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Citation: 79 Harv. L. Rev. 1226 1965-1966

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NOTES
REAPPORTIONMENT
TABLE OF CONTENTS
I. SUmmmy or TiE DECISIONS .....................................

A. The Decision to Decide .......................................

B. The Problem of Standards ....................................
x. "One Man, One Vote" in State Legislatures ..................
2. Referenda ................................................
3. Dissenters' Views ..........................................
II.

THE REACTION TO THE REAPPORTIONMENT CASES ......................

A. The Initial Reaction to Wesberry and Reynolds .................

B. The

x964 Controversy

........................................

C. The Dirksen Constitutional Amendment ........................

D. The Call for a ConstitutionalConvention ........................

PAGE
1228

X228
228
1229
1230
1230

232
1231

1232
1235
X237

HI. TnE POLITICAL ErrTs

oF REAPPORTIONMENT .........................
1238
A. The Beneficiaries of "One Man, One Vote" ...................... 1238
B. The Possible Effects of Reapportionment on State and National
1238
PoliticalPrograms ............................................

IV.

THE THEORY OF THE

REAPPORTIONMENT CASES .........................

A. The Nature of the Right Asserted ..............................

B. The Question of Majority Rule ................................
C. The Basic ConstitutionalRight: An Equally Effective Vote ......
D. Interest Representation .......................................
I. Assuring Minimum Representation ..........................
z. Protecting Against Majority Rule ...........................
3. MaintainingCommunities of Interest ........................
V. THE APPLICATION or REYNOLS ........................................
A. Impermissible Considerations ..................................
B. Valid Considerations .........................................
I. Integrity of PoliticalSubdivisions ............................
2. Size of Legislature .........................................
3. Other State ConstitutionalProvisions ........................
C. Scope of the Deviations Permitted ..............................
D. Some Specific Cases ..........................................
s. Missouri .................................................
2.

Vermont and New Jersey ..................................

3. Wyom ing

................................................

4. Nebraska .................................................
E. Population Base ..............................................
F. Fractionaland Weighted Voting ................................
G. Multi-Member Districts ......................................
VI. PROCEDURAL PROBLEMS ...........................................

1226

1241
124X

1243
1244

1245
1245

1246
1247
248
2248
2248

248
1249

X249
X250
X252

1252
1252

1253
2 53
1254

256

258
1261

A. The ConstitutionalIssues ......................................

126x

B. Choice of Forum .............................................

2262

C. Rem edies ...................................................

1266

1227

VII. REAPPOETIONMENT OP CoUNTY AND MUNIcIPAL GOVERNMENTS ........

A. The Constitutional Issues .....................................

B. Abstention ..................................................
C. Problems in Sub-State Apportionment ..........................
x. Impact ...................................................
2. Standards ................................................
3. Consolidation .............................................
D. ProceduralQuestions .........................................
x. Collateral Attack on Actions of a Malapportioned Municipal
B ody ....................................................
2. Three-Judge Federal Courts ................................
E. R em edies ...................................................
VIII. GERRYMANDERING

........................

.......................

A. PartisanGerrymandering ......................................
x. The Relevance of the Reapportionment Cases .................
2. The Problem of Standards .................................
B. Racial Gerrymandering........................................
C. Gerrymandersin Multi-Member Districts ........................

PAGE
1269
1270
1273
1274

1274
1275
1278
1280
1280
128I

1281
1283
1283
1283
1284
1285

1287

1228

HARVARD LAW REVIEW

[VOL. 79:1228

I. SuMMARY OF THE DECISIONS

A. The Decision to Decide

The impact of the reapportionment cases on the structure of American politics has been compared to that of Marbury v. Madison 1 and the
school segregation cases.2 Except for the segregation cases, Professor
McCloskey observed of Baker v. Carr,3 "it is hard to recall a decision
in modern history which has had such an immediate and significant
effect on the practical course of events, or . . .which seems to contain
such a potential for influencing that course in the future." 4 In Baker,

the Supreme Court reversed a district court's dismissal of a challenge

to the apportionment of the Tennessee legislature. The Court held only
that attacks on state legislative apportionment were justiciable under the
equal protection clause, overturning a widespread assumption that the
Court's 1946 decision in Colegrove v. Green,5 which dismissed a challenge to congressional apportionment, had foreclosed judicial consideration of apportionment. In Baker, the Court held that the long line of
cases deciding that various guarantee clause 6 claims involved "political
questions" unfit for judicial determination did not apply to equal protection challenges to apportionment. Here there was neither a "textually demonstrable constitutional commitment of the issue to a coordinate political department" nor a "lack of judicially discoverable and
manageable standards for resolving it." 7

B. The Problem of Standards

The two most important cases leading up to the Court's "one-man,
one-vote" decision in Reynolds v. Sims 8 were Gray v. Sanders 9 and
Wesberry v. Sanders.' In Gray v. Sanders, decided in March 1963,
the Court struck down the Georgia county-unit system as used in the
Democratic Party primary for selecting statewide officers. The countyunit system of voting gave certain Georgia counties greater voting
strength in the selection of statewide officers than a strict population
apportionment would have given them. The Court held only that within
a constituency that elected the same officer each person had a constitutional right to an equally weighted vote. It did not decide the question
of the relative weight of votes in different constituencies. In Wesberry
v. Sanders, decided in February 1964, the Court not only held that
challenges to apportionment of congressional districts were justiciable 11
1

Dixon, Legislative Apportionment and the Federal Constitution, 27 LAW &

CONTEMP. PROB. 329, 330 (1962).

'Neal, Baker v. Carr: Politics in Search of Law, 1962 SUPRME COURT RE-

VIEW 252-53 (Kurland ed.).

3 369 U.S. x86 (1962).

' McCloskey, Foreword: The Reapportionment Case, 76 HARV. L. REv. 54, 56

(1962).
5328 U.S. 549.
6

U.S. CONST. art. 4, 4.

1369 U.S. at 217.

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

large that the availability of access of citizens to their representatives is

impaired . .." was termed unconvincing. 17 Finally, the Court rejected analogies to the United States Senate as "inapposite and irrelevant." The Senate's system of equal state representation, the Chief
Justice wrote, was "conceived out of compromise and concession" among
independent states, while political subdivisions of states "never have
been considered as sovereign entities." 18
The Court expressly recognized only one factor that could justify
some deviation from the equal population standard - the goal of
"insuring some voice to political subdivisions, as political subdivisions." 19 Districting without regard for political subdivisions, the Court
observed, may be "little more than an open invitation to partisan
gerrymandering." 20 Moreover, it is desirable that political subdivisions
be taken into account, the Court stated, since many state legislatures
devote much of their deliberations to dealing with problems of particular
localities. 2 ' Nevertheless, an apportionment based on political subdiinter alia because "we have no question decided, or to be decided, by a political
branch of government coequal with this Court." 369 U.S. at 226. However, in
distinguishing Colegrove v. Green, 328 U.S. 549 (1946), Mr. Justice Brennan's
opinion indicated that there was no bar to the justiciability of congressional apportionment challenges. 369 U.S. at 231-35.
12376 U.S. at 7-8.

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.

HARVARD LAW REVIEW

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

Referenda. -In Lucas v. Forty-FourthGeneral Assembly 24 the

Court struck down a Colorado apportionment plan that had been approved in a referendum by a majority of voters in every county of the
state. In the same election an equally decisive majority had defeated
an alternative proposal which would have apportioned legislative seats
on a population basis. Mr. Chief Justice Warren, however, doubted that
the electorate had made a "clear-cut" or "definitive" choice on whether it
preferred the population standard because other features of the two
plans were different.2 5 Nevertheless, the holding in the case did not turn
on whether in fact the referendum had revealed a clear-cut choice.
Where the equal population standard was violated, the Chief Justice
wrote, the Court could "find no significance in the fact that a nonjudicial,
2
political remedy may be available" to correct unfair apportionment. 1
Having held in Reynolds that the constitutional claims asserted were
"individual and personal in nature," the Court decided Lucas on the
ground that "a citizen's constitutional rights can hardly be infringed
simply because a majority of the people choose that it [sic] be." 27
3. Dissenters' Views. - Of the six justices who had joined in the
result in Baker v. Carr only four - the Chief Justice and Justices
Black, Douglas, and Brennan- also concurred in the equal population
standard put forth in Reynolds v. Sims. Two new Justices, White and
Goldberg, joined the four to form the majority in Reynolds and Lucas.
The only dissenter in all of the major apportionment cases was Mr.
Justice Harlan, who reiterated in his dissent in Reynolds that he would
dismiss all apportionment challenges as "an experiment in venturesome
constitutionalism." 28
Only Justices Clark and Stewart, who had joined the majority in
Baker, put forth alternative standards in the post-Baker cases. In
Reynolds, Mr. Justice Clark, though concurring in the result, reaffirmed
the view he originally put forth in Baker 29 that the proper test under
the equal protection clause was whether an apportionment is a "crazy
quilt." Moreover, if one house of a bicameral legislature was apportioned on an equal population basis, the second house might take factors
other than population into account so long as the resulting apportion22
Id at 58x.
2.

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"

29 369 U.S. at 254.

1966]

REAPPORTIONMENT

1231

ment scheme was "rational." 30 While concurring in Mr. Justice Clark's

"crazy-quilt" formula, Mr. Justice Stewart proposed a stricter and more
substantive statement of the proper standard for striking down an apportionment scheme - whether the plan could be shown "systematically
to prevent ultimate effective majority rule . .

" 31

I. THE REACTION TO THE REAPPORTIONMENT CASES

Mr. Justice Frankfurter predicted in his dissent in Baker that entering the "political thicket" of reapportionment might "well impair the
Court's position as the ultimate organ of 'the supreme Law of the Land' "
a position that, he said, "ultimately rests on sustained public confidence in its moral sanction." 1 But, although there have been attacks
on the reapportionment decisions from diverse quarters, the feared crisis
of public confidence in the Court has not materialized. 2 Some political
groups have made concerted efforts to stimulate such a crisis during the
nearly two years since Reynolds, and some are still attempting to rally
support for a constitutional amendment limiting the scope of that decision to only one house of a bicameral state legislature. But, partly
because the slogan "one man, one vote" has an immediate egalitarian
appeal and partly because of the difficulty any individual has in determining how the reapportionment decisions affect him, this opposition
has lacked broad support. A study of the reaction to the reapportionment decisions may provide some insight into the reasons why Mr.
Justice Frankfurter's prophecy has not been fulfilled.
A. The InitialReacton to Wesberry and Reynolds
The decision in Wesberry brought a reaction in Congress described as
"surprisingly mild." Republicans claimed they would benefit, while
Democrats expected a standoff, and "no one criticized the idea that districts should be equal in population." 3 Republicans produced studies
showing that if a strict population standard had been applied to 196o
congressional districts they would have captured thirty-one more House
seats in that election. 4 Observers found that even those in Congress
who might be hurt by the decision were silent at first.5 Some dicta in
Wesberry might have warned political observers that this same standard would soon be applied to state legislatures, but the June 15 decisions
in Reynolds and its companion cases reportedly "stunned . . . [the]

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

Reapportionment Decisions: Retrospect and Prospect,

(z965).
3 N.Y. Times, Feb. i8, 1964, p. 31, col. i.
SId., col. 8.
5
E.g., Lewis, High Court's New Role, id., Feb. 23, 1964, 4, p. 6, col. 3.
But when hearings began a month later in the House on the Celler bill which
called for Congress to impose a maximum deviation from strict equality of population of 15% on its own apportionment, some critics had become more vociferous.
Id.,6March ig, 1964, p. 17, col. 4.
1d., June 17, 1964, p. 29, col. i.

51 A.BA.J.

128

1232

HARVARD LAW REVIEW

[VOL. 79:1228

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,

Supreme Court Moves Again to Exert Its Powerful Influence, id.,

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

nois, the Republican minority leader. It sought to declare a moratorium

on jurisdiction of the federal courts in the reapportionment area for a
period of up to four years:' 3
[In any federal court action] . . . in which there is placed in question
the validity of the composition of either house of the legislature of . . .
[a] State or the apportionment of the membership thereof, such action
or proceeding shall be stayed until the end of the second regular session
of the legislature of that State which begins after the date of the enactment of this section.
The Dirksen forces hoped that this legislation would give them sufficient time to introduce a constitutional amendment in 1965 and to attempt to gain the required support of two-thirds of each house and
three-quarters of the states for its passage.
One of the issues most often discussed in legal comment on reapportionment in 1964 was the constitutionality of this proposed legislation. 14
Article III of the Constitution vests in Congress the power to create the
lower federal courts, and the few cases that have reached the issue have
declared that this implies broad congressional power to limit the jurisdiction of these courts.' 5 Section 2 of article III grants the Supreme
Court appellate jurisdiction in all cases enumerated there "with such
Exceptions . . . as the Congress shall make," and in Ex parte McCardle " the Court acquiesced in a congressional action depriving it of
its right to review habeas corpus appeals from lower federal courts. It
seems likely, however, that the Court would distinguish a statute like
the Dirksen bill, which would, in effect, overrule the Court's decision
on a matter of constitutional law, from earlier laws merely altering federal jurisdiction. 17 One Justice has noted, moreover, that even on the
facts of McCardle it is doubtful that the Court today would agree that
Congress has the authority to limit its powers of constitutional adjudica8
tion.'
No matter what their prior stand on the merits of the reapportionment decisions, most legal scholars and editorial commentators were
appalled at the frontal attack on the Court's authority represented by the
Dirksen bill. Fifteen prominent law school deans and professors sent a
telegram to Senators Mansfield and Dirksen calling the McCardle
affair an "unfortunate episode in our history" that "ought not to be
repeated in this even more drastic form." 19 Speakers before the Con'3 S. 3o69, 88th Cong., 2d Sess. (1964).
"See, e.g., Dixon, Reapportionmentin the Supreme Court and Congress: Constitutional Struggle for Fair Representation, 63 MIcH. L. REv. 209, 233-37; McKay,
Court, Congress, and Reapportionment, id. 255, 270-73. See also Hart, The Power
of Congress To Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic,
66 HARV.

L.

REV. 1362 (x953).

"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).

HARVARD LAW REVIEW

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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

be shown to have aroused large-scale opposition among the public ...

This would seem to be strictly a politicians' rebellion." 25 During the
Senate debate, Senator Douglas of Illinois cited the results of a nationwide Gallup poll indicating a 3 -to-2 margin of popular support for the
Court's reapportionment rulings.2 6 Despite this statistic, attempts were
made to interject the issue into the 1964 national political campaign.
Less than a month after Reynolds, the Republican party was so deeply
committed to the opposition role that it included in its platform for
the upcoming presidential election a plank calling for a bill permitting
one house of a bicameral state legislature to be apportioned on a basis
other than strict equality of population.2 7 Senator Goldwater attacked
the Court's decisions in some of his early campaign speeches, but often
while he was addressing the persons most likely to benefit from equal
population redistricting.28 A proposed plank backing the Court on re20

Id., Aug. 7, r964, P. i, col. s, p. 56, col. 6.

21 Id., Aug. Ir, x964, p. 30, col. I.

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.

N.Y. Times, Dec. 28, 1964, p. 1, col. x.

25 Lewis, Decision to Reapportion the State Legislatures Stirs Opposition, id.,
Aug. 16, 1964, 4, P. 3, cols. 1--2.
26 110 CONG. REc. 19,742 (daily ed. Aug. ig, 1964).
27 N.Y. Times, July 13, 1964, p. i6, col. 4.
24

21

In Winston-Salem, N.C., and Atlanta, Ga., victims of rural-dominated ap-

k P

1900J

ArldrruA

1235

UiiLiVViJ vi

apportionment was called the "major issue" before the Democratic

Party Platform Committee, 29 but President Johnson's wishes were
followed and the matter was dropped.30

C. The Dirksen ConstitutionalAmendment

On January 6, 1965, Senator Dirksen, undaunted by the events
of
31
the past year, introduced a constitutional amendment providing:
Nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other
than population, or from giving reasonable weight to factors other than
population in apportioning a unicameral legislature, if, in either case,
such apportionment has been submitted to a vote of the people .

. and

has been approved by a majority of those voting on that issue.

A month later the House of Delegates of the American Bar Association
voted to back this amendment, despite strong opposition from both
northern and southern urban delegates.32 On March 3 hearings on the
amendment began before a Judiciary Committee subcommittee, and
they continued until May 21, producing more than a thousand pages of
testimony. Representatives of labor, civil rights, and civil liberties
groups, as well as urban officials, appeared in opposition to the amendment. They were supported by the majority of the legal scholars testifying before the subcommittee. The amendment's chief support came from
agricultural and business groups,
the American Bar Association, and
33
individual state legislators.
Outside the hearing room the lobbying was equally heavy. A group
of business and farm organizations formed a committee in February
and retained the San Francisco public relations firm of Whitaker &
34
Baxter to coordinate grassroots lobbying for the Dirksen amendment.
This firm had successfully conducted the campaign against the Truman
administration's "medicare" proposals and had past experience in opposing reapportionment movements in the states. Active lobbying against
the amendment was first undertaken by an ad koc group formed in March
by unions and religious, veterans, civil liberties, and civil rights organizations. In late June the Leadership Conference on Civil Rights, an
amalgam of ioo organizations that had been primarily interested until
then in pushing for the voting rights bill, agreed to take over primary
lobbying responsibility in Washington.3 5 It was felt that malapportionportionment, his attacks received "scanty" applause. Id., Sept. 16, 1964, p. 12, col.
4.
21 Id., Aug. 22, r964, P. I, col. 5.
30
Id., Aug. 23, 1964, p. 82, col. I. It was reported that Johnson wished to avoid
making reapportionment a party issue because he felt this would agitate the
country, arouse anti-Court feelings, and provoke intraparty disunity. Id., cols. I-2.
31 S.. Res. 2, 89th Cong., ist Sess. (i965).
32 N.Y. Times, Feb. 9, x965, p. 31, col. 2.
3
See Hearings on SJ. Res. 2 Before the Subcommittee on Constitutional
Amendments of the Senate Committee on the Judiciary,89th Cong., ist Sess. (1965),
testimony of the AFL-CIO (at 7x9), ACLU (at 419), ADA (at 75o), U.S. Conference of Mayors (at 277), NAACP (at 813), American Farm Bureau Federation
(at 147), National Grange (at 77I), ABA (at 357), Chamber of Commerce (at
521), and National Association of Manufacturers (at 983).
3 See 23 CONG. QUARTERLY 1569, 1572-73 (weekly ed. 1965).
3 Id. at 1S 74.

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HARVARD LAW REVIEW

[Vol. 79:1228

ment had been a fundamental tool of southern disfranchisement of the

Negro. The board of the National Council of Churches announced its
opposition to the amendment, 36 and the National Association of Attorneys General defeated a resolution approving it.87
Following the hearings, the Judiciary Committee refused to report the
amendment, but on July 22 Senator Dirksen proposed to attach it to
a bill proclaiming "National American Legion Baseball Week," and
a heated Senate debate began on the amendment's merits. President
Johnson, who had indicated at a June news conference his sympathy with
efforts to reapportion state legislatures,3 8 now assured congressional
leaders that he would remain neutral on the proposed amendment
because it was outside the executive prerogative. Senator Dirksen, however, accused Vice President Humphrey of lobbying for the administration against its passage.3 9 By this time Senator Dirksen had modified
his amendment considerably in an effort to meet objections raised by
liberal senators. The words "population, geography, and political subdivisions" were substituted for the broad phrase, "factors other than
population," to dispel fears that the amendment would sanction the use
of race or religion as factors in districting. Further, an alternative apportionment plan based on substantial equality of population was to be
submitted to the electorate at the same time as any other state plan.
Finally, both plans were to be resubmitted to popular vote within two
years after each federal census, to insure that the initial choice would
not be self-perpetuating. But, despite these concessions, the amendment
failed by seven votes to receive the required two-thirds majority in a
rollcall vote on August 4.40 Editorializing on the defeat, the New York
Times stated: "There was clearly not the broad support in the country
which alone could justify overruling the Supreme Court and rewriting the
Constitution." 41
But, although stymied in his attempt to substitute his amendment for
other pending legislation, Senator Dirksen brought pressure to bear on
the Judiciary Committee to report out the amendment through the
proper channels. They did so on September 8, although without recommendation and on the understanding that it would not be taken up
until Congress reconvened in 1966. This "understanding" was reached
in order to break the legislative logjam threatened by Republicans and
to permit an early adjournment.4" In the Republican "State of the
Union" address by the minority's congressional leaders in January
1966, the passage of the Dirksen amendment was listed as one of the
party's programs for the year, 43 and the president of Whitaker & Baxter,
now representing a new lobby group called the Committee for Government of the People, said that a "big, national grass-roots campaign"
N.Y. Times, June 4, I965, p. 35, col. I.
IId., July 1, 1965, p. ii, col. i.
38 Id., June 2, 1965, p. 16, col. 5.
o Id., Aug. 4, i965, p- 12, col. 3.
4o For a full report on the Senate debates and the final vote, see 23 CoNo,
QUARTERLY '49I, 1541-42 (weekly ed. x965).
41 N.Y. Times, Aug. 6, i96S, p. 26, col. i.
42
Id. Sept. 9, i965, p. 1, col. 3. Senator Tydings of Maryland, an opponent of
the amendment, denounced this arrangement as "blackmail." Id. at p. 19, col. 5.
43
1d., Jan. 18, 1966, p. 8, col. 4 (city ed.).
36

1966]

REAPPORTIONMENT

1237

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

state legislatures had since been reapportioned, it was arguable that

their petitions were invalid. 51 This, however, would require an exception to the de facto status accorded malapportioned bodies by all courts
that have passed on Reynolds-based collateral attacks against their
legislative acts. 52 In general it may be said that no one really knows
the ground rules in this area, since the convention route to amending the
Constitution remains unused. The most important fact about the convention drive, however, is that 18 state legislatures- one more than
25

a Id., Jan. ig, 1966, p. 20, col. I (city ed.).

4 See, e.g., id., Jan. 22, 1966, p. 12, col. 5 (city ed.) (Sen. Proxmire).
46 23 CONG. QUARTERLY 1570-71 (weekly ed. 1965).
47 Id. at 1571-72. See also N.Y. Times, May ii, ig65, p. 28, col. 4.
41 See, e.g., N.Y. Times, May 2, 1965, p. 81, col. i (Farm Bureau official).
"' LEGISLATIVE REFERENCE SERVICE OF THE LIBRARY OF CONGRESS, STATE PETITIONS AND MEMORIALS TO CONGRESS ON THE SUBJECT oF APPORTIONMENT OF STATE
LEGISLATURES iii-iV (1965).
50 111 CONG. REc. 27,204 (daily ed. Oct. 22, 1965) (chart prepared by National
Municipal League).
51 Id. at 27,197.
52
See pp. 1271-72 infra.

HARVARD LAW REVIEW

1238

[Vol. 79:X228

necessary to block a convention - have specifically rejected proposals

3
to petition Congress.5
As more reapportioned legislatures begin to sit, the chances for success of a constitutional amendment by any process become increasingly
tenuous. The National Municipal League has reported that as of January 1966, 34 states had either adopted an equal apportionment scheme
or had had court-ordered temporary plans put into effect since Reynolds,
and 8 more were presently under court order to redistrict. Twelve of
these states had already held elections under the new apportionment
plans. Of the remaining 8 states, 5 were equally apportioned prior to
Reynolds and 2 were faced with litigation on the issue; only Maine
had escaped completely unscathed. 54
III. TiHE

POLITICAL EFFECTS OF REAPPORTIONNMENT

A. The Beneficiaries of "One Man, One Vote"

The specter of political control by the cities is often raised by the
opponents of reapportionment, and it seems clear that former apportionment schemes in many states have so underrepresented the cities that
they will make substantial immediate gains in voting strength. Even so,
this should not lead to universal urban control. The Advisory Commission on Intergovernmental Relations has reported, based on i96o data,
that in 36 states the combined populations of each state's three largest
cities was less than thirty per cent of the state's total population.1 Moreover, in many states the political interests of different cities are too disparate to make complete cooperation a foreseeable possibility. In the
long run the largest gains may be made by the suburbs. In all but one of
the 15 largest metropolitan areas in the United States, the core city
had decreased in population during the past decade. Two-thirds of the
twenty-eight million total population increase during the same period
was absorbed by the suburbs.2 A recent study shows that in almost onehalf of the 23 metropolitan centers of over one million population the
suburbs already have a larger population than the central cities, and it
has been predicted that by 198o only New York City, Dallas, and
Houston will retain their numerical superiority. 3 Any estimate of "real"
political gains must, of course, take into account the different possible
ways in which equally apportioned districts can be drawn.4 A skillful
redistricting by an urban-dominated legislature, for example, could
minimize suburban strength while maintaining the equal-population
principle by including many suburban voters in districts in which they
are safely outnumbered by urban residents.
It is generally predicted that the increase in suburban representation
will benefit the Republican Party. In a sampling of the 1962 congres" N.Y. Times, Oct. 26, Ig65, p. 27, col. 1.
" Apportioning Woes Nearing Conclusion, 55 NATIONAL Cmc Rav. 29 (1966).
'Hearings on SJ. Res. 2 Before the Subcommittee on Constitutional Amendments of the Senate Committee on the the Judiciary, 89th Cong., ist Sess. 484
(I965) (hereinafter cited as Hearings].
2
LEGrSLATr
REFERENCE SERviCE Or THE LIBRARY OF CONGRESS, RECENT SUPREmE COURT DECISIONS ON APPORTIONMENT: THEIR PomICAL IMPACT 9 (1964).
' Boyd, Suburbia Takes Over, 43 NATIONAL CMc Rav. 294-96 (1965).
'See pp. 1283-84 infra.

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

R rERExcE SERvice OF rm LIBRARY OF CONGRESS, op. cit. supra

at ix.
Id. at 12.
"Id. at 22-23. The states mentioned were Arizona, California, Connecticut,
Florida, Illinois, North Carolina, Oklahoma, Pennsylvania, and Texas, with possible gains in Colorado.
' See N.Y. Times, Dec. 28, 1964, p. 24, col. i.
o For an analysis of the off-year elections in both New York and New Jersey
under temporary reapportionment plans, see Suburbia Provides Balance of Power,
54 NATIONAL CMc RaV. 613 (1965).
10 23 CONG. QUARTERLY 1587 (weekly ed. 1965).

note

2,

11 Lewis, Decision To Reapportion the State LegislaturesStirs Opposition, N.Y.

Times, Aug. 16, 1964, 4, P. 3, col. 4.

1240

HARVARD LAW REVIEW

[Vol. 79:X228

ment elicited examples of rural-backed defeats of minimum wage laws,12

discrimination against urban areas in the allocation of state tax funds
for schools and roads, 13 denial of home-rule powers of taxation and
licensing,14 and general failure to provide aid for metropolitan problems. 15 It is questionable, of course, whether any statistics on state
spending can conclusively demonstrate "unfairness," since, for example,
rural areas may need more money per capita to provide adequate schools,
hospitals, and roads. Furthermore, any attempt to translate a given
apportionment scheme into concrete political results must be inexact
at best. Assuming, for example, that in most states both cities and
suburbs will gain seats in reapportionment at the expense of rural areas,
it is nearly impossible to predict what alliances will form in the new
legislature. Nevertheless, it would seem that many metropolitan problems of which the nation is now becoming conscious will at least receive
more attention from the new legislatures.
There is already some evidence that reapportioned legislatures may
be more active in meeting metropolitan problems than their predecessors.
Even some backers of the Dirksen amendment have praised the effect
of reapportionment on the Michigan Senate, where legislative deadlocks
caused by urban-rural imbalance were broken last year in a flood of progressive legislation."0 And one Colorado legislator, commenting on a
year of activity in the legislature, which was reapportioned after Lucas,
noted that the new plan broke up "long-standing alliances which had
tended toward inaction" and that the legislature produced an impressive
record in enacting bills dealing with urban affairs that bad been deadlocked for many years.17 Many commentators have noted that the vacuum in urban aid and planning at the state level has been increasingly
filled by the federal government and have expressed the hope that
8
Reynolds did not come too late to reverse this trend.'
Intrastate political relationships may be changed by reapportionment. Currently, state politics is often characterized by friction between an executive elected at large from one political party and a malapportioned legislature dominated by the other party. Michigan's Republican-dominated legislature refused to approve twenty-four appointees of a Democratic governor in a twelve-year period,' 9 and Republican
governors have often faced partisan opposition to their legislative programs by Democratic majorities in state chambers. To the extent that
Reynolds will cause overall party strengths to be reflected more ac2

fHearings 181, 721 (Missouri), 948 (Illinois).

d. at 628 ($197 in state aid per New York City school child;

13

$314 for each

child in the rest of the state) (1962 figures).
"a
Id.
at
279
(testimony
of
Chicago
Mayor
Daley).
5
1d. at 694-97 (testimony of mayors of Philadelphia, Indianapolis, Denver,
and smaller cities). However, state legislators did point to farsighted urban
aid programs in some malapportioned legislatures. See, e.g., id. at 389-94
(California).
26 1i CONG. Ric. 27,204 (daily ed. Oct. 22, 1965) (Senator Proxmire citing the
Farm Bureau).
17 Dines, A Reapportioned State, g5 NATIONAL Civic REV. 70, 72-74 (2966). See

also McKAY, REAPPORTION=NT 268-69 (1965).

" See, e.g., Miller, Hamstrung Legislatures, 54 NATioNAL Civic Rav. 178, 219
(i95g); Editorial, New Hope for Federalism,N.Y. Times, Aug. 8, i965, 4, P. 8,
col. 3;
9 Wicker, States and U.S. -Roles Are Changing, id., p. 9, col. 5.
Hearings 692 (testimony of Detroit Mayor Cavanaugh).

1966]

REAPPORTIONMENT

1241

curately in state legislatures, these phenomena will probably become

less common. In many states political parties will be forced to appeal
to new segments of the population. In the South especially, both Republicans and Democrats are beginning to compete for the urban Negro
and labor vote, a movement that may eventually create a Democratic
party in that region less dominated by rural sentiment. The conservative Democratic organization in Virginia is already willing to back
Negro legislative candidates in urban districts, 20 and seven Negro
Democrats were elected from Atlanta to the Georga house in a
special election called in 1965 after reapportionment. 2 1 In the North as
well, ostensible fear of "urban domination" often has been only a
euphemism for the more specific fear of giving power to racial, ethnic,
and labor groups centered in the cities. Past referendum campaigns to
freeze a rural bias into districting formulas have been marked by overt
exploitation of this fear. 22 Although in the North the power shift will
benefit most the white-collar suburbs, the urban minority groups will
still have a more effective voice in their legislatures than in the past.
The national political scene may also be changed as a result of state
reapportionment, quite apart from the effects of congressional redistricting. The power of urban-suburban interests within the state political party structure should increase with their increased power in the
legislature, placing these interests in a position to endorse more urbanoriented congressional candidates. Congress may thus be disposed to
increase federal efforts in the urban planning field if the states do not
revitalize their own programs. Thus on both the state and national
levels reapportionment may signal the resurgence of respect for the
legislative branch of government, which has been overshadowed
in
23
recent decades by the growth of the power of the executive branch.
IV. THE THEORY OF

THE REAPPORTIONMENT CASES

A. The Nature of the Right Asserted

The "one-man, one-vote" standard that emerged from the reapportionment cases was the result of the Court's view that the constitutional
right involved was "individual and personal" in nature. This view was
greatly influenced by the Court's crucial choice in Baker v. Carr' to
proceed under the equal protection clause in hearing challenges to state
apportionment. A literal reading of the Constitution would suggest that
the guarantee clause was a more appropriate route for judicial decision,
since what constitutes a fair electoral system depends upon interpretation of the concept "Republican Form of Government." Yet the majority in Baker yielded to the long line of precedent holding that guaran20 N.Y. Times, April 20, i965, p. 24, col. 3.
21 Id., June 17, 1965, p. 20, col. 7. Republicans also offered Negro candidates
in these races and made a strong overall showing in Georgia, capturing 17 of the
47 contested seats. Previously they had held only 4 out of 205 seats. Ibid.
22 Hearings 817 (Illinois), 9o8 (Michigan, California).
23 "One man, one vote" is not, of course, the solution to every problem facing
state legislatures: "The Massachusetts Legislature, although reasonably well-apportioned, has been notoriously corrupt." Editorial, supra note 18. See also Miller,
supra note 18.
1369 U.S. 186 (1962).

1242

HARVARD LAW REVIEW

'Vol. 79:1228

tee clause claims were nonjusticiable as "political questions." Although

Mr. Justice Brennan did point out that the underlying justifications for
the political questions doctrine might not apply in every guarantee
clause case,2 he apparently feared the wide variety of novel and unenforceable claims that might arise in the future if the clause were open to
adjudication. However, the lack of standards by which to determine
what constituted a "Republican Form of Government" was held to be
no bar to adjudication under the equal protection clause, for which,
the Court declared, "judicial standards . . . are well developed and
familiar." 3
The view that challenges to apportionment were efforts to vindicate
personal rights led to an identification of the apportionment problem4
with the cases considering deprivation of an individual's right to vote.
In Reynolds v. Sims, for example, Mr. Chief Justice Warren declared
that "the right to vote" was "diluted," "debased," and "impaired" by
unequal apportionment. 5 But, as Mr. Justice Frankfurter suggested in
his dissent in Baker, such a view assumes its conclusion: "One cannot
speak of 'debasement' or 'dilution' of the value of a vote until there is
first defined a standard of reference as to what a vote should be worth.
What is actually asked of the Court . . . is to choose among competing
bases of representation -ultimately, really, among competing theories
of political philosophy .. " 6 Moreover, actually denying a person
the right to vote is different from establishing electoral districts containing unequal population. The voter in the unequally apportioned
district is able to choose a legislative representative, and his preference
is given the same weight as those of all other citizens whom the legislators
will represent. The definition of the apportionment problem as a
discriminatory impairment of the right to vote has tended to lead the
Court to focus upon what Professor Kauper has termed "a specious
conception of personal right rather than upon the institutional aspect
of the problem."
Even adjudication under the equal protection clause might have permitted the states wide discretion in classification. As Mr. Chief Justice
Warren wrote in McGowan v. Maryland:8
[T]he Court has held that the Fourteenth Amendment permits the States
a wide scope of discretion in enacting laws which affect some groups of
citizens differently than others. The constitutional safeguard is offended
only if the classification rests on grounds wholly irrelevant to the achievement of -the State's objective. State legislatures are presumed to have
acted within their constitutional power despite the fact that, in practice,
their laws result in some inequality. A statutory discrimination will not be
set aside if any state of facts reasonably may be conceived to justify it.
2
Id. at 222 n.48.
3

1Id. at 226.
4 E.g., United States v. Classic, 323 U.S.

299

(I94i).

377 U.S. 533, 555-56 (1964).

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.).

son, One Vote-

7 Kauper, Some Comments on the Reapportionment Cases, 63 MIci. L. REV.

243, 244 (1964).

366 U.S. 420, 425-26 (ig6i).

i966]

REAPPORTIONMENT

1243

But in the reapportionment cases the Court refused to examine the

state's apportionment to see if "any state of facts reasonably may be
conceived to justify it." Instead, the Court insisted upon an absolute
standard of equality. This stricter view of equal protection, Professor
McKay has contended, is consistent with the modern Court's efforts to
give greater protection to the "basic civil rights of man." 9
B. The Question of Majority Rule
It has often been observed that the American political tradition reflects a compromise between the two conflicting principles of individual
rights and majority rule. 10 The Court has invoked both of these principles to support its decisions in the reapportionment cases, 1 but in
Lucas v. Forty-Fourth Gen. Assembly 12 the two principles clashed.
Although a majority of voters in every Colorado county approved by
referendum an apportionment plan that provided for districts of unequal population in one house, the Chief Justice said that "an individual's constitutionally protected right to cast an equally weighted vote
cannot be denied even by a vote of the majority of the State's electorate ... ." 13 In his view, since there was a constitutional right to

equal apportionment, any denial of this right by the majority was as

unconstitutional as a majority-approved plan requiring racial segregation would be. 14 On the other hand, Mr. Justice Stewart argued in
dissent that by giving a minority more representation than it would
receive under a strict population standard "the majority has consciously
chosen to protect the minority's interests .. . ,15 Thus, the minority

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

HARVARD LAW REVIEW

IVol. 79:X228

Calhoun's system of concurrent majorities, 18 would still, however, be

incompatible with the Court's theory of a personal right to equal apportionment. The Auerbach proposal gives a local majority the power
to veto a statewide majority decision to underrepresent it. Yet, if it is
legitimate for the wishes of a statewide majority to be checked by a
local majority, it appears to be no less legitimate for a minority within
a district to be protected against being underrepresented as a result
of a decision by the district's majority. Professor Auerbach's attempt to
compromise the claims of majority and minority has no logical stopping
point short of the Court's assertion of an individual right. Moreover,
determining the relevant geographical areas which must consent may
prejudice the result. In Colorado, for example, a majority in every
county might approve a plan which discriminated against the city of
Denver if Denver were a minority even in Denver County.
Nevertheless, the Court could have struck down a majority-approved
referendum on apportionment without rejecting outright the principle of
majority rule. Where majority rule functions as a continuing principle,
it normally contains a built-in protection for the minority; for example,
in the legislature, the process of trading votes allows the majority and
minority to arrive at a mutually advantageous result over a series of
legislative issues. 19 A decision on apportionment, however, is sui
generis. Where the electorate is offered a single choice concerning the
very rules for reflecting political power, the machinery of decision can
provide no means for accommodating the preferences of majority and
minority over a series of votes. The decision to deprive a minority of
its power therefore undermines the very process of accommodating majority and minority which a system of continuing majority rule makes
possible.
C. The Basic ConstitutionalRight: An Equally Effective Vote
In Reynolds the Court asserted: "Full and effective participation by
all citizens in state government requires ... that each citizen have
an equally effective voice in the election of members of his state legislature." 20 This concept would seem to require that each voter have an
equal marginal impact on the election of representatives. Proportional
representation on a statewide basis would most successfully promote
the goal of equal marginal impact. Thus the decision to retain singlemember districts is in effect a decision to sacrifice this goal to some
extent in the interest of a workable two-party system with local representation. 2 1 At least some districts will be "safe" for one or the other
party; members of a minority party in a safe district have no impact on
the composition of the legislature. Even when each constituency contains
the same number of voters, single-member constituencies make possible
permanent minority rule - a result which, Mr. Chief Justice Warren
wrote, "would appear to deny majority rights in a way that far surrespect except that only one requires equal apportionment; therefore he agrees with
the result in Lucas because of the differences in the plans presented to the Colorado
voters.
"See generally CAmLou-, A DisQuISTION ON GOVERNMENT (1854).
19 See BucnuAN & TUmLocK, THE CAcLULus oF CONSENT 131-45 (1962).
20377 U.S. 533, 565 (1964).
21 See DUIVERGER, POLITICAL PARTIEs 372-74, 383 (rev. 2d Eng. ed. x959).

1966]

REAPPORTIONMENT

1245

passes any possible denial of minority rights ....

,, 22 If Republican
candidates received a substantial majority vote in areas in which they
were victorious while Democrats received smaller majorities in the areas
in which they were stronger, a statewide Democratic minority could
elect a majority of the legislature. A commitment to geographically
based constituencies may thus frustrate majority rule as well as substantially limit the individual right to an equally effective vote.23
D. Interest Representation
One serious disagreement between the majority in Reynolds and
Justices Harlan and Stewart involved the legitimacy of representing
interest groups in a democratic electoral system. Mr. Justice Harlan
wrote: 24 "[P]eople are not ciphers and . . . legislators can represent

their electors only by speaking for their interests- economic, social,

political- many of which do reflect the place where the electors live."
Mr. Justice Stewart proposed an apportionment standard which would
combine the "basic principle of majority rule" with his view that an
apportionment scheme should attempt to bring about "a realistic accommodation of the diverse and often conflicting political forces operating within the State." 25 He believed that group interest could be taken
into account in an electoral scheme up to the point where it served "systematically to prevent ultimate effective majority rule." 26 Although
the broadest language in the Court's opinion in Reynolds and the criticisms of Justices Harlan and Stewart would indicate otherwise, the
one-man, one-vote standard does not preclude all interest representation. Rather, the reapportionment cases tend to limit the representation of geographically based interest groups to the number of supporters they can command at the polls. The extent to which any group
is still benefited or disadvantaged under equal apportionment depends
only on whether its members fortuitously benefit from geographically
based constituencies, which neither the Court nor the dissenters were
willing to abandon. The basic issue concerning interest representation is
whether there are any considerations other than the desire to maintain
geographical constituencies that can justify giving interest groups more
27
representation than a strict population apportionment would give them.
z. Assuring Minimum Representation.-One
reason for overrepresenting an interest group might be to provide representation to a group
that would otherwise lack a legislative spokesman. Such an interest
group, although sufficiently distinctive, might be either too spread out
among the population to command any representation or, though politically concentrated, not quite large enough to be a majority of any district. While a group might be too dispersed ever to'be capable of repreReynolds v. Sims, 377 U.S. 533, 565 (1964).
Mr. Justice Stewart rightly protested that he did "not understand why the
Court's constitutional rule does not require the abolition of districts and the holding of all elections at large." Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713,
750 (1964) (dissenting opinion).
24 Reynolds v. Sims, 377 U.S. 513, 623-24 (x964) (dissenting opinion).
22
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 749 (1964) (dissenting
22

22

opinion).
26

Id. at 794 (dissenting opinion).

27 Of course most voters belong to a variety of interest groups, but discus-

sion of interest representation requires an assumption that voters can be identified

with some particular interest group.

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[Voi. 79:1228

sentation by geographical constituencies, in many cases an unduly

small district that would give the group one representative could be constructed at the point of maximum population concentration. Although
the group might still be underrepresented in relation to the number of
its supporters, that underrepresentation would be a result of the basic
commitment to geographically based representation. Even where a
group existed solely as a concentrated political entity, one might decide
to create a smaller district as an alternative to no representation at all.
The case in which the issue is whether to give a minority any representation is perhaps the most appealing one for overrepresentation of an
interest group. In fact, Mr. Justice Stewart's belief that an apportionment plan "should ideally be designed to insure effective representation
. . of the various groups and interests making up the electorate" 28
would seem most appropriate in this case. Such a scheme of functional
representation, however, approaches the kind of fragmentation of the
electorate inherent in a proportional representation scheme. One of
the supposed advantages of a single-member district system is that it
dilutes pure interest representation and thereby promotes two-party
rule. 29 The difficulty confronting all proposals to overrepresent certain
interests is that there are no standards for deciding which interests
should be favored.
Overrepresentation of mi2. Protecting Against Majority Rule. norities is also advocated as a check on majority rule. Characterization
of the problem as an effort to check "tyranny of the majority" assumes
a state of intense conflict between a cohesive majority and minority,
which is probably not an accurate description of American political
life.80 A similar and more sober version of the criticism of majority
rule points out that it does not take account of intensities of conviction

or commitment. 31 Thus, an only slightly committed majority may be

able to pass legislation that can impose onerous burdens on a minority.

The normal processes of legislative bargaining tend, however, to permit
an intense minority to protect its interests. The process of trading
votes over a series of legislative issues often enables a cohesive minority

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

AERICA 128-34 (1955).

THEORY 132-33 (1956).

31 BucHAxA & TuLIocx, op. cit. supra note ig, at 125-30.

32 Id. at 157-58.

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

is relevant when a group of voters chooses to be underrepresented in

order to be included in a district containing voters of similar interests.
In Holt v. Richardson,35 a three-judge federal court was faced with
just such an issue in passing on an apportionment of the Hawaii House
of Representatives. In order to have equal districts, Keaukaha (644
voters) would have had to be joined with Puna (1,711 voters), though
its real community of interests lay with Hilo. 36 Because of the representations of the Hilo delegates, the court concluded that Keaukaha
preferred to be included in a larger than average district rather than
to be submerged in the population of Puna. The court upheld the apportionment despite the fact that the districts were of unequal popula37
tion, writing:

While it is a fundamental factor

. . .

population is not the sole defini-

tive measure for setting up either representative or senatorial districts.

Compactness and contiguity of the territory are admittedly also factors,
but community of interests, community of problems, socio-economic
status, political and racial factors - each and all must be considered ....

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.

at 258-60. But see Auerbach, supra note 6, at 48-49 n.212.

A provision for unlimited debate, subject to imposition of cloture by a qualified majority, as in the United States Senate, serves a similar function under
most circumstances. A bicameral legislature also imposes a check on majority rule,
but the check becomes less effective as the constituencies of the two houses become more nearly the same.
35 238 F. Supp. 468 (D. Hawaii), prob. juris. noted sub. nom. Burns v. Richardson,
382 U.S. 807 (1965).
361d. at 477:
Keaukaha was separated from the nearest inhabited portion of Puna by a
lava forest over six miles wide, traversed by but one road ....
[It used
Hilo's] power, water, police, fire protection, schools and all public services. Its
population was almost entirely of Hawaiian extraction; almost all of its inhabitants were employed only in Hilo; and basically, it had no community, ethnic
or industrial bond or interest with Puna.
The voting population of Puna, on the other hand, was very predominantly
of Japanese extraction, with no urbanization whatsoever, and with almost its
entire population employed by one sugar plantation.
"'Holt v. Richardson, 240 F. Supp. 724, 730 (D. Hawaii), prob. juris. noted
sub nom. Burns v. Richardson, 382 U.S. 807 (i965).
389 See p. 1243 supra.
Of course a less than unanimous vote in Hilo or Keaukaha would result in
dissenters being deprived of their "individual and personal" right to equal representation. See p. 7243 supra.
14

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[Vol. 79:1228

underrepresented by absorbing the additional votes of Keaukaha, an

accomodation similar to one in which a majority agreed to overrepresent a minority could be achieved. In this case, however, there is another consideration. A system of single-member district elections is
based on the assumption that the "captive minorities" within a district
will moderate the tendency of the constituency to reflect only the majority's interests. To allow a captive minority to leave such a district
may maximize the effectiveness of its votes, but it encourages representation along pure interest lines, which geographically based representation
presumably is designed to prevent.
V. THrE APPLICATION OF REYNOLDS

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

Reynolds the Court ap-

'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-

native means of limiting gerrymandering.

7 Roman
8

v. Sincock, 377 U.S. 695, 71o (1964).

CoNsT. art. 3, 3.
oWYo.
See Schaefer v. Thomson, 240 F.

Supp. 247 (D. Wyo. x964).

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'Vol. 79:1228

districts not be split in the construction of senate districts, and that

in drawing assembly districts county lines must be respected.' 0 The result was that one county, which was surrounded by counties too large
to permit combination into a single district, was substantially overrepresented in both houses of the legislature." Although such a deviation may be justified in one house of a legislature, the Supreme Court
said in Lucas that similar inequities
in both houses of a legislature would
2
be viewed with great suspicion.'
C. Scope of the Deviations Permitted
The Court has not stated how deviations from strict equality are to
be measured. In judging the validity of apportionments, lower courts
have used three distinct measuring rods of inequality: the populationvariance ratio, the maximum detrimental deviation from the average
percentage, and the minimum fraction of the population necessary to
control the legislature. To ascertain population variance, one computes
the ratio between the average population per representative of the most
underrepresented and the most overrepresented districts in a state. In
a state with total population of 125,000, comprised of three single-member districts of io,ooo, 15,ooo, and 20,000 and a two-member district
of 8o,ooo, the population variance is 4/I. The second measure, maximum detrimental deviation from the average, is the percentage by which
the average population per representative in the most underrepresented
district exceeds the average population per representative in the state.
In the state just hypothesized, where the average population per representative is 25,000, the maximum detrimental deviation would be
6o per cent. The third test, minimum fraction of the population necessary for control, is arrived at by finding how many of the most overrepresented districts are necessary to elect a majority of the legislature,
adding their populations, and determining what percentage this figure
is of the total population of the state. In the state hypothesized, the
minimum-for-control figure would be 36 per cent, with 45,000 out of a
population of 125,ooo electing three of five representatives.
While all these measuring rods may be helpful, none is alone sufficient to determine the extent, and consequently the legitimacy, of a
deviation from absolute equality. The population-variance ratio measures only the most extreme variation between the votes of any two individuals in the state. This would mean that in State A, a state where
one district has a population of 20,000 and the other nineteen districts
populations of 40,000 each, the variance would be 2/i. It would also
be 2/i in State B, a state of twenty districts where one district has a
population of 40,oo and all the others 20,000. Yet, it is clear that the
discrimination against the residents of the single district in State B must
be impermissible, while in State A no particular individual anywhere
10 Wis. CONST. art. 4, 5, art. 4, 4.
" See State ex rel. Reynolds v. Zimmerman, 23 Wis. 2d 6o6, 61g, 128 N.W.2d
16, 24 (1964). The Wisconsin court did not consider the possibility of constructing a multi-member district including a neighboring county which would have
alleviated the discrepancy in at least one house of the legislature. See also Auerbach, The Reapportionment Cases: One Person, One Vote - One Vote, One Value,
1964 SuPREME COURT REVIEW 1, 41-42 (Kurland ed.).
12 Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 7X3, 735 n.27 (1964).

1966]

REAPPORTIONMENT

1251

in the state is seriously harmed. Therefore, if the deviation that exists

in State A is based on an acceptable consideration like the following of
county lines, the variance might well be constitutional. The maximum
detrimental deviation figure would, of course, uncover this distinction
between States A and B. In State A, the deviation would be less than
3 per cent; in State B, over go per cent. The faults of this test,
however, can be shown by a third example. In State C, a state in which
twenty-three districts have a population of 40,000 and the other twentytwo a population of 6o,ooo, the maximum deviation figure, about 20.5
per cent, is not extreme. The unfairness of this plan can be best appreciated by using the third test, minimum-for-control- 41 per cent of
the state's population could elect a majority of the legislature (920,000
out of 2,240,000). The problem with using this figure alone, however,
is that it would not uncover such a gross inequality as the one in State
B above. It would take more than 50 per cent of the population of State
B to elect a majority in the legislature, yet its plan would be unconstitutional because it deprives the residents of one district of a substantially
equal vote.
In the general confusion that has plagued the lower courts in applying these three tests, the primary fact that the courts have neglected
to consider is the Supreme Court's holding in Reynolds that specific
individuals in malapportioned states were being deprived of the equal
protection of the laws. Reynolds leaves no doubt that the Supreme
Court majority has decided that equitable apportionment is a personal
right. 13 Thus, a rough attempt should be made to assess the extent to
which an inequality harms particular individuals, and the extent of that
harm should be balanced against the legitimacy of the justifications
given for the inequality. The ultimate success of an equal protection
claim must depend on the validity of the classification that causes the
deviation from equality.14 In apportionment, however, even rational
classifications - such as county lines - may not be acceptable if they
result in the "submergence" of equality as the primary consideration in
an apportionment. The apportionment in State C, where individuals in
the more heavily populated districts were only moderately underrepresented, would be unconstitutional because such a configuration could
have no legitimate justification. If the Supreme Court's statements
about the integrity of political subdivisions are to be given any effect,
they must justify such deviations as those in State A, since no individual in the state could be substantially harmed by the unequal benefit
conferred upon the residents of the one overrepresented district. 15
The only problem remaining is how unequal a benefit districts may receive or how seriously the voters of other districts must be harmed
to render even a rationally based deviation invalid. In order to establish rough guidelines for the solution of this problem, some less abstract situations will be examined.
12

See pp. 1261-62 infra.

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.

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D. Some Specific Cases

i. Missouri.- The Missouri constitution 10 permitted the population
of a senatorial district to vary from the average district population by
no more than 25 per cent. Consistent with this provision, the Missouri legislature apportioned the senate into districts varying in population from 96,477 to 155,428, when the average population per district
in the state was 127,053. In Jonas v. Hearnesy7 a federal district court
declared the plan unconstitutional on the ground that the variance allowed by the Missouri constitution was too great to comport with the
requirements of Reynolds. The population variance in this case was
less than the 1.7/I variance which the Supreme Court found to be
arguably constitutional in Lucas, but the plan was apparently constructed considering only the state constitutional provisions. If there
really was no other justification for the moderate deviations present in
Missouri, then the decision declaring the plan unconstitutional seems
correct.
2. Vermont and New Jersey.- The problem becomes more difficult
in situations in which deviations seem to be substantial but rational
justifications can be found for them. In Vermont, an apportionment
scheme had been constructed following county lines; the result was a
population variance of 5.5/I in the senate. The reason for this large variance, however, was that two small counties, Grand Isle, population 2,927,
and Essex, population 6,083, were each given a seat. By other tests the
plan seemed more acceptable: 47 per cent of the state's population was
needed to elect a majority of the senate, and no district had a detrimental deviance greater than 23 per cent. If one does not adopt the
arbitrary rule that Reynolds forbids a variance greater than 2/1,18 there
seems to be considerable justification for approving the Vermont plan.
In New Jersey, the problem was almost identical. The population-variance ratio was 2.96/i, the minimum-for-control figure was 46.5 per cent,
and the justification given for the disparity was that the five smallest
counties in the state were each given the representative guaranteed them
by the state constitution. Again, this can be justified as an insignificant
departure from mathematical equality designed to keep political subdivisions intact. Yet a district court held the Vermont apportionment unconstitutional,10 while the New Jersey Supreme Court in a dictum sugfound
gested that the apportionment in the assembly might have been 20
If
valid if the other house had been satisfactorily apportioned.
these cases can be distinguished at all, it would seem that New Jersey's
plan was less defensible than Vermont's. The minimum-for-control
10

Mo. CONST. art. 3, 7: ". .

. The commission shall reapportion the senators

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).

The court, following

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

1253

figure was higher in Vermont than in New Jersey, and in Vermont it

was only two, as opposed to five, counties that benefited from overrepresentation. The population-variance ratio was higher in Vermont, but
the maximum detrimental deviation was considerably higher in New
Jersey. 21 Since the minimum-for-control figure in each state was above
45 per cent and the maximum deviation was not above 40 per cent
it can be argued that the political subdivisions exception justified the
departure from strict equality in both cases.
3. Wyoming. - Implicit in the discussions of the Vermont and New
Jersey apportionments was the relevance of an additional factor, the
size of the legislature.2 2 In Wyoming, the legislature realized that a
plan consistent with both equality of population and- the integrity of
county lines would result in a house of unwieldy proportions. As a result, the legislature provided that for every 5,400 people or major fraction thereof a county would be entitled to one representative. The result was that the smallest county in the state, with a population of 3,062,
and another county with a population of 7,929 each received one representative. The court was "satisfied that this divergence from a strict
population standard . . . [was] the result of an honest attempt, based
on legitimate considerations, to effectuate a rational and practical policy
for the house of representatives under conditions as they exist[ed] in
Wyoming." 23 If one accepts the proposition that preserving the integrity of political subdivisions is a valid consideration in an apportionment plan, it would seem that the Wyoming legislature took the best
possible route in trying to reconcile substantial equality and reasonable
size.
interrelation of these three considerations can
4. Nebraska.-The
further be illustrated by the problems faced by a federal district court in
League of NebraskaMunicipalitiesv. Marsh.24 The court admitted that
the apportionment was the best possible plan that would take into account county lines and provide for fifty members -it would have resulted in a population-variance of 1.6/1 and a maximum detrimental
deviation of 25 per cent. The court pointed out, however, that the deviations among the districts could have been substantially reduced if
the legislators had been willing to reduce their number from fifty to
forty and concluded that their failure to adopt this course made their
plan unconstitutional. Yet it avoided deciding the case on the merits of
the plan, holding that the plan was unconstitutional because the legislature had enacted it with the "apparent" intention of keeping incumbents
in separate districts. The dissent, on the other hand, though it both reasonable and desirable that the size of the legislature not be decreased.
A possible solution might have been to increase the size of the legisla21

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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[VOL. 79:1228

ture by passing a constitutional amendment, although it seems incredible

that the court could have required that this be done when other alternatives not involving constitutional change were available. The Supreme
Court has indicated that equality is to be the "primary" consideration
and that county lines are "possible" justifications for "some" deviations. Reasonable size, at some point, is a "necessary" third factor.
How these three should be combined in a particular case, however, is a
matter of legislative judgment to which a court should accord the full
benefit of the presumption of constitutionality. Numerically, perhaps
this presumption could take the form of a rule approving all those plans
that exceed 45 per cent minimum-for-control 25 except when the average deviation figure exceeds 40 per cent.26 Under such a rule, assuming
that there were rational justifications for all deviations, all the apportionments discussed with the exception of New Jersey's, which is on
the borderline, would be constitutional.
E. Population Base
The Supreme Court in Reynolds and elsewhere has used the words
"inhabitant," "citizen," "resident," and "voter" almost interchangeably in describing those who deserve representation, 27 without indicating which of these bases for measuring substantial equality is most appropriate. It was argued in one of the companion cases to Reynolds 28
that the population inequalities in a Virginia apportionment could be
explained by excluding transient military personnel from the population base. The Supreme Court, however, rejected the idea that a scheme,
ostensibly apportioned on the basis of total inhabitants, could be salvaged by recourse to another base: "Discrimination against a class of
individuals, merely because of the nature of their employment, without more being shown, is constitutionally impermissible." 20 Following
the same reasoning, the Virginia Supreme Court later held invalid the
congressional districting in the state declaring that it was "not convinced
that the military personnel constitute a permissible exclusion." 80
In holding the Virginia apportionment unconstitutional, the Supreme
Court did not specifically deal with the question of whether an apportionment using a base other than total inhabitants could be valid. The Court
did not decide whether the Virginia apportionment would have been
discriminatory had it merely excluded from its count the persons currently living in the state, including military personnel, who vote in
other states or who would vote in other states were they to vote at all.
Most legislatures use total number of inhabitants, the figure computed in the federal census, as their population base for apportioning
districts. Although the question has never been expressly raised be25No case has approved a figure less than 45% since Reynolds v. Sims; cases
have split when the figure was in the 45-48% range. Compare Jackman v. Bodine,
43 N.J. 453, 205 A.2d 713 (2964), with Silver v. Brown, 405 P.2d 132, 46 Cal.
Rptr. 308 (1965).
2 But cf. H.R. 5505, 89th Cong., ist Sess. (1965), which proposed that xs5%

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

1255

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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[Vol. 79:1228

ever policy arguments might be made for an actual voter count as an

abstract proposition, an "inference of discrimination" 35 had to be drawn
in this particular case.36 Even when the discrimination against a particular geographic area is not so obvious, an actual voter count should
not be constitutional. The rather abstract argument that making representation depend upon voting would encourage good citizenship is not
so significant as the fact that the use of the actual voter base would discriminate both against "safe" districts, whose residents feel it unnecessary to vote, and against the uneducated urban poor, who, although they
deserve equal representation, do not go to the polls.
Since the Supreme Court has not specifically ruled on any of these
population bases, all conclusions in this area are naturally tentative.
It does seem fair to conclude, however, that the use of state citizen population will always be constitutional, that total population will be constitutional except where large segments of the population not entitled to
representation are included in the base, and that any less inclusive
standard such as registered voters or actual voters will be suspect if
substantial discrimination against any individuals who have a right to
representation can be shown.
F. Fractionaland Weighted Voting
Among the many ingenious devices that state legislatures and courts
have used to avoid the full force of the one-man, one-vote standard,
fractional and weighted voting have received the most attention."
Under these schemes there is no redistricting but the legislators cast
votes weighted according to the size of their districts. In theory and in
mathematics fractional and weighted voting are the same; if legislator
A represents a district with six times the number of people as legislator
B, fractional voting gives A one vote and B one-sixth of a vote and
weighted voting gives A six votes and B one vote. Courts have, however, distinguished between them. In the only case in which fractional
voting schemes reached the courts, 38 a federal district court declared
them unconstitutional. On the other hand, various courts have threatened, although none has carried out the threat, to compel a legislature
to use weighted voting, at least temporarily, in the event that it refused
to reapportion itself. 39 Such threats do not prove that weighted voting
is constitutional; they may indicate only that weighted voting is an
acceptable temporary solution of an intolerable situation. In strict
mathematical terms, fractional and weighted voting do not seem to be
unconstitutional. Under either system, the weight of a person's vote
corresponds exactly to the weight of his representative's vote in the
legislature. If A represents six times as many people as B, the voter in
5

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

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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

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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).

11 This depends on the assumption that voting would be almost exclusively by

party, an assumption borne out in the election in Illinois, where it was almost phys-

ically impossible -to split a ticket in the time permitted for voting.

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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

recognized that multi-member districts might be constitutional but

asserted that if they were created in an arbitrary fashion their constitutionality would be suspect and so suggested that it would be more "prudent" for the legislature to reapportion the state in single-member dis57
tricts.
Another, more direct means of attack met with success in Holt v.
Richardson,58 where the district court declared the Hawaii Senate to be
unconstitutional on two grounds: its multi-member districts "resulted
.. .from gerrymandering" and the districts did not "positively complement" the districts of the Hawaii House, which were in some instances
identical to multi-member Senate districts. Reynolds announced only
that "one body could be composed of single-member districts while the
other have at least some multimember districts." In the same paragraph the Court stated that "apportionment in one house could be
arranged so as to balance off minor inequities in the representation of
certain areas in the other house." r9 Combining the spirit of the two
passages, it would seem that the Hawaii court was justified in invalidating multi-member districts which were identical in both houses. The
effects that gerrymandering and multi-member districts may have upon
each other will be discussed below.00 But, even avoiding the difficult
problems of proof and intent which a charge of gerrymandering may
entail, many of the worst multi-member schemes will still be invalid if
the Pennsylvania and Hawaii approaches are followed.
VI. PROCEDURAL PROBLEMS
A. Standing and Intervention
Lack of standing of potential plaintiffs, because they had an insufficient interest in the outcome, was formerly thought to bar court-directed reapportionment. This attitude was based on Mr. Justice Frankfurter's statement in Colegrove v. Green:1 "The basis for the suit is not
a private wrong, but a wrong suffered by Illinois as a polity." Baker v.
Carr,2 however, rejected this view of the substantiality of a voter's interest in attacking a malapportionment. Although the Supreme Court
has not spoken so much as a word about standing in an apportionment
case since Baker, it is clear that the Court now considers Mr. Justice
Frankfurter's statement of the wrong to be incorrect. The majority of
the Court, by proceeding under the equal protection clause in Reynolds,
asserted its belief that the wrong is private and that the plaintiffs do
have a stake in the outcome of the litigation.
The defendants in apportionment suits are usually state election
officials who may favor the status quo but who just as often are sympathetic to the plaintiff's claim. It is therefore imperative, if a case is
to have "that concrete adverseness which sharpens the presentation of
issues upon which the court[s] so largely [depend] for illumination of
57 Butcher v. Bloom, 4,5 Pa. 438, 2o3 A.2d 56 (1964).
58 240 F. Supp. 724, 729-32 (D. Hawaii), prob. juris. noted sub nom. Burns v.
Richardson, 382 U.S. 807 (i965).

" Reynolds v. Sims, 377 U.S. 533, 577 (1964).

60 See p. 1287 infra.

1328 U.S. 49, 552 (1946).
2 369

U.S.

186, 204-08 (1962).

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HARVARD LAW REVIEW

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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

however, apparently relying on the doctrine of pendent jurisdiction, 12

have stated their opinions on questions of state constitutional interpretation. In Colorado, the federal district court concluded that a section
of the Colorado constitution 13 did not prohibit subdistricting within
a single county's borders and so ordered the x964 election to proceed
as contemplated by the legislature's single-member district plan.' 4 Four
days later, the state supreme court, disagreeing with the federal court,
held that the state constitution permitted only at-large voting by
county. 15 The Supreme Court later summarily vacated the federal
court's determinations on questions of state law. Four Justices stated
explicitly that the federal court should have abstained from deciding
an issue of state law pending the resolution of that issue with "reasonable promptitude" in further state proceedings. 16 In Wyoming, the
federal court, instead of reading the state constitution literally and creating a legislature with 300 members, extracted "the general spirit of
the instrument" and provided for a house of reasonable size. 1 7 Since its
interpretation of the state constitution was merely a dictum in a case
which held that the senate was unconstitutionally districted, the court's
language had no immediate effect on the state's apportionment and has
not been further discussed.
Under the doctrine of pendent jurisdiction the courts in Colorado and
Wyoming may have had jurisdiction to adjudicate the claims of illegality
under state law, since they were based on the same facts as the claims of
unconstitutionality under federal law. However, in both situations it
would have been preferable had they declined to exercise that jurisdiction and not decided the issues of state law. The doctrine of pendent
jurisdiction is intended to facilitate the rapid progression of a lawsuit. It is simply a rule of procedural convenience. 18 When other
policies outweigh the convenience of deciding all the issues in one trial,
the federal court should require the plaintiff to take his case to the
state courts. In reapportionment cases there are at least two such policies. First, as the Colorado situation illustrates, it is possible that the
state courts may shortly rule on the same issues of state law and supersede the federal court's decision. 19 Second, and more important, is the
consideration that federal courts should not meddle unnecessarily in
See Hum v. Oursler, 289 U.S. 238 (1933).
1 COLO. CONST. art. V, 47 (x876): "No county shall be divided in the forma12

tion of a senatorial or representative district."

14 Lucas v. Forty-Fourth Gen. Assembly, 232 F. Supp. 797 (D. Colo. 1964).
" White v. Anderson, 394 P.2d 333 (Colo. x964).
16 Forty-Fourth Gen. Assembly v.Lucas, 379 U.S. 693 (1965). Before it reached
the multi-member district issue, the district court had concluded that other sections
of the constitutional amendment, some of which had been found unconstitutional
by the Supreme Court in June 1964, were inseparable from the rest of the amendment. Thus, it declared the whole amendment void and reinstated the old art. V,
47. It was this determination to which the four Justices specifically objected.
17 Schaefer v. Thomson, 240 F. Supp. 247, 253 (D. Wyo. 1964).
18 See WRIGHT, FEDERAL COURTS 19 (1963).
19 This would not, of course, be possible in the usual private litigation where
the federal court decision would be final with respect to the parties regardless of a
subsequent change in state law. But cf. England v. Louisiana State Bd. of Medical
Examiners, 375 U.S. 411, 433 (1964) (Douglas, J., concurring), where Mr. Justice
Douglas suggests that it is possible for a federal court to decide questions of local
law initially and then to reopen its judgment if a state court later rules differently
on the same questions.

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affairs20which are an integral part of the structure of a state's government.

The Supreme Court said in Lucas that federal courts should not decide
issues of state law in reapportionment cases if they can avoid it. It did
not decide, however, whether a federal court should abstain from deciding federal questions until the state courts have first had a chance to
rule on their state's apportionment. The time remaining before the
next election may be determinative of the issue of abstention. When
the time before an election is short, a federal court may decide all issues, federal and state, at least for the purposes of that election. Only
such a conclusion can explain the Supreme Court's denial of an acceleration of an appeal 21 and its subsequent summary affirmance 2 2 of a
district court ruling that a plan be used in the November 1965 election
23
even though it had been declared illegal under the state constitution.
When a reasonable amount of time remains before an upcoming election,
however, other considerations may influence the federal court's decision
on abstention. These considerations include whether the issue is the
choice of a remedy or the validity of a plan, whether a state court action is pending, whether the case may be disposed of on state grounds,
and whether the issues of state law are difficult or the state statutes
ambiguous. Even when a federal court has declared a state apportionment invalid, abstention is called for in some situations to permit the
state agencies to fashion their own remedy. A federal court before Reynolds found a Pennsylvania apportionment unconstitutional on the
basis of reasoning somewhat inconsistent with Reynolds, although the
Reynolds court would dearly have reached the same result.2 4 Even
though election machinery was already in motion the court enjoined an
election based on the unconstitutional plan. Meanwhile, the state supreme court also held the Pennsylvania apportionment unconstitutional
but prescribed as its remedy that a constitutional plan be instituted by
25
1966, permitting the 1964 election to be held under the existing plan.
The election having been held under the old plan, the Supreme Court
vacated the district court's judgment in the light of decisions "supervening since the entry of the judgment." 26 The Supreme Court's ruling was
ambiguous: if "supervening" decisions meant only Reynolds and its
companion cases, then the order referred to the incorrect reasons that
the lower court had given for declaring the apportionment unconstitutional; but if "supervening" referred to the intervening state case as
well, its holding implied that the federal court was incorrect in applying
its own remedy and should have deferred to the state court. This
ambiguity was dispelled by the Court in June 1965 in a case arising
out of a similar set of circumstances in Illinois.27 It held that a district
20 Cf. Burford v. Sun Oil Co., 319 U.S. 315
21
2 2 Travia v. Lomenzo, 38X U.S. 431 (1965).
WMCA, Inc. v. Lomenzo, 382 U.S. 22

(2943).

(x965); Screvane v. Lomenzo, 382

U.S. 11 (1965); Travia v. Lomenzo, 382 U.S. 9 (1965).
23 Matter of Orans, iS N.Y.2d 339, 206 N.E.2d 854, 258 N.Y.S.2d 825, appeal

v. Orans, 382 U.S. 10 (1965). See note 9 supra,

dismissed sub nom. Rockefeller
24 Drew v. Scranton, 229 F. Supp. 310 (M.D. Pa. x964).
22 Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556 (2964).
,
21 Scranton v. Drew, 379 U.S. 40 42 (1964).
27

Scott v. Germano, 38x U.S. 407 (x965).

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).

s0377 U.S. 678 (1964).

3 This may be seen as a rejection in the apportionment context of a line of

abstention cases in which unwillingness to interfere in state processes is the chief
justification for abstaining. Alabama Pub. Serv. Comm'n v. Southern Ry., 341
U.S.2341 (ig5I) ; Burford v.Sun Oil Co., 319 U.S. 315 (1943).
3 Railroad Comm'n v. Pullman Co., 312 U.S. 496, 5ox (1941).
Harman v. Forssenius, 380 U.S. 528, 534 (1965):

See also

In applying the doctrine of abstention, a federal district court is vested with

discretion to decline to exercise or to postpone the exercise of its jurisdiction
in deference to state court resolution of underlying issues of state law. ...
Where resolution of the federal constitutional question is dependent upon, or
may be materially altered by, the determination of an uncertain issue of state
law, abstention may be proper in order to avoid unnecessary friction in federalstate relations, interference with important state functions, tentative decisions
on questions of state law, and premature constitutional adjudication.

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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

sense of urgency. Thus, some courts have permitted an illegal election to

be held but have retained jurisdiction to make sure that the newly elected
legislators passed a reapportionment plan,39 have limited the length
of the new legislators' terms,40 and have allowed the new legislators
41
to sit only to reapportion themselves and not to pass other legislation.
If any one principle emerges from the broad language that the Court
has repeatedly used in discussing remedies, it is that "legislative reapportionment is primarily a matter for legislative consideration and determination." 42 Judicial remedies should be used only if a legislature fails
to reapportion "in a timely fashion after being afforded a further opportunity by the courts to do so." 43 There are two problems posed by the

Supreme Court's preference for legislative reapportionment. First, the

legislatures are often reluctant to reapportion themselves and may do
so only halfheartedly even when coerced by the courts. Second, in
some states the legislature does not have power to reapportion itself; in
such states reapportionment can only be accomplished by constitutional
revision or by a commission appointed by the governor. When necessary,
courts have allowed legislatures in such states to pass temporary plans,
although one judge, dissenting in part in a Connecticut case,44 would
have required constitutional revision. In those states where boards or
commissions are responsible for effecting reapportionment, the
courts
45
have simply deferred to the boards instead of to the legislature.
State courts have generally held that even unconstitutionally elected
legislatures may reapportion themselves, although sometimes their power
may extend only to the passage of a temporary plan. 46 It is normally not
the lack of power but the lack of desire to reapportion that causes
difficulties. The relative haste 47 that the Court has imposed upon the
lower courts has made the problem even more a~ute.48 The courts have
responded with almost as many variations as there have been cases,
with remedies ranging from a simple assertion of faith that a legislature
would reapportion itself without court interference 49 to a direct order
" E.g., Paulson v. Meier, 232 F. Supp. 183 (D.N.D. 1964).
*E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y.),

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

I1. 2d 212, 205 N.E.2d 33 (1965).

This speed should be contrasted to the "with all deliberate speed" order in

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

expected Virginia to reapportion before its 1965 elections. But in Toombs v.

Fortson, 24x F. Supp. 65 (NJ). Ga. 1965), a district court held that the Georgia
legislature did not have to reapportion itself before the x968 elections. See also
Swann v. Adams, 34 U.S.L. WEEK 3291 (U.S. Feb. 25, 1966).
11 Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, cert. denied, 86 Sup. Ct. 185
(x965).

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[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.

Parsons v. Buckley, 379 U.S. 359 (x965).

11 Butterworth v. Dempsey, 237 F. Supp. 302 (D. Conn. 1g6S).

"-Germano v. Kerner, 241 F. Supp. 715 (N.D. Ill.), vacated sub nom. Scott v.
Germano, 381 U.S. 407 (I965).
53 See, e.g., Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, cert. denied, 86

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.

2d 43, 195 N.E.2d 690 (1964).

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).

Scott v. Germano, 381 U.S. 407 (1965).

10 Reynolds v. State Election Bd., 233 F. Supp.

323

(W.D. Okla. 1964); In re

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.

REAPPORTIONMENT OF COUNTY AND MuNIcIPAL GOVERNMENTS

By resting its state reapportionment decisions on a concept of each

citizen's right to equal protection, the Supreme Court has created a
doctrine that may force municipal reapportionment as well. The Court
has not yet said this,' but many state and lower federal courts have
Apportionment of Michigan State Legislature, 373 Mich. 250, 128 N.W.2d 722
(r964); State ex rel. Reynolds v. Zimmerman, 23 Wis. 2d 6o6, X28 N.W.2d i6
(x964).
61328 U.S. 549, 553 (1946).
62
See, e.g., Butterworth v. Dempsey, 237 F. Supp. 302 (D.Conn. 1965), where

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-

Inent Process, X14 U. PA. L. REv. 504 (1966).

Vermont had a population-variance of almost iooo/x in the lower house.

The Court last fall dismissed for "want of jurisdiction" an appeal by the Suffolk County, N.Y., Board of Supervisors from a decision by a three-judge district
court that municipal reapportionment raised a substantial federal question cognizable by such a court. Griffing v. Bianchi, 382 U.S. 15 (i965). The district court
had refused to require equal population reapportionment of the county board before an attempt was made to reach the same result through the county political
process or a reapportioned state legislature, but it retained jurisdiction on the merits.
Bianchi v. Griffing, 238 F. Supp. 997 (E.D.N.Y. x965).
64

'

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EVO. 79:1228

held that "one man, one vote" applies to governmental subdivisions of

states as well as to the states themselves. The first decision announcing
this view 2 came three months after Reynolds. A Michigan county circuit court held that the apportionment of a county for the election of
its board of supervisors must meet the same constitutional standard
as the apportionment used for electing state legislators. The court
relied heavily on the 196o decision of the Supreme Court in Gomillion v.
Lightfoot, which held that a state's power to draw municipal boundaries
could not be "used as an instrument for circumventing a federally protected right." 3 Although Gomillion dealt with city boundaries and not
with the apportionment of voters within a city, and although the holding
there was based on the fifteenth amendment, the Michigan court applied
its rationale to county apportionment and asserted that Reynolds had
announced another "federally protected right" - equal apportionment
-that
the state could not deny to the citizens of its subordinate units.
4
The court based its decision on the following chain of arguments:
i. The Fourteenth Amendment applies to the State and to every governmental agency or instrumentality of the State which exercise powers
delegated to it by -the State.
2. The County is a governmental instrumentality or division of the State
and the board of supervisors is the legislative body of the County. That
board exercises legislative powers delegated to it by the State.
3. The State may exercise its legislative powers only in a legislative body
apportioned on a population basis and if it delegates a part of these
powers, it must do so to a legislative body apportioned to the same "basic
constitutional standard."
This reasoning has a superficial cast of deductive logic that makes
it appear more cogent than it is. Proposition (3) does not follow logically from propositions (i) and (2) but is a simple and a dubious assertion. To be sure, a state cannot do through its agents what it cannot
do itself; this does not mean, however, that merely because state legislators must be elected on a basis of equal apportionment their agents
must be chosen on the same basis. This "syllogism" has been cited and
approved, without critical analysis, by the majority of courts ruling on
the constitutional standards to be applied to county and municipal apportionment. But the question to be asked at the outset is the one that
these courts have taken as settled: does the equal population standard
announced in Reynolds for state legislative apportionment apply to
sub-state governmental units?
A. The ConstitutionalIssues
County and municipal governments are subject to the provisions of
the fourteenth amendment. Cities and counties have traditionally been
regarded as agencies of the state government,5 and in cases involving
2 Brouwer v. Bronkema, No. 1855, Kent County, Mich. Cir. Ct., Sept. xx, 1964,
13 NATIONAL MuicIPAL LEAGUE, COURT DECISIONS ON LEoISLATIV
REAPPORTIONNMNT 81 (I965).

reprinted in

S364 U.S. 339, 347 (196o).

4
Brouwer v. Bronkema, supra note 2, at 95.
5
The classic judicial statement of the municipal-state relationship is in Hunter
v. Pittsburgh, 207 U.S. 161 (1907). See also Reynolds v. Sims, 377 U.S. 533, 575
(z964).

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).

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[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

Sims, 377 U.S. 533, 562 (1964).

" 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-

missed, 382 U.S. 1$ (1965); Damon v. Lauderdale County Election Comm'rs,

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

representative of people, and therefore, likely to themselves establish in

local legislative bodies a vastly different balance between people and
governmental power." 24 More recently, a New York federal district
court refused to require equal population districting of a county board
of supervisors until the issue could be considered by New York's reapportioned legislature. 25 Any expectation that courts will be able to
avoid the problems of municipal apportionment in this manner, however, seems doomed to disappointment. The fact that the state legislature is properly apportioned does not itself protect people who are underrepresented in a local legislature, and the hope that post-Reynolds
state legislatures will be moved to reapportion the cities that their predecessors left malapportioned would appear to have little basis. The new
legislatures may, in some cases, have a philosophical commitment to the
Reynolds principle, but there is no reason to think that they will have a
greater political stake in the correct apportionment of cities. Indeed,
2"See Weinstein, The Effect of the FederalReapportionment Decisions on Counties and Other Forms of Municipal Government, 65 CoI um. L. REv. 21, 27 n.26
(g6g).
4
ohnson v. Genesee County, 232 F. Supp. 567, 572 (E.D. Mich. 1964).
23

Bianchi v. Griffing, 238 F. Supp. 997,

382 U.S. 15 (x965). See note i supra.

004 (E.D.N.Y.),

appeal dismissed,

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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

U.S. DEPT. or COMMERCE BuREAu or TmE CENSUS, 1965 STATISTICAL ABSTRACT

OF THE UNITED STATES 419.

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]

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larly striking example of "heightened impact." The school board is

the most common form of governmental unit in the United States. 28 In
1962 there were over 34,000 of these autonomous bodies, most of them

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).

op. cit. supra

note

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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]

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12977

figures from a recent city survey to be used in redistricting Binghamton,

although they allegedly were based on population shifts resulting from
planned state relocation projects. 36 The court noted that the state
constitution specified the use of federal census figures for testing state
legislative apportionment and assumed that this foreclosed the issue as
to municipal apportionment. The rationale behind this difference in the
approaches of the two states may be that in California the balance of
population is shifting so rapidly that extraordinary measures are necessary, while in New York this balance is relatively stable. Moreover, it
is true that in the majority of cases the use of federal census figures
will be more expedient than a demand for new population surveys.
An even more complex problem of "standards" of equality is raised
by governmental bodies whose powers are such that it can legitimately
be argued that some people have a greater stake in their activities than
others. An argument has been advanced that some county boards
should be given special treatment. 37 Some boards have broader legislative powers outside city limits than within them; they may, for example,
zone areas outside the city and provide them with police, fire protection,
transportation, and other services. State constitutions may prohibit taxing the incorporated and unincorporated sections of the county at different rates, but this requirement may be circumvented by having the
county board sit ex officio as the board of a special service district composed of the areas outside the city. If the county board does supply
more services to the unincorporated areas, and if these areas are taxed
more heavily to provide for these services, then these areas might claim
a right to an increased share of representation and influence in the
county governing body.
This test of weighting voting power according to the amount of
political responsibility a governing body has to a certain area is inappropriate in the apportionment of state legislatures, for each citizen
presumably has an equal stake in the conduct of state affairs. But
when governmental functions are divided between two bodies in the
same geographical area - county and city - the recognition of such
elements as the differing stake of urban and rural citizens may be relevant. This issue has not been discussed, however, by any court hearing a county board reapportionment case. The Supreme Court's rejection of such "intangibles" as urban-rural balance of interest as legitimate factors in state apportionment should not foreclose consideration of
such a tangible factor as the different degrees of political responsibility
a county board may have to its urban and rural constituents.
A completely satisfactory theory of school board apportionment may
also be bard to find. Suppose, for example, that a city has five roughly
identical public schools, each attended by i,ooo children, and that each
district elects one man to the five-man school board. Suppose further
that one of the districts, because of the presence of a large number of
Roman Catholics or an old-age home, actually has several times as
many inhabitants as the other four districts although it has the same
3 Seaman v. Fedourich, x6 N.Y.2d 94, 209 N.E.2d 778,

262 N.Y.S.2d 444 (i965).

, Comment, A Comprehensive Survey of Redistricting or Reapportionment
Law: State and Federal,48 MARQ. L. Rxv. 516, 559-61 (1965).

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[VOL. 79:1228

number of public school children. Must these districts be reapportioned

on the basis of population? The answer may depend on what functions
the school board performs. If its primary task is the allocation of a
fixed yearly budget to various school needs, the existing apportionment
may be ideal; reapportionment on the basis of population would produce
a board on which one school's needs are overrepresented. If, however,
the board has powers that enable it to influence local tax rates, the
property owners in the larger district may be justified in claiming that
they are underrepresented on the board. Finally, abandonment of the
attempt to subdistrict and substitution of an at-large board may result
in no representation at all for some important minority in the city. The
existence of these difficulties does not, of course, justify totally irrational
districting. If one district and its school are twice as large as another
district and its school, Reynolds would seem to demand twice as much
representation. But choosing a new theory of fair representation to
replace an irrational scheme may at times be difficult.
A third example of a situation in which "equality" may be hard to
define is judicial districting. In the only case decided so far the Georgia
federal district court declared that Reynolds did not apply to judicial
elections because judges are not "representatives" and do not "espouse
the cause of a particular constituency." 38 This answer, however, is
not entirely satisfactory. If a state chooses an elective process for the
selection of its judges it is giving the people a direct voice in judicial
selection and tenure. Others may question whether each citizen should
have such a direct voice, but if he does, it would seem that it should be
an equal voice. Applying Reynolds to judges, however, may prove difficult. Imagine a situation in which each district elects one judge to the
state supreme court, but each judge not only meets with his brethren
but also rides circuit within his district. In such a case the fact that the
state supreme court meets as a body and each person in the state presumably has an equal stake in that body dictates equal districts. The
size of the districts, however, may most rationally be determined by case
load. If each citizen is to retain his power to influence the choice of
the judge who hears cases in his area, the districts may have to be unequal in population.3 9
3. Consolidation.- It is becoming increasingly apparent that the
current fragmentation and duplication of governmental services among
cities, counties, townships, and independent special service districts
should be replaced with rational coordination of common urban and
suburban services. One approach to this problem suggested by recent
studies is the creation of a regional metropolitan government from a
40
Yet
federation of existing separately incorporated municipalities.
existing "metros" in both Canada and the United States use formulas
s Stokes v. Fortson, 234 F. Supp. 579, 577 (N.D. Ga. 1964).
3 Stokes v. Fortson, 234 F. Supp. 575 (NJ).Ga. 1964), held that statewide atlarge voting for judges nominated and serving in a particular district did not deprive
citizens of the affected district of their equal protection rights, even though their
particular
choice might be overridden at the polls by the state electorate.
4
See, e.g., U.S. ADvisoRRY COIMSSION ON INTERGOVERNMENTAL RELATIONS,
ALTERNATIVE APPROACHES To GOVERNmENTAL
AREAS 26-30 (1962).

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.

32 (S.D.N.Y. 1964) (Board of Estimate);

N.Y. Times, April 4, I965, p. 85, col. 3 (City Council). The City Council has been
redistricted in response to this litigation, but imbalance appears to remain. See
N.Y. Times, May 26, i965, p. 1, col. 2.

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to give the suburbs controlling power in a metropolitan consolidation.

Finally, if the distinguishing factor is to be the prospective application
of the federal analogy, it seems difficult to devise a legal test that will
measure the point at which a metropolitan government has become so
"integrated" that it no longer needs voting by constituent unit.
The same problems of consolidation face attempts to coordinate
single public-service units in one area-wide special district. These tentative steps toward full metropolitan governments would also be made
more difficult by the application of the Reynolds principle. 45 Many
states are encouraging the voluntary consolidation of school districts,
but rural parents may be willing to duplicate expensive educational
facilities rather than join a consolidated school district in which, under
Reynolds standards, their area would have little influence. The choice,
in short, may be between a malapportioned consolidation and no consolidation at all, and the economic and social advantages of cooperation
may make the former a better choice in many situations.
D. ProceduralQuestions
i. Collateral Attack on Actions of a Malapportioned Municipal
Body. - This procedure has been attempted twice since Reynolds, but
has failed in both instances. In a case decided three days after Reynolds
a Michigan district court was asked to enjoin the authorization of a
sewage system and a bond issue to finance it by an allegedly malapportioned county board of supervisors. 46 The court held that plaintiffs had
narrowed the issue too far by asking only for the avoidance of a specific
legislative act, and upheld the act. Plaintiffs had argued that their city
lacked adequate representation in order to show that the resulting vote
on this particular measure, adverse to their city's interests, was a denial
of their equal protection rights; 47 they had not asked that the apportionment scheme of the county be declared unconstitutional. In dictum,
the court said that Tedesco was still binding precedent on municipal
apportionment questions and refused to undertake to set new standards
48
for Michigan counties until it was overruled.
More recently, an Illinois taxpayer made a similar attack on a
personal property tax levied by a county board, alleging that it was
40
unconstitutionally apportioned and therefore without power to tax.
The state supreme court held that under Illinois law de facto officeholders are vested with complete legal authority. It noted that all federal and state courts had assumed this, either explicitly or implicitly, in
ruling on the legitimacy of state legislative apportionment in postReynolds cases. Thus, even assuming that the county board's district" The Advisory Commission on Intergovernmental Relations seemed to recognize this problem by providing in its 1961 draft bill for the creation of metropolitan
service districts that representation on the governing board would be from the
participating municipalities as units. See Weinstein, supra note 23, at 37 n.67.
4
Johnson v. Genesee County, 232 F. Supp. 563 (E). Mich. 1964).
"Plaintiffs were residents of Flint, which had only 22 of the 93 board members, but contained the majority of the county population. On the vote in question,
only one Flint representative voted for the sewage district. 232 F. Supp. at 564.
48 See p. X273 supra.
49
People v. O'Neill, 33 El1. 2d x84, 21o N.E.2d 526 (g6g).

REAPPORTIONMENT

1966]

1281

ing scheme were found to be unconstitutional, all its prior legislative

acts would be valid. Two other state courts, while invalidating districting schemes for county boards on a Reynolds basis but permitting elections to be held under the old plans, have explicitly stated that the
newly elected boards would have de facto authority."
2. Three-Judge Federal Courts.-The
equity power of a federal
district court to enjoin state officials from acting under the authority of
unconstitutional 'state statutes may be exercised only by a three-judge
court. 51 But convening a three-judge court has been found unwarranted
where the state statute involved applied to only one locality 52 or a
local ordinance was in question. 53 Thus, in two post-Reynolds cases,
one involving a collateral attack on municipal legislative acts of purely
local concern 54 and the other involving the attempted invalidation of
the unique charter of New York City,5 5 petitions to convene threejudge courts have been dismissed. State statutes of general application
may specifically prescribe or permit municipal apportionment at variance with equal population standards. In some such cases, where a
state official was joined as a defendant, the "statewide application" test
has been considered to be satisfied.56 One three-judge court has retained
jurisdiction in a suit against a New York county board despite the failure
to join state officials as necessary parties, saying that dismissal "will
serve no useful purpose; the defect, if such, is remediable." '1 This
limitation on the powers of a single-judge court was enacted by Congress
to prevent state laws from being improvidently enjoined, and a direct
appeal to the Supreme Court was provided to permit a speedy, final
determination of the validity of the statute in question.58 It would
seem that if the rationale behind the adoption of this safeguard has
been held inapplicable to suits challenging the constitutionality of other
local ordinances, it should be held inapplicable when a municipal districting scheme is self-imposed, rather than adopted pursuant to a
specific state statute of general application. Considerations of judicial
economy, in an area where widespread litigation may be expected, would
likewise seem to dictate that such a scheme should be subject to constitutional attack in a single-judge court.
E. Remedies
Both state and federal courts have thus far been more lenient in setting deadlines for municipal reapportionment than for similar plans on the
o State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 132 N.W.2d 249 (1965);
Mauk v. Hoffman, 87 N.J. Super. 276, 2o9 A.2d iso (Ch. Div. 1965).
6 128 U.S.C. 2281 (1964).
12 See, e.g., Rorick v. Board of Comm'rs, 307 U.S. 208 (i939) (Frankfurter, J.)
(matter must be of "statewide concern").
'3 See, e.g., Borges v. Loftis, 87 F.2d 734 (9th Cir.), cert. denied, 3oi U.S. 687
(1931).

(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

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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.

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level, 68 and a weighted voting system has numerous inherent defects. 69

If one man, one vote is held to apply to municipal bodies, district lines
should be redrawn to meet this standard, even though this may have a
greater psychological impact on the electorate than the institution of
a fractional or weighted voting plan.
VIII.

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.

'HACKER, CONGRESsIoNAL DISTcINKG 55 (rev. ed. 1964).

2 See Dixon, Reapportionment in the Supreme Court and Congress: Constitutional Struggle for Fair Representation, 63 MIcHi. L. REv. 209, 226-27 (1964).
' Reynolds v. Sims, 377 U.S. 533, 581 (1964).
4379 U.S. 433, 439 (i96s).

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of legislative apportionment. Parties, as distinct from interest groups,

are inherent in the very mechanism of representative government, Because a person's vote normally must be translated into party votes
before it can have any impact, a realistic appraisal of the effectiveness
of an individual's vote needs to take account of whether political parties
have a fair opportunity to establish legislative majorities. When a
party is unfairly disadvantaged by a districting scheme, the effectiveness
of individual votes for that party is reduced.
2. The Problem of Standards.- Unlike the equal population stand-

ard for apportionment, no easily administrable standards exist by which

a districting scheme may be tested for gerrymandering. One possible
standard, suggested by Mr. Chief Justice Warren's dictum in Reynolds,0
is to determine whether the party that gained a majority of the seats
in the legislature also received a majority of the popular vote. However, in any situation where the winning party wins most of its seats
by slim margins while the losing party receives large pluralities in its
districts, the majority party in the legislature may not have won a
majority of the popular vote. Since such election results can just as
easily reflect natural population patterns as partisan districting, they
do not reveal whether gerrymandering has taken place. Nor is it possible to judge whether in a particular case the minority party has
received unduly small representation as a result of gerrymandering,
since the margin of legislative seats that a party wins tends to7 increase
geometrically with increases in the margin of its popular vote.
The Court suggested in Reynolds that in drawing district boundaries
the legislature could take political subdivisions into account in order to
avoid gerrymandering. Although political subdivisions may have little
intrinsic significance, often serving merely as arbitrary units of administration, they can provide an historically fixed limit on legislative discretion in drawing district boundaries. Therefore a districting scheme
that has followed political subdivision lines should be immune from
attack as a gerrymander unless the subdivision lines have been recently
redrawn." Because of the difficulties of creating equally apportioned
districts that follow subdivision lines, however, legislatures should be
free to choose some other guiding principle.
Traditionally it has been supposed that gerrymandering can be prevented by imposing standards of compactness and contiguity. In the
apportionment acts of igoi 9 and 1911, 10 Congress imposed these standards upon its own districting; subsequent legislation omitted the requirements." A contiguous district is one in which a person can go
from any point within the district to any other point without leaving
the district. Contiguity, while relatively easy to understand and apply,
KEY, PorIcs, PARTIES, & PRESSURE GROUPS 199-200 (Sth ed. 1964).
6 "[It would seem reasonable that a majority of the people of a State could

elect a majority of that State's legislators." 377 U.S. at 565.

7 DuvERGER, PoLrIcA. PARTIES 322 (rev. 2d Eng. ed. 1959).

'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).

x For a history of congressional apportionment, see Celler, Congressional Ap-

portionment -Past, Present, and Future, x7 LAW AND CONTFMP. PROB. 268 (z952).

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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).

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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).

9 376 U.S. 52 (1964).

20 211 F. Supp. 460, 461 (S.D.N.Y. x962).
21 376 U.S. at 56.
2 Judge Feinberg, concurring with Judge

Moore in the result, indicated a basic

difference of opinion between himself and Judge Moore. The latter's opinion, he
wrote, "in several places implies that it is necessary for plaintiffs to show not only
that the boundaries . . . were drawn on racial lines but also that there was some
other dilution or diminution of the plaintiffs' right to vote. I disagree with this
implication. If plaintiffs had proved that the district lines were constituted on a
racial basis, the fact that plaintiffs had an undiminished right to vote in such
gerrymandered districts would be irrelevant. The constitutional vice would be

1966]

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view appears to contradict some of the language in Gomillion and

Wright v. Rockefeller. Moreover, if this view were adopted it would
seem almost impossible ever to prove racial gerrymandering: who is to
say whether a Negro is helped or harmed by being placed in a predominantly Negro or predominantly white voting district? The intervenors maintained that a predominantly Negro district assured Negroes
of one congressman of their own race. Others might maintain that if
Negroes were a substantial minority in each of Manhattan's four dis23
tricts they would have greater voting power.
C. Gerrymanders in Multi-Member Districts
The Court warned in Fortson v. Dorsey that it might strike down
multi-member districts if "designedly or otherwise .. .under the circumstances of a particular case, [they] would operate to minimize or
cancel out the voting strength of racial or political elements of the
voting population." 2 4 But the standards that are generally applicable
for controlling gerrymanders in single-member districts are ineffective
as applied to plural-member constituencies. Gerrymandering can easily
take place without violating the norms of contiguity or compactness
and without disregarding political subdivisions, since the very act of
enlarging a district to include a greater population effectively submerges
minority racial and political groups. The difficulties of proving that the
legislature's reasons for employing multi-member districts were racial
seem virtually insurmountable, but it would be unrealistic not to recognize that the multi-member districting plan is a most convenient instrument for watering down the effect of group votes. A court can more
easily take notice of the effects of plural-member districts on party
representation, because parties can be distinguished from interest
25
It
groups as part of the mechanism of representative government.
should not be difficult, therefore, for a court to hold that a multimember districting plan is invalid where it clearly deprives a party of
representation it would have under a single-member district scheme.
This approach, however, depends upon the proposition that because of
the ease with which multi-member districts can be abused and because
of the difficulty of proving illegitimate legislative purpose in particular
cases, multi-member districts do not share equal constitutional status
with single-member districts. By treating multi-member districts as
constitutionally suspect, a court would also have greater freedom to
protect against suspected racial gerrymandering.2 6
use by the legislature of an impermissible standard, and the harm to plaintiffs that
need be shown is only that such a standard was used." 211 F. Supp. at 468.
" See Note, Wright v. Rockefeller and Legislative Gerrymanders: The Desegregation Decisions Plus a Problem of Proof, 72 YAxz Lj. 1041, 1052-53 (1963).
25379 U.S. 433, 439 (i96g).

2
See note 5 supra.
28 See pp. 1258-61 supra.