Beruflich Dokumente
Kultur Dokumente
NOTES
REAPPORTIONMENT
TABLE OF CONTENTS
I. SUmmmy or TiE DECISIONS .....................................
x964 Controversy
........................................
PAGE
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228
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232
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IV.
3. Wyom ing
................................................
4. Nebraska .................................................
E. Population Base ..............................................
F. Fractionaland Weighted Voting ................................
G. Multi-Member Districts ......................................
VI. PROCEDURAL PROBLEMS ...........................................
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........................
.......................
A. PartisanGerrymandering ......................................
x. The Relevance of the Reapportionment Cases .................
2. The Problem of Standards .................................
B. Racial Gerrymandering........................................
C. Gerrymandersin Multi-Member Districts ........................
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'Neal, Baker v. Carr: Politics in Search of Law, 1962 SUPRME COURT RE-
533 (x964).
377 U.S.
9372
U.S. 368 (1963).
10376 U.S. 1 (1964).
" In Baker v. Carr the Court had said that state apportionment was justiciable
1966]
.REAPPORTIONMENT
1229
but also required that these districts contain substantially equal populations. Relying not on the equal protection clause but on article I, section 2, Mr. Justice Black declared that "construed in its historical context" the constitutional provision calling for election of members of the
House of Representatives "by the People" required that "as nearly as is
practicable one man's vote in a congressional election is to be worth as
much as another's." 12
r. "One Man, One Vote" in State Legislatures.- In Reynolds v.
Sims, 13 decided in June 1964, the Court held that "as a basic constitutional standard, the Equal Protection Clause requires that the seats in
both houses of a bicameral state legislature must be apportioned on a
population basis." 14 The Court said that some deviation from a strict
population standard would be constitutionally permissible, and it expressly declared that the states should be given "somewhat more flexibility" to deviate from equal population districting than Wesberry had
permitted for congressional districting.' 5 But it ruled out history, geographical considerations, and "economic or other sorts of group interests"
as permissible factors justifying such deviation. 16 The argument for allowing deviation from the equal population standard in sparsely populated areas "in order . . .prevent legislative districts from being so
13 377 U.S. 533 (1964). Five companion cases were decided the same day:
WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964);
Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth Gen. Assembly,
377 U.S. 713 (1964).
14377 U.S. at 568.
15Id.
at 577-78.
'6 1d. at 579-80.
17
Id.at 58o.
I Id.at 573-75.
10
20 Id.at 580.
at 578-79.
Id.
21
Id. at 58o--8i.
1230
[V01. 79:1228
visions in which "population is submerged as the controlling consideration" would be "constitutionally impermissible." 22 In a companion case to Reynolds, the Court held that it also would permit "rationally justifiable" deviation from a strict population basis so long as
"a slight overrepresentation of a particular area in one house" is balanced
with "a minor underrepresentation of that area in the other house."
However, where the disparities from equal population "are cumulative
instead of offsetting" so that one area is disadvantaged in both houses
of a legislature, the apportionment plan becomes "constitutionally sus-
pect."
23
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 73, 735 n.27 (1964).
24377 U.S. 713 (x964).
25 Id. at 731-32. The equal population proposal provided for countywide multimember
districts in those counties having more than one representative.
26
1d. at 736.
27
Id. at 736-37.
28377 U.S. at 625.
2"
1966]
REAPPORTIONMENT
1231
" 31
capital city." 6 One commentator who had approved Baker and Wesberry now noted that "even some liberal-minded persons, admirers of
30377 US. at 588.
31377 U.S. at 754.
1 Baker v. Carr, 369 U.S. E86, 267 (1962).
See, e.g., McKay, The
51 A.BA.J.
128
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the modern Supreme Court, found themselves stunned" and repeated the
warning of Mr. Justice Frankfurter that the Court must think of selfpreservation when deciding politically charged issues.t 8Both national
party chairmen, however, publicly approved the decision.
Most public discussion of Wesberry had taken place on a theoretical
plane, since few persons could see a personal stake in the results of the
decision. Most persons live in congressional districts that extend far
beyond their own neighborhoods, so a revision of district boundaries
lacks immediate relevance. Also, any district's congressman is only one
of 435, so only rarely would one state's redistricting presage a dramatic
change in the political power of a definable group. The news media reflected the general public apathy, soon reducing their coverage when
Wesberry failed to excite any wide reader interest.
Application of the "one-man, one-vote" standard to state legislatures
in Reynolds, however, excited far greater public reaction, and it has become one of the political issues most frequently discussed by news media
during the past two years. At least in part this greater interest may result from the fact that more people can see a personal stake in intrastate
shifts in power. State legislative districts are smaller, and district lines
often closely follow traditional political subdivisions; further, losses by
one district are aggravated by increased representation for other districts often in direct competition for state attention. Nevertheless, initial editorial comment on Reynolds seemed to favor the Court's decision
as an acceptable alternative to the continuation of widespread and selfperpetuating malapportionment. 9 Some of the Court's support came
from an unaccustomed source: newspapers in Southern urban areas, frequently hostile to recent Court decisions, hailed Reynolds as signalling
the end of the disfranchisement of their electorate by strong rural
political machines.' 0
B. The 7964 Controversy
Despite forecasts of overall political gains for their party, Republican
congressional leaders, perhaps reflecting the views of their own rural
power base, announced eleven days after Reynolds that they would introduce measures to limit its impact." Two regional bipartisan conferences of state legislators supported the Republican position, adopting
resolutions opposing the equal-population standard. 12 A bill was eventually introduced in the Senate on August 4, by Senator Dirksen of Illi'Lewis,
June 21, x964, 4, P. 3, col. 8. But he noted that, despite current criticisms
of the Court for "reaching" for constitutional issues and deciding cases on broad
grounds, "in the end the reapportionment cases are likely to be judged by their
practical outcome, as the school segregation decision and most others have been."
'Democratic Chairman John M. Bailey said "this is something the Democratic party had long advocated," while Republican Chairman William E. Miller
said the decision was "in the national interest and in the Republican party's interest." Id., June 17, 1964, p. 29, col. 6.
'See Opinion of the Week, id., June 21, 1964, 4, p. 9, col. 4.
10 See, e.g., an editorial from the Birmingham [Ala.] News warning that "Alabamians shouldn't be moved by cries of Federal intervention. In this case the
United States Supreme Court is acting in their behalf." Ibid.
21 Id., June 27, 1964, p. x, col. 5.
'2 Id., July 2, 1964, p. 16, col. i. The Eastern conference did not.
REAPPORTIONMENT
1966]
1233
L.
"See, e.g., Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938) ; Sheldon v. Sill,
49 U.S. (8 How.) 441 (i85o).
1674 U.S. (7 Wall.) 506 (1869).
"Cf. Yakus v. United States, 321 U.S. 414, 468 (1944) (Rutledge, J., dissenting): "It is one thing for Congress to withhold jurisdiction. It is entirely another
to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements or, what in some instances may be the same thing, without
regard to them."
1" Glidden Co. v. Zdanok, 370 U.S. 530, 605 n.ai (1962) (Douglas, J., dissenting). Three justices, however, cited McCardle with approval. Id. at 567,
N.Y. Times, Aug. io, 1964, p. 36, cols. r-2 (full text).
1234
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79:1228
ference of Chief Justices 20 and the American Bar Association 21 questioned the constitutionality of the bill. Yet on August ig the House of
Representatives, without extended debate, passed by a 94-vote margin
the Tuck bill, an even more extreme version of the Dirksen Senate proposal. It would have permanently withdrawn the original jurisdiction
of the federal district courts and the appellate jurisdiction of the
Supreme Court in this area.22 In votes taken on September 15, both a
compromise version of the Dirksen proposal, authored by Senator Javits
of New York, and the House-sponsored Tuck bill failed to receive a
majority in the Senate. After much behind-the-scenes compromise, a
mild "sense of the Senate" resolution, introduced by Majority Leader
Mansfield, was passed by a 44-to-38 vote on September 24. It provided that courts could "properly allow" state legislatures additional
time for reapportionment, not to exceed six months, and "permit" the
next election of members of such legislatures under x964 laws. The
resolution, however, specifically approved federal court-ordered reapportionment if legislatures failed to act during the grace period. 23 This
weakened measure proved unacceptable to the House members of the
joint conference, so the foes of reapportionment were left with nothing
tangible to show for their 1964 efforts. Federal and state courts continued to set deadlines for reapportionment without mentioning any of
this congressional activity, and by the close of the year the New York
Times could already headline an article: "States Accepting Court's Decision on Apportioning." 24
One commentator, writing at the time, noted that "the curious thing
about the current furor . . . is that the case [Reynolds] cannot really
22 It has been suggested that this was only a strategic attempt to push the Senate
to some milder action. McKay, supra note 14, at 269.
23 See text, 110 CONG. REc. 21,866 (daily ed. Sept. 23, x964). For a more complete discussion of 1964 congressional activity on reapportionment, see McKay,
supra note 14.
21
k P
1900J
ArldrruA
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. and
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1966]
REAPPORTIONMENT
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would be waged for the amendment in 1966. 44 Democratic leaders predicted victory again but admitted it would be "a hard, tough fight." 45
A vote is expected during the current session.
D. The Call for a ConstitutionalConvention
Opponents of the Court's reapportionment decisions have also encouraged state legislatures to petition Congress for a constitutional convention that would consider an amendment similar to the one proposed
by Senator Dirksen. Article V of the Constitution provides that Congress shall call such a convention upon the application of the legislatures of two-thirds of the states, but no such convention has ever been
convened. The same groups that lobbied for Senate passage of the
Dirksen amendment were active in this drive, although it was separately
coordinated by a Washington lobbyist retained by an organization of
state legislators.46 Bipartisan groups of legislators from northern and
central California, fearful that application of Reynolds to their state
would vest legislative control in Los Angeles, toured most of the state
47
legislatures in session during 1965 to urge the petitioning of Congress.
Groups behind the drive freely acknowledged that their true goal was
to force Congress into independent action on a constitutional amendment, 48 for no one knew under what powers such a convention would
operate or whether, once constituted, it might be allowed to pass amendments concerning issues beyond its original scope. Thirty-four states
must petition Congress to have such a convention called. Lists of the
states that have validly petitioned Congress in connection with the reapportionment amendment vary widely. One survey as of August 1965
listed 20 states as having petitioned the 89 th Congress, 3 the 88th
Congress, and 4 as having passed resolutions not sent to Congress.4"
Senator Proxmire inserted into the Congressional Record on October
22, 1965, another chart indicating that 25 states had called for a convention; his list did not include 2 states that were listed in the prior survey
because their legislatures had failed to resubmit their i964 resolutions
to the succeeding Congress in 1965.50 He noted that since 14 of these
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[Vol. 79:X228
1966]
REAPPORTIONMENT
1239
sional vote, the Research Division of the Republican National Committee found its party predominant in the majority of congressional
districts in suburban areas surrounding i6 major cities outside the
South.5 Republican strength in the cities and suburbs of the South is
also increasing rapidly.6 A pre-Reynolds report predicted Republican
gains in at least 9 states from the application in Wesberry of an
equal population standard to congressional districting.7 These forecasts could probably be applied with equal force to state legislative reapportionment, although accurate data on which to base specific findings is unavailable. The 1964 election statistics are not helpful, since the
Johnson landslide, bringing victory to Democrats in areas traditionally8
voting Republican, must, for the moment, be regarded as an aberration.
Furthermore, only 5 states had reapportioned in time for that election.
In the fall of 1965, New York's historically Republican suburbs, which
had voted overwhelmingly Democratic the year before, returned to the
fold sufficiently to swing the balance of power in the state senate back
to the GOP. Republicans also picked up all new seats created by reapportionment in the lower house of the state legislature, most of them
in suburban areas.9
Thus, if the issue is regarded as one of party strength only, it may
seem anomalous that Republican leaders are contesting the Court's
reapportionment decisions. But the breakdown of the vote on the Dirksen Amendment last August shows that the coalition favoring its passage was composed primarily of rural-supported senators of both
parties, representing existing Democratic strength in the South and Republican strength in the rest of the nation. The only three Republicans
who voted to defeat the amendment were from states with a large
metropolitan population: Boggs (Del.), Case (N.J.), and Javits
(N.Y.). 1 Soon after Reynolds, one commentator pinpointed the rationale behind Republican opposition to that decision: "Even if as many
Republicans were elected in [a state] . . . legislature districted by
population, they would be a different breed of Republican. . . . [They
would be] the new, smooth politicians of the suburbs instead of the solid
country types . . . and they would vote differently." "
B. The Possible Effects of Reapportionment
on State and National PoliticalPrograms
Prior to Reynolds it was frequently said that many state apportionment schemes resulted in the neglect of urban needs by the artificially
created rural majority. The Senate hearings on the Dirksen amend-
' LEIsrLAx
note
2,
1240
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13
1966]
REAPPORTIONMENT
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1242
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1Id. at 226.
4 E.g., United States v. Classic, 323 U.S.
299
(I94i).
6369 U.S. 186, 3oo. See also Auerbach, The Reapportionment Cases: One PerOne Vote, One Value, 2964 SuPRE M COuRT REVIaw i, 84-85
(Kurland ed.).
i966]
REAPPORTIONMENT
1243
interest which the Court believed to be at stake was the individual right
to equal apportionment, while the minority interest with which Mr.
Justice Stewart was concerned was that of an electoral minority that had
persuaded the majority to protect its interests.
The problem involved in accepting the result of a referendum on apportionment is that the case of a majority consciously deciding to overrepresent a particular minority at its own expense cannot be distinguished from the case of a majority deciding to underrepresent a regional
minority for its own advantage. The Court may have had in mind
situations such as that in California, where the rest of the state consistently conspired to give Los Angeles only token representation in one
house of the legislature.' 6 But Professor Auerbach has argued that this
is not a real danger if a reapportionment plan can become law only if
a majority in every geographical area that is underrepresented by the
plan supports it in a referendum.' 7 Such a requirement, reminiscent of
0 McKAY, REAPPORTIONMENT 169-86 (I965).
"See McCLosxEy, THE A.ucAN SuPREM COURT 11-13 (ig6o). See generally Corwin, The "Higher Law" Background of American Constitutional Law
(pts. 1-2), 42 HARV. L. Rv. 149, 365 (1928-1929).
1 E.g., Reynolds v. Sims, 377 U.S. 533, 56g (1964).
12377 U.S. 713 (1964).
1
3Id. at 736.
14 Id. at 737 n.3o.
15 Id. at 759.
6 Baker, The California Senate, in THE PoLiTics or REAPPORTIONMENT 51
(Jewell ed. 1962).
17 Auerbach, supra note 6, at 83. Professor Auerbach believes that such a choice
cannot be properly made unless the voters are presented with plans identical in every
1244
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1966]
REAPPORTIONMENT
1245
22
opinion).
26
1246
[Voi. 79:1228
to veto legislation proposed by a relatively uncommitted majority in exchange for votes on other issues which concern the minority representatives less. 32 A legislative system can further modify the relation between
majority and minority by requiring more than a simple majority to
pass legislation. This gives a minority greater leverage against a cohesive majority, thus tending to produce a compromise. It also gives
smaller, but intense, minority interests a greater ability to trade votes
on other issues for the purpose of blocking legislation that they oppose.
The power to block simple majority rule is not synonymous with minority
28
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 749 (1964) (dissenting
opinion).
29 See DUVERGER, op. cit. supra note 21, 245-55. In fact, however, the introduction of proportional representation into an already existing two-party system probably has only a limited disintegrating effect. Rather, proportional representation
seems only to encourage already existing multiparty tendencies in an electorate.
Id. at 252.
30 See HARTZ, THE LxnERAL TRADioN
DAHL, A PREFACE TO DEocRA2ic
mn
See also
z966]
]REAPPORTIONMENT
1247
rule, since the minority is also unable to take action on its own.s Whatever protection against majority rule might be attained through overrepresentation of certain minority interest groups could also be achieved
by requiring qualifiedmajority rule in the legislature.3 4 While qualified majority rule gives all interests an equal opportunity relative to
their legislative strength to block action, overrepresentation through
apportionment arbitrarily gives such power only to some geographically
based minorities. Thus, even if majority rule constitutes a problem,
the availability of a more neutral means of checking the majority suggests that this purpose cannot justify unequal apportionment.
3. Maintaining Communities of Interest. -
Interest representation
. . .
This case presents problems similar to those discussed earlier in connection with reapportionment through referendum.3 8 The one-man
one-vote decision makes no exception for mutual agreement to overrepresent a minority. Thus, if the voters in Hilo 39 were willing to be
"Id.
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A. Impermissible Considerations
In Reynolds v. Sims, the Supreme Court excluded "history alone,"
"economic or other sorts of group interests," and "area alone" as factors justifying deviation from the equal population standard. Despite
this, the federal district court in Hawaii approved a deviation concededly
based on the ethnic, economic, and geographic diversity of two groups
of voters.' Although a forceful argument can be made that ethnic and
geographic differences should be legitimate justifications for districts
of unequal population in Hawaii, there seems to be no way to distinguish the justifications accepted in the Hawaii case from those rejected
in Reynolds. The motive of the legislature in passing an act has traditionally been considered irrelevant to consideration of the act's constitutionality. 2 However, in League of Nebraska Municipalitiesv. Marsh,
a federal district court, relying on the Court's references to "good faith"
in Lucas 4 and Reynolds,5 held the apportionment of the Nebraska legislature unconstitutional on the ground that it was "apparent" that the
disparities among the districts, although not extreme, were the result of
the incumbents' desire to keep themselves in office. Traditional constitutional analysis would require that if deviations can be explained by rational and "legitimate" considerations, then a plan should be constitutional regardless of a selfish interest of the legislators. If it is doubtful
whether the considerations are legitimate, the doubts should be resolved
by a closer look at the merits of the plan; the fact that individual legislators may seek to keep their seats should not be a factor.
B. Valid Considerations
i. Integrity of Political Subdivisions. -In
'Holt v. Richardson, 238 F. Supp. 468 (D. Hawaii), prob. juris, noted sub
2 Cf. Fletcher v. Peck, io U.S. (6 Cranch) 87 (x8Io).
2 242 F. Supp. 357 (D. Neb. 1965), appeal dismissed sub nor. Marsh v. Dworak,
86 Sup. Ct. 642 (1966).
' Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 735 n.27 (x964): "Consistent with this approach, in determining whether a good faith effort to establish
districts substantially equal in population has been made, a court must necessarily
consider a State's legislative apportionment scheme as a whole."
' Reynolds v. Sims, 377 U.S. 533, 577 (1964): "[W]e mean 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 population as is
practicable."
nom. Burns v. Richardson, 382 U.S. 807 (1965).
1966]
REAPPORTIONMENT
1249
proved adherence to the boundaries of political subdivisions as a legitimate justification for deviations from strict equality. Analyzed in
terms of an "equal protection" right of each citizen to live in an equally
apportioned district, no compelling logic requires a political subdivisions
exception. But the exception can be justified on the ground that following political subdivision lines limits the possibilities of gerrymandering.
It is simply not as easy to "load the dice" against or in favor of a particular group when political subdivision lines are followed as when
they are not.6 The Supreme Court has, in effect, ruled that the problems involved in permitting a cause of action for gerrymandering can
often be avoided without reaching the issue of gerrymandering by requiring that deviations from equality be justified by the use of factors,
such as the integrity of political subdivisions, "that are free from any
taint of arbitrariness or discrimination." 7 The preservation of political
subdivisions as voting units has the additional advantage of allowing
citizens of a community to vote in state elections for candidates with
whom they have become familiar locally.
In Reynolds, the Court warned that although the use of county and
city lines to prevent gerrymandering and to coordinate state and local
government might justify some deviations from strict equality, their use
could never be permitted to "submerge" population as the "controlling
criterion" of an apportionment plan. The Court did not define "submerge," but it did state that where the number of seats in a legislative body was only slightly greater than the number of counties in a
state, county lines could not be sacrosanct if they would deprive the
populous counties of a great deal of the voting strength which they would
receive in an equally apportioned legislature.
2. Size of Legislature.Some state constitutions specify the size of
the legislature; others prescribe a range within which the number must
fall, often requiring that a fixed ratio be maintained between the two
houses. Since choice of the number of legislators does not in itself
interfere with the equal population principle (a state can be divided
into twenty equally populated districts as easily as into one hundred),
it might seem that this choice is irrelevant to the constitutionality of an
apportionment. However, when a fixed number of legislators is combined
with the requirement of substantial equality and a policy that political
subdivision lines not be crossed, it may be impossible to draw a constitutional apportionment plan.
3. Other State Constitutional Provisions.- Some states have constitutional provisions related to apportionment which are not inconsistent
with the equality principle. For example, the Wyoming constitution
provides that each county should be awarded at least one representative
and one senator and that the house should be at least twice the size of
the senate.8 When combined with the requirement of equality, literal
application of this provision would have required a legislature of well
over 300 members.9 The Wisconsin constitution requires that assembly
6 See pp. 1284-85 infra for a discussion of compactness and contiguity as an alter-
CoNsT. art. 3, 3.
oWYo.
See Schaefer v. Thomson, 240 F.
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1966]
REAPPORTIONMENT
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14 See Tussman & tenBroek, The Equal Protection of the Laws, 37 CA=.
L.
REV. 341, 343-56 (x949).
15 This view of apportionment depends on the assumption that the equal protection clause should be read not to invalidate all inequalities but rather only to
invalidate plans in which inequality significantly harms particular individuals.
1252
[Vol. 79:1228
by dividing the population of the state by the number thirty-four, and the population of no district shall vary from the quotient by more than one-fourth
thereof. .... "
17 236 F. Supp. 699 (W.D. Mo. 1964).
" See, e.g., Davis v. Cameron, 238 F. Supp. 462, 467 (S.D. Iowa 1965) (McManus, J., dissenting in part).
z964).
"0Buckley v. Hoff, 234 F. Supp. x9z (D. Vt.
20 Jackman v. Bodine, 43 N.J. 453, 25o A.2d 7x3 (x964).
Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964), was forced
to hold that the entire reapportionment scheme was invalid. See also Davis v.
Cameron, 238 F. Supp. 462 (S.D. Iowa 1965).
1966]
REAPPORTIONMENT
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This figure was not supplied by the New Jersey court, but it can be deduced
from the data which the court does supply that the. maximum deviation was approximately 40%. The most underrepresented district had i43,9o3 people and
one representative; the average population per representative was about ioo,ooo.
43 N.J.
at 459-6o nn.i-2, 2o5 A.2d at 716 n.x, 717 n.2.
22
In fact the New Jersey constitution specifically limits the number of assemblymen to sixty. NJ. CONST. art. IV, 3, ff r.
23 Schaefer v. Thomson, 240 F. Supp. 247, 251 (D. Wyo. 1964).
24 242 F. Supp. 357 (D. Neb. 1965), appeal dismissed sub nom. Marsh v.
Dworak, 86 Sup. Ct. 642 (1966).
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be the
2 7 maximum deviation in congressional districting.
See, e.g., 377 U.S. at 577.
2
1 Davis v. Mann, 377 U.S. 678 (1964).
2
'Id. at 691.
10 Wilkins v. Davis, 139 S.E.2d 849, 852 (Va. 1965).
1966]
REAPPORTIONMENT
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fore the Supreme Court, it seems clear that the administrative convenience in using this figure would outweigh almost all objections that
might be raised by the fact that the figure would include small distortions based on the number of aliens, minors, and convicted felons in
individual districts.3 1 A major cause of distortion in the use of total inhabitants, however, and one that may yet result in a scheme being
overthrown, is that it may include large numbers of transient military
personnel. The military population in Hawaii, largely concentrated
on one of the islands, has at times totaled almost 5o per cent of the
state's population. Attempting to compensate for this distortion, Hawaii
has based its apportionments on a count of the registered voters in the
state. If the Supreme Court affirms a decision upholding an apportionment based on "registered voters," 32 it may cast doubt upon the constitutionality of using "total inhabitants" as a base where the military
is a large and concentrated element of the population, since the inclusion of military personnel who are not state citizens may tend to
overrepresent citizens living in the primarily military districts and to
underrepresent citizens living in other districts. This result would not,
of course, be precluded by Davis v. Mann, which held only that the
military as a class could not be excluded from receiving equitable representation "without more being shown." If it can be shown that individual soldiers are not citizens of the state in which they are temporarily stationed, that showing should be enough to overcome a finding of "discrimination" if they are not counted for purposes of representation.
A resident-state-citizen base performs the dual function of excluding
aliens and transient military from consideration and including all
others who might conceivably have a protected interest in state government. In Hawaii, the less inclusive standard of registered voters was
used primarily because census figures of resident state citizens were unavailable. The district court, in approving the registered-voter figure,
recognized that it may be impossible to distinguish between those members of the military who have fulfilled residence requirements for voting
and those who are ineligible to vote. It also cited Hawaii's high literacy
rate and high registration figures to allay suspicions that the registered
voter count might discriminate against the uneducated or uninterested
citizen. In New York, however, since the Supreme Court had used the
"citizen" figure without comment in testing the validity of a prior
New York apportionment plan,3 3 a district court later approved it, relying in part on its insignificant impact on the apportionment scheme as
a whole.3 4 The same court held unconstitutional a plan using an
"actual voter" base. Pointing out that the "switch" from citizens to
actual voters had the effect of taking two and a half senators and seven
assemblymen from New York City, the court concluded that, what3 But sub-state apportionment distortions may be greater. See pp. 1275-78
infra.
3
See Holt v. Richardson, 238 F. Supp. 468 (D. Hawaii), prob. juris. noted
sub nom.
Burns v. Richardson, 382 U.S. 807 (1965).
2
V
WMCA,
Inc. v. Lomenzo, 377 U.S. 633 (1964).
24
WMCA, Inc. v. Lomenzo, 238 F. Supp. 916, 925 (S.D.N.Y.), aff'd, 382 U.S. 4
(1965).
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1d.
I at
924-25.
o In New York, an additional ground for holding the actual voter count unconstitutional might have been that the vote used as a base was the 1962 vote
for governor and not a previous vote for the state legislature.
"7 See, e.g., Note, The Apportionment Cases: An Expanded Concept of Equal
Protection, 196S Ws. L. Rxv. 6o6.
"sWMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y.), aff'd, 382 U.S. 4
(z96S).
a See, e.g., Thigpen v. Meyers, 231 F. Supp. 938 (WD. Wash. x964).
1966]
REAPPORTIONMENT
1257
A's district will have only one-sixth the opportunity to influence his
legislator that a constituent of B would have. However, if he is successful in exerting his influence, the vote cast by A will have six times the
effect of a vote by B. A legislator, however, does more than vote; he
serves on committees, speaks on the floor, and is subject to lobbying
pressures. To this extent, B's constituency is better represented than
A's, because A is unlikely to be able to devote six times as much effort
to his work as B does. For example, in a recent California election where
Los Angeles County could elect only one state senator, he would then
have cast thirty-five per cent of the votes in the senate if weighted voting
had been used. To have a legislator with such power seems intolerable. Minorities within Los Angeles, especially the-voters of the losing
political party, would have a serious grievance because, in a county
as large as Los Angeles, both major parties would win significant representation in the legislature were the election in the state by equal districts. However, the Supreme Court rejected ari argument essentially
identical to this when it sanctioned the use of multi-member districts. 40
Voters elsewhere in the state would also be able to object because their
legislators would have negligible bargaining power relative to the Los
Angeles legislator. Thus, at least in extreme situations, weighted voting
ought to be rejected.
Professor Auerbach, while he admits the absurdity of using weighted
voting to offset the imbalance in a chamber such as the California state
senate, is much more sympathetic to the judicious use of fractional
voting.41 He argues that the use of fractional voting might save such a
constitutionally questionable apportionment as Vermont's. By giving the
representative of sparsely populated Grand Isle County, Vermont, 42 or
Calumet County, Wisconsin, 43 a fractional vote, while still permitting
him to sit as the representative of his county, the integrity of those political subdivisions would be preserved, and the voting power of their
residents and of the rest of the state would still be substantially equal.
Four objections can be raised to this proposal: (i) residents of the
sparsely populated areas would receive too much "actual" representation, even assuming that their voting power was not out of balance;
(2) residents of the sparsely populated areas would receive too little
"voting" representation, since it is arguable that they are entitled to
be included in a larger district which elects a "whole" legislator; (3)
the proposal would cause an unnecessary amount of confusion in the
conduct of ordinary legislative business; and (4) it would be contrary
to historical concepts of republican political representation that voting
in the legislature be on any other basis than "one legislator, one vote."
It seems unlikely, however, that a court would hold these objections
sufficient to declare a fractional voting scheme unconstitutional where
40
Fortson v. Dorsey, 379 U.S. 433 (I965). A large district with one representative casting many votes would have all the evils of a multi-member district, see
pp. 1258-61 infra, plus additional disadvantages.
41 Auerbach, The Reapportionment Cases: One Person, One Vote -One
One Value, 1964 SUPRM=x COURT RvIaw 1, 44 (Kurland ed.).
42 See p. 1252 infra.
43
See State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 570, 126
551, 566 (x964).
Vote,
N.W.2d
1258
[Vol. 79:1228
the legislature has made a conscious choice to save what might otherwise be an unconstitutional apportionment. 44 Whether this choice is desirable, however, is a different question. Since fractional voting would be
a considerable strain on the smooth functioning of the legislative process, it should produce significant benefits in order to justify its adoption. Yet, from a policy as well as a constitutional perspective, the
slight overrepresentation of a county such as Grand Isle or Calumet
seems preferable to a possible disruption of the normal voting procedures
of the legislature. And, even where this slight overrepresentation has
been held unconstitutional, it still seems better to cross a few county
lines in drawing districts than to classify legislators according to the
number of people in their districts.
G. Multi-Member Districts
The election of more than one representative from a single district is
a common political phenomenon in America. A 1955 study showed
that only nine states elect all of their legislators in single-member constituencies and that twelve per cent of state senators and forty-five per
cent of state representatives were chosen in multi-member elections. 45
Ordinarily, the justification given for having multi-member districts is
that the preservation of traditional boundaries and political subdivision
units is desirable - that it is preferable to vote as a citizen of a city or
county rather than as a resident of an arbitrarily drawn section of
that city or county.46 Because its use decreases the likelihood that the
voter will be familiar with the qualifications of all the candidates, the
multi-member district emphasizes the importance of party affiliation
while deemphasizing the personality
of a candidate and his involve47
ment in purely local affairs.
The Supreme Court has upheld a number of multi-member districting
plans as compatible with the one-man, one-vote standard. 48 Yet the
single full opinion in a case involving multi-member districts, Fortson
v. Dorsey,49 left their status unclear. A Georgia districting scheme
including two large multi-member constituencies was upheld on the
ground that the equal apportionment standard was not violated where
the population per representative within the multi-member districts was
substantially equal to the population per representative in single-member districts. On this reading, the holding only reaffirmed the Reynolds
dictum suggesting that states might use at least some multi-member districts for the purpose of meeting the one-man, one-vote standard. On
Even in WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y.), zff'd, 382
U.S. 4 (1965), where the court declared two legislative plans unconstitutional on
the basis of these objections, the court had previously stated that the presumption of constitutionality which normally attaches to legislation was weakened in
this case because the legislature had passed four plans when it should have passed
only one.
4 Klain, A New Look at the Constituencies: The Need for a Recount and a
Reappraisal,49 Am. PoL. Sci. REv. iio5 (1955).
' See Reynolds v. Sims, 377 U.S. 533, 58o-81 (1964).
"7 See DUVERGER, POLITICAL PARTIES 59, 358 (rev. 2d Eng. ed. i959).
48 Fortson v. Dorsey, 379 U.S. 433 (x965); Burnette v. Davis, 382 U.S. 42
(x965). See also Harrison v. Schaefer, 34 U.S.L. WEEK 3289 (U.S. Feb. 28, 1966) ;
Crawford County Bar Ass'n v. Faubus, 34 U.S.L. WEEK 3289 (U.S. Feb. 28, 1966).
49 379 U.S. 433 (1965).
1966]
REAPPORTIONMENT
1259
the other hand, Fortson may stand for the much broader proposition
that multi-member districts share equal constitutional status in all respects with single-member districts. Under this interpretation, it might
be constitutional, for example, for a state to establish permanent atlarge elections. The more limited view of Fortson, however, would not
foreclose a subsequent invalidation of permanent at-large elections.
Indeed, in a dictum in Lucas, the Court questioned the desirability of a
seventeen-member district,50 noting that "ballots were long and cumbersome, and an intelligent choice among candidates for seats in the legislature was made quite difficult." 51
More recently, in Burnette v. Davis,5 2 the Supreme Court affirmed per
curiam a district court dismissal of an action brought by Negro voters
from Richmond and suburban voters from Henrico County, Virginia,
who alleged that the combination of the city and the county in one
multi-member district deprived them of equal protection. Negro plaintiffs had shown that while Negroes constituted forty-two per cent of the
total population of Richmond they totalled only twenty-nine per cent
of the population of the combined district. Henrico County plaintiffs
claimed that since the county was not much more than half the size of
the city, the city would elect all eight representatives although having the population for only five. The district court merely relied on
Fortson and rejected their arguments, accepting the state's suggestion
that the combination was necessary if the statewide average of
voters per representative was to be maintained.
The Supreme Court has thus far avoided facing squarely the problems raised by its concession in Fortson that minorities might well have
their voting strength "minimized or cancelled out" through the use of
multi-member districts. Multi-member districting can and does deprive
minorities of their voting strength. In the most extreme case of a multimember district, the 1964 at-large election of the Illinois House of Representatives, the losing Republican party had much of its voting strength
canceled out. Had the two parties not agreed before the election to limit
the candidates per party to 120 (the House had i8o members), the Republican vote, although over forty per cent of the total, would probably
have elected no representatives at all.5 3 Since this situation is unlikely
to recur, it may be that a claim of an unrepresented minority party
after an at-large election will never be litigated. But if at-large voting
were to become usual practice, it seems likely that the Supreme Court
would limit the holding in Fortson and find the practice unconstitutional.
The difficulty with the preceding analysis is that it does not help to
distinguish the blatantly discriminatory case of state at-large voting
from the presumably "harmless" multi-member districting approved in
Fortson. The minority is harmed in the same way in both situations,
and only the number of voters affected is different. In addition, it
5
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 731 n.21 (1964).
Id. at 731.
52 382 U.S. 42, affirming per curiam Mann v. Davis, 245 F. Supp. 241 (E.D. Va.
51
x965).
ically impossible -to split a ticket in the time permitted for voting.
126o
[Vol. 79:1228
is not clear that any valid distinction can be drawn between the necessary and accepted "disfranchisement" of the minority in a singlemember district and the unnecessary debasement of the minority's vote
in an at-large election. The Court has perhaps suggested the basis for
one distinction - the integrity of political subdivisions. It may be that
where a multi-member district follows county or city lines, there are
legitimate reasons for its existence. Such political entities may have
distinct and unified interests which further subdistricting would tend to
fractionalize. Unfortunately, this line of reasoning often does not
sufficiently weigh the diversity of interests which may be found even
within a relatively small geographical area. Differences in race, religion, ethnic affiliation, or economic status, as well as mere personal
preference, will exist within almost every political subdivision. This
makes it likely that, if the city or county were divided into single-member districts, both parties would elect some of the legislators.14 For example, in a normal year the Democrats would easily sweep all the four
major boroughs of New York City if the voting were at-large in each
borough, but with the city split into sub-districts New York City Republicans now hold eleven of seventy-five seats in the state assembly.5
To suggest that the interest of a Harlem resident and a "Silk Stocking"
resident should be combined in the election of a Manhattan representative is to mistake one of the underlying purposes of geographic representation. In a rough way, the interests of various sections of a city
may be homogeneous, but it is unlikely that a city as a whole will be
homogeneous or that groups within the city will be fairly represented if
the voting is at-large.
Even if Fortson is read to have approved at-large voting within defined political subdivisions of a state, at least two other avenues of attack are open to the opponents of multi-member districting. The first
was successful in Pennsylvania. Existing multi-member districts were
attacked on the ground that the classifications between the multi-member and the single-member districts in the state were arbitrary. The
federal court, sitting before Reynolds was decided, agreed with plaintiffs
that the occasional use of multi-member districts resulted in a "crazyquilt" that was either the product of gerrymandering or was wholly
capricious. 50 The state court, sitting after Reynolds but-before Fortson,
54 One solution guaranteeing minority representation is the cumulative voting
scheme historically used in Illinois. There, districts elect three representatives each
and voters may cast their three votes all for one candidate, two for one and one for
another, one-and-a-half for each of two, or one for each of three. Thus, assuming a
two-party system, any party with more than one-fourth of the vote is guaranteed
one representative, provided that its adherents vote for only one candidate and
cast all their ballots for him. Of course, the Illinois system may be criticized for
not giving a large majority its due. Assuming that a party has a large enough majority throughout a multi-member district to elect three representatives were the
district to be split up, it may not be equitable to give the minority party one seat
out of three merely because it can muster 26% of the total vote. For a favorable
discussion
see BLAIR, CumurTrm VOTING (ig6o).
5
N.Y. Times, Nov. 4, x965, p. 53, cols. 6-8. Two of the legislators are from
Richmond,
the rest from the remaining boroughs.
56
Drew v. Scranton, 229 F. Supp. 3xo (M.D. Pa.), vacated, 379 U.S. 40 (1964).
For example, the court pointed to Allegheny County, within which there was a
single-member district in McKeesport, a two-member district in Clairton, a threemember in Wilkinsburg, and a four-member in Sewickley. Id. at 327.
1966]
REAPPORTIONMENT
1261
U.S.
1262
[Vol. 79:1228
difficult constitutional questions," 3 that the possibilities for intervention be broad. 4 Courts should also, if necessary, compel the appearance
of parties both favorable and adverse to the existing plan. A district
court in Connecticut served process on the majority and minority leaders of both houses of its legislature, 5 and a court in Illinois compelled
the joinder of all the members of the general assembly. 6 Although these
acts of judicial discretion may have been extreme - if the legislators
had been concerned enough about the outcome, they could have sent
representatives on their own initiative 7 - they are vivid and satisfactory solutions to a perplexing problem.
B. Choice of Forum
Both federal and state courts may pass on the constitutionality of an
apportionment scheme. Three-judge federal district courts have jurisdiction under 28 U.S.C. 2281. State courts have concurrent jurisdiction to decide "federal questions" and have been specially welcomed to
the field by the Court: "We applaud the willingness of state courts to
assume jurisdiction and render decision in cases involving challenges to
state legislative apportionment schemes." 8 As yet no state court and
federal court have disagreed on whether an apportionment meets the federal constitutional standard. 9 Should such a disagreement occur, it might
well be irresolvable without action by the Supreme Court. A state
court's determination of the federal constitutionality of a state statute
is not binding on the federal courts,' 0 and a federal court ruling not
passed on by the Supreme Court may not bind a state court."
State and federal courts have, however, come into conflict over the
validity of apportionments under state law. Federal courts ordinarily
would not have the power to declare an apportionment invalid or to
enjoin an election as contrary to state law. At least two district courts,
3 Id. at 204.
4See Toombs v. Fortson, 241 F. Supp. 65 (N.D. Ga. x965), where the entire
Georgia
House of Representatives and the Republican Party intervened.
5
Butterworth v. Dempsey, 237 F. Supp. 302 (D. Conn. 1965).
6 Germano v. Kerner, 241 F. Supp. 715 (N.D. Ill.), vacated sub nom. Scott v.
Germano, 381 U.S. 407 (I965).
I See, e.g., Hughes v. WMCA, Inc., 379 U.S. 694 (1965) ; Travia v. Lomenzo,
381 U.S. 431 (i965); Holt v. Richardson, 24o F. Supp. 724 (D. Hawaii), prob.
juris. noted sub nom. Burns v. Richardson, 382 U.S. 807 (165).
Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 674 (2964).
9The courts in New York came closest. After a three-judge federal district
court had declared three reapportionment plans invalid under the federal constitution, WMCA, Inc. v. Lomenzo, 238 F. Supp. 9x6 (S.D.N.Y. 2965), the state
court found the fourth plan invalid under the state constitution, Matter of Orans,
i5 N.Y.2d 339, 206 N.E.2d 854, 258 N.Y.S.2d 825, appeal dismissed sub nom.
Rockefeller v. Orans, 382 U.S. 10 (1965). Despite this, the federal court subsequently ruled that the next election should be conducted under the plan held
invalid by the state court. The state court attempted to enjoin the election, Glinski
v. Lomenzo, 16 N.Y.2d 27, 209 N.E.2d 277, 262 N.Y.S.2d 282 (2965), but the federal court's action was affirmed by the Supreme Court, WMCA, Inc. v. Lomenzo,
22 (2965).
382 U.S.
0
See, e.g., Goesaert v. Cleary, 74 F. Supp. 735, 740 (E.D. Mich. 1947) (dictum),
aff'd, 335 U.S. 464 (948).
"1Compare United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3d Cir.),
petition for cert. filed, 34 U.S.L. WEEK 3225 (Dec. 20, 2965) (No. 834), with State
v. Ordog, 45 N.J. 347, 212 A.2d 370 (i965).
8
I966]
REAPPORTIONMENT
1263
1264
[Vol. 79:1228
(2943).
1966]
REAPPORTIONMENT
1265
court should stay its hand for as long as time permits to allow the "appropriate" state agencies, including the state courts, to redistrict. Eventually the scope of this holding may be tested in a situation where the
federal court thinks a state-adopted remedy inadequate, but for the
present it is clear that a state court willing to enforce the one-man, onevote principle takes precedence over a federal court.
When the issue is not remedy but the original decision on legality,
the problem of abstention must be analyzed differently. Here a decision whether to abstain from the whole case poses the same difficulties
as exist whenever federal constitutional issues are commingled with
issues of state law or are enmeshed in questions which deeply affect the
structure of state government. 28 The case law on abstention is confused 2 9 but the Court helped to clear away some of the confusion in the
apportionment area in Davis v. Mann,3 0 the Virginia case that accompanied Reynolds. Defendants argued that the district court should have
stayed its proceedings to permit the state courts to decide questions
of state law. The Court rejected the argument, approving the district
court's denial of a stay on the ground that the issues of state law in the
case were unambiguous. It noted also that no state court case was pending when the jurisdiction of the federal court was invoked. At the least,
Davis v. Mann established that when a federal court cannot reasonably
predict that a state issue will dispose of the case, it should not abstain
from deciding the federal questions even though the effect of 81the decision may be to disrupt the normal course of state government.
When it is possible that an apportionment will be invalidated on state
grounds, the abstention doctrine would seem to require that a federal
court abstain pending state determination of issues of state law. Primarily based on the desire to avoid deciding federal constitutional issues
when an issue of state law might dispose of the claims of the parties,
abstention may also be justified on grounds of comity and the avoidance
of federal-state friction. 32 Had the New York federal court abstained
from deciding the federal constitutionality of the legislature's plans
2
s The leading cases are Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941),
and Burford v. Sun Oil Co., 319 U.S. 315 ('943). More recent is Harrison v.
NAACP, 360 U.S. 167 (1959).
21 See the comments on abstention in McNeese v. Board of Educ., 373 U.S. 668,
673 (x963). For a recent dispute on the scope of abstention in another context,
compare Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959),
with County of Allegheny v. Frank Mashuda Co., 36o U.S. i85 (1959). See also
WRIOHT, FEDERAL COURTS 52 (1963).
See also
1266
EVol.
79:1228
until the state court could determine the questions of state law, the
bitter conflict between the federal and state courts might well have been
avoided. 33 Neither of the Davis v. Mann conditions for federal jurisdiction was present in New York: the state law was ambiguous and a
state court action was pending.34 If a federal court does abstain, however, it may cause considerable delay in deciding apportionment cases,
since all further adjudication in the state courts may be limited to state
issues if the plaintiff exercises the right, guaranteed by the court in i964,35
to return to federal court for decision of the federal issues. Nevertheless, the considerations in favor of abstention - avoidance of federalstate friction and postponement of difficult questions of constitutional
law -should
still dictate that state courts be given the first opportunity to pass on apportionment plans.
C. Remedies
A court must decide two questions when it fashions a remedy: (i)
whether the next election is so imminent that the court should not interfere in the election process at all, and (2) if it does decide to act, either
before the election or after it, what remedy is then most appropriate. If
election machinery is already in motion - that is, if nominations have
been made or primaries held - equitable considerations might demand
that a court not attempt to substitute a different districting plan in
that election.3 6 In such a situation, a court is left with two alternatives
to allow the election, though technically unconstitutional, to proceed
as planned, or to enjoin it altogether and have the current legislature,
probably also unconstitutionally apportioned, continue sitting. The
first alternative was approved, albeit reluctantly, by the Court in Reynolds and has been used in many statesa 7 The second was successfully
employed in Connecticut, where the district court enjoined the 1964
election and allowed the current legislature to sit until the I966 election,
which will be held on the basis of a plan passed by the legislature in
1965.38
Whichever alternative a court chooses, it must ultimately face the
same choice of remedy that it would have had if an election had not been
imminent, except that the passing of still another election or the continuance of an illegal legislature may cause the court to feel a greater
" Despite the summary affirmance of the district court's opinion this Term, it
is still conceivable that the Supreme Court could hold that the federal court
should have abstained, since it retains jurisdiction over an appeal from the district
court's original determinations of unconstitutionality (Plans B, C, and D) and
constitutionality (Plan A). See WMCA, Inc. v. Lomenzo, 382 U.S. 12 (x96g)
(Harlan, J., concurring).
34Although Davis v. Mann implies that it is whether a case was pending in
state court at the time the federal court's jurisdiction was first invoked that determines the federal court's decision on abstention, it would make better sense to
have abstention depend on whether an action is pending when the court hears the
case (the New York situation).
Is England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 41x, 417.
"6 But see Reynolds v. State Election Bd., 233 F. Supp. 323 (W.D. Okla. 1964),
where the court redrew the lines and made some new primaries necessary. See also
Swann v. Adams, 34 U.S.L. WEEK 3291 (U.S. Feb. 25, 1966).
" See, e.g., Petuskey v. Clyde, 234 F. Supp. 96o (D. Utah 1964); Paulson v.
Meier,
232 F. Supp. 183 (D.N.D. 1964).
3
Butterworth v. Dempsey, 237 F. Supp. 302 (D. Conn. z965).
x966]
REAPPORTIONMENT
1267
aff'd, 382
U.S.4112 (1965).
E.g., Buckley v. Hoff, 234 F. Supp. 1g1 (D. Vt. x964), modified and aff'd sub
norn. Parsons v. Buckley, 379 U.S. 359 (I965).
2 Reynolds v. Sims, 377 U.S. 533, 586 (1964).
4
Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 676 (1964).
44
Butterworth v. Dempsey, 229 F. Supp. 754, 774 (D. Conn.) (Anderson, J.),
aff'd45sub nomn. Pinney v. Butterworth, 378 U.S. 564 (1964).
See, e.g., Yancey v. Faubus, 238 F. Supp. 290 (E.D. Ark. 1965). In Michigan, the state supreme court deferred to a bipartisan commission which could not
agree on a plan. The court, in accordance with state law, then reapportioned the
legislature itself. In re Apportionment of Michigan State Legislature, 373 Mich.
250,46128 N.W.2d 722 (1964)
See, e.g., People ex rel. Engle v. Kerner, 32
47
Brown
v. Board of Educ., 349 U.S. 294, 301 (1955).
4
The Court intimated in Davis v. Mann, 377 U.S. 678, 692-93 (1964), that it
1268
[Vol. 79:1228
0
to the legislature that it reapportion as its first order of businessY
Courts have threatened to reapportion the legislature if it failed to rewould
apportion itself 51 and have warned that voting in the next election
52
be at-large if no constitutional reapportionment was passed.
Among those courts that have reposed the most confidence in the
ability of legislatures to reapportion themselves, the prevailing mood
seems to be a resigned concession that the Supreme Court's mandate
must be obeyed.5 3 Nevertheless, the least that should be required of
the lower courts is that they retain jurisdiction over a reapportionment
case while the legislature is given time to act. If it becomes clear that
the legislature is not making and will not make any progress toward
reapportioning, the courts must take the initiative. Courts that have
taken affirmative steps have utilized three remedies and have discussed, but never used, a fourth. The remedy not yet used, but sometimes considered, particularly as a temporary expedient until the legislature has time to reapportion itself, is the installation of a weighted voting plan. Weighted voting may satisfy the Reynolds standard mathematically, but as a permanent solution it seems undesirable; it both
upsets normal legislative procedures and unbalances the power and
effectiveness of individual legislators. 54 Another remedy is the holding
of an election at-large. This has been used only once since Baker v.
Carr,5 5 but has often been threatened 56 and was formally approved by
the Supreme Court. 57 As a threat, it may be effective in frightening
legislators into acting, but its actual use as a remedy is highly undesirable. 58 To create chaos, to practically insure one-party domination,
to destroy local representation, and to make intelligent voting an impossibility seem too great a price to pay merely to punish a legislature
for its failure to reapportion.
A third remedy, also approved by the Supreme Court, 9 and used
three times since Baker v. Carr,60 is the promulgation of a reapportion-
" Buckley
v. Hoff, 234 F. Supp. I91 (D. Vt. 1964), modified and ag'd sub nora.
Sup. Ct. 185 (1965). But see the dissenting opinion of judge Fatzer, which argues
that the Kansas court should refuse to follow the Supreme Court's rulings in Reynolds because those rulings, unauthorized by the fourteenth amendment, violate
article g of the United States Constitution.
54 In fact, these considerations are equally applicable in "temporary" cases. If
the present apportionment is not grossly unequal, it seems unnecessary to impose
weighted voting as a temporary expedient; if the apportionment is very unfair,
weighted voting will not solve the problem. For a fuller discussion, see pp. 1256-58
supra.
,' In the 1964 Illinois election. See People ex rel. Spence v. Carpentier, 30 Ill.
56 The first to advocate the use of at-large voting as a threat was Lewis, Legislative
57 Apportionment and the Federal Courts, 71 HARv. L. Rav. 1057, Xo87 (X958).
Scott v. Germano, 381 U.S. 407 (1965).
"SSee Dixon, Reapportionment in the Supreme Court and Congress: Constititutional Struggle for FairRepresentation, 63 M.cH. L. REV. 209, 228 (1964) ; Note,
Baker v. Carr and Legislative Apportionment: A Problem of Standards, 72 YALE
Ljj.68,
1037 (,963).
323
REAPPORTIONMENT
x966]
1269
ment plan by the court itself. Concepts of judicial power have changed
greatly since Mr. Justice Frankfurter remarked in Colegrove v. Green
that: "Of course no court can affirmatively re-map the Illinois districts
so as to bring them more in conformity with the standards of fairness
for a representative system." 61 If it is no longer shocking that a court
draw up a reapportionment plan by itself or through a master, 62 it may
still be undesirable. If a feasible alternative to judicial apportionment
exists, it should be used in order6 3to preserve legislative discretion and
flexibility in the election process.
The only other remedy which courts have utilized is to restrict the
legislature's power to pass legislation other than a reapportionment plan.
Such a restriction was successful in Vermont in starting one of the
nation's most malapportioned legislatures on the road toward reapportionment. 64 A judicial declaration that the legislature can not act, except in an emergency, until it has reapportioned itself for the next election combines two of the primary goals of a good remedy: it promises
quick results and it leaves the job of reapportioning to the legislature.
Its chief danger lies in the possibility that the legislature might not respond even when political pressure is strong for reapportionment, so
that the passage of other important legislation is postponed. This danger
is particularly real in those states where the state constitution allows
the legislature to sit for only a few weeks every other year. To force
the legislature to use that valuable time for passing a reapportionment
plan may defeat the ultimate purpose behind the reapportionment cases:
making the legislature responsive to the people's needs and desires. An
additional objection is that a court has no business interfering in the
normal functioning of the legislative process. Courts may tinker with
elections and with the right to vote, but they should not tell the legislature what legislation may be passed or when it may be passed.
VI.
the court appointed as master a Yale University professor who was an expert computer operator.
63 But
see Note, the Case for District Court Management of the Reapportion-
'
1270
EVO. 79:1228
reprinted in
1966]
REAPPORTIONMENT
1271
racial discrimination the Supreme Court has repeatedly held that the
fourteenth amendment applies to all state action "whatever the agency
of the state taking the action." 6 The state can, of course, constitutionally refuse to set up an elective process for the selection of municipal officials; it can appoint them all.7 But, if it chooses an elective
method, the fourteenth amendment imposes certain limits on its use of
that method.
Prior to Baker and Reynolds, the Supreme Court refused to review
state court decisions upholding "rational" methods of districting for
municipal bodies, even when it was alleged that the voting power of
citizens in one electoral district was diluted because another district
with a substantially smaller population could elect the same number of
representatives to the local governing body. In the leading case in this
area, Tedesco v. Board of Supervisors of Elections, plaintiffs protested
that population disparity in New Orleans City Council election districts
deprived them of their fourteenth amendment rights. 8 A Louisiana
Court of Appeal held that, since the right to vote for municipal officers
was granted by the state, the state could regulate that right in any
((rational" manner, and an apportionment scheme could be upset only
for discrimination by race or sex or, possibly, for complete arbitrariness.
In i95o the Supreme Court dismissed an appeal in Tedesco for "want
of a substantial federal question." 9 In 1962, Mr. Justice Brennan,
speaking for the Court in Baker v. Carr, distinguished this dismissal as
not foreclosing the issue of the justiciability of state reapportionment
because it held "solely that no substantial federal question was raised
by a state court's refusal to upset the districting of city council seats,
especially as it was urged that there was a rational justification for the
challenged districting." 10 But the Louisiana court had squarely faced
the fourteenth amendment issue in Tedesco and had decided the case
on this ground. Further, the "rational justification" the court had
found for the New Orleans districting scheme was that the state legislature may have wanted to give representation to "certain groups, social
and otherwise," : in the city, a standard later to be explicitly rejected as to state legislative apportionment in Reynolds. One commentator has criticized Mr. Justice Brennan for being inconsistent, 12 for it
would seem that if the Court in I95O had dismissed Tedesco for lack
of justiciability the Court in 1962 should have expressly overruled
Tedesco in Baker. But Mr. Justice Brennan apparently thought that
the Court had dismissed Tedesco not because municipal reapportionment was nonjusticiable but because the appeal presented no colorable
'E.g., Cooper v. Aaron, 358 U.S. i, 17 (958) (school board).
I Cf. Metropolitan R.R. v. District of Columbia, 132 U.S. i (1889). Of course,
Reynolds cannot be read to guarantee a "right to an elective process" in the selection of officials of sub-state governmental units who are currently appointed.
843
So. 2d 514 (La. Ct. App. 1949), appeal denied, 339 U.S. 940 (I95O).
The
primary basis of the plaintiffs' complaint was the privileges and immunities clause,
but the Louisiana court's opinion held the districting scheme valid under the
fourteenth amendment generally. Id. at 5i9.
9339 U.S. 940.
10369 U.S. 186, 235.
1143 So. 2d at 5i9.
12Lucas, Legislative Apportionment and Representative Government: The
Meaning of Baker v. Carr, 61 MiciH. L. REv. 711, 727-30 (1963).
1272
[Vol. 79:1228
claim, since the Louisiana court had been clearly right in testing the
New Orleans districting by a standard of rationality. That the Court
might later overrule this holding in light of evolving standards of equal
protection, deciding that a similar claim did present a substantial federal
question, was not directly relevant to the issue before the Court in
Baker. That case posed only the question of the justiciability of reapportionment claims, and did not face the issue of standards.
If Tedesco is seen as holding that any "rational" municipal apportionment raises no fourteenth amendment claim, the question becomes
whether that holding has any vitality after the decision in Reynolds,
which rejected the use of any standard other than population in apportioning state legislatures. The question is not, as the Michigan court
thought, whether the municipality exercises "delegated" power but
rather whether the municipal political process differs in any relevant
respect from the state political process. The Reynolds Court never
mentioned reapportionment of local governmental units, but its holding
would appear to be applicable to at least some of them. The Court decribed state legislatures as "instruments of government elected directly
by and directly representative of the people," 13 "responsible for enacting laws by which all citizens are to be governed." 14 The Court's
theory appears to have been that when an elected governmental body
has general powers, so that each person in the area has an equal stake
in its composition, each person must share equally in the process of
its election. The Court's reasoning appears to apply most directly, as
among the various subordinate governmental units of the state, to city
councils and county boards of supervisors, which possess general ordinance-making powers and function as groups of elected representatives
politically responsible to their constituencies. Most of the post-Reynolds sub-state litigation has centered on the districting schemes for
these city and county "legislatures," and the view that a one-man, onevote standard is required in the apportionment of these bodies has
been accepted by two circuits, 15 three district courts,' 0 and state courts
in California, 17 New Jersey,' 8 Wisconsin, 9 New Hampshire,20 New
22
York, 21 and South Dakota.
"3 Reynolds v.
14
Id.at 565.
5
" Lynch v. Torquato, 343 F.2d 370 (3d Cir. 1965) (dictum); Ellis v. Mayor,
352 F.2d X23 (4th Cir. I965).
16 Ellis v. Mayor, 234 F. Supp. 945 (D. Md. 1964), aff'd, 352 F.2d 123 (4th Cir.
1965); Bianchi v. Griffing, 238 F. Supp. 997 (E.D.N.Y.) (dictum), appeal dis-
Civil No. 1197-E, S.D. Miss., Oct. 21, 1964 (letter to counsel), reprinted in x3
NATIONAL MuNIcIPAL LEAGUE, COURT DEcIsIoNs ON LEGIsLATivE REAPPORTIONMENT
139 (1965).
17 Miller v. Board of Supervisors, 405 P.2d 857, 46 Cal. Rptr. 6,7 (1965) (applying state statute requiring equal population districting).
18 Mauk v. Hoffman, 87 N.J. Super. 276, 2o9 A.2d zso (Ch. Div. 1965).
19 State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 132 N.W.2d 249 (1965).
20 Opinion of the Justices, xo6 N.H. 233, 209 A.2d 471 (1965) (applying state
legislation).
21 E.g., Seaman v. Fedourich, 6 N.Y.2d 94, 2o9 N.E.2d 778, 262 N.Y.S.2d 444
(1965);
Goldstein v. Rockefeller, 45 Misc. 2d 778, 257 N.Y.S.2d 994 (Sup. Ct, 1965).
22
See 54 NATIONAL Civic Rv. 264 (i965).
1966J
REAPPORTIONMENT
1273
B. Abstention
It may be argued that the courts should abstain from ruling on municipal reapportionment cases until the newly reapportioned state legislatures have been given a chance to act on any existing imbalance. Such
an argument could rest on the difference between the place of states
and that of municipalities in the constitutional scheme. A state is a
sovereign entity, controlled only by "interstitial" federal law and not
directly supervised by a superior governmental body. Thus, any change
in state apportionment had, in the past, to come through the state's own
political process or its courts. When Baker was before the Court in 1962,
the political process in many malapportioned states had been stalemated
and state legislators, the beneficiaries of malapportionment, were unwilling to upset the status quo. The only recourse left was to the courts.
On the other hand, except in those few states where municipal home
rule is guaranteed by state constitutions, a municipality has no separate
sovereignty that the state legislature cannot ultimately rescind.23 Thus
the state legislature can regulate its subordinate governmental units in
a way that Congress cannot regulate state legislatures, and this continuing governmental check remains an alternative to a resort to the courts
or to the intramunicipal political processes. If it is felt that apportionment is an issue that is better left to a political body so long as there is
a political body in which it can be properly resolved, then perhaps there
are advantages in judicial abstention, at least until it has been clearly
shown that state legislatures have failed to provide a governmental
check on discriminatory districting.
This view has been expressed since Reynolds by two federal district
courts. One, in Michigan, although it said that the one-man, one-vote
standard was inapplicable to local governmental bodies, predicted that
Reynolds "will result in legislatures . . . which will be proportionately
004 (E.D.N.Y.),
appeal dismissed,
1274
[7oi. 79:1228
to the extent that reapporionment on the state level increases the influence of the cities, it may also increase the influence of the existing power
structures in those cities - structures erected on the basis of existing
malapportionment. Thus state reapportionment may make the state
legislatures even less likely to reapportion municipalities according to
an equal population standard.
C. Problems in Sub-State Apportionment
Reapportionment of sub-state governmental units will involve problems of a scale not encountered on the state level. The two years of
reapportionment litigation involving state legislatures since Reynolds
has been accompanied by some unusual stresses on judicial-legislative
relations, since the judiciary has in part been forced to fill a role
formerly assigned to legislatures, but at least this process has a foreseeable end. Once the fifty states are apportioned to Reynolds standards the role of the courts should be limited to adjudicating occasional
disputes concerning the readjustments of district lines that will follow
each decennial census. But the 1962 census of governments found that
9I,i86 governmental units exercise state-delegated powers in the United
States. Even if reapportionment were to be limited to general function
units with legislative powers, 3,043 counties, I8,ooo cities, towns and
20
villages, and 17,142 townships probably meet these qualifications.
x.Impact.- Apart from the problem created by the sheer number
of reapportionment plans that will have to be drawn and approved if
the Reynolds standard is applied to all local governments, the courts
will face a problem that might be called "heightened impact." It may be
safely predicted that a great many people who did not personally care
very much about Wesberry and Reynolds will become intimately and
vigorously involved in local reapportionment questions. Since the electoral districts will be smaller, more people will be able to calculate, with
relative precision, how much they stand to gain or lose by reapportionment. Cities are not infrequently divided into geographical areas occupied by people of different ethnic backgrounds and financial positions,
and these different areas often have quite different attitudes toward
taxation, zoning, and provision of city services. It may be clearer in the
case of city reapportionment than in the case of state or congressional
reapportionment that the change in district lines will bring new groups
to political power and will alter the direction of the present government.
In addition, the rationale behind an extension of the Reynolds principle to county and municipal legislatures may be equally applicable to
27
elected independent special purpose boards, such as school boards.
The possibility of reapportionment of school boards provides a particu26
27 But see Weinstein, supra note 23, at 31-36. Professor Weinstein would distinguish these boards in part because only one governmental function is involved
and in part because that function may be an apolitical, "caretaking" one. But
in many cases members of these boards do not in fact exercise only tasks requiring
nonpolitical expertise, and the fact that an elective method of selection has been
chosen implies that each citizen is thought to have an equal stake in their composition. See generally U.S. ADvISORY CoMmissIoN ON INTERGOVERNMENTAL RELATIONS,
THE PROBLEMS OF SPECIAL DISTICTS I AMrERICAN GOVERNMENT (1964).
1966]
REAPPORTIONMENT
1275
popularly elected. 29 The electoral districts from which these boards are
chosen are often drawn to coincide with school attendance districts, so
that the electoral districts often have neither equal numbers of inhabitants nor equal numbers of children. Probably no public issue arouses
the interest of more municipal citizens than public education; heated
battles over taxation and bond issues, consolidation of school districts,
quality of education, and segregation indicate that any major shift in
local school board policy will be opposed and defended vigorously. A
reapportionment scheme that would, for example, give far greater power
to an area of the city in which there are few public school children would
have foreseeable and dramatic political results. It is easy to imagine
a parent who generally approved of Reynolds, even though it placed
him in a slightly larger legislative district, doing battle against a schoolboard reapportionment plan that could be expected to lead to an immediate change in policy.
The fact of "heightened impact" is, of course, constitutionally irrelevant. As the Supreme Court indicated in the school segregation cases,
popular resistance cannot be permitted to impede court protection of
individual rights. But reapportionment is not a simple procis that the
courts can impose by a one-sentence command. For any given geographic area there is a wide variety of possible equal apportionment
schemes, each producing different results. The choice between two
plans equally acceptable under Reynolds but having divergent political
consequences will prove difficult.
2. Standards.-When
it called, in Reynolds, for equal apportionment of state legislatures, the Supreme Court did not say whether
equality is to be determined by inhabitants, residents, citizens, or
voters.3 0 In many states, at least, any practical differences that would
result from these different measures would be minimal. On the municipal
level, however, this might not be the case, for an entire segment of a
county or city may consist of an army base, an Indian reservation, a
research site staffed with transient government workers, or a mental
hospital, each with a large percentage of inhabitants not qualified to vote
in local elections. This means that courts dealing with municipal reapportionment may have to give greater and more detailed attention to the
problem of who ought to have equal representation.
The Maryland federal district court, ruling four months after Reynolds on the constitutionality of a proposed charter for the Baltimore
City Council, held that equal protection demands that the validity of
any apportionment, municipal as well as state, be tested on the basis of
numbers of inhabitants, not registered voters. 3 ' On appeal, the Fourth
Circuit affirmed the rejection of registered voters as a test but noted
that other tests less susceptible to abuse since not contingent on political
28 U.S. ADVISORY ComissIoN ON INTERGOVERNMENTAL RELATIONS, PERFORMANcE OF URBAN FUNCTIONS: LocAL AND AR-AwIDE 78 (1963).
29
See U.S. DEPT. OF COMMERCE BUREAU OF THE CENSUS,
26, at 419.
30 See pp. 1254-56 supra.
" Ellis v. Mayor, 234 F. Supp. 945 (D. Md. 1964).
note
1276
[VOL. 79:X228
conduct, such as citizen population or qualified voters, would be permissible if only minor variations in population between districts resulted. 32 In this case the maximum detrimental deviation from population, if only registered voters were counted, was 66 per cent, and this
was held impermissible. The New York Court of Appeals has been
faced with a municipal districting plan excluding state mental hospital
patients. 33 It did not reject the possibility of allowing such a plan, provided an investigation were made and those persons voluntarily admitted and legally competent to vote were counted, but it held that
without such an investigation the plan was arbitrary and discriminatory.
The existence in one area of large numbers of persons legally unable
to vote presents obvious possibilities of rotten-borough gerrymandering
unless these people are excluded from the calculations.34 It seems illogical to include, for example, a mental hospital in the calculation of
equality on the theory that the patients have a stake in their government when the patients have been deprived of their legal right to influence the policies of that government. Including the hospital only
increases the power of the other inhabitants of the district and of the
political party to which they belong. Thus any choice of numerical
base for a municipal redistricting plan that could rationally exclude
certain classes of nonvoters should be viewed favorably by the courts.
Another problem in setting standards for local reapportionment is
that the decennial census, which provides roughly adequate figures for
congressional and state districting, may be badly out of date for purposes of county and municipal apportionment. Housing developments,
urban renewal demolitions, or even the building of a highway may
drastically alter the distribution of population among voting districts
within a very short time. On the other hand, the desire for stability
and continuity in government may.make continuous reapportionment
impractical. Indeed, the largest compromise that the Reynolds principle
will have to make will probably result from the fact that reapportionment simply cannot keep up with demographic changes within small
areas.
Different approaches to this problem have been taken. A recent
California municipal apportionment statute allows the following tests
to determine equality of districts: (i) the 196o census, (2) registered
voters, or (3) a more recent census taken according to statutory form.
If a county's population has increased by twenty per cent or more between i96o and 1963, as shown by a 1963 state survey, a county board
can use estimates of current population in redistricting, subject to a
hearing instituted by any county resident within thirty days of the
adoption of the new plan.3 5 In New York, however, population figures
more recent than the 196o census have not been accepted by the courts.
The New York Court of Appeals upheld a lower court's refusal to allow
32 Ellis v. Mayor, 352 F.2d 123, 13o n.9 (4th Cir. 1965).
3 Seaman v. Fedourich, x6 N.Y.2d 94, 209 N.E.2d 778, 262 N.Y.S.2d 444 (1965).
"' See Knowles, Reapportionment Now?, N.Y. Times, June 22, 1964, p. 37, col.
4 (noting possibility of including hospital complex such as Welfare Island in N.Y.
state redistricting).
" CAL. Gov'T CODE 250014. See Kingston v. Board of Supervisors, 230 Cal.
App. 2d 455, 41 Cal. Rptr. 23 (Dist. Ct. App. 1964).
1966]
REAPPORTIONMENT
12977
1278
[VOL. 79:1228
REORGANIZATION IN METROPOLITAN
1966]
REAPPORTIONMENT
1279
of representation by constituent unit rather than equality of population.41 Such compromises have been found necessary because each constituent municipality of the proposed super-municipality remains fearful
of losing its "sovereignty" when combined with larger communities and
so demands at least one vote on the governing board. The larger communities may voluntarily agree to this voting system in order to gain
the advantages of consolidation. If a one-man, one-vote standard is
demanded for elections to the "metro" governing board, suburbs and
towns may never agree to merge with cities, and the broader goal of
effective metropolitan government may be frustrated.
This situation may be analagous to that which gave rise to the federal
Senate compromise of equal representation for each state regardless of
size. Although the Court rejected this analogy in Reynolds with respect
to Alabama's use of unequal population county units as voting districts,
Mr. Chief Justice Warren noted that "attempted reliance on the federal
analogy appears often to be little more than an after-the-fact rationalization offered in defense of maladjusted state apportionment arrangements." 42 If the analogy were to be offered in a legitimate political
stalemate as a prospective solution, it would be not merely a comparison
of the structures of two levels of government but a comparison of two
historical situations prompting the adoption of a method of representation by governmental units rather than by population segments of the
electorate. On the other hand, to draw the line between prospective
and retrospective application of the federal analogy may seem unjust.
The voting formulas of many present city and county governments
are the results of long-forgotten attempts to encourage voluntary
divestment of power by smaller communities. This historical phenomenon was present in the formation of New York City as a federation of
independent boroughs, now almost fully integrated into what has been
called a "matured metro." 43 Both its executive-administrative Board
of Estimate and its legislative body, the City Council, are apportioned
to favor the less populous boroughs. Both have been challenged on the
basis of Reynolds.44 But these past federations have long since become
integrated, and their officials no longer represent only their consituent
units. Thus where both the reason for the compromise and the rationale
behind it have passed, malapportionment may no longer be even politically defensible.
There are, of course, some difficulties with this analysis. The fact
that a government unit had voluntarily underrepresented itself seemed
to carry no weight with the Court in Lucas. Furthermore, the "voluntary" underrepresentation of the city may be brought about by political
forces in the city who, although currently in power, fear being outvoted
by minority groups that are growing in political strength. Thus, to
retain power in the hands of people like themselves, they may agree
"ISee Weinstein, supra note 23, at 37 & n.65 (Toronto, Winnipeg); 52 NATIONAL
Civic REv. 5o5 (1963) (Dade County, Fla.).
42377 U.S. 533, 573 (1964).
4a
44 Weinstein, supra note 23, at 38.
McMillan v. Wagner, 239 F. Supp.
128o
[Vol. 79:x228
REAPPORTIONMENT
1966]
1281
(55 Johnson v. Genesee County, 232 F. Supp. 563 (E.D. Mich. 1964).
McMillan v. Wagner, 239 F. Supp. 32 (S.D.N.Y. 1964).
"6E.g., Reed v. Mann, 237 F. Supp. 22 (N.D.
Ga. E964).
5
Bianchi v. Griffing, 238 F. Supp. 997, 1004 (E.D.N.Y.), appeal dismissed, 382
U.S. I
(1965).
U.S.C. 1253 (1964). For the legislative history and scope of these
provisions, see Currie, The Three-Judge District Court in Constitutional Litigation,
32 U. CHIr. L. REv. 1 (1964).
58 28
1282
[VOL. 79:1228
state level. The courts have been willing, in almost all cases, to send
municipal redistricting problems back to the state legislature when
enabling or mandatory statutes were involved, or to the municipal bodies
themselves when the plan was self-imposed. This judicial patience may
have resulted in part from the absence of any direct Supreme Court
holding that Reynolds applies to this area. Imminent elections have
not been enjoined,59 although in one case the terms of the supervisors
to be elected were reduced so that new elections could be held soon after
reapportionment was completed.60 Normally, jurisdiction has been retained and reargument set for a reasonable time after the newly elected
bodies would have had an opportunity to develop a new districting plan.
But the patience of the California Supreme Court has already been exhausted, probably because it is acting under a specific statutory mandate requiring county districts of equal population. In a 1964 case the
court allowed county elections to proceed and set reargument for almost
a year later. 6' When forced last year to rehear the case, it set a ninetyday deadline for compliance.6 2 This pattern may be repeated on a
wider scale if the Supreme Court holds that equal protection demands
(gone man, one vote" in sub-state apportionment or if more state and
federal courts accept on their own such an interpretation of Reynolds.
This extension of Reynolds has been accepted so completely in New
York state that a bill requiring counties to reapportion on a population
basis was passed last year by the state legislature. Governor Rockefeller vetoed the measure, passed through the efforts of the Democratic
majority, stating that he did so because it did not provide checks against
partisan gerrymandering. But he said that he anticipated the passage
of a revised bill in 1966.63
One New York court has allowed weighted voting to be used as a
temporary measure by the Sullivan County Board of Supervisors, noting
that such a system has been used on a permanent and workable basis in
Nassau County for many years. 64 The court noted that this plan had
apparently been approved by one federal district court 65 and that a
New York federal district court, although rejecting fractional voting for
the state legislature in WMCA, Inc. v. Lomenzo, 6 had specifically stated
that it expressed no opinion on its use as a stopgap measure or for municipal bodies. 67 But districts and wards of substantially equal population
can be rationally mapped out on the municipal as well as on the state
o See, e.g., cases cited note 5o supra.
60 Goldstein v. Rockefeller, 45 Misc. 2d 778, 257 N.Y.S.2d 994 (Sup. Ct. 1965).
Refusing to be bound by procedural fine points, the court held that plaintiff's
mandamus action would not lie to review legislative acts or compel reapportionment but said that since "none of the respondents has sought dismissal . . . and
all seem desirous that the issues be determined on the merits," it would consider the
action one for declaratory judgment. Id. at 780, 257 N.Y.S.2d at 998.
"1Miller v. Board of Supervisors, 6i Cal. 2d 885, 390 P.2d 2o8, 37 Cal. Rptr.
44o 2(1964).
Miller v. Board of Supervisors, 405 P.2d 857, 46 Cal. Rptr. 617 (1965).
"3 N.Y. Times, July 23, 1965, p. 32, col. I.
4 Shilbury v. Board of Supervisors, 46 Misc. 2d 837, 260 N.Y.S.2d 931 (Sup.
Ct. 1965).
65 Thigpen v. Meyers, 23x F. Supp. 938 (W.D. Wash. 1964).
66238 F. Supp. 916 (S.D.N.Y.), aff'd, 382 U.S. 4 (x965).
67
Id. at 924 n-3.
1966]
REAPPORTIONMENT
128
GERRYMANDERING
A. PartisanGerrymandering
x. The Relevance of the Reapportionment Cases. -In Reynolds
and subsequent cases, the Court has dealt only with apportionmentallocating population among electoral constituencies - rather than districting - drawing the geographic boundaries of electoral districts.
Gerrymandering is districting along "unnatural" lines to achieve partisan advantage or some other unfair objective. A party that draws
district lines in its own favor attempts to include no more loyal voters
in any district than is necessary to make the district "safe." At the
same time it seeks to include as many opposition voters as possible in
districts already conceded to the other party.' If the principle behind
the reapportionment cases is that every individual has a right to an
equally effective vote, subject to the limitations imposed by retention of
geographically based constituencies, the courts may be required to
restrain abuses of districting as well as of apportionment. 2 The tendency
for gerrymandering to produce "safe" districts diminishes the number of
voters whose vote can affect the electoral outcome. In addition, gerrymandering frustrates the principle of majority rule by making it possible
for a statewide minority to elect a majority of the legislature. Although
the Court has not yet struck down any electoral scheme because of
gerrymandering, language in the reapportionment opinions indicates
the Court's awareness of the problem. Reynolds stated that states districting along political subdivision lines could deviate somewhat from
the equal population standard. The purpose of this permission was "to
deter the possibilities of gerrymandering." 3 In Fortson v. Dorsey, the
Court expressed concern about constitutional problems that might be
created if multi-member districts were so gerrymandered as to impair
the voting strength of "political elements of the voting population." 4
The primary distinction between the apportionment and districting
problems is that the latter requires courts to take cognizance of party
voting and to pass judgment on whether particular districting schemes
unfairly help or hinder political parties. Reliance on such a consideration, however, would novcontradict the Court's apparent insistence in
the reapportionment cases that interest groups are irrelevant for purposes
" See Weinstein, supra note 23, at 46-49; Note, Legal Problems of Ward Realignment in Philadelphia,38 Tamp. L.Q. 174, 225-26 (1965) (model proposals).
60 See Weinstein, supra note 23, at 41-46. See also pp. 1256-58 supra.
1284
[Vol. 79:1228
'On the power of a state to redraw district lines, see Reynolds v. Sims, 377
U.S. 513, 575 (1964).
91 Ch. 93, 3X Stat. 733 (1gox).
oCh. g, 37 Stat. 13 (1911).
portionment -Past, Present, and Future, x7 LAW AND CONTFMP. PROB. 268 (z952).
1966]
REAPPORTIONMENT
1285
is so generally accepted that today few, if any, districts are noncontiguous. Standards of compactness, on the other hand, may be very
useful in preventing gerrymandering. Since a circle is the figure that
encompasses the most compact geographical area, the compactness
of a legislative district can be measured by determining the extent to
which its area deviates from the area of the smallest circle that completely circumscribes the district. 12 Thus, courts can easily pass upon
districts that have substantially equal populations by establishing a
permissible range of deviation from perfect compactness.' 3 Yet the
need to maintain population equality among the districts limits rigid
application of compactness criteria. 14 One method of determining acceptable criteria for compactness in any given state involves the use of
computers. 15 Taking as a working hypothesis either some presumptively
acceptable degree of compactness (for example, fifty per cent), or the
average degree of compactness in the plan being tested, the computer
would be asked to draw two hypothetical districting plans - using equal
population districts of the hypothesized compactness - to maximize the
legislative representation of each party. If the variation between these
two "maximum gerrymanders" is too great, a stricter compactness
standard can be imposed.
B. Racial Gerrymandering
In Gmnillion v. Lightfoot, 6 decided before Baker, the Supreme Court
held unconstitutional an Alabama law redrawing the boundaries of the
City of Tuskegee to exclude most Negro voters. Judge Wisdom, concurring in the Fifth Circuit's decision to dismiss the suit, had written: "7
I can see no difference between partially disfranchising negroes and
partially disfranchising Republicans, Democrats, Italians, Poles, Mexican-Americans, Catholics, blue-stocking voters, industrial workers,
urban citizens, or other groups who are euchered out of their full suffrage
because their bloc voting is predictable and their propensity for propinquity or their residence in certain areas, as a result of social and economic
pressures, suggests the technique of partial disfranchisement by gerrymander or malapportionment.
Judge Wisdom evidently believed that the purpose of the scheme was
partisan advantage rather than reasons of race. However, Mr. Justice
Frankfurter, for a unanimous Court, held that the plan had taken race
2 See Reock, Measuring Compactness as a Requirement of Legislative Apportionmnent,
5 MIDWEST J. POL. ScI. 70 (i96i).
1
Reock measures the degree of compactness by dividing the area of the district by the area of the circle that circumscribes it. The more compact the district,
the higher the resulting percentage. Of 252 districts in 6 states, the mean and
median degree of compactness were both approximately 47%. Id. at 72. For
comparison, the figure for districts drawn as perfect squares would be 62%.
14 This tension between compactness and population equality can be seen in
Weaver & Hess, A Procedure for Nonpartisan Districting: Development of Computer Techniques, 73 YALs L.J. 288 (1963).
15 For a discussion of the application of computers to districting, see generally
Nagel, Simplified Bipartisan Computer Redistricting, i7 STANe. L. Rzv. 863 (1965);
Weaver & Hess, supra note 14.
10364 U.S. 339 (i96o).
17 27o F.2d 594, 612 (5th Cir. '959).
1286
[Vol. 79:1228
into account and for this reason violated the fifteenth amendment.18
Unless the Supreme Court decides that partisan districting itself is
unconstitutional, the difficulty that Judge Wisdom perceived in distinguishing between racial and partisan gerrymandering may raise
great problems in cases less obvious than Gomillion. The Supreme
Court was again presented with this issue in Wright v. Rockefeller,",
in which the plaintiffs argued that the boundaries of Manhattan's four
congressional districts had apportioned Negro and Puerto Rican voters
so that they constituted only five per cent of the seventeenth congressional district but eighty-six per cent of the adjacent eighteenth district.
Adam Clayton Powell, Jr., congressman from the eighteenth district,
intervened with other Negro and Puerto Rican district leaders to defend
against the charge of unconstitutionality. They argued that the district
boundaries were drawn "along partisan political lines rather than
racial lines" to "cut out as many Democrats as they possibly could";
they argued also that the existing boundaries actually benefited racial
minorities by enabling them to elect their own representative, and that
at-large elections would "deprive Negroes and Puerto Ricans and other
minorities of fair representation and equal protection ....
20 The
Supreme Court, sustaining the 2-to-i decision of the three-judge federal
court below, held that plaintiffs had failed to prove that the districts
were drawn on racial lines. The Court's opinion, nevertheless, appears
to follow Gomillion and hold that race may not be taken into account in
districting. Mr. Justice Black wrote for the majority that the plaintiff
"failed to prove that the New York Legislature was either motivated
by racial considerations or in fact drew the districts on racial lines." 21
But the Court avoided important questions. First, if the districts could
be proven to have been drawn for partisan advantage, would the Court
uphold the arrangement? If so, would districting of Negroes for partisan purposes be permissible? Would gerrymandering of Democrats,
who in that particular district happened to be overwhelmingly Negro,
be legitimate if gerrymandering of white Democrats would not be unconstitutional? Judge Moore in the court below had appeared to suggest that proof of racial gerrymandering requires a showing of harm
to the group as well as proof that race was taken into account. 22 This
18 By suggesting that one could, even though casting a valid ballot, be in
some sense "deprived" of the right to vote, Mr. Justice Frankfurter fathered the
conception of impairment of an individual's vote upon which the Court relied in
the apportionment cases but which he strongly opposed in his dissent in Baker v.
Carr, 369 U.S. i86, 299-300 (1962). The series of desegregation cases under the
fourteenth amendment would seem to have been sufficient authority for the proposition that the state may not take race into account. See Gomillion v. Lightfoot,
364 U.s. 339, 349 (i96o) (Whittaker, J., concurring).
1966]
REAPPORTIONMENT
1287
2
See note 5 supra.
28 See pp. 1258-61 supra.