1. The Federal District Court's legislative reapportionment plan
for Mississippi's Senate and House of Representatives held not to
embody the equitable discretion necessary to effectuate the
standards of the Equal Protection Clause of the Fourteenth
Amendment in that the plan failed to meet that Clause's most
elemental requirement that legislative districts be "as nearly of
equal population as is practicable."
Reynolds v. Sims,
377 U. S. 533,
377 U.S. 577. Pp.
431 U. S.
413-421.
(a) A court is held to stricter standards than a state
legislature in devising a legislative reapportionment plan, and
"unless there are persuasive justifications, a court-ordered
reapportionment plan of a state legislature must avoid use of
multimember districts, and, as well, must ordinarily achieve the
goal of population equality with little more than
de
minimis variation."
Chapman v. Meier, 420 U. S. 1,
420 U. S. 26-27.
Here, where the District Court's plan departed from the "population
equality" norm in deference to Mississippi's historic respect for
the integrity of county boundaries in conjunction with legislative
districts, the resulting maximum population deviations of 16.5% in
the Senate districts and 19.3% in the House districts cannot be
characterized as
de minimis. Pp.
431 U. S.
414-417.
(b) "With a court plan, any deviation from approximate
population equality must be supported by enunciation of
historically significant state policy or unique features,"
Chapman v. Meier, supra, at
420 U. S. 26, and
the District Court failed here to identify any such "unique
features" of the Mississippi political structure as would permit a
judicial protection of county boundaries in the teeth of the
judicial duty to "achieve the goal of population equality with
little more than
de minimis variation." Pp.
431 U. S.
417-420.
Page 431 U. S. 408
2. With respect to the claim that the District Court plan's
reapportionment of some districts impermissibly dilutes Negro
voting strength, the District Court on remand should either draw
legislative districts that are reasonably contiguous and compact,
so as to put to rest suspicions that Negro voting strength is being
purposefully diluted, or explain precisely why in a particular
instance that goal cannot be accomplished. Pp.
431 U. S.
421-426.
Reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I
and II of which BURGER, C.J., and BLACKMUN, J., joined. BLACKMUN,
J., filed an opinion concurring in part and concurring in the
judgment, in which BURGER, C.J., joined,
post, p.
431 U. S. 426.
POWELL, J., filed a dissenting opinion,
post, p.
431 U. S. 430.
REHNQUIST, J., took no part in the consideration or decision of the
cases.
MR. JUSTICE STEWART delivered the opinion of the Court.
The question in this litigation concerns the constitutional
validity of a legislative reapportionment plan devised by a
three-judge Federal District Court for Mississippi's Senate and
House of Representatives. In Nos. 76-777 and 76-935, the
Page 431 U. S. 409
appellants are the Mississippi voters who originally brought
this class action in the District Court. They challenge the court's
entire Senate plan, and aspects of the House plan, as failing to
meet the basic one-person, one-vote requirements of the Equal
Protection Clause of the Fourteenth Amendment, and particularly the
constitutional and equitable requirements of a court-ordered
reapportionment plan. [
Footnote
1] In No. 76-934, the appellant is the Government, an
intervenor in the District Court. [
Footnote 2] These appellants join in asserting that the
District Court's plan works an impermissible dilution of Negro
voting strength, and they challenge as well the District Court's
decree for its failure to order special elections in all
legislative districts where new or significantly stronger Negro
voting majorities were created by the District Court's plan. In No.
76-933, the appellants are the state officers who were named as
defendants in the District Court. These appellants assert that the
District Court should have accorded greater deference to
Mississippi's historic policy of respecting county boundaries. and
thus should have established multimember legislative districts, and
they further assert that the court erred in ordering any special
elections at all.
We do not reach all the complicated issues raised by the various
appellants, because we have concluded that both the Senate and the
House reapportionments ordered by the District Court fail to meet
the most elemental requirement of the Equal Protection Clause in
this area -- that legislative districts
Page 431 U. S. 410
be "as nearly of equal population as is practicable."
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 577;
Chapman
v. Meier, 420 U. S. 1.
I
The effort to reapportion the Mississippi Legislature in
accordance with constitutional requirements has occupied the
attention of the federal courts for 12 years. This painfully
protracted process of litigation began in the wake of
Reynolds
v. Sims, supra, when the appellants in No. 76-777 challenged
in the District Court for the Southern District of Mississippi, the
extreme population variances of the legislative apportionment that
had been enacted by the state legislature in 1962. The District
Court invalidated that plan.
Connor v.
Johnson, 256 F.
Supp. 962. [
Footnote 3]
After waiting for an ultimately unsuccessful attempt by the
legislature to enact a constitutional reapportionment, the District
Court then promulgated its own plan for the 1967 quadrennial
elections, relying rather extensively on multimember districting in
both legislative houses to achieve substantial population equality.
[
Footnote 4]
Connor v.
Johnson, 265 F.
Supp. 492.
In 1971, the state legislature enacted another apportionment;
that legislation was held unconstitutional because the District
Court could find no justification for the continuing substantial
population variances among the various legislative districts.
Connor v. Johnson, 330 F.
Supp. 506. The court consequently formulated its own plan to
govern the 1971 elections, continuing to rely extensively on
multimember districts, [
Footnote
5] and failing altogether to formulate a final plan with
Page 431 U. S. 411
respect to the State's three largest counties -- Hinds,
Harrison, and Jackson. Those counties instead were given interim
multimember representation. In an interlocutory appeal from that
order, this Court pointed out that single member districts are
preferable to large multimember districts in court-ordered
reapportionment plans, and accordingly stayed the judgment of the
District Court and instructed it, "absent insurmountable
difficulties, to devise and put into effect a single member
district plan for Hinds County." [
Footnote 6]
Connor v. Johnson, 402 U.
S. 690,
402 U. S. 692.
The District Court found itself confronted by insurmountable
difficulties, however, and did not divide Hinds County into single
member districts before the 1971 election.
Connor v.
Johnson, 330 F. Supp. 521.
On direct appeal, after the 1971 elections had taken place
pursuant to the District Court's plan, this Court declined to
consider the prospective validity of the 1971 plan in the continued
absence of a final plan redistricting Hinds, Harrison, and Jackson
Counties.
Connor v. Williams, 404 U.
S. 549. Relying on the District Court's stated intention
to appoint a Special Master in January, 1972, to consider the
subdivision of those counties into single member districts, we
vacated the judgment and remanded with directions to the District
Court that "[s]uch proceedings should go forward and be promptly
concluded."
Id. at
404 U. S.
551.
No Special Master was appointed. In anticipation of the 1975
elections, however, the Mississippi Legislature, in April, 1973,
enacted a new apportionment. A hearing was not held on the
plaintiffs' prompt objections to that legislation until February,
1975. Before the District Court reached a decision,
Page 431 U. S. 412
however, the Mississippi Legislature enacted yet another
apportionment almost identical to the 1971 court-ordered plan, but
permanently adopting multimember districts for Hinds, Harrison, and
Jackson Counties. The District Court ordered the filing of a new
complaint addressing the 1975 legislation, and concluded that it
was constitutional.
Connor v. Waller, 396 F.
Supp. 1308. [
Footnote 7] We
reversed, holding that the legislative apportionment could not be
effective as law until it had been submitted and had received
clearance under § 5 of the Voting Rights Act of 1965, as amended,
42 U.S.C. § 1973c, and that the District Court had accordingly
erred in considering its constitutional validity.
Connor v.
Waller, 421 U. S. 656.
In compliance with § 5 of the Voting Rights Act, Mississippi
then submitted the 1975 legislation to the Attorney General of the
United States. When he objected to the legislation, [
Footnote 8] the District Court proceeded to
formulate another temporary reapportionment plan using multimember
districts for the conduct of the 1975 elections. When the District
Court delayed consideration of a permanent plan for the 1979
elections, this Court allowed the filing of a petition for a writ
of mandamus to compel the District Court to enter a final judgment
embodying a permanent reapportionment plan for
Page 431 U. S. 413
the Mississippi Legislature.
Connor v. Coleman,
425 U. S. 675.
[
Footnote 9] The District Court
thereupon held hearings and entered a judgment adopting a final
plan.
See 419 F.
Supp. 1072,
419 F.
Supp. 1089,
422 F.
Supp. 1014. We noted probable jurisdiction of these appeals
challenging that judgment. 429 U.S. 1010 and 1060.
II
In approaching the task of devising a reapportionment plan for
the 122-member House and 52-member Senate, the District Court
announced certain guidelines to structure its analysis, drawn from
previous cases in this court and other courts and from Mississippi
policy. Population variances were to be as "near
de
minimis as possible"; districts were to be reasonably
contiguous and compact; Negro voting strength would not be
minimized or canceled; and every effort would be made to maintain
the integrity of county lines. [
Footnote 10] The plaintiffs do not really challenge the
criteria enunciated by the District Court, but rather argue that
the court failed to abide by its criteria in putting together the
reapportionment plans. The defendants,
Page 431 U. S. 414
as cross-appellants, argue by contrast that the District Court
went too far, and that the Mississippi policy of respecting county
lines required the court to continue the utilization of multimember
districts.
This litigation is a classic example of the proposition that
"'the federal courts are often going to be faced with hard
remedial problems' in minimizing friction between their remedies
and legitimate state policies."
Taylor v. McKeithen, 407 U. S. 191,
407 U. S. 194,
quoting
Sixty-seventh Minnesota State Senate v. Beens,
406 U. S. 187,
406 U. S. 204
(dissenting opinion). The essential question here is whether the
District Court properly exercised its equitable discretion in
reconciling the requirements of the Constitution with the goals of
state political policy.
Although every state reapportionment plan is fraught with its
own peculiar factual difficulties, it can hardly be said that this
Court has given no guidance of general applicability to a court
confronted with the need to devise a legislative reapportionment
plan when the state legislature has failed. We have made clear
that, in two important respects, a court will be held to stricter
standards in accomplishing its task than will a state
legislature:
"[U]nless there are persuasive justifications, a court-ordered
reapportionment plan of a state legislature must avoid use of
multimember districts, and, as well, must ordinarily achieve the
goal of population equality with little more than
de
minimis variation."
Chapman v. Meier, 420 U.S. at
420 U. S.
26-27.
These high standards reflect the unusual position of federal
courts as draftsmen of reapportionment plans. We have repeatedly
emphasized that "legislative reapportionment is primarily a matter
for legislative consideration and determination,"
Reynolds v.
Sims, 377 U.S. at
377 U.S.
586, [
Footnote 11]
for a state legislature is the institution that is by far the best
situated to
Page 431 U. S. 415
identify and then reconcile traditional state policies within
the constitutionally mandated framework of substantial population
equality. The federal courts, by contrast, possess no distinctive
mandate to compromise sometimes conflicting state apportionment
policies in the people's name. In the wake of a legislature's
failure constitutionally to reconcile these conflicting state and
federal goals, however, a federal court is left with the unwelcome
obligation of performing in the legislature's stead, while lacking
the political authoritativeness that the legislature can bring to
the task. In such circumstances, the court's task is inevitably an
exposed and sensitive one that must be accomplished circumspectly,
and in a manner "free from any taint of arbitrariness or
discrimination."
Roman v. Sincock, 377 U.
S. 695,
377 U. S.
710.
A
Because the practice of multimember districting can contribute
to voter confusion, make legislative representatives more remote
from their constituents, and tend to submerge electoral minorities
and overrepresent electoral majorities, this Court has concluded
that single member districts are to be preferred in court-ordered
legislative reapportionment plans unless the court can articulate a
"singular combination of unique factors" that justifies a different
result.
Mahan v. Howell, 410 U. S. 315,
410 U. S. 333;
Chapman v. Meier, supra at
420 U. S. 21;
East Carroll Parish School Board v. Marshall, 424 U.
S. 636,
424 U. S. 639.
In its final plan, and over the defendants' objection, the District
Court in the present case accordingly abandoned -- albeit
reluctantly -- its previous adherence to multimember districting.
The defendants' unallayed reliance on Mississippi's historic policy
against fragmenting counties is insufficient to overcome the strong
preference for single member districting that this Court originally
announced in this very litigation.
Connor v. Johnson, 402
U.S. at
402 U. S. 692;
Connor v. Williams, 404 U.S. at
404 U. S.
551.
Page 431 U. S. 416
B
The Equal Protection Clause requires that legislative districts
be of nearly equal population, so that each person's vote may be
given equal weight in the election of representatives.
Reynolds
v. Sims, supra. It was recognition of that fundamental tenet
that motivated judicial involvement in the first place in what had
been called the "political thicket" of legislative apportionment.
Baker v. Carr, 369 U. S. 186. The
District Court's plan nevertheless departs from that norm in
deference to Mississippi's historic respect for the integrity of
county boundaries in conjunction with legislative districts. The
result, as the District Court itself recognized, was "greater
variances in population percentages in some instances than
ordinarily would have been preferred." 419 F. Supp. at 1076.
Given the 1970 Mississippi population of 2,216,912 to be
apportioned among 52 Senate districts, [
Footnote 12] the population norm for a Senate seat if
absolute population equality were to be achieved would be 42,633.
As computed by the District Court, [
Footnote 13] the Senate plan contains a maximum deviation
from
Page 431 U. S. 417
population equality of 16.5, [
Footnote 14] with the largest variances occurring in
District 6 (8.2% above the norm) and in District 38 (8.3% below the
norm). Fourteen of the court's 52 Senate districts have variances
from population equality of over 5, plus or minus, and four of
those have variances of 8% or more, plus or minus. In the House
plan, with 122 seats, [
Footnote
15] and a population norm of 18,171, there is a maximum
deviation of 19.3%, with the largest variances occurring in
District 5 (9.4% over the norm) and District 47 (9.9% below the
norm). [
Footnote 16]
Forty-eight districts vary more than 5% either way, and 11 of those
districts vary more than 8% either way.
Such substantial deviations from population equality simply
cannot be tolerated in a court-ordered plan, in the absence of some
compelling justification:
"With a court plan, any deviation from approximate population
equality must be supported by enunciation of historically
significant state policy or unique features."
"
* * * *"
". . . [A] court-ordered reapportionment plan of a state
legislature . . . must ordinarily achieve the goal of population
equality with little more than
de minimis variation. Where
important and significant state considerations rationally mandate
departure from these standards, it is the reapportioning court's
responsibility to articulate precisely
Page 431 U. S. 418
why a plan of single member districts with minimal population
variance cannot be adopted."
Chapman v. Meier, 420 U.S. at
420 U. S. 227
(footnote omitted).
The maximum population deviations of 16.5% in the Senate
districts and 19.3% in the House districts can hardly be
characterized as
de minimis; they substantially exceed the
"under-10" deviations the Court has previously considered to be of
prima facie constitutional validity only in the context of
legislatively enacted apportionments. [
Footnote 17]
See Gaffney v. Cummins,
412 U. S. 735
(7.83% maximum deviation from the population norm);
White v.
Regester, 412 U. S. 755
(9.9% maximum deviation from the population norm). Hence, even a
legislatively crafted apportionment with deviations of this
magnitude could be justified only if it were "based on legitimate
considerations incident to the effectuation of a rational state
policy."
Reynolds v. Sims, 377 U.S. at
377 U.S. 579, quoted in
Mahan v.
Howell, 410 U.S. at
410 U. S.
325.
As justification for both the Senate and House plans, the
District Court pointed to a fairly consistent state policy of
maintaining the borders of its 82 counties when allotting seats in
the legislature, and to the fact that this policy is rationalized
in part by the lack of legislative powers entrusted to the
counties, whose legislative needs must instead be met by reliance
on private bills introduced by members of the state legislature.
[
Footnote 18] But the
District Court itself recognized at an
Page 431 U. S. 419
earlier stage in this litigation that the policy against
breaking county boundary lines is virtually impossible of
accomplishment in a State where population is unevenly distributed
among 82 counties, from which 52 Senators and 122 House members are
to be elected. Only 11 of 82 counties have enough people to elect a
Senator, and only 44 counties have enough people to elect a
Representative.
Connor v. Johnson, 330 F. Supp. at
509.
The policy of maintaining the inviolability of county lines in
such circumstances, if strictly adhered to, must inevitably collide
with the basic equal protection standard of one person, one vote.
Indeed, Mississippi's insistent adherence to that policy resulted
in the invalidation of three successive legislative apportionments
as constitutionally impermissible.
See Connor v.
Johnson, 256 F.
Supp. 962;
Connor v. Johnson, 265 F.
Supp. 492;
Connor v. Johnson, 330 F.
Supp. 506.
Recognition that a State may properly seek to protect the
integrity of political subdivisions or historical boundary lines
permits no more than "minor deviations" from the basic requirement
that legislative districts must be "as nearly of equal population
as is practicable."
Roman v. Sincock, 377 U.S. at
377 U. S. 710;
Reynolds v. Sims, supra at
377 U.S. 577. The question is one of
degree. In
Chapman v. Meier, however, it was established
that the latitude in court-ordered plans for departure from the
Reynolds standards in order to maintain county lines is
considerably narrower than that accorded apportionments devised by
state legislatures, and that the burden of articulating special
reasons for following such a policy in the face of substantial
population inequalities is correspondingly
Page 431 U. S. 420
higher. The District Court failed here to identify any such
"unique features" of the Mississippi political structure as would
permit a judicial protection of county boundaries in the teeth of
the judicial duty to "achieve the goal of population equality with
little more than
de minimis variation."
Chapman v.
Meier, supra at
420 U. S.
26-27.
Under the less stringent standards governing legislatively
adopted apportionments, the goal of maintaining political
subdivisions as districts sufficed to justify a 16.4% population
deviation in the plan for the Virginia House of Delegates.
Mahan v. Howell, 410 U. S. 315.
But, in
Mahan, there was uncontradicted evidence that the
legislature's plan "
produces the minimum deviation above and
below the norm, keeping intact political boundaries.'" Id.
at 410 U. S. 326.
By contrast, the plaintiffs in this case submitted to the District
Court an alternative Senate plan that served the state policy
against fragmenting county boundaries better than did the plan the
court ultimately adopted, and also came closer to achieving
districts that are "as nearly of equal population as is
practicable." Reynolds v. Sims, supra at 377 U.S. 577. The 19 county boundaries
cut by the court plan would have been reduced to 15 in the
so-called "Modified Henderson Plan" submitted by the plaintiffs;
the maximum population deviation in any district would have been
reduced from 16.5% to 13.66%, and the number of districts deviating
by more than 5% from the population norm, plus or minus, would have
been reduced from 15 to 9. As in Chapman,
"our reference to the [Henderson] plan is to show that the
factors cited by the District Court cannot be viewed as controlling
and persuasive when other, less statistically offensive, plans
already devised are feasible."
420 U.S. at
420 U. S. 26.
See also Kilgarlin v. Hill, 386 U.
S. 120,
386 U. S. 124;
Swann v. Adams, 385 U. S. 440,
385 U. S.
445-446.
In the absence of a convincing justification for its continued
adherence to a plan that even in state policy terms is less
efficacious than another plan actually proposed, there can be
Page 431 U. S. 421
no alternative but to set aside the District Court's decree for
its failure to embody the equitable discretion necessary to
effectuate the established standards of the Equal Protection
Clause. [
Footnote 19]
III
Since the District Court's legislative reapportionment decree is
invalid under the elementary standards of
Reynolds v.
Sims, we do not reach the more particularized challenges to
certain aspects of that reapportionment plan made by the plaintiff
challenges based upon claims that the plan's apportionment of some
districts impermissibly dilutes Negro voting strength.
Swann v.
Adams, supra at
385 U. S.
446-447. [
Footnote
20]
Page 431 U. S. 422
But since the 1979 elections are on the horizon and a
constitutionally permissible legislative reapportionment plan for
the State of Mississippi has yet to be drawn, it is appropriate to
give some further guidance to the District Court with these
challenges in mind. [
Footnote
21]
Cf. Chapman v. Meier, 420 U.S. at
420 U. S. 26.
To support their claim of impermissible racial dilution,
[
Footnote 22] the plaintiffs
point to unexplained departures from the neutral guidelines the
District Court adopted to govern its formulation of a
reapportionment plan -- departures which have the apparent effect
of scattering Negro voting concentrations among a number of white
majority districts. They point in particular to the District
Court's failure adequately to explain its adoption of irregularly
shaped districts when alternative plans exhibiting contiguity,
compactness, and lower or acceptable population variances were at
hand. The plaintiffs have referred us to two types of situations in
which the District Court's decree fails to meet its own goal that
legislative districts be reasonably contiguous and compact: in its
subdivisions of large counties whose population entitles them to
elect several legislative representatives to both houses, and in
its aggregations of smaller counties to put together enough people
to elect one legislator.
Page 431 U. S. 423
Hinds County exemplifies the large county problem. [
Footnote 23] It is the site of the
State's largest city, Jackson, and is the most populous Mississippi
county, with a total of 214,973 residents, 84,064 of whom are
Negroes. As are all Mississippi counties, Hinds is divided into
five supervisory districts or "beats"; each beat elects one
supervisor to sit on the Board of Supervisors, which is charged
with executive and judicial local government responsibilities. The
Board of Supervisors reapportioned itself in 1969, creating five
oddly shaped beats that extend from the far corners of the county
in long corridors that fragment the city of Jackson, where much of
the Negro population is concentrated.
See Kirksey v. Board of
Supervisors of Hinds County, 402 F.
Supp. 658 (SD Miss.),
aff'd, 528 F.2d 536 (CA5),
awaiting decision after rehearing en banc. The irregular shapes of
the beats were assertedly justified as necessary to achieve
equalization of road mileage, bridges, and land area among the
districts, so as to equalize the primary responsibilities of the
supervisors -- maintenance of the roads and bridges. [
Footnote 24] Whatever may be the
validity of those justifications for a Hinds County Board of
Supervisors' apportionment first adopted in 1969, they are
irrelevant to the problem of apportioning state senate seats, whose
holders will presumably concern themselves with something other
than maintaining roads and bridges. The District Court nevertheless
concluded that each Hinds County beat should elect one Senator.
Page 431 U. S. 424
The District Court did not explain its preference for the Hinds
County Board of Supervisors' plan, although it did note generally
that "we have had to take the Counties, Beats, and [voting]
precincts as they actually are." There is, however, no longstanding
state policy mandating separate representation of individual beats
in the legislature. [
Footnote
25] And there is no practical barrier that requires
apportioning a large county on the basis of beat lines;
Mississippi's 410 beats are in turn divided into 2,094 voting
precincts, each of which is sufficiently small as the basic voting
unit to allow considerable flexibility in putting together
legislative districts. On this record, neither custom nor practical
necessity can thus be said to justify reliance for state senatorial
districting purposes upon the beats adopted by the Hinds County
Board of Supervisors to govern their own election.
The District Court's treatment of Jefferson and Claiborne
Counties illustrates a departure from its own announced standards
in aggregating small counties to form a single-member legislative
district. Jefferson and Claiborne Counties are contiguous counties
on the western border of Mississippi. Claiborne has a total
population of 10,086, of whom 7,522 are Negroes. Jefferson has a
total population of 9,295 of whom 6,996 are Negroes. The plaintiffs
suggested combining these two counties with Copiah County to make a
compact Senate district with a 55% Negro voting-age population.
Instead, and without explanation, the District Court combined
Claiborne County with Lincoln County and with Beat 3 of Copiah
County to make a white majority senatorial district; Jefferson
County was combined with Beats 1, 2, 4, and 5 of Adams
Page 431 U. S. 425
County to make an irregularly shaped senatorial district with a
slight Negro voting-age majority. Compared to the plaintiffs'
proposals, the District Court's senatorial districts are less
compact, and in addition require the fragmentation of two counties
while the plaintiffs' proposal would have fragmented none.
Such unexplained departures from the results that might have
been expected to flow from the District Court's own neutral
guidelines can lead, as they did here, to a charge that the
departures are explicable only in terms of a purpose to minimize
the voting strength of a minority group. The District Court could
have avoided this charge by more carefully abiding by its stated
intent of adopting reasonably contiguous and compact districts, and
by fully explaining any departures from that goal.
Twelve years have passed since this litigation began, but there
is still no constitutionally permissible apportionment plan for the
Mississippi Legislature. It is therefore imperative for the
District Court, in drawing up a new plan, to make every effort not
only to comply with established constitutional standards, but also
to allay suspicions and avoid the creation of concerns that might
lead to new constitutional challenges. [
Footnote 26] In view of the serious questions raised
concerning the purpose and effect of the present decree's unusually
shaped legislative districts in areas with concentrations of Negro
population, the District Court on remand should either draw
legislative districts that are reasonably contiguous and compact,
so as to put to rest suspicions that Negro voting strength is being
impermissibly
Page 431 U. S. 426
diluted, or explain precisely why, in a particular instance,
that goal cannot be accomplished.
The task facing the District Court on remand must be approached
not only with great care, but with a compelling awareness of the
need for its expeditious accomplishment, so that the citizens of
Mississippi at long last will be enabled to elect a legislature
that properly represents them.
Reversed and remanded.
MR. JUSTICE REHNQUIST took no part in the consideration or
decision of these cases.
* Together with No. 76-933,
Finch, Governor of Mississippi,
et al. v. Connor et al.; No. 76-934,
United States v.
Finch, Governor of Mississippi, et al.; and 76-935,
Connor
et al. v. Finch, Governor of Mississippi, et al., also on
appeal from the same court.
[
Footnote 1]
These appellants also challenge the District Court's failure to
award them reasonable attorneys' fees, as authorized by § 402 of
the 1975 amendments to the Voting Rights Act of 1965, 42 U.S.C. §
19731(e) (1970 ed., Supp. V), and the recent Civil Rights
Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988
(1976 ed.). Because we reverse and remand this cause for further
proceedings, we do at resolve this problem, but simply. instruct
the District Court to make a determination of this question at an
appropriate time in the proceedings on remand.
[
Footnote 2]
The appellants in Nos. 76-777, 76-934, and 76-935 will sometimes
hereinafter be referred to as the plaintiffs.
[
Footnote 3]
Under the 1962 regime, a majority of the House of
Representatives could have been elected by some 40% of the State's
voters; a majority of the Senate could have been elected by less
than 38% of them.
Connor v. Johnson, 256 F. Supp. at
976-977.
[
Footnote 4]
Thirty-four of the 52 House districts and 10 of the 36 Senate
districts were multimember districts under this court plan.
[
Footnote 5]
Most of the House districts and almost half of the Senate
districts were constituted as multimember districts under this
plan. Thus, 52 Senators were to be elected from 33 senatorial
districts, and 122 Members of the House of Representatives were to
be elected from 6 House districts.
Connor v. Johnson, 330
F. Supp. at 509-516.
[
Footnote 6]
This Court was advised at that time that acceptable single
member district plans had been worked out for Hinds County, but not
for Harrison or Jackson County.
Connor v. Johnson,
402 U. S. 690.
[
Footnote 7]
The 1975 legislative plan contained 14 multimember district for
the Senate, and 24 multimember districts and 34 floterial districts
and subdistricts for the House. (Floterial districts are a form of
multimember districting in which one or more legislators are
elected from subdistricts and one or more legislators are elected
district-wide.)
Connor v. Waller, 396 F. Supp. at
1324-1325, 1333-1339.
[
Footnote 8]
On June 10, 1975, the Attorney General objected to the 1975 Acts
reapportioning the House and Senate on the ground that Mississippi
had failed to show that the legislation did not have the purpose
and would not have the effect of denying or abridging the right to
vote on account of race. The United States was subsequently
permitted to intervene in the District Court as a party plaintiff.
Connor v. Finch, 419 F Supp. 1089, 1090-1091.
[
Footnote 9]
This Court directed the District Court promptly to bring this
case to trial, and not to await this Court's decisions in other
cases raising reapportionment questions. On the assumption that the
District Court would hold a hearing within 30 days of the entry of
this Court's order, we deferred consideration of the petition for
writ of mandamus until June 17, 1976.
[
Footnote 10]
The District Court postulated two specific guidelines on county
boundary integrity:
"1. If a county has more than enough population for the election
of a Representative or Senator, then there shall be one complete
district within that county, thus at least one Senator or
Representative will be chosen solely by that county. In practical
effect, this will largely preserve the integrity of county
boundaries and conform, to a degree, with the state policy on that
subject,
Mahan v. Howell [
410 U.S.
315]."
"2. Except where two or more districts may properly be set up
within the same county as authorized by Mississippi
Constitution, Section 254, no county will be split into more than
two segments."
(Emphasis in original.)
Connor v. Finch, 419 F.
Supp. 1072, 1076.
[
Footnote 11]
See also Chapman v. Meier, 420 U. S.
1,
420 U. S. 27;
Connor v. Williams, 404 U. S. 549,
404 U. S. 552
n. 4;
Burns v. Richardson, 384 U. S.
73,
384 U. S.
85.
[
Footnote 12]
Miss.Const., Art. 13, § 255
[
Footnote 13]
In gauging the total population deviations from the House and
Senate norms, we accept the District Court's calculation of
district populations and population deviations. As is not unusual
in cases such as this, there is considerable controversy among the
parties as to what the proper population figures are. The census is
itself, at best, an approximate estimate of a State's population at
a frozen moment in time. Because it is taken by census tract,
rather than along supervisory district or voting precinct lines,
relevant population figures for these political districts have to
be extrapolated. That process is complicated by the recognition
that major shifts in population and in voting precinct lines have
occurred since the 1970 census, and by the fact that proportionally
more Negroes than whites are ineligible to vote because of age.
We need not "enter this imbroglio of mathematical manipulation,"
but instead "confine our consideration to the figures actually
found by the court."
Mahan v. Howell, 410 U.
S. 315,
410 U. S. 319
n. 6.
See also Burns v. Richardson, supra at
384 U. S. 91-93.
On remand, however, to avoid the substantial confusion that
characterizes the record now before us, the District Court should
explain the genesis of the population figures on which it
relies.
[
Footnote 14]
We note that the appellants in No. 76-935 assert that simple
mathematical error resulted in understating the population variance
in Senate District 29. According to their figures, that district
has a variance of 9.96%, resulting in a maximum deviation in the
court's Senate plan of 18.29%.
[
Footnote 15]
Miss Const., Art. 13, § 254.
[
Footnote 16]
The District Court originally calculated the total variance at
18.5%, but its December 21, 1976, order, amending its previous
judgment, increased the variance in District 47 from -- 9.1% to --
9.9%.
[
Footnote 17]
The Court refused to assume in
Chapman v. Meier that
even a 5.95% deviation from the norm would necessarily satisfy the
high standards required of court-ordered plans.
[
Footnote 18]
As justification for the high population deviations in the House
plan, the District Court also "emphasize[d] that the exceedingly
low 1% population norm of 181 persons has made our task . . . far
more difficult" --
i.e., the small population of the House
districts means that any underinclusion or overinclusion of 181
persons in a district results in an incremental 1% deviation from
the population norm for that district. 419 F. Supp. at 1112. The 1%
population norm in the sparsely populated State of North Dakota was
121, but the Court did not consider that a "legitimate basis for a
departure from the goal of equality" in
Chapman v. Meier,
420 U.S. at
420 U. S. 24.
Instead we recognized that "each individual vote may be more
important to the result of an election" in such circumstances, and
concluded that "particular emphasis should be placed on
establishing districts with as exact population equality as
possible."
Id. at
420 U. S. 25.
[
Footnote 19]
The appellants in No. 76-935 challenged the Senate
reapportionment as a whole under
Reynolds v. Sims. They
did not make a blanket challenge to the entire House plan under the
Reynolds v. Sims doctrine, since they viewed it as
"go[ing] a long way toward alleviating the dilution of black voting
strength present in the 1971 and 1975 . . . court-ordered House
plans." They did, however, challenge several districts in the House
plan as excessively malapportioned (arguing, for example, that the
plan created a total deviation of 18.2% for four House districts in
Washington and Issaquena Counties), and all of the plaintiffs
supported their claims of fragmentation of Negro voting strength by
pointing to significant deviations from the House population
norm.
In the context of a court-ordered plan that results in the sort
of systemic violation revealed by the figures in this record, it is
hardly appropriate to confine our scrutiny to particularly
egregious, but localized examples of violations specifically relied
on by the parties. And even if the constitutional validity of the
entire court-ordered House plan could not appropriately be viewed
as an issue implicitly raised by the parties, this Court has the
authority and the duty in exceptional circumstances to notice
federal court errors to which no exception has been taken, when
they "seriously affect the fairness, integrity or public reputation
of judicial proceedings."
United States v. Atkinson,
297 U. S. 157,
297 U. S. 160,
quoted in
Silber v. United States, 370 U.
S. 717,
370 U. S. 718.
See also Blonder-Tongue Laboratories v. University
Foundation, 402 U. S. 313,
402 U. S. 320
n. 6;
Sibbach v. Wilson, 312 U. S. 1,
312 U. S. 16; R.
Stern & E. Gressman, Supreme Court Practice § 6.37 (4th
ed.1969).
[
Footnote 20]
The plaintiffs also argue that special elections should have
been ordered in a number of House and Senate districts to remedy
the serious deficiencies in the 1975 court-ordered plan under which
the present state legislature was elected. These arguments, too,
become moot in view of the invalidity of the entire reapportionment
decree now before us.
[
Footnote 21]
The plaintiffs assert that the reapportionment decree, if found
to dilute Negro voting strength, is unconstitutional under the
Fourteenth and Fifteenth Amendments. Our limited comments here,
however, are addressed only to the question of the District Court's
appropriate exercise of its discretion in remedying the Mississippi
Legislature's failure to enact a valid apportionment under the
equal protection standards established by
Reynolds v.
Sims. Cf. Ashwander v. TVA, 297 U.
S. 288,
297 U. S. 347
(Brandeis, J., concurring).
[
Footnote 22]
See, e.g., White v. Regester, 412 U.
S. 755;
Whitcomb v. Chavis, 403 U.
S. 124;
Abate v. Mundt, 403 U.
S. 182,
403 U. S. 184
n. 2;
Burns v. Richardson, 384 U.S. at
384 U. S. 88-89;
Fortson v. Dorsey, 379 U. S. 433,
329 U. S.
439.
[
Footnote 23]
The textual examples are meant to be illustrative, rather than
an exhaustive catalogue of possible deficiencies in the District
Court's plan. Similar criticisms could possibly be made of the
districting contours in a number of other counties.
[
Footnote 24]
The validity of these justifications for apportionment of the
supervisor beats is currently under attack in
Kirksey v. Board
of Supervisors of Hinds County, pending in the Court of
Appeals for the Fifth Circuit after reargument en banc. Our
discussion of the Hinds County Senate districting problem is not to
be understood as pretermitting that court's consideration of the
county supervisor districting issue raised in the
Kirksey
litigation.
[
Footnote 25]
Unlike counties with "boundaries . . . fixed by statute for
generations," beats are not units of state government, and their
boundaries are frequently changed by the Boards of Supervisors.
According to the District Court:
"Beat lines generally follow governmental land lines as laid
down by section, township, and range -- in other words invisible to
all, and unknown to most. It is a rare individual who knows where a
beat line is at any given point. . . ."
Connor v. Johnson, 330 F. Supp. at 518.
[
Footnote 26]
The District Court did take a substantial step forward in its
final decree by eliminating multimember districts. In setting aside
this decree, we do not mean to obscure the significance of that
advance. Although the court's order to hold special elections in
two districts to male more immediately available the fruits of its
decree cannot be affirmed in the face of our judgment today that
vacates the entire decree, the District Court will retain the power
to order such special elections on remand as the circumstances may
require or permit.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins,
concurring in part and concurring in the judgment.
I join Parts I and II of the Court's opinion and concur in its
judgment. I do not understand the Court to disapprove the District
Court's decision to use county lines as districting boundaries
wherever possible, even though this policy may cause a greater
variation in district population than would otherwise be
appropriate for a court-ordered plan. The final plan adopted in
this case appears to produce even greater population disparities
than necessary to effectuate the county boundary policy.
Cf.
Mahan v. Howell, 410 U. S. 315,
410 U. S. 326
(1973). This being so, the District Court should have articulated
precise reasons for not adopting a more evenly apportioned plan.
Chapman v. Meier, 420 U. S. 1,
420 U. S. 27
(1975).
The appeals by the private parties and the United States in this
case, however, were not primarily concerned with equal population
apportionment. Their more serious objections involved aspects of
the District Court's plan that were claimed to dilute Negro voting
power. [
Footnote 2/1] The two
issues are quite
Page 431 U. S. 427
distinct: Equal apportionment is a majoritarian principle, but
racial representation is a question of minority rights.
See Smith, The Failure of Reapportionment: The Effect of
Reapportionment on the Election of Blacks to Legislative Bodies, 18
How. L.J. 639 (1975). I think the Court's opinion does not
sufficiently focus upon the potential dissonance between the
one-person, one-vote ideal and a goal of fair representation for
minorities.
The Court does not decide the racial dilution issue at this
time, but the observations in Part III of its opinion indicate an
approach that I think is not entirely appropriate. Details of
districting are interrelated, and it is not helpful to look at
isolated aspects of a statewide apportionment plan in order to
determine whether a racial or other improperly motivated
gerrymander has taken place. Districts that disfavor a minority
group in one part of the State may be counterbalanced by favorable
districts elsewhere. A better approach, therefore, is to examine
the overall effect of the apportionment plan on the opportunity for
fair representation of minority voters.
Statistics from the 1970 census reveal that the black voting-age
population of Mississippi is 31.4%. Brief for United States 44 n.
40. Under the District Court's apportionment plan, nine of the 52
Senate districts (17.3%) and 24 of the 122 House districts (19.7%)
have black majorities of the voting-age population.
Id. at
66. These statistics indicate that the plan would be unlikely to
provide black voters with representation in the legislature
equivalent to their electoral strength. [
Footnote 2/2] But I do not think that the plan
improperly dilutes
Page 431 U. S. 428
black voting strength just because it fails to provide
proportional. representation.
See Whitcomb v. Chavis,
403 U. S. 124,
403 U. S.
149-155 (1971).
The normal system of legislative apportionment in the United
States is direct territorial representation by single-member
districts. Such system does not normally provide electoral
minorities with proportional representation in the legislature. The
extent to which electoral strength is translated into legislative
representation depends on a number of factors, including (1) the
size of the voting group, (2) its geographical dispersion, (3) the
size of the legislative districts, and (4) the way district
boundaries are drawn. [
Footnote
2/3] The first three factors are probably sufficient to explain
the result in the present case without raising an inference that
the district boundaries were drawn so as further to minimize or
dilute overall black voting strength.
Of course, the fact that a plan seems generally to provide fair
representation would not preclude a showing that a particular
aspect was adopted with an impermissibly discriminatory intent. But
where the only claim is based on disparate effect, then piecemeal
review of an apportionment plan may well be misleading. For
example, the Court's opinion suggests that the District Court may
have erred in not adopting an alternative plan combining Jefferson
and Claiborne Counties into a single Senate district (with Copiah
County).
Ante at
431 U. S.
424-425. But the District Court's plan does combine
Jefferson and Claiborne Counties into a single House district
(number 81), with a 70% black majority of the voting
Page 431 U. S. 429
age population. Moreover, there is no reason to believe that the
alternative Senate districting would have entailed less
fragmentation of county boundaries in the overall plan. The
alternative proposal would have required the formation of an
additional Senate district starting with three noncontiguous areas
-- Simpson County, Lincoln County, and part of Adams County. A
complete reshuffle of the Senate districts in southwestern
Mississippi thus would be necessary to implement the alternative.
One can only speculate on the effect of such a reshuffle with
respect to either county boundary integrity or overall black voter
representation.
The Court's opinion also suggests that adherence to the criteria
of contiguity and compactness would assure neutral districting.
Ante at
431 U. S.
425-426. These normally are desirable characteristics of
a districting plan, but I doubt that such an approach will be very
effective in assuring fair representation for racial or other
minority groups. [
Footnote 2/4]
A better constraint on potential gerrymandering is imposed by
the use of established political boundaries. It is at this point
that the goals of equal apportionment and minority representation
may well conflict. To the extent that the attainment of precisely
equal districts requires abandonment of longstanding political
boundaries, gerrymandering is that much easier. [
Footnote 2/5] Conversely, the requirement of equal
apportionment
Page 431 U. S. 430
places very little constraint on the possibility of a
gerrymander, as the Court's discussion of the Hinds County Senate
districts illustrates.
Ante at
431 U. S.
423-424. Those districts are almost exactly equal in
population, with variances from the norm ranging only from + 0.3%
to + 1.3%.
None of my preceding comments are meant to suggest that
intentional gerrymandering is a serious problem with court-ordered
apportionment plans. But even a plan adopted with the purest of
motives will have an unavoidable effect on the representation of
various political groups in the legislature. Where there is an
established policy of respecting political or natural boundaries in
districting, then I believe that a court may best avoid any
appearance of partisanship by using those boundaries as much as
possible in its districting.
[
Footnote 2/1]
In fact, several of the districting alternatives proposed by
these appellants as a means of improving black representation also
would have involved greater population disparities than the plan
adopted by the District Court.
See, e.g., Brief for United
States 49a (Hinds County Senate districts);
id. at 55a
(Warren County House districts); Brief for Private Appellants 45-46
(Adams County House districts).
[
Footnote 2/2]
The racial-dilution challenge in this case is predicated on the
common but questionable assumption that voting will take place
along racial lines, and thus that blacks receive effective
representation only in districts where they compose a majority of
the voting-age population.
See Brief for Private
Appellants 236; Brief for United States 33-59. Such an assumption
perhaps would be appropriate in situations where blacks continue to
be excluded from the political process.
See White v.
Regester, 412 U. S. 755,
412 U. S.
765-770 (1973). Separate representation by race,
however, is certainly not an optimal solution and at best can
provide only a temporary, expedient remedy.
[
Footnote 2/3]
See generally D. Rae, The Political Consequences of
Electoral Laws (1967); Tufte, The Relationship between Seats and
Votes in Two-Party Systems, 67 Am.Pol.Sci.Rev. 540 (1973).
[
Footnote 2/4]
It is not clear that workable standards of evaluating
compactness are available, and in any event a requirement of
compactness would not necessarily promote minority group
representation.
See R. Dixon, Democratic Representation
460-461 (1968); Mayhew, Congressional Representation: Theory and
Practice in Drawing the Districts, in N. Polsby, ed.,
Reapportionment in the 1970s, pp. 253-255 (1971).
[
Footnote 2/5]
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 578-579 (1964);
Wells v. Rockefeller, 394 U. S. 542,
394 U. S.
551-552 (1969) (Harlan, J., dissenting);
id. at
394 U. S.
554-555 (WHITE, J., dissenting).
See Baker,
Gerrymandering: Privileged Sanctuary or Next Judicial Target?, in
N. Polsby, ed., Reapportionment in the 1970s, pp. 137-138 (1971);
Elliott, The Political Consequences of Reapportionment, 37
U.Chi.L.Rev. 474, 481-490 (1970).
MR. JUSTICE POWELL dissenting.
The Court today strikes down the entire Mississippi
reapportionment plan ordered by the District Court as violative of
the one-person, one-vote principles announced in
Reynolds v.
Sims, 377 U. S. 533
(1964). In my view, this result -- which no party to this
protracted litigation has urged in this Court [
Footnote 3/1] -- is both unnecessary and erroneous.
The question, as the Court correctly states, is
"whether the District Court properly exercised its equitable
discretion in reconciling the requirements of the Constitution with
the goals of state political policy."
Ante at
431 U. S. 414.
Although I believe further proceedings are necessary with respect
to certain aspects of the District Court's plan, I find no basis on
this record for holding that the District Court abused the broad
discretion that it necessarily must exercise in cases of this
kind.
In my view the District Court's overall plan is sound, and
Page 431 U. S. 431
does not impermissibly depart from the one-person, one-vote
requirements of our prior cases. The court's plan contains maximum
deviations from absolute population equality of 16.5% (Senate) and
19.3% (House). In
Mahan v. Howell, 410 U.
S. 315 (1973), we sustained a legislative
reapportionment plan for the Virginia House of Delegates in which
the maximum variation was 16.4.% We held that this deviation was
justified by the State's policy of maintaining the integrity of
political subdivision lines,
id. at
410 U. S. 325;
see Davis v. Mann, 377 U. S. 678,
377 U. S. 686
(1964). The same policy justifies the comparable deviations in the
District Court's plan for Mississippi, a State which also has a
tradition of respecting the integrity of political subdivision
lines in drawing legislative districts.
To be sure, the plan before us was ordered by a federal court,
and we have said that such a plan must be examined more critically
than one adopted by a state legislature.
Chapman v. Meier,
420 U. S. 1 (1975).
But the theory underlying that more demanding standard of review is
that legislative plans are likely to reflect a State's political
policy and the will of its people more accurately than a decision
by unelected federal judges. Where the deviations in a court's plan
are attributable, as in this case, to an explicit policy of
deference to the State's traditional district lines, the
distinction becomes relatively unimportant. [
Footnote 3/2] And where the deviations are also accepted
by all parties to the litigation, as is true of the basic House
plan, the distinction seems wholly irrelevant.
The issue primarily presented and argued in these appeals is
whether the District Court plan impermissibly dilutes Negro voting
strength. I agree generally with MR. JUSTICE BLACKMUN's concurring
opinion on this aspect of the case.
Page 431 U. S. 432
I find no evidence in this record to suggest that the plan,
which assures substantial Negro representation in the State, Brief
for United States 22, has had the overall effect of diluting the
Negro vote.
The United States and the private appellants, however, have
called our attention to a number of specific concentrations of
Negro voters in the State which are fragmented among two or more
districts by the court's plan. The United States focuses in
particular on six counties for which it claims that alternative
district lines proposed by the parties would preserve an
appropriate reconciliation of competing interests -- population
equality, geographic compactness, adherence to traditional
political boundaries -- without fragmenting the Negro vote.
[
Footnote 3/3] Because the District
Court failed to explain why it rejected the proposed alternatives,
these contentions are virtually impossible to review. Accordingly,
I would remand the case to the District Court for further findings
comparing in detail the challenged lines in the court's plan to
those proposed by the United States. But I would limit the scope of
the remand to the districts specifically challenged in this appeal
by the United States for unnecessary racial dilution and to the
districts which would require readjustment under the alternatives
the United States has proposed. [
Footnote 3/4] In all other respects, I would affirm the
judgment of the District Court. [
Footnote 3/5]
[
Footnote 3/1]
The United States, the appellant in No. 76-934, does not
challenge the plan as failing to meet the one-person, one-vote
requirement of the Equal Protection Clause. The private appellants
challenge only the Senate plan and limited aspects of the House
plan on this basis.
[
Footnote 3/2]
We noted in
Chapman: "It is far from apparent that
North Dakota policy currently requires or favors strict adherence
to political lines." 420 U.S. at
420 U. S. 25.
[
Footnote 3/3]
The counties and challenged districts are as follows: Hinds
(Senate Districts 31-35); Warren (House Districts 53-55); Forrest
(House Districts 103-106); Washington (House Districts 32-35), and
Claiborne and Jefferson (Senate Districts 37-38). Brief for United
States 74-92, 45a-71a.
[
Footnote 3/4]
The alternative proposed for Warren County (House Districts
53-55) would require redistricting in House Districts 47 and 56.
Id. at 54a n. *. The alternative proposed in Claiborne and
Jefferson Counties (Senate Districts 37 and 38) apparently would
require readjustment in the surrounding counties.
Id. at
68a-71a.
As the Court notes, the validity of the apportionment in Hinds
County is now pending in the Court of Appeals for the Fifth Circuit
after rehearing en banc.
Kirksey v. Board of Supervisors of
Hinds County, No. 75-2212. I agree that we should not
pretermit that court's consideration of issues before it. If the
Fifth Circuit in
Kirksey were to order the supervisory
districts to be redrawn, the District Court necessarily would have
to reexamine the corresponding legislative districts in its
apportionment plan.
Although the private appellants challenge additional aspects of
the court's Senate plan for unnecessary racial dilution, they do
not offer alternatives limited to the affected districts in the
court's plan, but, instead, urge that the entire plan be set aside.
Because I believe the basic plan is sound for the reasons stated in
text, I would reject these additional challenges. The private
appellants also challenge the court's House plan for Adams County,
claiming that the court should have adopted a district with a
larger Negro voting-age population (59.5%) than that which obtains
in District 89 (50.7%). In my view this contention is without
merit.
[
Footnote 3/5]
The Court's disposition of the case makes it unnecessary to
discuss the further issue of special elections.