixth Legislative District composed of the Counties of Carroll,
Floyd and Montgomery
Page 410 U. S. 348
and the City of Radford, rather than oppose only their 20,537
fellow citizens of Wythe County."
Brief for Appellant Commonwealth of Virginia 27. That argument
assumes that some significant number of issues will have an impact
squarely on Wythe County, while having no impact, or a differing
impact, on the surrounding areas. For on issues affecting the
entire region or the Commonwealth as a whole presumably the vast
majority of issues -- the critical concern is not that each vote in
Wythe County be cast in a single district, but that each vote cast
be precisely equal in weight to votes in every other part of the
Commonwealth. And the argument also assumes that the issues
affecting only one county are of predominant concern to the voters.
Under a representative form of government, the voters participate
indirectly through the election of delegates. It should be obvious
that as a voter's concern with regional or state-wide issues
increases relative to his interest in county issues, the
significance of voting outside the county will correspondingly
diminish.
But even if a substantial number of issues do have an impact
primarily on a single county, and even if those issues are of deep
concern to the voters, it still does not follow that the
legislature's apportionment plan is a rational attempt to serve an
important state interest. The plan would by no means provide, even
in the legislature's own terms, effective representation for each
county. Thus, the fourth legislative district, which would elect
one delegate under the 1971 plan, consists of Wythe, Grayson, and
Bland Counties along with the city of Galax. Yet Wythe County
alone, according to appellants' figures, comprises 22,139 of the
49,279 persons resident in the district. Since Wythe County makes
up almost one-half of the population of the fourth district, the
district's delegate is likely to champion Wythe County's cause
should an issue arise that pits its interest
Page 410 U. S. 349
against the interests of Grayson or Bland County or the city of
Galax.
In short, the best that can be said of appellants' efforts to
secure county representation is that the plan can be effective only
with respect to some unspecified, but in all likelihood small,
number of issues that affect a single county and that are
overwhelmingly important to the voters of that county; and, even
then, it provides effective representation only where the affected
county represents a large enough percentage of the voters in the
district to have a significant impact on the election of the
delegate. [
Footnote 2/11] But
even if county representation were, in fact, a strong and
legitimate goal of the Commonwealth, and even if the 1971 plan did
represent a rational effort to serve that goal, it is still not
clear that the legislature's plan should be upheld. The plan
prepared by the District Court would achieve a much higher degree
of equality in district population, and it would accomplish that
salutary goal with minimal disruption of the legislature's effort
to avoid fragmenting counties. Of the 134 political subdivisions in
the Commonwealth, only 12 would be divided by the District Court's
plan. More significant, the number of persons resident in voting
districts that would be cut out of one county or city and shifted
to another is 64,738, out of the total state population of
4,648,494. Thus, even making each of the logical and empirical
assumptions implicit in the view that violating county lines would
effectively disenfranchise certain persons on certain local issues,
the number
Page 410 U. S. 350
of persons affected would still be less than 1 1/2% of the total
state population.
IV
On this record -- without any showing of the specific need for
county representation or a showing of how such representation can
be meaningfully provided to small counties whose votes would be
submerged in a multi-county district -- I see no basis whatsoever
for upholding the Assembly's 1971 plan and the resulting
substantial variations in district population. Accordingly, I would
affirm the judgment of the District Court holding the plan invalid
under the Equal Protection Clause of the Fourteenth Amendment.
[
Footnote 2/1]
The full extent of the deviation may, in fact, be substantially
in excess of 16.4%, as appellees maintain and appellants seemingly
concede.
See infra at
410 U. S.
335-338.
[
Footnote 2/2]
See, e.g., Avery v. Midland Count, 390 U.
S. 474 (1968);
Reynolds v. Sims, 377 U.
S. 533 (1964);
Roman v. Sincock, 377 U.
S. 695 (1964).
[
Footnote 2/3]
See, e.g., Cummings v. Meskill, 341 F.
Supp. 139 (Conn.1972) (maximum deviation for House, 7.83%, and
for Senate, 1.81%);
In re Legislative Districting of General
Assembly, 193 N.W.2d
784 (1972) (House, 3.8%, and Senate, 3.2%);
Graves v.
Barnes, 343 F.
Supp. 704 (WD Tex.1972) (9.9%);
Troxler v. St. John the
Baptist Parish Police Jury, 331 F.
Supp. 222 (ED La.1971) (6.2%);
In re Legislative
Districting of General Assembly, 175 N.W.2d
20 (1970) (House, 13%, and Senate, 12.1%);
Driggers v.
Gallion, 308 F. Supp. 632 (MD Ala.1969) (at least 10%);
Skolnick v. Illinois State Electoral Bd., 307 F.
Supp. 691 (ND Ill.1969) (House, 16.9%, and Senate, 14.7%);
Long v. Docking, 282 F.
Supp. 256,
283 F.
Supp. 539 (Kan.1968) (16.6%).
[
Footnote 2/4]
"The deviations from absolute equality of population arrived at
by the redistricting of the House ranged from an
under-representation of plus 9.6% to an over-representation of
minus 6.8%, or a total variance of 16.4%.
As noted by the
Court, however, the 42nd District, a floater shared by the cities
of Chesapeake, Portsmouth and Virginia Beach would have as to that
one instance increased the total variation to 2.6%."
(Emphasis supplied.)
See also Reply Brief for Appellant
City of Virginia Beach 3-4.
[
Footnote 2/5]
The deviation would be slightly in excess of 8% if floterial
districts were weighted according to appellees' method of
calculation.
330 F.
Supp. 1138, 1147 n. 9.
[
Footnote 2/6]
The isolated district comprises Accomack and Northampton
Counties. These counties, known as the Eastern Shore, are separated
from the mainland of Virginia by Chesapeake Bay and the Atlantic
Ocean. They are contiguous only to the State of Maryland. The
district, the 46th, is overrepresented by 6.5%.
[
Footnote 2/7]
Reynolds v. Sims, supra at
377 U.S. 567:
"[T]he basic principle of representative government remains, and
must remain, unchanged -- the weight of a citizen's vote cannot be
made to depend on where he lives. Population is, of necessity, the
starting point for consideration and the controlling criterion for
judgment in legislative apportionment controversies."
See also id. at
377
U.S. 579.
[
Footnote 2/8]
Cf., e.g., the apportionment provision in the Indiana
Constitution.
Whitcomb v. Chavis, 403 U.
S. 124,
403 U. S. 136
n. 14 (1971):
"A Senatorial or Representative district, where more than one
county shall constitute a district, shall be composed of contiguous
counties;
and no county, for Senatorial apportionment, shall
ever be divided."
Art. 4, § 6 (emphasis supplied).
[
Footnote 2/9]
Prior to its amendment in 1971, the Constitution provided
that
"[t]he General Assembly shall by law apportion the State into
districts, corresponding with the number of representatives to
which it may be entitled in the House of Representatives of the
Congress of the United States; which districts shall be composed of
contiguous and compact territory containing as nearly as
practicable an equal number of inhabitants."
§ 55. At the same time, the Constitution provided, with respect
to legislative apportionment, only that
"[t]he present apportionment of the Commonwealth into senatorial
and house districts shall continue; but a reapportionment shall be
made in the year nineteen hundred and thirty-two and every ten
years thereafter."
§ 43. Plainly, the adoption in 1971 of a provision, Art. II, §
6, which sets a single standard to govern legislative districting
and congressional apportionment, indicates that, in the minds of
the draftsmen, the same considerations should apply in the two
situations.
See Commission on Constitutional Revision,
Report on the Constitution of Virginia 117 (1969):
"There is no reason to make any distinction between General
Assembly and congressional apportionment. For this reason, the
proposed section [Art. II, § 6] combines the provisions of sections
43 and 55 so that a common set of principles applies to
apportionment of legislative seats and congressional seats."
[
Footnote 2/10]
Appellants maintain that:
"[L]ocal governments carry out much of the various
responsibilities of State government as well as having direct
concern in the enactment of numerous local legislative enactments.
This alone justifies Virginia's tradition of adherence to political
jurisdictions. Moreover, the revised Virginia Constitution now
allows for the first time special or local legislation for counties
as well as for cities. Revised Constitution of Virginia, Article
VII, Section 2. Those provisions now permit counties the
constitutional flexibility formerly afforded only to cities in
providing services for their citizens."
Brief for Appellant Commonwealth of Virginia 27. The
constitutional provision to which appellants refer declares
that
"[t]he General Assembly may also provide by special act for the
organization, government, and powers of any county, city, town, or
regional government, including such powers of legislation,
taxation, and assessment as the General Assembly may determine. . .
."
It should be noted, however, that this provision permits the
delegation of broad powers to local governments. It does not speak
to the issue -- obviously of great concern to the residents of each
political subdivision -- of the manner in which that delegated
power will be exercised by the local government.
[
Footnote 2/11]
To realize the goal of county representation, it would, of
course, be necessary to accord each county at least one
representative. In the case of Virginia, such a plan could not be
implemented without generating vast and unconstitutional
disparities in the population of the districts. And such a plan
clearly could not be justified by invoking the so-called "federal
analogy."
See Reynolds v. Sims, supra, at
377 U.S. 571-577.