*1 v. CARR BAKER al. et al. et May 1, 1961. Argued 19-20, 1961. reargument April No. 6. Set Reargued 1961. Decided March October Rhyne Osborn, and Z. reargued Charles S. T. Jr. for appellants. cause With them on the briefs were Atkins, Jr., F. Jennings, Hobart Robert H. J. Ander- W. son, McClain, R. Chandler, Gilbert, C. Walter Harris A. E. K. E. Meacham and Herzel H. Plaine. Tennessee, Wilson, Attorney General
Jack Assistant him briefs appellees. the cause for on the reargued With *2 McCanless, George F. and Milton Attorney General, were Glasgow, Attorneys P. and M. Rice James Assistant General. Cox, by special Court,
Solicitor General leave of 365 States, for as 864, reargued U. S. the cause the United curiae, urging amicus him on briefs reversal. With the Attorney Marshall, Assist- Acting were Assistant General Doar, Terris, H. Attorney ant General Bruce J. Harold Greene, David and Howard Rubin A. Glickstein. curiae, of support appellants,
Briefs amici of were Edmondson, J. by filed Howard of Oklahoma, Governor Reynolds, Governor; and Norman E. Jr. for the ScottW. Miller, Jr. George Long and J. City for the of Mat- St. Kucera, Roger thews, Kentucky; Arnebergh, Henry P. Drinard, Shur, Brown, J. Elliott Barnett I. Alexander G. Nathaniel H. Goldstick Rhyne and Charles S. for the National H. Municipal Institute Law Officers; Eugene Nickerson and David M. English Levitan for John F. Upton Sisson, al.; Nixon, et Clare Hornsby, S. Walter L. Jr. John and Sekul for et Theo- al.; Marvin Fortner August dore Sachs Scholle. opinion delivered Justice the the Brennan
Mr. Court. civil
This action was brought under 42 U. S. C. 1983 §§ alleged and 1988 to redress the of federal deprivation rights. constitutional The complaint, alleging by of a apportioning means 1901 statute of Tennessee Assembly among members General the State’s counties,1 plaintiffs similarly “these situated, others Tennessee, (1901), Public Acts Ann. c. 122 now Tenn. Code appears 3-101 3-107. The full text 1901 Act amended §§ opinion, post, Appendix p. an to this them laws accorded equal of the protection are denied of the Amendment to the Constitution Fourteenth votes,” of their by virtue of the debasement States United under three-judge court convened was dismissed in Middle District of Tennessee.2 S. § U. C. 2281 matter subject jurisdiction of court held that it lacked relief could upon stated no claim was also that ju- noted probable F. 824. We Supp. granted. hold S. appeal. 898.3 We risdiction U. to the Dis- and remand the cause the dismissal was error, proceedings and further consistent trict for trial Court opinion. with this Assembly of Tennessee consists
The General Representa- with 33 members and House Senate *3 The Tennessee Constitution tives with 99 members. in II provides Art. as follows: Legislative of office.— authority-
“Sec. 3. —-Term of shall be Legislative authority The this State of Assembly, which shall consist vested in General depend- of Representatives, a Senate and House both for two ent on the who shall hold their offices people; years day general from the election. quali- 4. the
“Sec. Census.-—An enumeration of the voters, apportionment Representa- fied an of in Assembly, tives the General shall be made in the eight year seventy-one, one thousand hundred every years. and within term of subsequent ten Apportionment representatives. “Sec. 6. of —The Representatives number of at shall, the several three-judge pursuant court was to convened the order of single judge, who, after he district had reviewed certain decisions of distinguishable may Court and them found in features “that ulti mately prove significant,” complaint to be held the was not so obviously justified refusing without merit that he be would to three-judge Supp. 649, convene a court. 175 F. 652. argument again We heard first at 1960 Term and at this Term reargument. when the case was set over for S. 366 U. 907. making enumeration, apportioned of-
periods be districts, according the several counties or among qualified and shall not each; the number of voters seventy-five, until the population exceed State million shall one and shall never exceed half, be ninety-nine; Provided, any county having two- be, shall thirds of ratio entitled one member. Apportionment “Sec. senators. —The num- periods ber Senators shall, the several making enumeration, be apportioned among the or according several counties districts to the number qualified electors in and shall not each, exceed representatives. one-third the number of In appor- among the Senators tioning the different counties, may fraction that be lost or any county counties, apportionment of members to the House shall Representatives, up be made county such Senate, may practicable. counties as near as When a district is composed of two or more counties, they adjoining; county shall be and no shall be forming divided in a district.” Thus, Tennessee’s standard for allocating legislative representation among her counties is the total number qualified respective voters resident counties, subject only to qualifications.4 minor reapportionment Decennial
4 having county than, A of, less but at popu least two-thirds the required Representative Representa lation choose is allocated one Const., II, tive. See also Tenn. Art. 6. A common and much more § departure substantial the total-population from number-of-voters or guaranty county. standard is the of See, at least one seat to each Const., 2, 2; 4, 3, g., Const., e. Kansas Art. N. J. Art. 1.¶ § § speaks “quali- While the Tennessee Constitution the of number of voters,” complaint figures fied the exhibits to the attached use based persons years age of 21 on the number of and over. This basis seems employed Assembly legis- to have been the in apportioning General the providing lative seats from outset. The 1870 statute for the first (1st enumeration, Sess.), 107, Acts of 1870 c. the courts of directed 190 the constitutional scheme was effected compliance with Assembly each decade from 1871 to 1901. the General an preceded by 1870 apportionment5 1871
The apportion- The 1881 an enumeration.6 requiring statute authorizing the an statutes, three first ment involved 25 the from to enlarging the second Senate enumeration, “all the to select a Commissioner enumerate the several counties years respective counties, twenty-one their who are inhabitants of male age upward, be resident citizens of their counties on who shall Reports compiled day January, ...” in the several first 1871 Assembly by on this basis were submitted to the General counties Appendix Secretary apportionment. first and were used in the State 1871, figures J., Yet such would not reflect the Tenn. S. 41-43. persons qualified to exercise the franchise under the then- numbers (b) governing qualifications: (a) citizenship; residence in the State 12 (c) county months; payment of months, poll and in the 6 taxes for exemption. (2d preceding year 1870 unless entitled to Acts of (These qualifications Sess.), after c. 10. continued at least until 1901. Ann., (1896; 1904).) 1167, Supp. See Shan. Tenn. Code 1220 §§ Assembly Secretary Still, when the directed the of State to do General reports complete counties, all he could to obtain from the the Resolu- broadly impossibility spoke [redistricting] of . . tion of “the . without voting population county returns of from each . . .” the census . J., 1871, 46-47, figures Tenn. S. 96. The also showed a correla- figures reported tion with Federal Census for 1870. The Census 259,016 upward in male citizens 21 and Tennessee. Ninth Census of States, Population (1872). Statistics of the United Secretary Report, reported, with Tennessee of State’s counties gave figure 237,431. Using the numbers of actual votes gubernatorial counties, Secretary last election for those 15 arrived 250,025. J., 1871, at Appendix a total of to Tenn. S. 41-43. This subsequent history figures indicate continued reference to Census finally of a state abandonment enumeration favor of figures. 8, 9, Williams, of Census the use See notes See also infra. Tennessee, Legislative Apportionment 235, 236, L. 20 Tenn. Rev. appear contrary n. It 6. would therefore that unless there is a show- ing trial, appellants’ figures, current taken from United Reports, apposite. States Census are (1st Sess.), Acts c. 146. (1st Sess.), c. Acts
191 33 members and the House from 75 99 members, to apportioning the third Houses.7 membership of both In an apportion- 1891 there were both enumeration and an In Assembly sep- ment.8 1901 abandoned General arate in upon enumeration favor of reliance the Federal passed Census and in Apportionment Act here con- In troversy.9 than years more 60 since that action, all proposals in both Assembly Houses of the General reapportionment failed pass.10 have
7 authorizing (1st The statute the enumeration was Acts of 1881 Sess.), c. 124. The enumeration commissioners the counties were Reports allowed “access to the U. S. Census of the enumeration of 1880, County State, on file in the offices of the Court Clerks of the reports by legiti and a reference said said commissioners shall be auxiliary required mate Ibid., as an the enumeration . .” . . 4.§ reported 330,305 Census United States male citizens 21 and upward States, 1880, in Tennessee. The Tenth Census of the United (1883). Compendium Secretary Report 596 The Tennessee of State’s gave figure 343,817, (1st Sess.), 1881, Tenn. J.H. Extra. 12-14 (1882). Assembly enlarged
The General was with accordance the con- population passed 1,500,000. stitutional mandate since the State’s had (1st Sess.), 5; see, id., Ill; Acts of 1881 Extra. c. S. J. Res. No. States, see also Tenth Census 1880, of the United Statistics of Population (1881). apportioning The statute Assem- General bly (1st Sess.), Acts Extra. c. 6. 22; (Extra. 1891, Sess.), Acts of c. Acts of 1891 c. 10. Reference figures just 1881, United States Census was allowed as in see supra, reported 402,476 n. 7. The United States Census males 21 States, and over Tennessee. The Census Eleventh United 1890, Population (Part I) (1895). Secretary The Tennessee gave figure Report 399,575. J., 1891, State’s 1 Tenn. S. 473-474. 35; 9 Acts of S. J. Res. No. Acts of c. 122. The very Joint Resolution said: “The Federal census of 1900 has been recently taken and reference to said Federal census an accurate qualified respective enumeration of the voters of the counties of the thereby expense State of Tennessee can be ascertained and save the of an actual enumeration . . . .” history legislative apportionment Tennessee, For the includ ing attempts J., 1959, 909-930; made see since Tenn. S. *6 experienced has 1961, Tennessee and 1901
Between population. of and her growth redistribution substantial 487,380 of 2,020,616, whom In was population 1901 the reports Federal Census vote.11 The 1960 eligible were to whom are 2,092,891 of 3,567,089, population the State’s standings of the counties The relative eligible to vote.12 changed significantly. qualified voters have in terms of the of application is the continued 1901 primarily It enlarged voting to and Act this shifted Apportionment controversy. to gives present which rise the population statute, alleges that 1901 Indeed, complaint the apportion- of no passage, of the time its “made even as with Representatives ment and Senators accordance of arbitrarily . formula . . but instead , constitutional representatives in capriciously apportioned the Sen- any logical ate and without ... to or House reference 13 is alleged reasonable formula whatever.” It further Survey Legislative Apportionment and “A Documented of in Tennes- see, 1870-1957,” intervening as 2 exhibit to the attached complaint Mayor Nashville, prepared by of West of the Tennes- both Historian, preliminary see Examples Dr. Robert H. of State White. steps 1911, upon Redistricting are: In the Senate called Com- qualified mittee to make an of to enumeration voters and use 1911, Federal Census 1910 the basis. Acts of S. J. Res. No. 60, p. Similarly, 1961, appointment the Senate called for qualified a select committee to make an Acts enumeration voters. 1961, 1955, study J.S. Res. No. 47. In the Senate for a called id., reapportionment. 1955, J., 224; Tenn. S. but see at 1403. Similarly, 1961, Legislative directed House the State Council study reapportionment. methods of H. Acts Res. J. No. 65. (Part 1) States, 1900, Population Twelfth Census of United (Part 2) (1902). (1901); Population: United Population States Census of General Tennessee, (1961). Table 16 Characteristics — intervening In the words one of complaints, apportion “wholly arbitrary, and, indeed, lawfully ment upon . . . no based pertinent factor whatever.” changes of the population “because since Legislature reapportion
the failure of the itself since the 1901 statute became “unconstitutional 1901/'’ Appellants argue obsolete.” also that, because of the composition legislature Appor- effected the 1901 Act, tionment redress in the form of a state constitutional change amendment reappor- entire mechanism for tioning, any change other short of that, difficult or - impossible.14 complaint concludes plain that- “these *7 appellants Assembly claim that no General constituted according reapportionment proposals to the 1901 Act will -submit people either to the or to a Constitutional Convention. There is no provision popular proposed initiative in Tennessee. Amendments approved by in the House majority Senate or must first be of all again by members of each House and two-thirds of members in Assembly proposals next General chosen. The are then submitted people general to the at the next election in which a Governor is to Alternatively, legislature may be people chosen. submit to the any general question calling election the of a convention to consider specified proposals. adopted not, Such as are at a convention do however, approved by majority become effective unless of the qualified voting separately proposed change voters on each or amend by ment at an election fixed the convention. Conventions shall not years. Const., XI, held oftener than once in six ..be Tenn. Art. 3.§ 1951, 130, 3, 1957, 340, 3, provided Acts of c. and Acts of c. § § delegates 1953 and 1959 conventions were to be chosen from just the counties and floterial districts as are members of the State Representatives. Assembly’s House of The General call for a 1953 originally provision “relating Constitutional Convention contained a appointment representatives to the and senators” but this [sic] J., 1951, was excised. Tenn. H. 784. A Resolution introduced at reported unfavorably by the 1959 Constitutional Convention and the Rules Committee of Convention was as follows:
“By (of County), Mr. Chambliss Hamilton Resolution 12—No. considering reapportionment, Relative to Convention which is as follows: there is a rumor that this Limited Convention has
“Whereas, purpose postponing years been called for for six a Convention reapportionment; that would make a decision as to equal similarly are situated, denied the tiffs others by protection them the Fourteenth of the laws accorded by States Amendment to the Constitution United 15 They of their votes.” seek the debasement virtue of in Tennes- pending there is the United States Courts “Whereas, seeking, through decree, compel parties which are see a suit under reapportionment; and Convention, Limited it is said that this
“Whereas, consideration, yet a Constitutional Convention called for limited language Con- within of the Constitution to Constitutional forbidding frequent ventions, Conventions the last sentence Eleven, paragraph, second more often than each Article Section years, six to-wit: “ years.’ be ‘No Convention shall held oftener than once six such Be “Now, That it is the consensus of Resolved, Therefore, It opinion this is the members of this Convention since a Limited set another Convention as hereinbefore forth Convention could if with the matters submitted to this Limited had it did deal Convention.
“Be It Further opinion it is the That consensus of Resolved, Convention should Convention that a be called Gen- Assembly purpose considering reapportionment eral for the possibility being order that a of Court enforcement forced on the Sovereign of Tennessee the Courts the National State Govern- *8 may ment be avoided.
“Be It Further adjourned this be That Convention Resolved, again years two to at the same for meet time set forth in the providing Convention, for statute this and that it is the consensus opinion body power it is of this that within the of the next General Assembly powers of Tennessee to broaden the of this Convention and empower proper to and this authorize Convention to consider a provide, to the Constitution that will when amendment submitted electorate, reapportionment.” the Tenn. method Constitutional Debates, 35, Convention of The Journal and appellants’ It is that clear federal constitutional claims rest exclu sively alleged Fourteenth on violation the Amendment. Their Equal primary is the violates claim that 1901 statute the Protection allegations invoking Clause of that amendment. There are the Due argument appears Process but the Clause from the exhibits it argument the Due is Process Clause directed at certain tax validity the statutes. Insofar the claim involves of those statutes declaration that the statute unconstitutional an injunction restraining appellees acting the from any it. They pray conduct further elections under also that unless and until Assembly the General enacts valid District reapportionment, the Court should either decree a reapportionment by application mathematical of the Tennessee constitutional formulae to the most recent figures, appellees Federal Census or direct to conduct legislative large. elections, primary general, They pray also such and further may other relief as appropriate.
I. Opinion The District Court’s and Order of Dismissal. appeal Because we deal an with case on from order granted appellees’ motions, dismissal on identi- precise unnecessary under the Due Process we find it decide Clause its allegations regarding designed merits. And if the the tax statutes are proofs allegedly as the framework for as to the effects discrim- inatory upon apportionment, rely support need not we them to our holding complaint states a federal claim of constitutional Equal Whether, violation of Protection Clause. when the issue adequacy particular to be is one of the decided constitutional of this apportionment, arguments presented taxation and exhibits as now they anything, anything presented, or add whether could add however for the District Court in first instance to decide. complaint, to the under addition claims the Federal Con- alleges stitution, rights, Assembly’s duties, and the also General under appellants the Tennessee Constitution. Since we hold that have —if develops support allegations cog- it at trial that facts —a resting degree nizable federal constitutional of action in no cause on rights guaranteed putatively guaranteed by the Tennessee Con- consider, stitution, enforce, rights do not let alone we under a State go protections further than the Constitution of the Fourteenth Lastly, legal need significance, Amendment. we not assess reaching conclusion, complaint our statements that the *9 today apportionment “contrary effected under the 1901 Act is to the government philosophy Anglo-Saxon the United States and all jurisprudence . . .” . confronting us demands presently issues
fication the District which the grounds upon exposition clear order The dismissal dismissing case. rested in the Court grounds appellees’ sustained the that the court recited mat- subject jurisdiction lacks the “(1) that the Court upon complaint fails to state a claim (2) and the ter, that .” granted . . . which relief can be grounds the this, of a case such as recited setting In the two for dismissal: possible embrace reasons legal injury facts the alleged, First: the and That relied creating rights duties bases invoked as lan- sought, fail to come within that upon, the relief juris- III guage of Article of the Constitution and of concerning dictional which define those statutes matters empowered act; District are which United States Courts although cognizable matter That, Second: infringement appel- alleged facts are which establish rights legislative depart- lants’ as a result of state action from a will ing standard, federal constitutional the court proceed because matter is considered unsuited judicial inquiry adjustment. ground treat first
We of dismissal as “lack of juris- diction of subject matter.” The second consider we to result failure state a of action. justiciable cause The District Court’s dismissal order that it was recited in conformity issued with court’s per opinion. curiam opinion reveals the court rested dismissal its upon lack of subject-matter lack jurisdiction and justiciable cause of action without to dis- attempting tinguish grounds. between these noting After plaintiffs challenged the existing legislative apportionment under the Tennessee Due Process and Equal Protec- Clauses, tion and summarizing the supporting allegations and the relief requested, the court stated that
“The action is presently before the upon Court defendants’ motion to predicated upon dismiss three *10 jurisdiction lacks grounds: first, that the Court the fail matter; second, complaints that subject granted; can be upon a claim which relief to state defendants are indispensable party that and third, F. at 826. Supp., before the Court.” not turning action as on proceeded explain to its The court the distribution of presenting “question the case’s a For, strength legislative purposes.” political . . . Supreme “From a review of Court] [numerous rule, there can be no doubt that the federal decisions Supreme is applied Court, enunciated and a lack courts, juris- that the federal whether from inappropriateness subject diction or from the consideration, will intervene judicial matter for reappor- type compel legislative to cases of this F. at 826. Supp., tionment.” feasibility express doubts as to the The court went on to sought by plaintiffs. remedies possible of the various that its at Then it made clear Supp., 179 F. 827-828. that not of doubt violation dismissal reflected view impo- but of court’s rights alleged, constitutional tence to correct violation: plaintiffs’ argument legislature that the
“With violation of the state guilty clear Tennessee rights plaintiffs and of the constitution evil entirely agrees It also agrees. Court should be corrected without a serious one which situa- remedy even so the this delay. further But It long lie with the courts. clearly tion does not has doctrine that there recognized accepted and is been rights guaranteed the Constitu- are indeed some give the violation of the courts cannot tion for which F. at Supp., redress.” case, District treatment of the light of the Court’s
In (a) possessed that the court today only jurisdic- we hold matter; (b) justiciable that a cause of subject tion of would be entitled upon appellants is stated action raise appellees relief; (c) because appropriate have stand- Court, appellants that the issue before this statutes.16 apportionment the Tennessee ing challenge stage no cause noting that we have Beyond *11 if will be able to fashion relief doubt the District Court rights found, improper are it is of constitutional violations appropriate be most remedy now to consider what would if at the trial. appellants prevail H-{
1—1 op Subject Matter. Jurisdiction the cases was uncertain whether our District Court withholding upon rested a lack of judicial federal relief upon or of jurisdiction inappropriateness federal the the we have subject judicial matter consideration —what designated The distinction between “nonjusticiability.” grounds significant. the two is In the non jus- instance of ticiability, is wholly consideration of cause not the immediately foreclosed; inquiry the Court’s neces- rather, sarily proceeds point- deciding duty to the of whether asserted can and its judicially judi- be identified breach cially determined, protection right and whether for the asserted can In judicially be molded. the instance of jurisdiction lack of the cause does either not “arise under” Constitution, (or the Federal laws or treaties fall within one of the categories Ill, 2), other enumerated of Art. § controversy” or not “case or the meaning within of ; that section or the cause by any is not one described 208-237, jurisdictional statute. Our conclusion, pp. see infra, presents that cause justiciable no non “political question” only possible settles doubt that it is case controversy. heading or the present Under of “Jurisdic- question indispensable need parties We not reach of because yet the District Court has decided it.
tion the Subject only Matter” we hold that matter set complaint forth does arise under the Constitu- tion and is within 28 S. C. 1343. § U. III,
Article of the Federal Constitution provides § judicial that “The shall Power extend to all in Law Cases, arising Equity, under this Constitution, the Laws of made, United and Treaties or which States, shall be Authority under their . . .” made, . It is clear that the cause action one which “arises under” the Federal alleges Constitution. The complaint stat- that the 1901 ute an apportionment deprives effects the appellants equal protection the laws violation Fourteenth Amendment. Dismissal of the complaint upon ground of jurisdiction subject lack if claim would, therefore, justified only matter be absolutely were “so attenuated and unsubstantial as to merit,” Newbury Newburyport devoid Water Co. v. Hood, port, Bell “frivolous,” U. S. *12 678, U. S. 683.17 That the claim is unsubstantial must be “very plain.” Hart Keith Exchange, v. Vaudeville 271, obviously U. 274. Since the District Court S. correctly did deem the federal constitutional asserted claim unsubstantial it dis frivolous, should not have jurisdiction the want of of sub complaint missed for the ject matter. And of no course further consideration of the of claim is merits the relevant to determination of the jurisdiction court’s in subject of the matter. We said an earlier case . . . voting from Tennessee: “It obvious in court, dismissing that the for of was jurisdiction, want controlled what it deemed to be the want of merit complaint the averments which made were as to right. very the violation of the Federal But as the controversy Federal, and, therefore, nature of the was accuracy calling “jurisdictional” of even such dismissals questioned S., Hood. Bell v. See 327 U. 683. opinion of the court as
jurisdiction existed, whilst the fur- might of action have the cause the want merit it afforded dismissing reason, for that ground nished for that the action was not deciding ground no sufficient and laws of the United arising under the Constitution one 493. S. Templeton, v. U. States.” Swafford proper the failure to state is well settled “For it and not on the merits judgment of action calls for cause Hood, Bell jurisdiction.” for a dismissal for want of Exchange, v. Pathe Binderup also See U. S. 263 U. S. 305-308. arising plainly sets forth a case complaint
Since the subject matter is within Constitution, under so in Art. Ill, 2,§ defined judicial power federal assign jurisdiction to the power Congress within has exercised Congress Courts. of the District (3): C. power § 28 U. S. jurisdiction original shall have district courts
“The com- by law18 to be action authorized any civil depriva- . . . by any person redress menced [t]o ordinance, statute, any law, State tion, under color of usage, any right, privilege or custom regulation, Constitution immunity or secured . . . .”19 States United “Every provides: who, under color person 18 42 S. C. 1983 U. § usage, any or statute, ordinance, regulation, custom, State
any any subjected, citizen of Territory, subjects, or to be causes jurisdiction thereof person within the United States or other by the deprivation any rights, privileges, or immunities secured *13 injured laws, party in an action shall be liable to the Constitution and law, equity, proper proceeding for redress.” or other suit 19 jurisdiction frequently District Court This has sustained Court (3) suits predecessors its to entertain C. 1343 under 28 U. S. § against rights infringement deprivations of secured state redress Equal of the Fourteenth and Due Process Clauses Protection 201 An line precedents unbroken of our sustains federal subject courts’ of the federal jurisdiction matter of con- stitutional claims of this nature. The first cases involved redistricting for the purpose electing States Representatives Congress. the Federal When the Supreme Ohio legislation against Court sustained Ohio an attack repugnancy I, 4, to Art. Federal § of the Con- we affirmed on merits expressly refused stitution, want jurisdiction dismiss for “In ... of the view controversy subject-matter and the Federal char- acteristics . . ex which inhere it . .” Ohio rel. Davis v. 241 Hildebrant, 570. U. S. When the Minnesota Supreme enjoin Court the dismissal of a suit to affirmed Secretary acting State of Minnesota from under redistricting Minnesota legislation, we reviewed the con legislation stitutional merits of the reversed State Holm, Supreme Smiley Court. v. 355. And 285 U. S. see companion Appeals cases from New York Court Supreme Court, Flynn, and the Koenig Missouri v. 285 Becker, v. 375; U. S. Carroll 285 S. When a U. 380. under three-judge Court, exercising jurisdiction District C. predecessor (3), permanently § of 28 S. 1343 U. enjoined Mississippi officers of the State of from conduct ing Representatives Mississippi an under a election act, we the federal on redistricting questions reviewed Broom, v. merits and reversed the District Court. Wood 1, reversing Supp. 1 F. 134. A 287 S. similar decree U. jurisdiction Court, exercising of a District under the same act, concerning Kentucky redistricting statute, Douglas Jeannette, 157; v. v. Amendment. U. S. Stefanelli Minard, 117; Herndon, 536; S. Nixon cf. Nixon v. 273 U. U. S. 1; Condon, 73; Hughes, v. S. Snowden v. S. Smith v. U. U. 649; 167; Allwright, Pape, Egan S. v. Monroe U. S. U. Aurora, 365 U. S. *14 202 Hume, Mahan v. 287 the reversed. decree
reviewed 142.20 reversing Supp. 1 F. 575, S.U. Green, Colegrove 328 S. v. U. appellees refer
The jurisdie- lacked authority that the District Court Appellees misconceive subject matter. tion of contrary holding precisely was case. holding that par- reading of it. Seven members the Court to their many other cases in this in the decision. Unlike ticipated that there have assumed without discussion field which Colegrove opinions all three filed dis- jurisdiction, opinions expressing Two of the question. cussed majority, flatly held that Justices, views of four jurisdiction subject there was of the matter. Justice Mr. Douglas joined by and Mr. Justice Black Justice Mr. my Murphy judgment stated: “It the District predecessor had . . . jurisdiction ,” citing Court Hood, 1343 Bell (3), supra. 28 S. C. v. 328 § U. Mr. S., separately, U. at Justice Rutledge, writing 568. expressed agreement S., with this conclusion. 328 U. it Indeed, questionable n. is even opinion joined by of Mr. Justice Justices Frankfurter, jurisdiction doubted of the Burton, subject .Reed would have matter. Such doubt been inconsistent with \ professed willingness to turn the decision on either concurring Broom, v. majority or views Wood supra. S., at 551. U. subsequent Colegrove cases Several similar to have been summary per decided the Court in curiam statements. None was dismissed for of jurisdiction subject want Fortson, 675; matter. Cook v. 329 U. S. Turman v. brought Since that case was not to the Court until after the held, only Broom, election had been the Court Wood v. but cited citing mootness, Schwartz, also directed dismissal for Brownlow v. U. S. 216.
Duckworth, ibid.; Barrett, 804; Colegrove U. S. *15 Remmey 940; S. Supervisors, v. Board 339 Tedesco U. Peters, Smith, 936; 342 916; 342 Cox v. U. S. v. S.U. McCanless, Jordan, 912; 343 Kidd v. Anderson v. S.U. Gary, 991; 352 920; 362 v. S. U. S. U. Hartsfield Radford Sloan, Handley, S. 916; v. Matthews v. 361 U. U. S. 127.22 Colegrove cases with like opinions
Two decided after wise that matter of this suit is plainly imply subject within District In v. jurisdiction. MacDougall Court Green, U. S. the District Court dismissed for want had jurisdiction, which been invoked under 28 a (3), enjoin § U. S. C. suit to enforcement be requirement that nominees state-wide elections supported by petition signed a a minimum number persons from least 50 of the State’s 102 counties. disagreement This with that action is clear since Court’s a judgment Court affirmed after review of the merits and that claim particular concluded there was Peters, merit. without In South we v. 339 U. S. Georgia “county affirmed dismissal of an attack on the unit” system ground but founded our action that on plainly would not have been reached if the court lower lacked of the jurisdiction subject matter, allegedy which (3). existed under S. C. 1343 express § 28 U. words holding our that were “Federal consistently courts refuse to exercise their equity powers posing cases 21Compare Boeing King County, Co. S. 803 U. Aircraft (“the appeal jurisdiction”). for want dismissed See Coleman v. Miller, S. 307 U. 440. affirm, judgment Matthews did may be read as a dis jurisdiction, missal for want of Supp. However, 179 F. 470. ground motion affirm rested on also of failure to state claima upon granted. following, MacDougall relief Cf. could text on text, infra, p. v. Green. And see geographical from a distri arising state’s
political issues strength among political its subdivi electoral bution of S., sions.” 339 at 277. U. has of the jurisdiction District Court
We hold claim asserted subject matter federal constitutional complaint. in the
III.
Standing. A “pronounce any statute, court cannot either federal irrecon- States, void, of State or of the because United cilable Constitution, except upon with the as it called *16 adjudge legal rights litigants to the of actual contro- Liverpool Steamship versies.” Co. v. Commissioners of Emigration, 113 the appellants U. S. Have alleged personal of such stake the outcome the con- troversy as to assure concrete adverseness sharpens of court presentation upon the issues which the largely depends so for illumination constitu- of difficult questions? gist question tional This is the of of the is, course, question It of standing. of federal law. The complaint Davidson, was filed of residents Hamilton, Knox, Montgomery, Shelby and Counties. Each person allegedly qualified is a to vote members of the Assembly county.23 General his These representing appellants sued “on their own and on behalf behalf of all qualified respective counties, voters of their and fur ther, on of all behalf voters of the State of who Tennessee 23 Mayor suing The of Nashville “on behalf of all himself and City Nashville, County, residents of the of . Davidson . and the Chattanooga (Hamilton County) (Knox Cities of and Knoxville suing County), on residents, permitted each behalf of its were to parties plaintiff. they press intervene as Since the same claims unnecessary as do plaintiffs, the initial we find it to decide whether standing the intervenors would have maintain this action in their representative capacities. asserted situated . . . are similarly appellees
are The the Secretary Attorney General, Tennessee of Coordi- State, of of Elections, nator members the State Board of and members are Elections; the of the State Board sued their own and also the right representatives County of they appoint.25 Commissioners whom Election complaint appellants also contains averment an that the sue “on their own behalf and on all other the voters in State of of behalf (Emphasis added.) may Tennessee.” This be read to assert a allegedly over-represented claim that voters in counties in the Gen Assembly standing complain. necessary eral have But it not also is question to decide that in this case. respective appellees alleged The duties the are be as of follows: “Defendant, Carr, duly elected, qualified acting C. is and Joe Secretary Tennessee, of the State State of with his office Nash- State, charged duty ville in said and as such he with the of fur- nishing blanks, envelopes slips County and information to the Elec- Commissioners, certifying maintaining tion the results elections and thereof; together charged, and he ex records is further officio with Attorney General, examining duty Governor and with the County the election returns received from Commis- Election declaring results, by provisions sioners applicable .election Annotated, Chapter Code Tennessee 164 of the Acts inter alia. George McCanless, “Defendant, duly appointed F. is the and act- ing Attorney Tennessee, General State with his office in State, charged duty advising Nashville in with the said *17 upon law, by officers of the the and is State made 23-1107 Section necessary party any of the Code Tennessee Annotated a defendant in declaratory judgment constitutionality action where of the statutes of attacked, charged, the State of Tennessee is and he is ex-officio together Secretary State, duty with the Governor and of with the the declaring results, of the election Section the Tennessee under 2-140 of Code Annotated. Jerry
“Defendant, McDonald, duly appointed the is Coordinator Tennessee, of Nashville, Elections in the State of with his in office suph Tennessee, official, charged and as with set the duties forth public by Assembly the enacted of law the 1959 General Tennessee creating said office.
“Defendants, Coward, Alexander, Dr. Sam James and Hubert duly qualified appointed constituting Brooks are the and members standing to main- do have appellants that the We hold this con- plainly support decisions tain this suit. Our have assumed rather than Many the cases clusion. of the merits of deciding premise articulated the similar Green, squarely held Colegrove supra, And v. claims.26 to allege disadvantage facts that who showing voters standing to sue.27 A num- as individuals have themselves they charged Elections, the Board of and as such are with State duty appointing all the of the Election Commissioners for counties Tennessee, organization supervision of the of the of and State Tennessee, provided Chapter of biennial elections the Statutes Annotated, 2-901, seq. of the Tennessee Code et Title 2 of Sections brought against the “That this action is aforenamed defendants representative capacities, their and that said Election Commissioners County representatives are all of the Election Com- sued also as of Tennessee, persons being in the of such so numerous missioners State impracticable bring court; as to it to them all make before involved, question namely, there of law the constitu- is a common Annotated, tionality set forth in the Tennessee Code of Tennessee laws through 3-109, inclusive; Section 3-101 Section that common relief against sought of Election in their all members said Commissions County being capacities, it official duties aforesaid Election respective Commissioners, jurisdictions, appoint within their to judges elections, registry qualified maintain the voters of said to County County, certify the results of elections held in said to the State, Secretary State of Elections and and of defendants Board preparing taking prepare steps ballots other for and and hold elec- seq. 2-1201, tions in said Counties virtue of Sections et Tennes- Annotated, 2-301, seq. see Code and Section et of Tennessee Code Annotated, Chapter 164 of the Acts inter alia.” question parties whether named defendants are sufficient open for on remains consideration remand. 26Smiley Holm, supra, (“ citizen, taxpayer’ v. at 361 elector (“ State”); Koenig Flynn, supra, at 379 v. 'citizens voters’ of Broom, (“citizen State”) supra, Mississippi, Wood at 4 v. qualified laws, qualified elector under its and also be a candidate for supra representative Congress”); Becker, election as cf. Carroll v. (candidate office). Rutledge question any Mr. Justice was of view that of stand Smiley supra; Holm, ing MR. was settled Justice BlacK stated standing appellants sue, alleged “that had since the facts show
207 Colegrove recognized of decided after ber cases stand- involved to ing bring the voters there those actions.28 protect These seek appellants relief order to vindi- an own, cate interest their those similarly situated. Their claim inis, substance, constitutional that arbitrary capricious the 1901 statute constitutes state action, offensive the Fourteenth Amendment its disregard irrational standard of apportionment pre- by scribed any standard, State’s Constitution or of effecting gross a disproportion representation voting population. appellants injury assert is that this classification disfavors the voters the counties they in which reside, placing them in a position of constitutionally unjustifiable inequality vis-á-vis voters they injured have been as individuals.” He relied on v. Coleman Miller, 438, 433, 564, 307 S. See U. 328 U. S. 568. suggested following
Commentators have statement opinion might imply appel- a view that Mr. Justice Frankfurter’s standing: lants there had no “This is not an action to recover for damage discriminatory plaintiff because of the exclusion from rights enjoyed other citizens. The basis for the suit not wrong, private wrong polity.” but suffered as a Illinois S., Jaffe, Standing U. 552. See to Secure Judicial Review: Public Actions, 74 Harv. (1961); Lewis, Legislative Rev. L. Apportionment Courts, and the Federal Harv. L. Rev. 1081- (1958). opinion goes But since the merits, on to consider the it seems that this statement any intended to view intimate plaintiffs standing. in that action lacked Nor do the cases cited immediately quotation after standing. the above deal with See especially Wilson, Lane v. 307 U. S. 272-273. 28MacDougall Green, (“the supra, ‘Progressive Party,’ v. at 282 its nominees Senator, for United Electors, States Presidential State offices, voters”); Peters, and several supra, Illinois South v. at 277 (“residents populous county State”); most in v. Radford Gary, Supp. 541, (“citizen 145 F. of Oklahoma and resident and populous county”); Handley, voter the most supra Matthews v. (“citizen State”); (No. see Hawke v. 1), also Smith 253 U. S. 221; Garnett, Leser 130; v. S. Miller, U. Coleman 307 U. S. 433, 437-446.
208 to a right A citizen’s counties. irrationally favored action has been impairment by state arbitrary free
vote by the Constitu- right as a secured recognized judicially by a from dilution resulted impairment such tion, when Classic, 299; or 313 S. States v. U. tally, cf. United false pre- arbitrarily from selected count votes by a refusal to byor Mosley, U. S. 238 cincts, cf. United States v. Siebold, U. S. parte Ex 100 box, of the ballot cf. stuffing 322 Saylor, U. S. 371; United States v. appellants’, to whether necessary
It be decide would not appor 1901 votes allegations impairment their relief, in any to entitle them will, ultimately, tionment If they to seek it. such standing have order to hold they produce legally cognizable injury, impairment does They it. are assert among are those who have sustained maintaining adequate “a interest ing plain, direct Miller, votes,” of their Coleman 307 the effectiveness v. merely possessed a claim of S., right, at not “the U. every citizen, to be require Government according law . . .” administered . Fairchild v. Garnett, Hughes, 126, 129; compare S. Leser 258 U. v. They hearing to a and to Dis S. 130. are entitled U. very trict Court’s decision on their claims. “The essence liberty certainly right every of civil consists in indi protection to claim the whenever laws, vidual he Cranch 137, 163. Madison, Marbury an injury.” receives v. IV. Justiciability.
In holding that the matter subject of this suit was not District justiciable, Court on Colegrove relied v. Green, supra, subsequent per curiam cases.2 The Fortson, v. 675; ibid.; Cook 329 U. Duckworth, S. Turman v. Colegrove Barrett, 804; v. MacDougall Green, 330 U. S. v. 335 U. S. 281; Peters, 276; Remmey Smith, v. South 916; 339 U. S. 342 U. S. decisions there can “From a review of these stated: court ... is that the federal rule no doubt that the federal type cases of this . intervene in . . will courts F. Supp., compel legislative reapportionment.” District Court to have read understand the 826. We conclusion that since compelling the cited cases sought legislative apportion- have a appellants unconstitutional, presented “politi- held their suit ment *20 question” and was therefore We nonjusticiable. cal ( no presents that to an challenge apportionment hold this do nonjusticiable “political question.” The cited cases hold contrary. the protection course the mere fact that suit Of the seeks political right a presents political of a does not mean it question. an little than a objection play Such “is more Herndon, words.” Nixon S. upon v. 540. U. Rather, argued it apportionment cases, is that what- wording the ever actual the can complaint, involve federal right except resting no constitutional one on the guaranty republican government,30 of a form of and that complaints on present based that clause have been to held political questions which are nonjusticiable. hold that pleaded
We
the claim
here neither rests upon
implicates
Guaranty
nor
the
Clause and that
its justici-
ability is
therefore not foreclosed
our decisions of cases
involving that clause. The District Court misinter-
preted Colegrove v. Green and other decisions of this
on which
Court
it
Appellants’
they
relied.
claim that
being
are
equal protection
denied
is
if
justiciable, and
Jordan,
Anderson v.
912;
McCanless,
920;
343 U. S.
Kidd v.
352 U. S.
Gary,
v.
Our even of political question of number opinion, requires review cases, expose attributes of doctrine— order settings, diverge, combine, which, in various attributes in seeming disorderliness. Since appear, disappear solely is undertaken demonstrate review do singly collectively support neither nor these cases non apportionment justiciable, conclusion that this case is explore implications we of course do not their other *21 Guaranty That reveals that in the contexts. review “political cases, and in the question” Clause cases other relationship it is between the the judiciary the and the Government, coordinate branches of Federal and not relationship the to judiciary’s federal the States, gives question.” to the “political rise “In
We have said determining that whether question political question] falls within category, appro- the [the system under our government attributing riateness of of finality political to the action of the departments and also satisfactory for a judicial the lack of criteria determination are dominant Miller, considerations.” Coleman v. S. 454-455. The U. nonjusticiability of a politi- question primarily cal a function separation of the Much powers. of confusion results from the capacity of “political question” the label to obscure the need case-by-case Deciding a matter has inquiry. whether Constitution to in committed the any measure been or of government, whether the action another branch com- has been authority exceeds whatever branch inter- mitted, is itself a delicate exercise constitutional responsibility and of this Court as ultimate pretation, To this interpreter of the Constitution. demonstrate and analyze representative no less than to cases requires up to from the that make analytical infer them threads doctrine. then show that political question We shall none of those threads catches case.
Foreign relations: are to sweeping There statements questions foreign the effect that all are touching relations political questions.31 only such Not does resolution of turn on frequently defy issues standards that judicial application, or involve exercise of a discretion demon- to strably committed the executive or but legislature;32 many questions single-voiced such uniquely demand state- ment of the it sup- Government’s views.33 Yet is error to pose every controversy case foreign which touches beyond judicial cognizance. relations lies Our cases invariably this field seem a discriminating analysis show particular of the question posed, history terms of management by its political branches, suscepti- its bility judicial handling light in the its nature posture specific case, possible conse- g., foreign 31 E. “The conduct of the relations our Government is committed Legislative— Constitution to the Executive and political’ Departments 'the Government, propriety — may what be done political power exercise of this is not subject judicial inquiry Oetjen or decision.” v. Central Leather *22 Co., 297, 246 U. S. 302. 32 Braden, Taylor Doe v. 635, 657; See 16 Morton, How. v. 23 Fed. Cas., 13,799 (C. (Mr. Mass.) No. C. D. Curtis), affirmed, Justice 2 Black 481. 33 Braden, 635, See Doe v. 16 How. 657.
212 though court example, For judicial action.
quences treaty has been ter- inquire whether ordinarily will not action . . . minated, question “governmental since on if controlling importance,” as of there regarded must be then a action” court “governmental has no conclusive been treaty may provides find it the answer. can construe a Ames, 285, with 270, Terlinden v. 184 S.U. Compare Gospel Foreign Propagation Society Haven, Though 464, v. New 8 Wheat. 492-495.34 Parts treaty in a to construe a court will not undertake statute, a subsequent inconsistent with federal manner if asserted clash with hesitancy no similar obtains Robertson, 124 Whitney S. Compare law. v. U. state Oregon, 366 187. 190, Kolovrat v. U. S. with recognition foreign governments strongly so While recog- that without judicial defies treatment executive foreign republic nition a state has been “a of whose called we ordinar- nothing,” judiciary existence know and the ily as to has follows the which nation sover- executive eignty disputed territory,36 sovereignty over once over an area politically declared, may determined and courts resulting independently examine status and decide applies Similarly, whether a statute to that area.37 recog- nition belligerency responsi- abroad is an executive if but bility, proclamations the executive fall short of an explicit answer, may a court construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have And see Clark v. Allen, S. 331 U. 503. 144, United States v. Klintock, 149; Wheat. see also United States v. 3 Wheat. Palmer, 634-635. v. 253, 307; Pet. and see Williams v. Neilson, Foster & Elam 13 Pet. Co., Insurance Suffolk 37 Vermilya-Brown 377, 380; Connell, v. 335 U. S. Co. De Lima 182 U. S. Bidwell, 180-200.
213
Friends,
The Three
1, 63,
166
S.
U.
operative.
become
it is
executive that deter
again, though
66. Still
representative
foreign gov
of a
person’s
mines
status
Hitz, 111
parte
Ex
766,
S.
the executive’s
ernment,
U.
necessary to
statements will be construed where
determine
Baiz,
In re
jurisdiction,
the court’s
(rent control)
may
criteria for decision
clearly definable
Further,
falls
political question
In
case the
barrier
available.
such
an
liberty
eyes
not at
to shut its
away:
Court is
“[A]
*24
depends
validity
when the
of the law
mistake,
obvious
what
is declared.
...
upon the truth of
[It can]
which the
inquire
exigency
upon
whether the
still existed
operation
depended.”
continued
of the law
Chastleton
Sinclair,
Corp.
Compare
S.
547-548.40
v.
U.
Co.,
hand,
Miller
Woods v.
Validity
enactments:
In
Miller,
Coleman v.
supra,
this Court held
questions
long proposed
that the
how
amendment
open
Federal
remained
Constitution
ratification, and
a prior rejection
what effect
had on a
subsequent ratification,
congressional
were committed to
resolution and involved criteria of decision that neces-
sarily escaped
judicial grasp.41
Similar considerations
apply
enacting process:
to the
respect
coequal
“The
due to
independent
departments,” and
finality
the need for
certainty
about the status of a statute contribute to
judicial reluctance to inquire whether, as passed, it com-
plied
all requisite
Clark,
with
formalities. Field v.
649, 672, 676-677;
Garnett,
U. S.
see Leser v.
258 U. S.
130, 137. But it is not true that courts will never delve
Mott, supra.
Contrast Martin v.
40But cf. Dakota Central Tel.
Dakota,
Co. South
260 U. S.
184, 187.
Gloss,
Cf. Dillon v.
into
upon
quest:
records
such a
If enrolled statute lacks an effective
date,
court will not
hesitate to
legislative
seek it
journals in order
to preserve
Collector,
the enactment. Gardner v. The
Wall. 499.
political
question doctrine, a tool for
governmental
maintenance of
will
order,
applied
not be so
promote only
disorder.
The status
Indian tribes: This Court’s deference to
political departments
in determining whether Indians
are recognized as a tribe, while it reflects familiar attri-
political
butes of
questions,42 United States v. Holliday,
any They label. not stand heedless extension will impotent manifestly before an instance of a obvious power. unauthorized exercise of It is apparent vary that several formulations which slightly according settings questions to the which the may political although arise describe a each question, identify essentially has one or more elements which it as powers. a of the Prominent on separation function any political ques- the surface of case held to involve a textually tion is demonstrable constitutional found political depart- commitment of the issue to a coordinate manageable ment; or a lack of discoverable judicially resolving it; impossibility deciding standards for or clearly an initial a kind policy without determination of nonjudicial discretion; impossibility for or the of a court’s undertaking resolution independent expressing without respect government; lack of the due coordinate branches of an unquestioning unusual need for adherence to political already made; potentiality decision or the pronouncements embarrassment from multifarious departments question. various on one these formulations is inextricable from Unless one of case at there should be no dismissal for non- bar, ground political question’s pres- on the of a justiciability “political The doctrine of which we treat is one of ence. “political cases.” The courts can- questions,” not one of controversy suit” a bona fide as to reject not “no law “political” some action denominated exceeds whether authority. The cases we have reviewed constitutional discriminating inquiry into the necessity show the particular case, and the precise posture facts by any cataloguing. semantic impossibility of resolution it is that this case shares characteristics argued But category yet considered, decisions that constitute Art. concerning guaranty, IY, cases Constitution’s *27 A conclusion government. form of republican § of a ques- present political at bar does as to whether case con- have confidently reached until we tion cannot be discover special cases care. shall sidered those with We claims those elements Guaranty that Clause involve “political for that reason question,” define a and which they nonjusticiable. other, particular, and no are In we non of such claims has justiciability shall discover touching upon do with matters of state nothing to their organization. governmental Borden, government:
Republican Luther v. form of though simply damages form an for How. action trespass was, for as Daniel Webster in opening said argument for the “an unusual case.”44 The defense, defendants, admitting an otherwise breaking tortious entering, sought ground their justify action on the they agents govern- were established lawful of Rhode State mar- Island, ment was then under tial insurrection; law to defend itself from active that the plaintiff engaged they in that insurrection; and that plaintiff. entered under orders to arrest The case political arose “out of the unfortunate differences which agitated people Island in 1842,” Rhode 1841 and How., and which had in a resulted situation groups competing wherein two laid recognition claims to government.45 right as the lawful The plaintiff’s 44 How., Writings Speeches at 29. see 11 The And of Daniel (1903). Webster 45 Mowry, (1901), bibliog The See Dorr War its exhaustive raphy. surrounding And for an the deei- account circumstances here, Warren, Supreme History see 2 cion Court in United States (Rev. ed.), 185-195. himself,
Dorr head groups of one of the two in a and held Rhode jail treason, under a sought Island for conviction had earlier a deci- Supreme government. from the that his was sion Court the lawful application original corpus Supreme His habeas Court was *28 two depended groups which of the was upon recover the lower court’s refusal recognition; to such but entitled its issue, hear on argument that to receive evidence “charter” the earlier established or charge jury to the that defendants, for the and the verdict lawful, was government appeal to this Court. upon were affirmed opinion for the Court reasoned Taney’s Justice Chief to hold the defendants’ If a court were (1) as follows: had no government the charter because unjustified acts in question, it would during period the legal existence enacted, government’s actions —laws follow all of that sentences settled, accounts collected, paid, taxes salaries who effect; and that “the officers of no passed —were into answerable operation carried their decisions [were] There in some as criminals.”46 if not cases trespassers, any of for of doctrine application no room was, course, an acts of officer uphold prior status to de facto such have defeated jure, de for would authorized plaintiff A for would action. decision plaintiff’s very measure significant inevitably produced have some if it be done to be avoided could chaos, consequence duty uphold judicial abnegation without Constitution. respon- judicial had as a recognized No state court
(2) gov- locus of state sibility settlement of issue Island authority. Indeed, the courts Rhode ernmental politi- with the held that rested had several cases “it had government whether the charter power cal to decide department had not,” and that displaced or been acknowledged change. no authority issue federal courts then lacked because the denied parte Ex under a state court sentence. prisoner for a held
habeas
Dorr,
46 7 altogether, to the relates, (3) question Since “[t]he courts of State,” . . . constitution and laws [the] courts’ decisions had to follow the state States United for ground there a federal constitutional unless overturning them.47 or had
(4) of the Constitution could be provision No Art. purpose except § been invoked for this IV, already noted the absence Guaranty Having Clause. whereby could governments standards the choice between acting independently, a court Chief Justice be made reasons Taney practical now found further textual and that, any department if concluding United *29 Guaranty the resolve empowered States was Clause to issue, judiciary: the it was not the this article of the Constitution it rests
“Under Congress government with to decide what is the established one in a For as the State. United guarantee a republican govern- States to each State ment, Congress necessarily gov- must decide what in is established the it can ernment State before republican whether it is or not. And determine representatives when the senators and of a State are authority into Union, admitted the councils of the the government they appointed, of the under which are republican recognized by as as its is character, well authority. proper constitutional And its decision binding every department govern- on other of the ment, questioned judicial and could not be tri- bunal. It is true that the contest this case did not long enough bring issue; last the matter to this Congress upon and . . . was not called to decide the controversy. right Yet the is placed there, decide and not the courts.
47Id., as relates to the clause the above-
“So, too, Constitution, providing mentioned article of the It Congress, cases of domestic violence. rested with the means to be too, upon proper to determine [B]y . . . adopted guarantee. to fulfill this February 1795, [Congress] provided, that, act of ‘in an in any against case of insurrection State government it shall be lawful for the Presi- thereof, States, application legis- dent of the on of the United lature such (when State or of executive legislature convened), be to call forth such cannot any States, number of the militia of other State or may may applied for, judge as he sufficient to suppress such insurrection.’
“By act, power deciding whether the had exigency upon government arisen which the given is bound to interfere, the United States . . . the President. has
“After the President acted and out called militia, is a States Circuit Court United inquire authorized to whether his decision far, ... If extends so right? judicial power guarantee contained the Constitution of the guarantee anarchy, States is and not United *30 . . . order.
“It is true that in this case the militia were not by But upon applica- called out the President. the governor government, tion of the under the charter recognized the President him power as the executive State, and the took measures to call out the militia support authority his if it should be found neces- sary general government for the to interfere . . . . [C]ertainly no court of the States, United with a knowledge of this decision, would have been justified in recognizing opposing the as party gov- the lawful foreign nations, the ernment .... In the case always President is government acknowledged by How., in recognized justice. the courts . . at 42-44. by several factors
Clearly, thought were Court Luther the com- question “political’': to make the there mitment to the other branches of the decision as to which action government; unambiguous the lawful state recognizing government the charter President, authority; finality as the lawful the need for and lack decision; executive’s of criteria which a government court could determine which form of was republican.48 though legislative Even the Court wrote of unrestrained authority making Guaranty, thus
executive under its enforce question, political plainly implied political ment a the Court that the question govern “Unquestionably military was no barrier absolute: ment, government permanent State, established as the would republican duty government, not be a it be the and would of Con gress How., course, to overthrow it.” 7 at 45. Of it does not neces sarily Congress act, if follow that did not the Court would. For while judiciary might meaning be able to of the decide limits “republican form,” might thus the factor of lack of criteria fall away, possible there would remain other barriers to because decision primary branch, commitment to another which would have to particular setting presented. in the considered fact only That was not the occasion on which this Court indicated that Guaranty’s lack of criteria does not obliterate the extreme limits: guaranty republican government. “The partic- is of a form of No government designated republican, ular as is the neither exact form guaranteed, any especially designated. Here, to be manner inas parts instrument, compelled other of the we are to resort elsewhere to ascertain what was intended. guaranty necessarily implies duty part
“The
on the
government.
provide
States
themselves
such a
All the States had
governments
adopted.
people
when the
In
Constitution
all the
through
participated
extent,
representatives
to some
their
elected
specially provided.
governments
the manner
These
the Constitution
change. They
accepted precisely
they were,
did not
were
it
*31
only significance
But the
that Luther could have for
purposes
our immediate
its holding
Guaranty
is
that the
repository
judicially manageable
Clause
stand-
independently
ards which a court could utilize
order to
identify
government.
lawful
has
State’s
Court
Guaranty
since refused to resort
to the
Clause—which
had
the purpose
alone
been invoked for
the source of a
—as
invalidating
constitutional standard
action. See
for
state
Taylor
(No.
& Marshall v. Beckham
1),
In re upheld against S. 139 U. a murder conviction invalidly a claim that the relevant codes had been enacted. The Court there said:
“By Constitution, republican government guar- form of every Union, distinguishing anteed to State in the and the feature of right people form is the to choose their own officers governmental administration, pass their own laws in virtue of legislative reposed power representative bodies, legiti- whose may people themselves; mate but, acts said be those of the people political power, while the are thus the govern- source of their ments, State, been constitutions, National have limited written they thereby have power, themselves set bounds to their own against impulses majorities.” S., sudden of mere 139 U. any But principles the Court did not find of these fundamental violated.
224 that Dye, (claim 250 231 U. S. v. Marshall
justiciable); negated procedure amendment Indiana’s constitutional v. non O’Neill justiciable); held government republican delegation to court that Leamer, (claim 244 239 U. S. gov negated republican drainage districts power to form Hildebrant, ex rel. Davis v. “futile”); Ohio ernment held reappor of state that invalidation (claim 241 S. 565 U. gov republican negates referendum per statute tionment Timber Co. justiciable);49 Mountain non ernment held com (claim 243 219 that workmen’s Washington, U. S. v. government nonjusti- held republican pensation violates Park Metropolitan Akron Bryant ex rel. v. ciable); Ohio District, (claim requiring that rule invalida U. S. 74 negated court justice all one state by tion of statute but Highland nonjusticiable); held government republican delega Agnew, (claim S. that Dairy Farms v. U. milk agency prices to control violated power tion to rejected). republican government, consistently challenge has held that a Just as the Court Guaranty presents Clause no to state action based on same justiciable held, so has and for the rea- question it congressional ground on the sons, challenges that action present with clause inconsistency justiciable that no Stanton, 6 State question. Georgia In Wall. enjoin an bill to execution of the sought original claiming possessed it Acts, already that Reconstruction every republican State, political, legal, “A consti- and that enforcement of tutional, juridical sense,” keeping guaranty against Acts “Instead new government by foreign of its invaders forcible overthrow gov- insurgents, destroying very ... that or domestic 50 Congress clearly had ernment force.” refused (No. 221; 1), Smith S. National But cf. Hawke v. 253 U. Cases, 253 Prohibition U. S. 350. 50 Wall., 65, 66. government
recognize republican character of the suing only- It to the that State.51 seemed Court be presented constitutional claim could was under Clause, Congress having Guaranty determined required the effects of recent hostilities extraor- of a dinary governments republican measures restore Congress' this Court refused to action form, interfere with *33 relying very guaranty.52 at the behest of a claimant on that only In a has Art. few other cases the Court considered in IY, 4, congressional to relation action. It has refused § on a pass relying Guaranty to claim on the Clause to Congress power establish that allow the States lacked to to employ passing legislation the referendum on redis- tricting congressional for ex rel. v. seats. Ohio Davis Hildebrant, pointed And it has out Con- supra. that gress required is not to republican government establish before they States, the territories become and before they population have attained sufficient to warrant opened: legal The First Reconstruction Act no State “Whereas governments . . . exists in the now rebel of . . . Geor States [sic] gia Mississippi ; necessary peace . . . and whereas it is [and] good loyal order be should enforced said States until republican governments legally State can established: . . .” Stat. 428. And see 15 Stat. 14. 52 Mississippi Johnson, sought In v. 4 Wall. the State to enjoin executing alleging from Acts, the President role that his purely The held ministerial. Court that the duties were no ministerial, although sought compel sense and that inac State action, precedent any tion than rather absolute lack of for such “general principles distinction left the one in case which . forbid . . judicial interference with the exercise Executive discretion.” 4 Wall., Mississippi Stanton, 499. 554; See also 154 U. S. and see 2 Warren, Supreme History (Rev. ed.), Court in United States congressional challenged
For another instance of
action
as trans-
Guaranty
gressing
Clause,
Day,
see The Collector v.
11 Wall.
113, 125-126, overruled,
O’Keefe,
Graves v.
popularly elected (dictum).53 244, 278-279 S.U. our whether inquiry come, to the ultimate
We finally, “politi- justiciable as non to what constitutes precedents the umbrella us under bring the case before question” cal note whether beginning A natural is to doctrine. been which we have common characteristics any of the present. are descriptively identify label able to consistency of here is the question none: The findWe have no Federal Constitution. We state action with the branch by a decided, political or to be question decided, risk Nor do we coequal with this Court. government grave dis- government abroad, of our embarrassment with Tennessee if we take issue turbance at home54 challenged. constitutionality Nor of her action here action, in this appellants, order succeed need the upon policy ask to enter determinations the Court are Judi- judicially manageable lacking. standards *34 Equal cial standards under the Protection Clause are developed familiar, open well and and it has been to courts Amend- since the enactment the Fourteenth determine, if on particular they must, ment to facts simply that discrimination reflects no but policy, capricious and arbitrary action.
This
does,
case
in one sense, involve the allocation
political power
within a
State,
appellants
hand,
implication
Guaranty
On
other
in a
Clause
concerning congressional
always preclude judicial
case
action does not
gives Congress
power
action.
It has been held that
the clause
no
impose
upon
to
restrictions
a State’s admission which would under
equal
cut
the constitutional mandate that
the States be on an
footing. Coyle
Smith,
White,
v.
U. S.
And
Texas
v.
700, although Congress
7 Wall.
gov
determined
had
that the State’s
republican
form,
ernment
standing
bring
was not
the State’s
original
an
action
Court was sustained.
infra, p.
See,
235, considering
McCanless,
Kidd v.
“The not defendant does contend here that pay it not required could have been a license tax. It does assert it was denied an opportunity to be heard as to the amount taxed, it was or that anything inhering there was the tax or intrinsically in any involved the law which violated rights. of its constitutional If such questions had been raised they would have been justiciable, therefore would have required calling opera- into judicial Instead, tion of power. doing however, any things, of these the attack on the statute here *35 a wholly made different character. essen- Its tially political nature is at once made manifest by understanding assault which the contention here advanced makes it on tax, not the tax as a [sic] but on the State as State. It is addressed to the government character of the political and framework was It levying passed. the tax statute by which the (reduc- political entity, government, essence) to the bar this its is called ing the case to some testing purpose judicially not for the court, its ground on the exer- power assailed, exercise an indi- rights injuriously has affected tion to some constitutional repugnancy because of vidual that it estab- limitation, State but demand in form.” State, republican as a right lish its to exist S., at 150-151. U. protection and claims were held process equal The due States they hap not non because justiciable Pacific Guaranty claim, pened joined with a Clause be they sought place before the Court a subject because which might conceivably matter have been dealt with Guaranty through Clause, but because the Court they merely were invoked in verbal aid of believed that which, view, politi resolution issues in its entailed States may compared questions. cal with Pacific Washington, such as Mountain Timber Co. v. cases S. wherein the Court 243 U. refused to consider compensation whether a workmen’s act violated the Guaranty Clause but at length, rejected, considered arguments process equal protection due advanced Leamer, O’Neill against it; S. 244, U. wherein the Court refused to consider whether delega Nebraska’s power tion of to form drainage districts violated the Guaranty on but went to consider and Clause, reject against contention that the action which an injunction sought was taking public purpose. justiciability We conclude then that the non of claims resting Guaranty on the which arises Clause from their of questions thought embodiment that were “political,” upon can bearing have no justiciability equal protection claim presented Finally, case. we
229 emphasize Guaranty that it is the involvement Clause claims of thought “political ques- the elements define tions,” feature, no other which could them render nonjusticiable. we have Specifically, said such they claims are not held nonjusticiable because touch governmental organization. matters of state Brief exam- of a few ination cases demonstrates this. challenges
When to state action of respecting matters “the administration of the affairs of the State 55 through officers they whom are conducted” have rested deprivation on claims of constitutional which are ame- to judicial nable its correction, upon this Court has acted view the merits of the claim. example, Boyd For v. Thayer, Nebraska ex rel. 135, 143 U. S. we reversed the Supreme Nebraska Court’s decision that Nebraska’s Gov- ernor was not a citizen the United or of States the State and therefore could continue in In office. Kennard v. ex Morgan, Louisiana rel. 92 S. 480, and Fos- U. v. ter ex Johnston, Kansas rel. 112 201, we considered U. S. persons whether had been from public removed office procedures consistent with the Fourteenth Amendment’s process they due and held guaranty, on the merits that had. only And last v. Term, Lightfoot, Gomillion applied U. S. we the Fifteenth Amendment to strike a redrafting municipal down boundaries which effected a discriminatory impairment voting face rights, majority Appeals thought what of the Court of a sweeping legislatures power commitment state to draw and redraw such boundaries.56 brought
Gomillion was by Negro who been had the City Alabama, resident of of Tuskegee, until municipal boundaries were so recast Legis- State 55Boyd Thayer, J., (Field, Nebraska ex rel. 143 U. S. dissenting). Lightfoot, relying alia, Gomillion v. upon, 2d inter F. Pittsburgh, Hunter v. U. S. 161. Negroes. plaintiff all practically
lature as to exclude elec- right municipal to vote deprivation claimed *37 juris- dismissal for want of tions. The District Court’s relief upon state a claim diction and failure to by Appeals. the of granted could be was affirmed Court answer unanimously This This Court’s Court reversed. unrestricted control argument enjoyed to the that States municipal over boundaries was: no than municipalities, control of less
“Legislative scope lies the of relevant power, other state within by limitations Constitu- imposed States United urged us opposite conclusion, upon tion. . . . The by would sanction the achievement respondents, any rights a impairment voting of whatever State long garb realign- so as it was cloaked of the political ment Tt is inconceivable subdivisions. guaranties embedded Constitution may manipulated United States thus be out of ” S., existence.’ 364 U. at 344-345. a argument, Colegrove Green, To second v. supra, was a barrier to hearing case, the merits the Court responded that Gomillion was lifted “out so-called 'political’ sphere arena and into the conventional' of con litigation” discriminatory stitutional because here was a minority treatment of racial violating Fifteenth Amendment.
“A which is alleged statute to have worked uncon- deprivations petitioners’ rights stitutional is not simply immune to attack because the mechanism employed legislature is a redefinition of municipal boundaries. . . . While form this is merely an redefining act metes and if bounds, allegations are established, inescapable human essay geometry effect of this geography is to despoil citizens, only colored citizens, colored rights. their That was enjoyed voting theretofore Colegrove v. not Green. power a wholly
“When State exercises within the of state from interest, domain it insulated federal judicial review. But such insulation is not carried power over when state as an used instrument a protected circumventing federally right.” S., at 347.57 U. Sawyer,
We have overlooked as In re such cases S. U. and Walton House Representatives, 265 U. S. which held equity power that federal could not be exercised enjoin proceeding state to remove public But explicitly only officer. these decisions reflect upon equity traditional limit jurisdiction, upon and not *38 power inquire federal courts’ to into of gov- matters state organization. only ernmental This is clear not from the opinions in cases, Berry, those but from v. also White 366, which, relying Sawyer, U. S. on federal withheld equity staying from a removal of officer. Wilson federal Carolina, v. 586, simply North S. an U. dismissed appeal from an upset unsuccessful suit to a State’s ground on procedure, removal that the constitutional if presented jury necessary claim a trial was —that procedure comport removal was to with due process requirements Finally, Taylor frivolous. —was (No. 1), Marshall v. Beckham losing U. S. where constitutionality candidates attacked the Kentucky’s of a gubernatorial election, resolution of contested the Court of a upon refused consider merits claim posited opinion joined by noting The Court’s Douglas, Justice Mr. ; Colegrove supra Peters, his adherence dissents and South v. judgment and the was concurred in Mr. Justice Whittaker, who Equal wrote that the decision should rest on the Protection Clause Amendment, rather than since on Fifteenth there had been not (if all) solely a denial of the vote there had been that at but also a “fencing group. out” aof racial political presented Guaranty Clause, holding it can- merits that the also held on the ousted
question, but without deprivation of property no had suffered didates of law.58 process due equal protection established, has been
Since, as of require decision in this case does claim tendered a matter of presence and since the any political question, non- case affecting government does not render the state again it examine appropriate seems justiciable, its reasoning by District reached conclu- which the Court justiciable. was non sion that the case District Court’s hold already noted that the haveWe was non- complaint matter of this ing subject Green, upon Colegrove supra, v. justiciable relied concerned the choice of mem later Some those cases. as in like case; others, Cole legislature, bers of state Holm, Smiley v. grove precedents, itself and earlier 355, Koenig Flynn, v. S. and Carroll v. U. S. 285 U. Becker, Repre concerned the 285 U. S. choice Congress. Smiley, Koenig sentatives the Federal ques settled the issue favor justiciability Carroll congressional followed redistricting. tions The Court Colegrove precedents although over the dissent these participated three of the seven Justices who in that all justiciability, decision. On the issue four Justices comprising majority upon Smiley Holm, relied but *39 Justices, in one opinions, S., 566, two for three 328 U. at 568, separate by S., and a one Mr. Justice 328 Rutledge, U. argument redistricting at The congressional 564. that problems “political presented question” the resolution of confided Congress might which was to have been rested upon I, 4, I, 5, Art. Art. Art. I, § § § and Amendment
58 contrary holding to Newell, No the is to be found in Cave v. 246 650, dismissing Supreme Missouri, U. S. a writ of error to the Court of 1014; Hughes, Mo. 199 W. or in S. Snowden v. 1. U. S. ruling XIV, Rutledge “But for the § Mr. Justice said: Holm, supposed in S. should have Smiley 355, I 285 U. Constitution, I, 4, of the Art. that provisions § that holding of Times, Places and Manner Elections 'The . . shall in Representatives, prescribed for . each Legislature Congress may but thereof; State any .’; at Law or . Regulations time make alter such . I, vesting Art. see Amendment 2], § § Con XIV, [but gress apportionment representatives among of duty ‘according ; respective the several states to their Numbers’ I, 5, making judge and Art. each House the of the § sole its would qualifications members, own remove the issues cognizance. But, my this case from justiciable judgment, Smiley contrary, case rules to the squarely only in degree. save matter of . . . Assuming stand, to I . . that decision is think . that its effect tois rule this has to afford power Court relief case type as against objection that the issues are not justiciable.” Mr. S., Accordingly, U. 564-565. Rutledge joined Justice the conclusion that the case he justiciable, although held that the dismissal of the complaint should be affirmed. His view was that “The remaining shortness the time forthcoming elec- [before it could, would, makes doubtful whether action tions] be taken in time to petitioners secure for the effective they relief ... I think, seek. therefore, case is one may should, in which the properly, Court decline exercise its jurisdiction. Accordingly, judgment should be affirmed join disposition and I in that S., cause.” 328 at 565-566.59 U. ground Rutledge’s Mr. Justice vote to affirm is further “
explained S., in Ms power footnote 328 U. at 566: ‘The of a court equity discretionary is a act one. . . . Where federal court equity laws, asked interfere with the enforcement of state it only prevent irreparable injury should do so “to which is clear and *40 XIV, 2, relate 5, and Amendment I, 2, 4, §§ § Article gov obviously do not only congressional to elections However, our apportionment legislatures. of state ern light in even in of those justiciability favor of decisions District support afford no for the provisions plainly of this con subject that matter Court’s conclusion Indeed, refusal troversy political question. presents only from the con Colegrove relief in to award resulted anything Nor con trolling equity. view of a want of that came after trary per to be found those curiams appeals in Cook v. Colegrove. This Court dismissed Duckworth, 675, Turman v. S. as moot. Fortson and U. Green, 281, MacDougall only v. 335 U. held that S. act equity require would not to void the State’s that case support at a minimum of for nom- ment that there be least ’ Watson, American Federation Labor 327 U. imminent.” v. S. 582, 593 and cases cited.” questions, question including the voters No constitutional whether judicially right vote have enforceable constitutional to at elections of congressmen equal population, from districts of were decided in Cole- questions grove. participating Six of Justices reached the but Rutledge divided three to their merits. Mr. three on Justice believed necessary that it to said: “There is alter- decide them. He [an gravity think native constitutional in this case. And I decision] questions possi- great, together constitutional raised so with the departments political bilities for collision Govern- [with ment], [against the admonition avoidable constitutional deci- appropriate support followed here. Other reasons sion] including that, my view, opinion, ruling the fact the basic and less Smiley Holm, brought important supra, ones would otherwise be question.” S., joined into at 564-565. He also with 328 U. his justiciable brethren who shared his view that the issues were con- sidering Broom, that Wood v. 287 U. no S. decided constitutional questions disposed ground but “the Court the cause on Reapportionment Act, carry the 1929 46 Stat. did not forward requirements Act, of the 1911 37 Stat. declined decide equity 565; S., also, whether there was in the bill.” 328 U. see id., agree at 573. We with this view of Wood v. Broom.
235 at minimal of office, inees for state-wide over least a area Remmey timing the of were critical in State. Problems Smith, 342 916, dismissing v. S. for want of a substan- U. tial a question federal court’s dismissal of the three-judge in prematurely suit as 102 F. brought, Supp. 708; and Sloan, v. 916, denying 357 S. mandamus U. Hartsfield compel convening the sought three-judge a court— urged Court movants the to advance consideration their lapse “Inasmuch case, as mere of time before case can may be reached in the normal course of . .. business defeat as problem inasmuch the time cause, due to inherent nature . . .” v. case . South Peters, 339 276, Colegrove appears U. S. like to be equity’s powers; refusal to exercise see the statement Peters, holding, quoted, 203. Cox supra, p. And v. 342 936, S. dismissed of a U. for want substantial federal question the appeal holding from the state court’s primary implicated their no See “state action.” elections E. 498, compare Terry 208 Ga. 67 S. 2d 579. But v. Adams, 345 U. S.
Tedesco Board Supervisors, 940, S. indicates U. solely question that no substantial federal was raised city state court’s upset districting refusal the- seats, especially urged council as it was that there was justification challenged districting. rational for the See Jordan, 2d 514. in Similarly, So. Anderson v. S.U. 912, only it was certain had state court refused a discretionary original to issue mandamus in the writ, Supreme Court. That opinion, had been denied without it here urged adequate and of course was that an state ground barred this Court’s review. And Kidd v. McCanless, 40, 292 S. the Supreme Tenn. W. 2d it Court Tennessee held that could not invalidate the at but very bar, holding statute issue the case its remedies, e., on its law of i. state the state view of rested norm for any on view that officers,60 de facto not numbers of apportionment Tennessee legislative counties. Of resident the several qualified voters adequate by the precluded was there course this Court dismissing S. appeal, U. ground, state Colegrove. Anderson, Nor well as supra, we cited in that case court’s decision bear does Tennessee Holm, 220 Minn. as in upon this, just Smith v. *42 Donovan, Magraw Supp. 163 F. 914, 19 N. W. 2d v. grant to Supp. 803, inability 177 F. a state court’s 184, assuming not a jurisdic relief does bar federal court’s deprivation tion to of federal consti inquire alleged into . tutional of relief also controlled rights Problems Gary, 991, affirming District v. U. S. Radford Court’s refusal mandamus to the Governor call ses legislature sion of the then to mandamus the legislature, if apportion, they did to mandamus comply, not Supreme the State Court to do so. And v. Matthews Handley, 127, 361 U. S. affirmed refusal strike down gross ground the State’s income urged tax on the statute — legislature malapportioned that the had rested —that on adequacy legal of available for suits state remedies challenges involving including to its constitu tax, 330 U. S. tionality. Barrett, v. Lastly, Colegrove 804, which Rutledge Mr. Justice concurred in this Court’s appeal refusal to note from a dismissal for want of his equity, sufficiently- explained by statement Cook Fortson, discretionary supra: “The or non- exercise equitable declaratory judgment jurisdic exercise of precedent tion ... case one another case Elections, v. State Board See also 206 Tenn. Buford County rel. 726; State ex Sanborn v. Davidson S. 2d Board of W. Comm’rs, Election 36,391 (unre Sup. Ct., Tenn. No. Oct. ported); (1955). 8 Vand. L. Rev. 501 (Cita- n. S., where the facts differ.” 329 U. omitted.) tions complaint’s allegations
We conclude of a denial equal protection present justiciable constitutional to a upon appellants cause action are entitled right trial and a decision. The asserted is within the reach Amendment, of judicial protection under the Fourteenth The judgment of the District Court is reversed and the cause is remanded for further with proceedings consistent opinion.
Reversed and remanded. participate did not in the Mr. Justice Whittaker decision of this case.
APPENDIX TO OPINION OF THE COURT. provides represen- Tennessee Code Annotated tation in Assembly the General as follows: Composition electing
“3-101. one represent- —Counties general ative each. —The assembly of the state of Ten- *43 nessee shall composed thirty-three (33) senators ninety-nine (99) and apportioned to be representatives, among qualified voters of the state as follows: Until apportionment enumeration and next of voters each following (1) counties shall elect representa- one tive, Bedford, Blount, Chester, to wit: Cannon, Carroll, Cocke, Claiborne, Coffee, Crockett, DeKalb, Dickson, Dyer, Fayette, Franklin, Giles, Greene, Hardeman, Hardin, Hickman, Hawkins, Haywood, Jackson, Henry, Lake, Lawrence, Marshall, Lauderdale, Lincoln, Marion, Monroe, Montgomery, Moore, Mc- Maury, McMinn, Nairy, Obion, Overton, Roane, Robertson, Putnam, Smith, Stewart, Sumner, Rutherford, Sullivan, Sevier, Tipton, Warren, Washington, White, Weakley, William- (E. 5, 1;§ ch. S.),
son and Wilson. [Acts 2; 1, ch. (E. 6, 1901, 1907, 178, §§ ch. S.), 1; 122, § § ch. 147, 1, 2; 2; 145; Shan., 123; 1919, § §§ Acts ch. 1915, ch. 1; 1932, 140; 1935, Private, 472, § § ch. Acts Code 1; 1; 58, 1; 1945, 68, Supp. ch. ch. ch. C. 150, 1941, § § § 1950, § 140.] electing each.— representatives
“3-102. Counties two following (2) representatives The counties shall elect two each, 1901, 122, ch. to wit: Gibson Madison. [Acts 3; Shan., 124; 1932, § § § mod. Code 141.] electing representatives each.—
“3-103. Counties three following (3) representa- shall counties elect three each, tives Knox Hamilton. ch. to wit: 1901, [Acts 122, 4; Shan., 125; 1932, § § Code § 142.] County. county shall
“3-104. Davidson —Davidson representatives. §5; elect ch. (6) 1901, 122, six [Acts 126; 1932, Shan., § Code § 143.] county. Shelby county shall Shelby “3-105. elect — eight (8) representatives. county Said shall consist of eight (8) representative districts, (1) numbered one through eight (8), each district co-extensive with the representative county, (1) with one to be elected from 122, Shan., §126a1; each §6; district. ch. [Acts 220, 1; 1959, Code Acts ch. 1932, 144; § ch. § §1.] following Joint representatives.
“3-106. counties —The representative, follows, shall elect one to wit: jointly, “First district —Johnson and Carter.
“Second district —Sullivan and Hawkins. Washington, “Third Greene Unicoi. district — “Fourth district —Jefferson and Hamblen. Grainger.
“Fifth district —Hancock and Scott, Campbell, “Sixth and Union. *44 district — and Morgan. “Seventh district —Anderson “Eighth district —Knox and Loudon. Bradley.
“Ninth district —Polk and Meigs “Tenth and Rhea. district — Cumberland, Bledsoe, Sequatchie, “Eleventh district — Grundy. Van and Burén Fentress, Clay Pickett, Overton,
“Twelfth district — and Putnam. Sumner,
“Fourteenth Trousdale and Macon. district — “Fifteenth district —Davidson and Wilson. — Lewis, and Giles, Maury district
“Seventeenth Wayne.
“Eighteenth Cheatham and Rob- Williamson, district — ertson. Montgomery
“Nineteenth and Houston. district — Humphreys Perry. “Twentieth and district — “Twenty-first Decatur. district —Benton and “Twenty-second Weakley Henry, and Carroll. district — “Twenty-third district —Madison and Henderson. “Twenty-sixth Tipton Lauderdale. [Acts district — 1901, 122, 7; 2; ch. ch. 1907, 178, 1, 145, § §§ ch. 1915, Pri- §|1, 2; Shan., 127; 1919, 147, 1; Acts ch. § § 472, 145; ch. Code vate, 2; 1932, 1933, 167, § § Acts ch. 1935, 2; ch. 1; 150, 58, 2; 1945, 2; § ch. ch. 68, § § § 145; Supp. 1950, C. Acts ch. § § 2.] State senatorial next “3-107. districts. —Until apportionment voters, following enumeration and shall comprise districts, counties the senatorial to wit: Unicoi, Greene, and Johnson, Carter, “First district — Washington. district —Sullivan and
“Second Hawkins. Hancock, Morgan, Grainger, “Third Clai- district — Union, borne, Scott. Campbell, Cocke, Hamblen, “Fourth Jefferson, Sevier, district — and Blount.
“Fifth district —Knox. Anderson, Knox, Loudon,
“Sixth Roane. district — *45 Bradley, Monroe, and McMinn, “Seventh district— Polk.
“Eighth district—Hamilton. Sequatchie, Meigs, Bledsoe, Rhea,
“Ninth district— and Cumberland. Burén, White, Van Clay, Put- Pickett, Overton, Fentress, “Tenth district— nam, and Jackson. Grundy and Marion, Franklin,
“Eleventh district— Warren. and DeKalb. Rutherford, Cannon,
“Twelfth district— and Smith. district—Wilson “Thirteenth and Macon. Sumner, Trousdale “Fourteenth district— Montgomery and Robertson. “Fifteenth district— “Sixteenth district—Davidson. district—Davidson'.
“Seventeenth “Eighteenth and Moore. Bedford, Coffee district— and Marshall. “Nineteenth district—Lincoln Maury, Perry and Lewis. “Twentieth district— “Twenty-first and Hickman, Williamson district— Cheatham. Wayne.
“Twenty-second and Giles, Lawrence district— Humphreys, “Twenty-third Houston Dickson, district— and Stewart. Henry
“Twenty-fourth and Carroll. district— “Twenty-fifth and Madison, Henderson district — Chester.
“Twenty-sixth McNairy, Hardeman, Hardin, district— Decatur and Benton.
“Twenty-seventh district—Gibson. Weakley. “Twenty-eighth and Lake, Obion district— — Dyer, “Twenty-ninth district Lauderdale Crockett. Tipton Shelby.
“Thirtieth district— Haywood “Thirty-first Fayette. district— Shelby. “Thirty-second district— 122, ch. “Thirty-third Shelby. 1901, [Acts district — Acts 3, Shan., 1932, 146; § Code 1; 128; § ch. 1; § § § ch. 11, 1; Supp. 1950, C. § 146.]” Today’s statute as enacted apportionment *46 changes. example: with minor For In from (1) 1957, Shelby County was raised 7% also Acts of representatives. 1957, Acts of c. 220. See 1959, Twenty- c. 213. The the Act, 2, abolished § Representative District, Joint which had included seventh Fayette Shelby and Counties.
(2) 1907, County given In Marion a whole House was sharing joint County. seat instead of seat with Franklin of c. Acts of 1907, 1915, repealed Acts 178. c. that 145, quo status ante. And change, restoring the reversal reversed, was itself c. Acts (3) County James one of five counties the Seventh State Senate District and one the three the Ninth County House District. It James appears that longer no exists but are not we advised when or how it was dissolved.
(4) In 1945, Anderson and Roane Counties were shifted to the Sixth State from Senate District the Seventh, and and Polk Monroe Counties were shifted to from the Seventh of 1945, the Sixth. Acts c. 11. Douglas, Mr. Justice concurring.
IWhile the join opinion of the and, the Court like Court, do reach merits, explanation not the a word of is necessary.1 put I to one side the problems “politi- many feel strongly 1 I by of the cases cited the Court involving “political” questions wrongly so-called were decided. joining opinion, In approve only I do those decisions but opinion construe the stating Court’s in this case as an accurate prior historical account of what the cases have held. between power involving distribution questions
cal” We Executive. and the Chief Congress, Court, relation recurring problem phase have here particularly, More agencies. state courts to of the federal one may weight to which State extent question it another’s. heavily than does more person’s vote large there are rights concerned, are voting far as So right to vote is inher Yet the gaps the Constitution. by envisaged republican government form of ent The Hous e - Article Section 4 of Constitution. IV, people. and now the Senate —are chosen Rep time, manner, and elections place Senators (Article I, are to the Section resentatives left States XVII) subject regulatory Amendment to the 1; Clause Congress. “republican government A form” of power of guaranteed IV, each Article and each State Section *47 promised against is Ibid. protection likewise invasion.2 Borden, 1, 42, statements in Luther How. that by guaranty only Congress is enforceable or the Chief Executive Court, Executive, not maintainable. Of course the Chief the protected against determines how a State will be invasion. Of course Congress, Court, Judge Elections, each House of not the is “the of the Returns, Qualifications I, and of its own Members.” Article Section respecting the judicial Clause But abdication of vot all functions ing rights (7 How., 41), by at justified peculiarities however the the of government in charter form of Rhode Island the time Dorr’s at of Rebellion, general principle. contrary states no It the indeed is to body opinion cases in the discussed of this modern of decisions —the give judicial voting the panoply protection Court that the full of to rights. Today say Taney we would not with Chief Justice that it is part judicial protect right no the the function to those vote of by “to whom it is denied the written and established constitution and laws of Ibid. the State.”
Moreover, the legality Court’s refusal to examine the the regime upon law (id., of martial which had been laid Rhode Island 45-46) indefensible, Woodbury at Mr. as Justice in his maintained Id., seq. Today dissent. at 59 et we would ask with him: “. . . who may qualifications the for voters specify That the States provides is implicit I, in Article Section Clause which by that shall the Representatives the House be chosen corpus moment, could hold when writ of cannot be for a habeas suspended by legislature government itself, general either in the States, express permission, or most of the without an constitutional suspended, that other writs and be martial law all laws could and country, without-.any them over whole State substituted for or Id., express any emergency?” effect, license constitutional to that at 67. Woodbury say: went
Justice on to alarming enough power, “It would be sanction here an unlimited by courts, legislatures, executive, when exercised either or or governments governments and all our are themselves of limitations laws, checks, people fixed and the a race above and of and known jealous power. all those in And it is far others encroachments persons protection better be without the of the those should disregard ordinary emergency, the land who them in an laws of grateful indemnity country pardon, than to should look to jurisprudence overturned, allow, beforehand, be the whole frame every placed mercy bayonet. thing system department governments or ever can “No in our tribunal lawfully dispense laws, be with the like some of the authorized to tyrannical Stuarts, abolish, suspend the whole repeal, or to or appoint military body them; or, words, in other an unrestrained dictator at head of armed men. may great power be on
“Whatever stretches of such ventured laws, they prostrate the crises, they upheld laws cannot Assembly beyond them, triumphant and ride over and however supposed Island, may hastily exigency, under have of Rhode It is but a such a measure this instance constitutional. *48 pass omnipotence by bills Parliament to branch of the claimed arbitrary family dangerous with attainder, belonging to the same Id., at martial law.” 69-70. expressed by tradition, was later to the as
What he wrote become Hughes Sterling Constantin, S. 287 U. 401: Chief Justice v. military discretion, and whether or “What are the allowable limits of particular case, judicial they overstepped in a are been not have questions.” shall (voters) in each State “the Electors
people
(voters)
for Electors
Qualifications requisite
have the
Legislature.”
Branch of
State
the most numerous
Amend
contained
the Seventeenth
provision,
same
limits
the election of Senators. Within
ment, governs
by
fixed
law.
Lassi
may be
state
See
qualifications
those
Board,
S.
50-51.
Northampton
Election
360 U.
ter v.
Yarbrough,
651, 663-
parte
in Ex
110 U. S.
Yet,
stated
Congress
for
do not “owe
664, those who vote members
right
any
to
their
to vote
the State law
sense
right
exclusively
on
depend
makes the exercise
Congress
power
pre
law of
State.” The
for
and thus override state
qualifications
scribe
voters
by
not in issue
It
clear
is, however,
law is
here.
reason
the commands of
there are
Constitution
qualifications that a State
may
require.
several
previous
or
Race, color,
condition of
is an
servitude
impermissible
standard
reason of the
Amend-
Fifteenth
ment,
explain
that alone is sufficient
Gomillion
Lightfoot,
Taper,
Sex another standard reason Nineteenth Amendment.
There is a third barrier to freedom in pre- State’s scribing qualifications of voters and that Equal Protection Clause the Fourteenth Amendment, pro- vision here. question is, invoked And so the may a State weight the county vote of one or heavily one district more than it weights the vote another?
The traditional test under Equal Protection Clause has been whether State has made “an invidious dis- as it crimination,” does when it “a particular selects race nationality oppressive treatment.” See Skinner v. Oklahoma, S. 535, 316 U. 541. Universal is not equality
245 in weighting. As stated test; there is room for we Co., 483, 489, Lee S. “The Optical Williamson v. U. prohibition goes Protection no further Equal Clause than discrimination.” the invidious agree my with Brother if the allegations that
I Clark in complaint can be sustained case for relief is estab- single lished. are that a County, We told vote Moore Tennessee, is worth 19 votes Hamilton County, County nearly is worth one vote Stewart or Chester eight single County. or Knox Shelby times vote an opportunity prove “invidious discrimination” given appellants. should therefore be exists any beyond It is said that decision in cases of this kind is competence of courts. make the point Some same regards problem equal protection involving in cases racial segregation. legality Yet the of claims and con- duct is a subject judicial traditional determination. Adjudication is An perplexing complicated. often example of the complexity extreme of the task can be in a apportioning among seen decree water the several Wyoming, States. Nebraska v. U. S. 665. The guide vague, constitutional is often as the decisions under the Due Process and Commerce Clauses show. The problem Equal under the Protection Clause no more Lewis, Legislative Apportionment intricate. See Courts, the Federal Harv. L. Rev. 1057, 1083-1084. are, beyond some course, questions judicial There competence. performance “duty” Where the of a is left good judgment to the discretion and of an executive compel will officer, judiciary the exercise of his way (Kentucky Dennison, one or the other discretion 66, 109), How. for to do so would be to take over office. Cf. Federal Communications Comm’n v. Co., Broadcasting U. S. *50 assigns a function particular
Where the Constitution wholly indivisibly3 department, to another federal the judiciary Oetjen does not intervene. v. Central Leather Co., 297, 246 S. 302. None of those cases is relevant U. here.
3 my category “political” question is, view, The of the narrower English than the cases “Even the courts have held decided indicate. England (No. 2) that (Stockdale resolution of v. Hansard, [1913] one (1839), A. & E. House of Parliament does 1 Ch. 57), and these decisions 9 1; and Bowles change imply v. Bank that the the law of acting House of does not the 'Parliament’ Commons constitute alone recognised English by 103 The courts.” Sol. Jour. “By Court in Bowles v. Bank statute W. 1. & M., of usually England, known as the [1913] 1 Ch. Bill of 57, 84-85, Rights, stated: it was finally country except there in this settled that could be no taxation Rights authority under an of still Act of Parliament. The Bill unrepealed, practice custom, prolonged, remains or no however subject, acquiesced part or however on on the can be relied by justifying any infringement provisions. of its It Crown as regard powers levy taxation, that, follows with of the Crown to Ways resolution, no either the Committee for and Means or of any legal itself, the House has effect Such whatever. resolutions by parliamentary procedure adopted are necessitated with a view protection against hasty imposition taxes, subject to the of the strange to justifying and it find them relied on as would the Crown levying actually imposed by before a tax such tax Act of Parliament.” Case,
In
Pocket Veto
279 U. S.
the Court undertook a
provisions
review of the
of the Constitution and
veto
concluded
litigation
the measure in
had not become
law. Cf.
v.
Coleman
Miller,
Georgia
Stanton,
application
Wall.
involved
Georgia
destroyed by
Reconstruction Acts to
force the
—laws
juris
regime
internal
refused to
State. Yet
Court
take
question
“political”
diction. That
no more
than a host of others
Pennsylvania
g.,
Virginia,
See,
we have entertained.
e.
v. West
553;
579;
Youngstown
Sawyer,
U. S.
Sheet & Tube Co. v.
S.U.
Texas,
Alabama v.
There is no doubt that the federal jurisdic- courts have tion of concerning controversies voting rights. The Civil Rights gives authority Act them depriva- to redress the tion any “under color of any State law” of “right, privilege or immunity secured the Constitution of the States or any Congress United Act of providing for equal rights of citizens . . . .” (3). S. C. § U. And (4) 28 U. S. C. 1343 gives § the federal courts author- ity to award an damages injunction issue to redress “any the violation Congress Act of providing for the protection of civil rights, including right to vote.” (Italics added.) The element state action covers a *51 range. Classic, wide For as stated in United States v. 313 S. 299, U. 326:
“Misuse of power, possessed by virtue of state law
and
possible
made
only because
wrongdoer
is
clothed with
authority
of state
law,
action
taken ‘under color of state law.” And see Monroe
v. Pape,
The to vote both federal and state elections protected was by judiciary long right before that explicit received the protection it is now accorded (4). § 1343 against Discrimination a voter on account of race has penalized been (Ex parte Yarbrough, 110 S.U. 651) or struck down. Herndon, Nixon v. 273 536; U. S. v. Allwright, Adams, Smith 321 649; Terry U. S. v. 345 U. S. 461. Fraudulent acts that dilute the votes of some
Today nonjusticiable “political” would this Court hold or a suit enjoin to who, Castro, everything a Governor like Fidel takes into his suspends own hands and all election laws?
Georgia Stanton, supra, expresses v. philosophy a at war with Ex parte Milligan, 2, 4 Kahanamoku, Wall. and Duncan v. S.U. authority 304. The dominance expressed of the civilian has been beginning. from Withers, 337; Sterling See Wise v. 3 Cranch Constantin, supra, v. note 2. cognizance. judicial to within long been held be
have
one’s
Siebold,
“right to have
S. 371. The
parte
Ex
U.
creed
nationality
or
his race
vote counted” whatever
v.
S.
Mosley,
held in United States
U.
by Congress
right
put
as
open
protection
be “as
Classic, supra,
United
v.
in a box.” See also
States
ballot
Saylor,
v.
“To allow careful to observe the constitution of cities partial they commonly as boroughs, not to so grow- all elections, great are in indeed peace mischief, prejudice and tends to the ing of the nation.” here, effect will be prophylactic produced same make political regimes
as entrenched other relief Ashby illusory petition in this case as to Parliament would have been.4 v. White Municipal We are told the National Institute Law Officers
in an amicus brief:
“Regardless of the fact that in the last two decades the United predominantly country States has become a urban where well over population political suburbs, two-thirds of the now lives in or cities representation majority legislatures years of state is 50 more Apportionments part greater behind made the times. when the of population determining was located in rural communities are still undermining our elections. consequence, municipality "As of function 1960 forced to buggy political recog- in a horse and environment where there is little heavy population. demands of an urban demands nition These by greater people will will become even 1970 when some 150 million living in urban areas. Municipal many “The Institute of Law has for National Officers wide-spread complaint years recognized greatest far the
249 into the election Federal Government Intrusion numerous forms —inves machinery has taken the States Larche, 420); criminal (Hannah S. tigations v. U. Siebold, Ex Yar (Ex parte supra; parte proceedings Mosley, supra; United brough, supra; United States v. Classic, (Smith v. penalties v. collection of supra); States an declaratory relief and for Allwright, supra); suits Adams, suits the United injunction (Terry supra); v. discriminatory Rights enjoin Act to States under the Civil Raines, 362 S. 17. practices. United States v. U. Dyer v. Kazuhisa by Judge McLaughlin As stated Abe, case Supp. 220, (an apportionment F. F. moot, which was reversed and dismissed Hawaii 728): 2d today’s legal climate is to end
“The whole thrust of It is ludicrous to unconstitutional discrimination. mainspring repre- preclude judicial relief when Legislators have government impaired. sentative legisla- immunity from the Constitution. no to the responsive land should be made as tures of our as are the citizens States Constitution United legislators.” elect the who Green, Colegrove v. 328 U. S. exceptions
With Peters, Green, MacDougall 281; S. South v. 549; U. they spawned, 276, and the decisions S.U. voting rights thought protection has Court never preponderance representatives senators are from rural of state vitally in the which, main, in the fail to become interested areas increasing facing difficulties now urban administrators. city popula- II, explosion War and suburban
“Since World transportation, problems education, intense local tion has created housing. Adequate handling problems been of these has not large chiefly political possible extent, due to the weakness directly municipalities. This situation is attributable to considerable legislatures in the of most states.” under-representation of cities brief, pp. 2-3. Amicus
250 Today’s treatment of judicial cognizance. beyond only judicial to impediment the those cases removes complaint. present in the cognizance of the claims stated being present the claims estab- justiciability The light can be fashioned the any relief accorded lished, principles equity.5 well-known by Supreme legislature, ruling the Court that a The recent Iowa though apportionment scheme, elected under an is nonetheless unfair 948, legislature empowered (Cedar Rapids Cox, 252 to v. Iowa act McCanless, 964, 253, 262-263; 200 Tenn. 108 N. W. 2d cf. Kidd v. 40) 273, plainly S. 2d correct. 292 W. be
There need no fear of a more disastrous collisionbetween federal enjoins agencies gerry- here and state than where federal court mandering Lightfoot, supra. v. based racial lines. on See Gomillion complete reapportion District need
The Court not undertake might equality possibly goal of substantial ment. It achieve by directing respondent egregious injustices. merely to eliminate reapportionment may be in itself Or its should made conclusion Asbury legislative Park action. That was the result in stimulate Woolley, 1, 161 705, Press A. 2d where the state court ruled v. 33 N. J. jurisdiction: it had changing reap- passage
“If reason of of time and conditions longer original securing portionment purpose of statute no serves its franchise, of his the voter full constitutional value legislative action, appropriate fails to branch take restorative law-making body open doors must The courts be him. system alter the under which it has cannot inaction constitutional J., 2d, its N. The own 161 A. at 711. court existence.” legislature might on the merits in order that the withheld its decision adoption reapportionment opportunity have an to consider of a act. Application Super. 39, 46-47, sequel Lamb, For N. J. see 2dA. 825-826. Magraw Donovan, result in Reapportionment was also the juris- three-judge District took Supp. F. where a federal Court saying, Supp. 184, diction, F. 187: duty Legislature reap- “Here it is the unmistakable the State population portion periodically with recent itself in accordance January changes. Early in 1959 the 61st Session of Minne- . . . Legislature convene, sota all of the members of which will will year. newly facts have elected on November 4th *54 Clark, concurring. Mr. Justice opinions the rash with their emerging from One clashing well himself suf- accompanying may views find Court the fering a mental blindness. The holds that action. appellants alleged However, have cause of it although award are undis- refuses to relief the facts here — puted give any fails to the Court guidance District —and dissenting bursting whatever. One with words opinion, go that through little, so much conclude with so con- majority repudiation temns the action as “a massive experience past.” of our whole Another describes complaint merely asserting conclusory allegations that apportionment “incorrect,” “arbitrary,” Tennessee’s is I can “obsolete,” and believe it be “unconstitutional.” shown from cases distinguishable that case earlier dealing power by with the distribution political State, patent Equal-Protection that violation of the Clause States has been United Constitution remedy may an shown, appropriate that be formulated.
I. Green, MacDougall I the law from take of the case (1948), U. S. 281 involved an attack under Protection an Equal upon Clause Illinois election statute. The Court decided that case on its merits with- “political out hindrance from the question” doctrine. under Although the statute attack was is clear upheld, it presented been pre- to us will be available to them. It is not to be Legislature sumed that the will refuse to such action take as neces- sary comply duty with its under the State Constitution. We defer (including presented decision on all the issues power that of the of this grant relief), Legislature oppor- Court to order to afford the full ” tunity to ‘heed the constitutional mandate redistrict.’ Supp. 803, See 177 moot, F. where case was dismissed as State Legislature having acted. upon determination its decision the Court based It state policy. a rational represented the statute stated: for this doctrinaire, indeed, and strange
“It would concepts such broad constitutional applying Court, laws, protection equal process as due power proper to assure a diffusion deny a State thinly populated *55 its as between political initiative masses, having concentrated counties those oppor- practical the latter have view the fact of weight the exerting political their at tunities for Id., not to the at 284. polls available former.” (Emphasis supplied.) my are all upon
The cases Brethren dwell other distinguishable widely heralded case inapposite. The Green, Colegrove v. S. 549 (1946), of 328 U. was one only which the bobtailed but which there Court was opinion. “political ques- no majority Indeed, was even point in Mr. opinion tion” Justice Frankfurter's ground.1 an Moreover, no more than alternative present an appellants equal protection argu- did not it has as a most ment.2 While served Mother Hubbard to ill- subsequent cases, I feel it was that respect cast and all of put these reasons it to one Like- side.3
1
opinion
dispose
The
stated
551 that the
“could
of
Court
also
authority
(1932)].”
this case on the
Wood v. Broom
U. S. 1
[287
only
interpretation
congressional
Wood v. Broom involved
of a
reapportionment Act.
2
Equal
Similarly, the
Clause
Protection
was not invoked in Tedesco
Supervisors,
(1950).
v. Board
253 Guaranty I based wise, do not consider Clause cases Constitution, on Art. because it is not I, 4, § and it as the criteria, invoked here involves different opinion resting indicates. on other Court’s Cases various Gary, present here, considerations not such as v. Radford (1957) (lack equity); 352 991 Kidd McCan- U. S. v.
less, (1956) (adequate grounds sup- U. S. state porting judgment); Jordan, the state Anderson v. (1952) (adequate grounds); Remmey U. S. 912 state v. Smith, (1952) (failure U. S. 916 to exhaust state procedures), are of course not controlling. Finally, Peters, Georgia county-unit-system cases, such as South (1950), viewpoint MacDougall, S. 276 reflect the U. e., i. intervening to refrain from where there is some rational behind the policy system.4 State’s
II. controlling disputed. appears facts cannot be It from record that the voters of Tennessee elect 37% 20 of while Senators of the voters elect 63 40% *56 of the 99 members of the But might House. this not on its face be an discrimination,” “invidious Williamson Lee Optical Oklahoma, (1955), 348 U. S. for of “statutory any discrimination will not be if set aside reasonably may state of facts be conceived to justify it.” Maryland, McGowan v. (1961). U. S. apportionment
It is true that policy incorporated in e., i. Constitution, Tennessee’s state-wide numerical equality representation of with certain minor qualifica- tions,5 is a rational one. a county-by-county On compari-
4 Georgia system based its election on a consistent combination of political population, giving eight units and six unit votes to the populous counties, most four unit votes to the 30 counties next population, remaining and two unit votes to each of the counties. Appendix See Part I of the dissent, to Mr. Justice Harlan's post, p. 341. have naturally will based thereon districting plan
son the qualifications. due to representation disparities prob- raise constitutional does not my But this mind However, reasonable. policy for the lems, overall Constitution, of the trouble is not Tennessee’s root dis- The admittedly has not been followed. policy its Assembly in action in the of Tennessee’s crimination lies or districts created allocating legislative seats to counties just Try may, apportionment Tennessee’s by as one it. \ pattern to fit the cut its Constitution. cannot made of policy finding This was the of the District Court. therefore, is to by dissenters, the Constitution referred Assem- of no here. must examine what the relevance We magnitude bly frequency has done.6 The inequalities present districting policy admit of no An I accompanying whatever. examination of Table opinion, post, p. 262, conclusively appor- reveals that the picture topsy-turvical gigan- tionment is a Tennessee proportions. say tic This is not that some of the disparity explained, cannot be but when the entire table comparing voting strength counties of examined — population contrasting like as well that the smaller larger with but conclusion, counties —it leaves one namely that apportionment crazy quilt Tennessee’s is a without rational basis. At risk of being accused picking out I few horribles shall allude to a series examples that are taken from Table I. *"~As is there is a admitted, disparity voting wide strength large between the and small counties. Some suggested districting It is is not unconstitutional since passed it was established a statute when constitutional years many ago. Assembly some 60 But Sessions since that time *57 deliberately original change act, any have refused to in [constitutionally] may event statute when valid enacted become “[a] change applied.” invalid in the conditions to which it is Nash ville, Walters, (1935). & St. L. C. R. Co. v. 294 U. S. samples County are: has total representation Moore a population only two7 with (2,340) of one-eleventh of County (25,316) representa- Rutherford with the same tion; County (5,563) representa- Decatur has same tion as (23,303) though Carter latter four has times the population; likewise, County Loudon (13,264), Hous- ton (3,084), County (33,990) Anderson have same e., i. 1.25 representation, each. But it is said that this illustration all the under-represented counties con- municipalities tain over 10,000 population they should therefore be included under the “urban” classifica- rationalizing disparity as an tion, attempt effect political doing rural-urban balance. But so one is caught up backlash of his bull whip, many own counties have municipalities population exceeding with a 10,000, yet present. the same invidious discrimination example: For County Population Representation 23,303
Carter 1.10 . Maury. 24,556 2.25 Washington co CO O ccT COCO .. Madison co rti <N Cji O representation” representation “Total indicates the combined members) (33 Representa the State Senate and the House State (99 members) Assembly Assuming tives in the of Tennessee. county representative, one has it is credited in this calculation with Likewise, county seat, if the same has of a senate it one-third 1/99. county, with our credited another and thus such a calcu 1/99, county lation, representation” two; has would have a “total if a seat, representative one of a it is with and one-sixth senate credited figure It last I use here in effort to or 1.50. is this an 1.5/99, comparisons than the 1960 census make the clear. 1950 rather charge voting population that use of 1960 is used avoid might not allowed time for the State to tabulations have sufficient However, picture more than the act. the 1960 is even irrational 1950 one. *58 10,000 municipality no of over with
Likewise, counties a similar discrimination: suffer County Population Representation
Grundy coo CK ... rf*. o 'cn ... to o Chester o OS CO J—1 "CO Cumberland Crockett .. xo CO COL- CO o os bOb CO O 13,264 to Ox Loudon ... M Fayette 13,577 Wcn ... O balance political to attain This could not be an effort discrimina- rural and Since between urban populations^' of like present among population, tion is counties It rational. discriminates plan is neither consistent nor rural areas horizontally gross disparities between creating themselves,8 areas well as between urban themselves as disparity already maintaining wide vertical still pointed out between rural and urban. used representation
It is also insisted that formula 7) is “it elimi- (see “patently above n. deficient” because voting power from nates consideration relative together single joined counties that are election dis- from strange coming trict.” This is claim those who every on “the voice of rely proposition that voter” repre- not “approximate equality.” Indeed, need have government, they say, necessarily sentative is not one “bare numbers.” The use of districts our floterial political system is ordinarily theory based on the representative the floterial splintered among is the coun- per his population. ties of district His function relative represent the whole However, district. I meet shall charge ground on its own “adjusted use of its this was Georgia county system, Of course not the case in the unit v. supra, Peters, MacDougall South plan, or the Illinois initiative supra, Green, recognized political having independent where units significance given political weight. were minimum ” present show that formula representation’ ‘total some compare example, loco. For apportionment using the Harlan of like population, areas “urban” formula: *59 Population Representation County 36,967 2.65
Washington . 37,245 4.87 Madison . 23,303 1.48 Carter . 2.05 23,649 Greene . 24,556 3.81 Maury. 13,406 Coffee . C3 CO Cm 14,090 Hamblen . t“H O £-» so-called compare some using formula, the same now, And population: “rural” areas of like Representation County Population 2,340 1.23 .
Moore 2,565 .22 Pickett . . Stewart lO CO co ¡r—COO Cheatham to CO co N Grundy . Chester . 6,391 6,540 r-í COCD CD 8,731 Smith ... O ^ 8,787 .. Unicoi O ^ O but with representation with similar And for counties population, take: gross differences County Population Representation 55,712 4.07 Sullivan. 24,556 Maury. 3.81 30,353 2.12 Blount. 13,406 2.32 . Coffee for same for- effects,” be “distorted here the These cannot by the dissenters is used and the result proposed mula quilt. “a crazier” even here for case has been although truth is
The that — (three argument hours’ had over six and has years two carefully has been most ordinary case) times again by us Conference and over considered over nor not even the State individually one, —no any rational basis up come with dissenters, has statute. apportionment Tennessee’s the Harlan advocating except No the dissenters one— ” formula —contends representation’ ‘total “adjusted by the among required voters equality mathematical must be certainly there But Equal Protection Clause. dis- districting. design some rational State’s any said, I have pattern does not fit crimination here —-as My Brother contends crazy quilt. it is but Harlan contain dis- apportionment plans proposed that other first chasing those rabbits he should parities. Instead *60 enough appellants’ proof to meet of discrimi- pause long showing in fact follows a by present plan nation being this, merely rational Not able to do he policy. generalities legislative judg- counters with such as “classic minimis ment,” “significant discrepancy,” no “de departures.” glance I submit that even a casual at the present apportionment picture shows these conclusions entirely present representation to be fanciful. If has quo it is to maintain the status policy all, at of invidious any Court, discrimination at cost. Like the District I appellants showing conclude that have met the burden of guilty of a “Tennessee clear violation of the state consti- tution and of the rights plaintiffs. of the . . .” [federal]
III. Although I find apportionment the Tennessee statute Equal offends the Protection I Clause, would not consider intervention this Court into so if delicate field there any were other relief available people to the of Tennessee. But the majority people of Tennessee have no exerting political weight their “practical opportunities existing “invidious discrimina- polls” to correct the I no and referendum. tion.” Tennessee has initiative diligently “practical opportuni- for other have searched law. I find none other than present ties” under the through majority the federal courts. The of the voters caught up in a legislative jacket. have been strait civically has an militant Tennessee electorate” “informed, conscience,” and “an but it not sear popular aroused does people’s representatives.” “the conscience This is legislative policy because the has riveted the seats present Assembly to their respective constituencies, of their a reapportionment any votes incumbents kind is prevented. people been rebuffed at have they hands of the have Assembly; tried the constitu- tional convention route, originate but since the call must Assembly it, in the too, They has been fruitless. have tried result,9 Tennessee courts with the same and Gov- fought only ernors have the tide to flounder. It is said there is in Congress recourse and perhaps that may from a be, practical but standpoint this is without Congress substance. To date has never undertaken such any task in State. therefore must We conclude that the people of stymied Tennessee are judicial without intervention will be saddled with the present discrimina- government. tion the affairs of their state
IV.
*61
Finally, we must
if
consider
there are any appropriate
judicial
modes
effective
relief. The federal courts are
of course not forums for political
nor
debate,
they
should
interesting
It is
judges
note that state
often rest their decisions
ground
the
precluded adjudication
on
this Court has
g.,
Secretary
e.
Scholle
See,
State,
federal claim.
360 Mich.
(1960).
In this have representation. equal based on the rationale of state-wide believing equality representation Not that numerical throughout constitutionally I required, State would apply such a a permissive standard albeit one. attack Nevertheless, application the dissenters it ” “adjusted of the Harlan representation’ ‘total formula. shown, result is that some isolated inequalities are but this in itself does not irra- proposed make the plan tional or it in place “crazy category. quilt” Such as inequalities, point the dissenters out in attempting to support present apportionment rational, as are explainable. Moreover, requirement there is any no plan have mathematical exactness its application. Only where, here, the total picture reveals incom- magnitude mensurables of both and frequency can it be present said that an there invidious discrimination. *62 given has the Court study that detailed In of the view is not a decision unfortunate it is problem, this hold, to majority appears merits. The on the reached silentio, is discrimination sub that an invidious at least court for it three-judge to the but it remands present, It formal determination. to be that make what is certain a formal answer. has not filed Tennessee is true that - made papers has filed voluminous However, it no time At supporting position. its arguments extended factual appellants’ to contradict has it been able for the explanation no rational it has offered claims; has indicated that indeed, it apportionment; present emphasized, I have known to it. As there are none court point three-judge before the proceeded case to the factu- find an invidious discrimination that it was able to holding State has not contested that ally present, and the anything I if background all doubt In view of here. on gained by the State can offered or will be more being able Nevertheless, time. other than remand, merits, I of the case on the dispose to muster court to acquiesce opinion majority concur in the I think However, remand. fairness do the decision to faces my idea of what it that Tennessee is entitled have light court on record before us and the trial some might proceed. to how it Rutledge (later Justice) years
As John Chief said 175 Convention, in the course of Constitutional ago secure chief function of the Court the national today supports proposition Its decision rights.10 many namely, fought died, which our forebears fully principle right, conformable to the to be That government representative.11 form of must be keystone upon government which our was founded 10 Farrand, I The Records of Federal Convention of Perpetual Kant, Peace. *63 lacking republic no can survive. is well for It practice this Court to self-restraint and discipline con- stitutional but never its adjudication, history have principles those received sanction where the national rights many clearly of so have been so so infringed for a time. long respect National for the more courts is through forthright enhanced enforcement of those rather rights rendering nugatory through than them In interposition subterfuges. my view the ultimate greatest decision is in the tradition today of this Court.
TABLE I. Van Burén. County population 2,039 voting representation Present J. formula using Clark's .63 total Present to- tal Harlan's formula sentation using J. repre- .23 lan's using tation lants' tal Proposed to- represen- formula J. Har- (appel- plan), ,ii 2,340 2.00 .18 Moore . 1.23 2,565 .22 Pickett. .70 .24 Sequatchie 2,904 . .63 .33 .19 Meigs. 3,039 .93 .17 .48 3,084 Houston. 1.25 .46 .24 .12 3,351 Trousdale . 1.33 .43 3,413 Lewis. 1.25 .25 .39 Perry. 3,711 1.50 .40 .71 4,198 Bledsoe . .63 .24 .49 Clay 4,528 . .70 .40 .42 4,600 Union .45 .76 .37 4,710 Hancock . .93 .62 .49 5,238 Stewart . 1.75 1.60 .41 5,263 Cheatham. .20 1.33 .72 2.00 5,341 Cannon . .52 1.43 1.10 5,563 Decatur . .52 .79 2.00 6,252 Lake . 1.44 .41 2.00 6,391 . Chester .19 1.36 Grundy 6,540 . .95 .43 .69 Humphreys. 6,588 1.25 1.39 .72 1.10 6,649 Johnson. .43 .42 Williamson Fayette Haywood Loudon . Sevier. Warren Monroe Hardeman Coffee Jefferson MeNairy. Dickson. Marshall Cocke Claiborne Henderson Marion Hardin. Cumberland Overton Smith. White Crockett Rhea Unicoi Scott Morgan. Wayne. Polk. Macon. Hickman. Benton Fentress DeKalb Grainger Jackson. County . . . . . . . . . . ..'. . . . . . . . . . . . . . population 14,064 13,934 13,577 13,337 12,884 13,406 13,264 13,565 12,793 12,799 11,601 12,572 11,359 11,294 11,288 10,998 10,199 9,593 9,676 9,244 9,577 8,787 9,474 8,417 8,937 8,731 7,598 8,308 *64 7,974 7,125 7,057 7,176 7,330 7,023 6,719 6,984 voting representation Present J. formula 2.50 2.33 2.50 2.00 1.25 1.60 1.75 1.75 2.50 1.60 1.43 1.60 1.60 1.10 1.75 2.00 1.75 2.50 1.50 1.60 1.70 1.43 2.00 using 2.00 1.33 1.25 1.25 1.10 1.50 Clark’s .63 .93 .93 .93 .76 .93 .70 total Present Harlan’s tal using J. sentation formula 2.96 2.52 2.32 2.48 2.29 1.89 1.68 1.86 2.28 1.61 1.46 1.47 1.74 1.73 2.04 1.10 1.66 1.61 1.83 1.69 1.42 1.85 1.01 1.56 1.43 1.01 .28 .87 .78 repre- .40 .68 .59 .62 .69 .94 .68 to- lan’s using J. Har- tation lants’ tal Proposed represen- formula plan), (appel- 1.71 1.11 1.68 1.68 1.69 1.11 1.34 1.30 1.13 1.23 1.03 .52 .69 .89 .84 .72 .63 .96 .93 .89 .87 .90 .63 .62 .75 .67 .21 .65 .61 .76 .80 .73 .64 .66 .68 .63 to- Bedford. Lauderdale Henry Lincoln Franklin Hamblen. Tipton. Lawrence Robertson. Wilson. Hawkins Putnam. Carroll. Giles Campbell County . . . . . . . . population 15,944 14,090 14,413 15,092 14,732 14,297 15,935 16,456 15,465 16,472 16,459 17,071 16,900 17,477 15,847 voting representation Present total J. Clark’s formula '3.00 using 2.25 2.00 2.50 2.83 2.50 3.00 2.00 2.83 2.83 3.00 1.75 1.10 1.70 .76 Present to- tal Harlan’s sentation using formula 2.45 2.72 2.54 2.22 2.76 2.62 2.88 3.03 2.50 1.07 1.45 1.95 1.68 1.40 1.93 repre- J. tation lan’s formula Har- using lants’ tal Proposed represen- J. (appel- plan), 1.81 1.73 1.67 1.77 1.73 1.81 1.74 1.73 1.13 1.82 1.85 1.21 1.86 1.82 1.94 to- 1.30 1.26 1.75 17,639 Roane . 1.85 2.63 2.33 18,007 Weakley . 1.92 1.67 1.25 18,273 Bradley. 1.92 1.97 1.75 18,347 . McMinn 1.94 2.30 2.00 18,434 Obion. 2.32 2.36 2.00 20,062 Dyer . 2.54 3.56 2.33 20,143 . Sumner *65 2.55 1.48 1.10 23,303 . Carter 2.68 2.05 1.93 23,649 Greene. 2.85 3.81 2.25 24,556 Maury. 2.39 3.02 2.00 25,316 Rutherford. 3.06 3.73 3.00 26,284 Montgomery. 2.86 5.00 5.00 29,832 Gibson. 2.19 2.12 1.60 30,353 Blount. 3.62 1.30 1.25 33,990 Anderson. 3.45 2.65 1.93 36,967 Washington . 3.69 4.87 3.50 37,245 Madison . 5.57 4.07 55,712 3.00 Sullivan. 15.09 6.00 6.00 131,971 Hamilton. 15.21 8.96 7.25 140,559 . Knox 21.57 12.93 12.50 211,930 . Davidson 31.59 16.85 15.50 312,345 Shelby. Stewart, concurring. MR. Justice dissenting concurring writings my The and separate far decision subject today’s so from stray Brothers the think, distressingly impression I inaccurate convey, as to I that think it reason, of what the Court decides. For joining opinion Court, appropriate, the and emphasize opinion few words what does say. does not today things no more:
The Court decides three and “(a) possessed jurisdiction subject that court (b) justiciable that a cause of action stated matter; upon appellants appropriate would be entitled to appellants standing . . . relief; (c) that the have Ante, Tennessee challenge apportionment statutes.” pp. 197-198.
The this asserts Tennessee’s complaint case that system utterly apportionment arbitrary —without any possible justification in The rationality. District claim, Court did reach not the merits that no quite properly expresses subject. Court view on the Contrary suggestion my to the Harlan, Brother say imply legislatures Court does not or that “state must be so structured as to with approximate equality reflect every the voice of Post, p. voter.” 332. Court does say not imply anything or there is the Federal Con- prevent acting stitution “to State, irrationally, from choosing electoral any legislative thinks structure it best suited interests, to the its temper, people.” customs of Post, p. 334. And contrary suggestion of my Brother the Court most Douglas, does not assuredly decide question, “may weight a State the vote of one county district heavily weights one more than it Ante, p. vote another?” MacDougall Green,
In
Mr. Justice whom Mr. Justice Har- lan joins, dissenting. today Court reverses uniform course decision aby
established dozen cases, including one which the very claim now sustained was unanimously rejected *67 only years ago. impressive body rulings of five thus equally cast aside reflected the uniform course of political history regarding our relationship the between population legislative representation wholly and dif- —a ferent matter from denial of franchise to individuals the because race, color, religion of or sex. a massive Such of of in repudiation experience the our whole assert- past ing destructively judicial power novel demands a detailed analysis the role of this in Court our constitutional Disregard scheme. of inherent limits in the effective “judicial only exercise of the Court’s Power” presages futility judicial in intervention essentially political of forces by conflict which the relation between representation and population has time of mind out been now is may determined. It Court’s impair well position as the organ supreme ultimate “the Law the range legal Land” in that vast problems, strongly often in entangled on popular feeling, which this Court must pronounce. The Court’s authority possessed of neither — purse nor ultimately on rests sustained sword— public confidence its moral feeling sanction. Such must be nourished complete Court’s detachment, fact and from appearance, political entanglements and by abstention from injecting itself into the clash of political in political forces settlements.
A hypothetical resting claim on assumptions abstract is now for the first time made affording the basis for illusory relief a particular for though evil even it fore- deeper shadows pervasive more difficulties in conse- quence. The claim hypothetical is assumptions are abstract because the Court does not vouchsafe the lower courts —state and guidelines for formu- federal — lating specific, definite, wholly unprecedented remedies for the litigations inevitable today’s umbrageous dis- is position bound to stimulate politi- connection with cally motivated reapportionments many in so States. In abstract jurisdiction setting, promulgate
such brooding as “a reality It devoid is as meaningless. no intimation conveys it sky,” in the omnipresence affording capable Court any, if District relief, what drakes ducks and play legislatures to would not invite District to direct the this Court Eor judiciary. with the over which the Court has a claim to to enforce Court *68 legal deny required itself consistently found years necessary to find it the same time enforcement how to enforce guidance to the lower court any withhold odd— legal manifests an turnabout, claim, this new conception judicial propriety. indeed an of esoteric — supporting opinions, elucidated One the Court’s disheartening pre- a commentary, unwittingly affords (apart view of from divers quagmire the mathematical judicially inappropriate determinants) into elusive catapults which this lower of the today Court courts country adumbrating without so much as for a basis legal assuming as a calculus means of extrication. Even the indispensable intellectual disinterestedness part on the judges they such matters, accepted legal do not have standards or criteria analogies or even reliable to draw upon making judicial judgments. To courts charge accommodating with the task of the incommensurable fac- of policy tors that underlie puzzles these mathematical attribute, is to flatteringly, however omnicompetence to judges. The Framers of Constitution persistently rejected proposal that embodied this assumption Thomas Jefferson never it. entertained legislation, creating
Recent appropriately district “an atrocity described as of ingenuity,” is unique. not Considering gross inequality among legislative elec- toral every units within almost State, the naturally Court asserting shrinks from that in districting at least substan- equality tial constitutional requirement enforceable for weighting. to be allowed Room continues by courts.* economics, urban- implies geography, This course non-legal conflict, and all the other factors which rural into throughout history political our entered dis- have tricting are to not out in some extent to be ruled the unde up by now the federal opened fined vista review in courts reapportionments. To there’s aye, state some extent — today’s In effect, empowers the rub. decision the courts country to devise what should constitute composition legislatures of proper fifty States. If courts state should for one reason or another find them discharge unable task, duty doing selves so on the courts if put Court, federal or on this State do satisfy proper views this Court’s notion what is districting. were soothingly told at the bar of this
We Court that need not worry remedy we about the kind of a court could effectively fashion once the constitutional right abstract system on a pass to have courts state-wide of electoral *69 districting is recognized judicial rhetoric, as a matter of legislatures because would heed the Court’s admonition. is not only euphoric hope. implies sorry This It legislative reminding problem apportion- is worth *It that the of dividing Indeed, present is not one North in ment and South. the Representatives, example, Michigan’s congressional of for House dis- representative inhabitants, are of tricts far less of the numbers accord- ing Michigan’s the census, to 1960 than are Louisiana’s. Sixteenth District, 802,994 urban, persons which is contains and its 93.1% Twelfth, many urban, 177,431 which contains as 47.6% —one-fifth persons. populous district, Sixth, Louisiana’s most is 53.6% persons, 536,029 populous, urban and contains least and its Eighth, urban, 263,850 nearly disregard half. contains Gross 36.7% — any assumption political system implies approxima- of even our to the tion notion that votes in various individual districts within equal weight true, California, e. a State should have is as of g., Illinois, Georgia. Department and Ohio as it is of See States United Commerce, Release, February 24,1962, Census CB62-23.
270 frank in of a impotence place judicial
confession not our Constitution under acknowledgment that there every mischief, for remedy every political for judicial The Framers legislative power. exercise of undesirable so to forethought and with refused carefully deliberate situation, In this others judiciary. enthrone belong Appeal does appeal like for relief here. nature, civically In an militant electorate. must be to informed, through society ours, like relief must come a democratic an that sears conscience popular conscience aroused representatives. any In event there is of the people’s unseemly self-defeating nothing judicially nor more more pronouncements, than for this make terrorem Court to sounding a word of indulge merely empty rhetoric, hope. promise ear, disappointing to the sure to be This is the latest in the series cases which Equal Protection and Due Process Clauses the Four- teenth Amendment have been invoked federal courts as upon the elec- power restrictions States allocate among voting populations toral weight their various geographical present action, subdivisions.1
1 Colegrove Broom, 1; Green, See 287 328 Wood v. U. S. v. U. S. rehearing denied, reargument 329 U. motion S. before 828; Fortson, denied, full 329 Cook 329 bench U. S. v. U. S. rehearing 829; denied, Duckworth, Turman 329 U. S. v. 329 S.U. 829; 675, rehearing denied, Colegrove Barrett, S. v. 330 S. U. U. 804; MacDougall Green, 281; Peters, v. S. South v. U. Remmey 276; Supervisors, 940; S. Tedesco U. v. Board 339 U. S. Smith, 916; Peters, 936, rehearing 342 U. S. Cox v. S.U. 921; denied, Jordan, 912; S. Anderson v. S. Kidd v. U. U. *70 McCanless, 920; Gary, 991; 352 S.U. v. 352 U. S. Radford Hartsfield Sloan, 916; Perry Handley, 127; v. 357 U. S. Matthews v. 361 U. S. v. Donovan, Folsom, Magraw Supp. (D. Ala.); D. 144 F. 874 C. N. v. (D. Minn.); Dyer Abe, Supp. 163 F. C. D. cf. v. Kazuhisa Hawaii). Supp. (D. Keogh D. Neely, F. C. And see v. 50 F. Cir.). (C. 2d 685 A. 7th appeal statutory here on from an order of a three- comes judge dismissing complaints District amended seek- Court declaratory challenges pro- ing injunctive relief, 3-109, which Ann., 1955, §§ visions of Tenn. Code 3-101 to apportion among and senatorial seats representative state ninety-five Tennessee’s counties. original qualified
The citizens and voters plaintiffs, Legislature entitled to vote for members of the Tennessee they respectively reside, in the several counties which bring this action their own behalf and “on behalf of they all voters in as Tennessee,” or, other the State of alternatively qualified “on behalf of all voters of assert, all respective counties, further, their on behalf of similarly voters of the of Tennessee are situ- State who Chattanooga, ated.” The cities of Knoxville and and the qualified his Mayor of Nashville —on own behalf as by to an pursuant authorizing voter resolution and, representative City Council, city’s Nashville as a of all the permitted parties plain- residents—-were to intervene charged tiff.2 with The defendants are executive officials with statutory duties connection state elections.3 2Although by Mayor the motion to intervene of Nashville litigation only representative capacity, asserted an interest in the subsequently complaint he filed set forth that he was a qualified municipalities The voter who also sued in his own behalf. Chattanooga purport represent their residents. Knoxville materially municipal Since the claims of the intervenors do not differ voters, parties from those of the who sue as individual the Court need municipalities parties proper determine whether the are not now g., City, proceeding. See, Stewart Kansas S. 14. e. U. original Secretary complaint named as defendants Tennessee’s State, Attorney General, Elections, Coordinator of and the three Elections, seeking members of the State Board of to make the Board County representatives of all the State’s Election Commis members intervening City prayer complaint sioners. The an County Knoxville, of Knox Commissioners Elections parties not to been on added as defendant seems have acted dismiss, alia, ground inter on the court below. Defendants moved *71 avers, complaint original plaintiffs’ amended The the State substance, following.4 The Constitution of free and that “elections shall be Tennessee declares of age, than qualifications that no other equal,” provides requirements shall be residence citizenship specified and denying and to suffrage, prohibits right attached to the of except to he is suffrage entitled any person the Art. I, 5; an crime. Art. § conviction of infamous upon an voters qualified 1. It enumeration IV, requires § appor- every years ten after 1871 and an term of within among and representatives senators tionment according to number or districts several counties decennial voters each at the time each qualified they join indispensable parties, argue in this Court to and of failure ninety-five only County Election of the Commissioners laws, are the administrators of Tennessee’s elections counties effective none of substantial duties connection and that the defendants have ruling ground Court deferred on this of the therewith. District appro- questions as it involves of local law more motion. Inasmuch sitting Court, priately by judges by this decided in Tennessee than any County join the failure Commis- and since event Election looking corrected, prospective in this relief be sioners action could necessary, complaints, if of the the issue does not amendment appeal. concern Court on upon predicated Jurisdiction R. S. U. S. C. § § (3). and S. C. 28 U. § 5However, having required counties two-thirds of the for a ratio Representative House, are entitled to seat one member in the and geographical upon there are certain restrictions the formation of applicable provisions districts. The II of the Senate Article Tennessee are: Constitution qualified voters, “Sec. Census.—An and an enumeration 4- Representatives Assembly,
apportionment of in the General shall year seventy-one, eight be in the thousand hundred made one every subsequent years.” within term of ten Apportionment representatives. Rep- “Sec. 5. number of —The making shall, periods enumeration, resentatives the several according apportioned among districts, the several counties seventy- qualified each; the number of shall voters not exceed II, 4, 5, Notwithstanding enumeration. Art. these §§ provisions, Legislature reapportioned the State has not Reapportionment year, itself since 1901. The Act of that *72 122, 1955, Tenn. Acts c. Ann., now Tenn. Code 3-109,6 enacted, 3-101 to was unconstitutional when §§ preceded by because not the of required enumeration qualified voters legislative and because it allocated seats arbitrarily, unequally and discriminatorily, measured by the irrespective 1900 federal census. of Moreover, question in validity of its it is asserted that the in Act became “unconstitutional and obsolete” virtue of the reapportionment requirement decennial “purposeful the Tennessee Constitution. a Continuing systematic and a plan against geographical discriminate class of persons,” Legislatures recent Tennessee have failed, as did reapportionment their to enact predecessors, legislation, although providing reap- a number of bills portionment popula- have been introduced. Because of apportionment tion shifts since the Act fixed year proportionate pop- and still in effect is not ulation, plaintiffs denies to the counties which the five, half, population until the of the State shall be one million and a ninety-nine; any county having and shall never exceed Provided two-thirds of the ratio shall be entitled to one member.” Apportionment shall, “Sec. 6. senators. —The number of Senators periods making enumeration, apportioned several be among according the several counties or to the number of districts qualified each, electors in and shall not the number exceed one-third representatives. apportioning among In the Senators the different counties, may by any county counties, the fraction that be or lost apportionment Representatives, shall of members to the House of up county may Senate, be made to such counties as near as counties, practicable. composed more When a district of two or they county adjoining; forming shall be and no shall be divided in a district.” alleged It is that certain amendments to the Act of 1901 made only Act, adjusting minor modifications of that the boundaries plaintiffs’ individual districts a manner not material to claims. they representatives number of live an additional as effective votes “not plaintiffs’ and renders entitled, are senatorial other residing votes of the voters as the “suffer Plaintiffs districts representative . . . incorrect, arbi- of the by virtue of their votes debasement of the apportionment and unconstitutional trary, obsolete malap- totality of the . . . and the Assembly ,” General minority of about permits effect—which portionment’s of the State voting population thirty-seven percent of the of Ten- thirty-three members twenty of to control forty percent of minority Senate, nessee’s ninety-nine sixty-three control voting population to in “a distortion of members of the House —results Federal by the system” constitutional established Assembly “from Constitutions, prevents the General State *73 of the State of being body representative people principle “contrary to the basic Tennessee, . . .” and is “contrary to the . . . and representative government ,” of and all the States philosophy government United . . . .” Anglo-Saxon jurisprudence complaint purport to demon- appended Exhibits to the plaintiffs inequalities strate the extent of the of which “approximate voting popula- complain. upon Based figures showing that the State tion,” these set forth figures population the The exhibits do not reveal the source of forth, appears figures they but it that the were taken from set 1950, II, Population, Part 42 the States Census of Volume United figures represent (Tennessee), These the Table at 76-91. census twenty-one years age population Tennessee total over each “qualified county; they purport do not to enumerate voters” or apportionment prescribed by “qualified electors,” the the measure 5, supra. qualify note To to Tennessee Constitution. See vote fulfilling age Tennessee, requirement, the an in addition to individual States, the must be a citizen of the United a resident of State for county the where he offers his six twelve months and of vote for election, preceding the and must not be under the dis- months next dis- senatorial populous most from Tennessee’s Senator number times the and two-tenths five represents trict populous the least from the Senator represented by voters and least for most ratio corresponding the district, while to one. eighteen is more than districts populous House has discriminated Assembly apportioned thus The General in favor of counties and underrepresented against and distribu- in the collection counties overrepresented in the notably revenues, and tax taxes tion of various funds,8 highway-improvement distribution of school by and effective” possible “made being this discrimination Plaintiffs itself. reapportion failure Legislature’s Legislature pursuant that election of the State conclude 1901 Act violates by fixed apportionment to the process deprives them Tennessee Constitution due guaranteed of the laws equal protection of law below was prayer Amendment. Their by the Fourteenth an Act, striking down the declaratory judgment any from acts neces- restraining defendants injunction prescribed districts holding of elections sary to the 3-109, until such Ann., 1955, 3-101 §§ Tenn. Code “according legislature reapportioned time as Tenn. Code qualification attaching for certain offenses. to conviction 1955, 2-201, found in the States Ann., 2-205. statistics United §§ II, (Tennessee), Part 42 Table Population, Volume Census may requirement, suggest particular, 92-97, that the residence significance. Appellants do of considerable be an unknown variable court, suggest on the basis of the federal *74 a means which a qualified in the figures, the number of voters can determine census Tennessee counties. various portion gasoline “county a of a state The aid funds” derived from among the as fol tax, example, are distributed counties privilege for counties, one-quarter on among ninety-five equally lows: one-half used-by population, area, one-quarter the basis of to be on the basis of county building, repairing improving of county and authorities in Appellants bridges. Ann., 54-403. Tenn. Code roads and § discriminatory. urge is that this distribution and an order Tennessee,” of the State Constitution primary the next to declare directing defendants Legislature members of the Tennessee general for elections candi- thirty-three senatorial at-large an basis—the on candidates ninety-nine representative dates and the declared of votes to be highest number receiving elected.9 the sub jurisdiction
Motions to dismiss for want made a claim were ject matter and for failure to state relying F. the District Court granted, Supp. 824, Cole beginning this series of decisions with upon Court’s S. Green, rehearing denied, 329 U. grove S.U. denied, bench reargument for before the full motion intervening plaintiffs original S. 828. The U. In this bring appeal. the case here on 364 U. S. relief, suggest they request have altered Court their step first ing “step-by-step approach.” The to vacate remand to the District Court with directions an dismissing complaint and to enter order the order providing necessary spur “the retaining jurisdiction, proves insufficient, . . . .” If this legislative action an spur” injunction will ask the “additional appellants Act, elections under the 1901 or declaration prohibiting Finally, all unconstitutionality, Act’s or both. of the failing, other means the District Court invited an plaintiffs, greatly daring, large to order election through redistrict the State itself or a master. Solici has filed a brief States, tor General of United who argued reversal, amicus and favor of asks the Court on only that the District has appeal “juris to hold Court may properly diction” and exercise it to entertain the plaintiffs’ on the merits. This would to that claims leave questions challenged court remand the stat- after suggested, at-large elections, as an alternative to Plaintiffs also might They not, itself that the District Court redistrict State. did pray however, expressly such relief. *75 undefined, and some unadum- constitutionality
ute’s in a constitutional violation brated relief the event the case Term, an at the last argument found. After and heard S. reargument, set down for U. Term.
I. Four- sustaining on the appellants’ claim, In based may enter- teenth the District Court Amendment, course of decision suit, tain this this Court’s uniform it years disregarded. Explicitly over overruled Green, in begins Colegrove decided supra, with deep adjudicatory but its run Court’s historic roots process.
Colegrove held that a federal court should not entertain declaratory adjudi- an action for relief to injunctive Equal Protection constitutionality, cate the under the statutory constitutional Clause other federal establishing respective of a state provisions, statute Representatives districts for the State’s election of to the four Jus- Congress. opinions Two were written sitting of the seven mem- composed majority tices who opinions Both the result joining bers of Court. con- Colegrove agreed v. Green that considerations were trolling though dictated denial of jurisdiction power. the strict sense of want of the two While divergence regarding show a of view some of opinions important points there are of con- considerations, these predominant demonstrate opinions currence. Both judicial avoiding with federal involvement concern, first, traditionally legislative policy making ; left to matters respect difficulty with to the view of the second, —in apportionment history and its problems nature of the country drawing devising judicial in this on or —of opposed legislative judgment, standards for determi- numerical part equality among which mere nations, a criterion play as for the allocation of voters should *76 finding of third, problems with political power; and, of problem particularly, modes of appropriate relief — of the relative essentially political issue resolving in districts and elections held at-large merits of elections unequal population. these considerations —sum- applicability The broad ques- in phrase, “political marized the loose shorthand apportionment a involving tion” —in cases State’s led the voting power among its numerous localities has in controlling Court, 1946, recognize since their effect variety (In a situations. all these cases decision was question” principle as by Court.) “political a full Colegrove application in found wide commen- applied has surate rules basic to the with its function “one system appropriate place within federal and this Court’s Court, 331 Army Municipal structure.” Rescue v. In liti- Colegrove 804, S. v. 330 U. S. 549, Barrett, U. gants brought challenging suit a Federal District Court Illinois’ Equal as offensive to the Protection Clause state pointed laws. to state legislative-apportionment They provisions requiring reappor- constitutional decennial proportion tionment and allocation of seats population, alleged reapportion a failure to for more than forty-five years during population time extensive — legislative grossly shifts had rendered the districts unequal sought declaratory injunctive relief —and respect with to all to be held thereafter. After elections complaint by was dismissed the District this Court, an a appeal Court dismissed for want of substantial A similar District decision question. federal Court was Gary, affirmed v. 352 S. 991. And cf. here U. Radford Smith, In Remmey v. S. 916. Tedesco v. Board U. hear, Supervisors, S. the Court declined to U. a federal claim that for want of substantial question, municipality voting into districts of the division of for the selection for fell population couneilmen unequal Peters, and in v. Amendment, afoul of Fourteenth Cox it found no 936, rehearing denied, S. U. S. U. raised a state court’s question substantial federal damages dismissal of a claim for for “devaluation” of plaintiff’s application Georgia’s county-unit vote system primary gu election for the Democratic Georgia system bernatorial candidate. The same subsequently complaint declaratory attacked and an judgment injunction; judge the federal district requisite steps convening declined to take the for the of a statutory three-judge court; Court, in Harts field Sloan, denied a for leave file U. S. motion *77 a petition for a writ district compel of mandamus to the Green, judge 281, 283, to act. In MacDougall v. S.U. political power Court noted that “To assume that a exclusively disregard prac function of numbers is to Colegrove cases, ticalities of government,” and, citing the concepts find in declined to “such broad constitutional id., due process equal protection laws,” a warrant federal an Illinois judicial invalidation of requiring statute as a condition for the formation of hundred political party securing new of at least two v. signatures fifty each of counties. And in South from Peters, attacking Georgia’s another U. S. suit dismissal, a District county-unit law, it affirmed Court - saying consistently their
“Federal courts refuse to exercise arising in equity powers posing political cases issues geographical distribution of electoral from state’s Id., at among political its subdivisions.” strength recognize particular, rele important course it is Of among comprehensively vant diversities similar situations. distinguish several of this Court’s Appellants seek v. ground Colegrove prior decisions on one or another — federal, legisla- ground state, Green on the v. on involved; Remmey was Smith apportionment tive tried; had not been judicial that state remedies ground Oklahoma Gary ground has v. on Radford only not. It would initiative, whereas Tennessee does significance the relevance darken counsel to discuss distinguishing factors here assertedly each these it that this entire line of cases. Suffice the context of Colegrove Barrett, v. they distinguish do not serve present or to case, which is on all fours with the supra, McCanless, 920, in distinguish Kidd v. 352 U. S. dis- dissent, only years ago, full without five Court and Anderson authority Colegrove missed on v. Green Jordan, Supreme an from the appeal 343 U. S. precisely similar Court of Tennessee which attack upon very challenged. If the made statute now care- weight unvarying and momentum an course of fully appellants' are to considered decisions be respected, only precedents governing claims are foreclosed not sup- are present exact facts of the case but themselves ported gives by authority persuasive the more that it distinctly Colegrove varying effect to the principle arrangements allocating circumstances which state among degrees political geographic *78 relative of influence groups challenged of under the Fourteenth voters were Amendment.
n. in the Colegrove doctrine, repeated The form which it, rep- not decisions have settled an innovation. It long judicial thought experience. resents From its has opinions consistently recognized earliest this Court which do class controversies not lend themselves to judicial and judicial standards remedies. classify To “political questions” various instances as a form rather
281 stating revealing analysis.10 this conclusion than so no Some the cases labelled have relevance here. But emerge unifying from others considerations that are compelling.
1. concerning The cases foreign war or for exam- affairs, usually are ple, explained by necessity country’s speaking with one in such voice matters. While this concern undoubtedly many alone accounts for of the deci- others do fit sions,11 pattern. hardly It would embarrass the conduct of were this war Court to deter- mine, private connection with transactions between litigants, the date upon which war is to deemed ter- But g., minated. the Court has refused to do e. See, so. Protector, The 12 Hiatts, 15 700; Wall. Brown v. Wall. Alston, 177; Adger v. 15 555; Bruffy, Wall. Williams v. 96 S. 192-193. It 176, explain U. does not suffice to such Watkins, cases as Ludecke deferring v. 335 U. S. 160— political determination question of the duration purposes war for of the Presidential power deport alien enemies —that judicial seriously intrusion would
10
Bickel,
Virtues,
See
Foreword: The Passive
75 Harv. L. Rev.
seq.
(1961).
45 et
g.,
Palmer,
e.
United States
See,
610, 634, 635;
v.
Wheat.
Co.,
Pastora,
Divina
Williams v.
Ins.
52;
4 Wheat.
13 Pet.
Suffolk
Chambers,
Braden,
Kennett v.
415;
Doe v.
38;
635;
14 How.
16 How.
States,
Jones
Ames,
v. United
Terlinden
202;
S.
U.
v.
S.U.
Kelly,
447; Oetjen
Co.,
Charlton v.
270;
v. Central Leather
229 U. S.
parte Peru,
Allen,
Ex
297;
Clark v.
578;
S.
246 U.
318 U. S.
331 U. S.
Neilson,
Foster and Elam
Compare
503.
with United
v.
2 Pet.
Arredondo,
States v.
course, judgment concerning
impede the is course, of war. this country’s interests time Of the true; but is the duration of precise presented the issue power. Cf. Martin v. time of war which demands the Mott, Browne, 19; 187, 193; v. 92 U. S. Wheat. Lamar Co., Kentucky Hamilton v. Distilleries & Warehouse Anderson, for 146; v. And even U. S. Kahn U. S. purpose determining congressional the the extent of commu regulatory power dependent over the tribes and the Indians, ordinarily it is not Congress, nities Indian Court, particular to or determine whether not group constitutionally requisite retains the characteristics Holliday, power.12 g., to confer E. United States v. the 407; Tiger Co., v. S. Wall. Investment U. Western 286; Sandoval, 231 A United States v. S. 28. control- U. ling that, respecting factor in such cases is decision these being traditionally kinds of complex policy matters of committed politicial agencies not courts but the government political for determination criteria by set- expediency, there exists no standard ascertainable judicial experience process by tled to which /reference political affecting question decision issue between parties question judged. can Where the arises course a litigation involving primarily adju- dication of other litigants, issues between the the Court accepts as a for adjudication political depart- basis ments’ decision of it. But where its determination sole function to be judicial served exercise power, the Court will entertain not the action. See Chi- cago Lines, Inc., & Air Southern v. Corp., Waterman S. S.
12Obviously,
equivalent
saying
is the
the character
“constitutionally requisite”
istics are
judicially
in enforceable
recognition
necessity
sense. The
legislation
of their
as a condition of
left,
as is
commands,
observance of
other
certain
constitutional
Dennison,
Kentucky
non-judicial organs.
conscience
Cf.
283 lack is “the consideration dominant 103. The 333 S.U. . . . determination judicial criteria for satisfactory v. in Coleman Court, for the Hughes, Mr. Chief Jusice States v. Compare United Miller, 433, 454-455. 307 U. S. Georgia, Pet. v. 6 with Worcester 567, 572, 4 How. Rogers, 515.13 a matter law, many questions may be,
This like so under the Constitu Questions arisen degree. have although answer gives which adjudication tion to lines. unwavering bright decision are less than criteria for in the federal was found these cases Often illumination underlying presupposi by, structures established ques such respect to of, tions the Constitution. With concerning par recognized that, tions, the Court has “. . . effective Congress put issue, ticular power rather proceed political restraints on its exercise must from Filburn, 317 Wickard v. judicial processes.” than from dura regarding that even 111, 120. It is also true U. S. to tribes, war and status of Indian referred tion of exclusively to subjects ordinarily committed above suggested that some the Court has non-judicial branches, the decisions upon range exist within which limitations permitted go be to unreviewed. of those branches will Sandoval, supra, 46; v. cf. Chastle See United States merely But this Sinclair, ton v. 264 S. 543. Corp. U. may differ acknowledge particular circumstances greatly degree thereby kind, that, as to differ so continuum, although range within a certain of cases on can be found to tell between no standard of distinction range. cases fall above or below the them, other will any political questions, other, doctrine like Sprague, States compare the Coleman and United v. Also case (No. 1), 221. S. with Hawke v. Smith U. S. See 282 U. Cases, 350; and the National Prohibition 253 U. S. consider Garnett, in Leser v. Court’s treatment of several contentions S. 130. U. all the with logic, its own the limits of beyond applied may it manifest. abstract disharmonies quiddities dis logically on contentions based disposition See Pitts Hunter v. Colegrove v. views of Green torting Lightfoot, in Gomillion burgh, S.U. U. S. unwilling inter particularly
2. The Court has been *81 organization and concerning in the structure vene matters The absten the States. political institutions of greater areas has been entry tion from into such judicial ordinary approach even than that which marks the Court’s federal challenged under broad power to issues of state very to decide guarantees. should be reluctant “We in an in and thus jurisdiction case, that we had such political and supervise of this nature to review action officials its own government administration of state this court its courts. The through jurisdiction and own a plain in had been . . . such only would exist case there princi fundamental departure from the substantial it is based that could ples upon government which our if judgment with truth and propriety said party aggrieved would be remain, suffered to were in violation of deprived life, liberty property of his v. of the Federal Constitution.” Wilson provisions Carolina, Taylor 586, S. 596. See North U. 548; v. (No. 1), Marshall v. Beckham 178 U. S. Walton v. Representatives, 487; House 265 U. S. Snowden In Hughes, Sawyer, re S. U. S. Cf. U. 220-221.
Where, however; particular state law has made federal the structure questions determinative relations within in government, .challenge it, of state not the Court in legally defined narrow, questions has resolved such Boyd Thayer, ex rel. proper proceedings. See v. Nebraska In S. 135. such instances there is no conflict U. policy and the judicial between state exercise federal Smiley explains the decisions This distinction power. 375; Flynn, 285 U. S. Holm, 355; Koenig v. v. S.U. in which the Court Becker, S. v. 285 U. Carroll local prescribing provisions state constitutional released misconceived restriction from lawmaking procedures federal Adjudication superior requirements. federal demanding not one cases was claim involved those no for which conflicting interests accommodation of See could be found. readily standards judicial accessible in a case Blacker, 1, which, v. 146 U. S. McPherson aof judgment error from the coming here on writ of merits, on the had entertained it state court which a State could the claim that justiciable treated Court electors presidential select constitutionally its Art. cl. of the Con II, 1,§ districts, but held electors abso choosing mode of stitution left the Williams, 193 Pope v. discretion of the States. Cf. lute Suttles, 277. To read 302 U. S. 621; Breedlove U. S. discussion jurisdictional abstracted with literalness the *82 danger conceptions of the opinion McPherson reveals the the from talk and not from derived “justiciability” of In beneath the sur probing in a case. effective decision declined to interfere of cases in which the Court has face organs government, political with the actions of in situation the significance is whether each decisive to or not to inter ultimate decision has been intervene Peters, in 339 S. the reliance South v. U. Compare vene. Green, and the MacDougall 281, on v. 335 U. S. 276, opinion form of the Wilson v. North “jurisdictional” Carolina, 596, 586, supra. 169 S.U. involving Negro
3. The cases disfranchisement are no exception principle. avoiding judicial to the >of federal government intervention into matters of state explicit of an and clear constitutional imperative. absence controlling command of Supreme For here the Law is An end of plain unequivocal. against discrimination 286 War compelling motive Civil Negro was the in terms, expresses Fifteenth
Amendments. The Equal Protection Clause of it is no less true of the Cases, 67-72; 36, 16 Slaughter-House Wall. Fourteenth. 306-307; Nixon Virginia, 303, Strauder v. 100 S. West U. Herndon, cases Court, S. Thus the 536, v. 273 U. 541. right vote, involving against Negro’s discrimination damages,14 for recognized only has not the action at law extraordinary in appropriate circumstances, but, v. declaratory injunctive relief.15 Schnell remedy Adams, Terry 345 461.16 Davis, 933; 336 S. v. U. S. U. cases, noted, these it should be would Injunctions general Compare restrained state-wide elections. have Harris, Giles v. 189 S. 475. U. has jurisdiction
4. The Court
refused to exercise its
questions
political
“abstract
of sover-
pass
power,
on
Mellon,
eignty,
government.”
Massachusetts v.
Texas
447, 485. See
v. Interstate Commerce Com-
U. S.
mission,
Jersey
158, 162;
Sargent,
258 U. S.
New
v.
“political question”
337. The
in this
doctrine,
U. S.
aspect,
policies underlying
requirement
reflects the
litigant
“standing”:
challenge
who would
offi-
g., Myers
Anderson,
368;
Condon,
E.
Nixon
v.
238 U. S.
v.
73;
Wilson,
268;
Allwright,
Lane
U. S.
v.
307 U. S.
Smith v.
321 U. S.
damages
improperly rejecting
action for
an elector’s
given
English
Ashby
vote had been
law since the time of
v.
62;
White,
Raym. 938;
Brown’s Cases
Parliament
Ld.
3 Ld.
Raym.
day
precipitated
which in its own
case
an intra-
parliamentary
major
Hansard,
war of
dimensions. See 6
Parlia
mentary History
England (1810), 225-324,
376-436. Prior
cases,
recognized
action,
the racial-discrimination
this Court had
by implication,
Templeton,
in dictum in
185 U. S.
Swafford
*83
Wiley
Sinkler,
58,
respecting
v.
179 U. S.
both
federal elections.
15
Lightfoot,
Cf. Gomillion v.
287
cial action must claim
of an
infringement
partic
interest
personal
ular and
as distinguished from a cause
himself,
of dissatisfaction with
general
functioning
frame
government
complaint that the political institutions
—a
)
awry.
Wood,
are
See Stearns v.
75;
236
S.
Fairchild
U.
Hughes,
v.
U. S. 126;
258
United Public
v.
Workers
Mitchell,
75,
330
S.
89-91.
U.
What renders cases of this
non-justiciable
kind
is
necessarily
the nature
parties to
them,
the Court has
issues
resolved other
similar parties;17
legal
between
nor is it
nature
of the
question involved,
type
for the same
question
has been
adjudicated
presented in
when
other forms of controv
ersy.18 The crux of the matter is that courts
not fit
are
essentially
instruments of
what
decision where
stake
composition
large
policy
those
contests of
tradi
tionally fought
forums, by
gov
out
which
non-judicial
governments
ernments and the actions
are made
White,
700;
unmade. See Texas v.
7
v.
Wall.
White
Hart,
646;
13
Phillips
Payne,
Wall.
92
S.
Marsh
130;
v.
U.
Burroughs,
v.
1
463,
(Bradley,
Woods
471-472
Circuit
Justice); cf.
v. Shaw,
24;
Coyle
Wilson
but
U. S.
see
Smith,
v.
S. 559.
where
Thus,
U.
the Cherokee Nation
by an
sought
original motion to restrain the State of
from
Georgia
the enforcement of laws
assimilated
Cherokee
to the
territory
abrogated
State’s counties,
Cher
law,
okee
and abolished
government,
Cherokee
the Court
claim
judicially cognizable.
held that such a
was not
Georgia,
Cherokee
Georgia
Nation v.
jurisdiction
ground
the
Acts on
of the Reconstruction
enforcement
they estab-
military
by
command
districts
that the
and re-
government
state
extinguished existing
lished
by the
unauthorized
government
of
it with a form
placed
Constitution:
body
of
the
both as stated
matters,
these
“That
prayers
relief,
for
call for
in the
bill;
and,
and,
upon political questions,
of the court
judgment
of a
property, but
persons or
upon rights, not of
hardly be
For the
character, will
denied.
political
authority is
our
of which
rights
protection
for the
political
of
rights
sovereignty,
are the
invoked,
existence
corporate
government,
jurisdiction,
powers
with all its constitutional
State,
as a
rights
private
case
private
No
privileges.
danger of actual or threat-
or in
property infringed,
in a
bill,
judi-
presented
infringement,
ened
Id., at 77.21
the court.”
form,
judgment
cial
for
“part
question whether that
aspect, but the “more doubtful”
in this
Indians,
prays
occupied
respects the land
of the bill which
might
possession,”
be entertained.
protect
their
the aid of
court
controversy
Johnson, concurring,
non-
found the
Justice
Ibid. Mr.
solely
ground,
put
ruling
have
on this
justiciable and would
agreed
Thompson,
dissent,
much
id.,
at
and Mr. Justice
Id.,
judicial
fit
the bill
for
determination.
of the matter in
75.
Johnson,
Mississippi v.
to the doctrine which underlies and would be in sustaining propositions for,” involved the contended said: Court . . essentially political nature this [of [The] is at by understanding once made manifest claim] that the assault which the contention here advanced it on makes not the tax as a on the tax, but [sic] as a It State State. is framework addressed character which political government by of the the statute It is levying passed. the tax government, political (reducing which entity, its essence) court, case to called the bar of this purpose judicially not for the exer- testing some power cise of on the exertion assailed, ground its S., contention, sound, . at 141. . if held to be U. [T]he necessarily validity, only particular would affect the of the statute us, every Oregon passed which is before but of other statute since adoption propo of the initiative referendum. And indeed the go this, they sitions than further since their essence assert that governmental function, legislative judicial, Oregon, there is no assumed, founded, proposition because it if the be cannot well government there is and the time one same at one same and the republican Compare form and not of that character.” Luther Borden, How. 38 — 39: For, upon inquiry “. if this . . court is authorized to enter proposed by plaintiff, it should be decided that the charter government legal during period had no existence of time above mentioned, adoption opposing it had been annulled —if *87 passed by government, legislature during that time laws its —then nullities; wrongfully collected; were its taxes its salaries and com- pensation illegally paid; improperly its public officers its accounts settled; judgments of its in civil and sentences courts void, null and and the who criminal cases officers carried their deci- operation trespassers, sions answerable as if not in cases as into some criminals. might results, decision of court
“When the lead to it such duty very carefully powers becomes its to examine its own before it jurisdiction.” undertakes to exercise an individual rights of injuriously
has affected limita- constitutional repugnancy because of some it establish of the State that tion, but to demand in right State, republican its to exist a form.” Id., at 150-151. cases applied of the doctrine these starting point
The Borden, case arose Luther 7 How. The is, course, of Island 1841-1842. out of the Dorr Rebellion Rhode separation England, from Rhode at the time of the Island, continued, had not a new constitution but had adopted original its independent State, its existence as an under This statutory alterations. royal Charter, with certain government provided frame of no for amendment means suffrage was to law; right the fundamental prescribed by limited it freeholders. legislation, which towns in largely growth In the of the 1830’s, because means developed propertied which there class whose by represented freehold dissatisfaction estates, were not gov- charter suffrage qualifications with the arose addition, ernment. In shifts had caused population yield lower house to apportionment dated seats influence, inequality political numerical substantial among felt themselves qualified even voters. towns re- began for electoral underrepresented, agitation government respond, form. failed to charter When suf- meetings who favored the broader popular of those a convention frage delegates held and elected to were drafted a constitution. This con- which met and state suffrage (with stitution for universal manhood provided adopted and was to be vote qualifications); certain it similarly expansive at people elections government franchise obtained. This new scheme and declared effective the con- polls ratified at the government organized elected and under vention, but head, power. The Dorr at its never came to it, with *88 government convention, charter validity denied the government the constitution and its an and, insig- after nificant It skirmish, routed Dorr and his followers. meanwhile provided calling convention, for the of its own peacefully drafted a constitution went into that effect 1843.25
Luther v. Borden trespass brought by was a action one supporters of Dorr’s in a United States Circuit Court damages breaking entering recover for the of his house. justified military The defendants under orders pursuant to martial by govern- law declared the charter ment, by his issue on the plaintiff, reply, joined legality government subsequent of the charter to the adoption of the Dorr constitution. Evidence offered plaintiff tending govern- to establish that the Dorr rightful government ment was the of Rhode Island was rejected by Court; charged jury the Circuit the court government lawful; that the charter and on a verdict defendants, plaintiff brought writ of error to Court. affirmed, Court, through Mr. Chief Justice Taney, noting government’s
After that the issue of the charter legality government’s had been resolved that favor courts, the state courts Island —that of Rhode state deeming political judicial the matter one unfit for deter- mination, had declined to attacks upon entertain existence and authority government of the charter —the Chief Justice held the courts of the States United Id., must follow those of the in this regard. State It was recognized compulsion 39-40. follow 25 Bowen, (1844); Frieze, See The Recent Contest in Rhode Island History Suffrage A Concise of the Efforts to an Obtain Extension of Island; (2d 1842); Mowry, in Rhode From the Year 1811to 1842 ed. (1901); Wayland, (2d The Dorr War The Affairs of Rhode Island ed. 1842). *89 in the face in a court federal apply state lawwould not Constitution, in the Federal of a command found superior Constitu ibid., command was found. but no such Clause referring to the Guarantee the Court tion, said— for it provided . as far as has Article —“. . of the Fourth general the authorized kind, an this and emergency of aof in the concerns interfere domestic government to in and its subject political nature, the State, has treated Id., department. hands of that placed power the the ” . at 42 with this of the it rests “Under article Constitution government what is the estab Congress to decide in a For as the States lished one State. United government, guarantee republican to each State necessarily government must what Congress decide it State can determine established the before And the republican whether it is when sena not. and are admitted into representatives tors a State Union, the the authority gov councils the the they appointed, as ernment under which are well as republican character, recognized by proper its authority. constitutional its is binding And decision every department government, on other of the questioned could not be judicial tribunal. It is true that last long contest this casé did not enough bring to matter this issue; to and as no representatives senators or were under elected authority government of which Mr. Dorr was the head, Congress upon was not called to decide controversy. right Yet the placed to decide is there, and not in the courts.” Ibid.26 reasoned, respect The Court guarantee with against IV, §4, domestic violence also this, contained Art. too, that was authority solely an Congress; committed Congress that had empowered President, courts, it; to enforce it that was In the Court determining non-justiciable, this issue later same to which its sensitive to the considerations dis applications already given decisions the varied have delicacy judicial interven cussed. It adverted to the It acknowl very government.27 tion into the structure edged long questions had entrusted tradition non-judicial proc processes,28 judicial nature esses were unsuited to their decision.29 The absence ques standards for guiding judgment critical, tion rightfully whether the Dorr constitution had been *90 adopted depended, upon the extent of the fran part, chise be recognized very over point of contention —the . which fought rebellion had been “. f . . the Circuit Court upon had entered [I] inquiry, what it rule could have the determined qualification upon adoption of voters or rejection of the proposed constitution, unless there some previous law of guide the State to It is the it? province of a expound court to not law, to make it. certainly And it is no part of the judicial func- tions of any court of the prescribe United States to qualification in a voters State, giving right to those to whom it is denied the written and established constitution and laws of the State, or taking it away from given; those to it whom is nor it right has to determine what political privileges was inconceivable that the courts power should assume a to make premises might determinations in the with conflict those of the Executive. It fact, noted further that, the President had recognized governor government of the charter as the lawful authority in Island, although Rhode it had unnecessary been to call out the support. militia in his supra. See note 28Id., at 46-47. 29Id., at 41-42. there to, unless entitled are of a State citizens its govern lawor constitution
an established Id., decision.” respect to with Woodbury (who dissented
Mr. Justice regarding Court law) agreed with the of martial the effect into the issues: inquiry judicial inappropriateness political from freedom fortunately for our “But, never this court can duties, in judicial excitements umpire officially to be be called on propriety with adjustment merely political. questions politi- and their belongs people to the questions these general either in the State cal representatives, relate to questions matters government. These They are legal principles. be settled on strict or com- prejudice by inclination, rather adjusted —or are defeated of them succeed or often. Some promise, power, alone, or mere naked by public policy even right. . . . rather than intrinsic in- alarming foreseen, and little evil, “Another final questions for the regarding volved these in such an judges be, arbitrament of would *91 in a political privileges rights would, event all and the on decision dispute among people, depend our finally. [DJisputed points . . . in constitu- making tions, often, shown, policy, as depending before on . . . inclination, popular resolves, popular will, if in powers the under people, distribution constitution, making judges should ever think in supreme political controversies, arbiters when not frequently, them, selected amenable to nor at nor, in liberty follow such considerations their various judgments as belong they to mere political questions, will dethrone themselves and lose one of their own birthrights; building up way— invaluable in this surely slowly, sovereign but new in power —a irresponsible republic, respects unchange- most life, able for dangerous, theory one more least, than the worst worst oligarchy elective Id., . . times. at 51-53.30
III. present case all involves have elements that made the is, Guarantee Clause cases It non-justiciable. in effect, a Guarantee claim masquerading Clause under a different label. But it cannot make the case more fit judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, 4,§ where, fact, gist of their complaint is the same —unless it can be found speaks the Fourteenth Amendment with greater par situation, ticularity to their We have been admonished f tyranny "to avoid “the Snyder of labels.” v. Massachu setts, 97, 114. 291 U. S. Art. IV, 4, § is not committed express Congress. constitutional terms It is the nature arising of the controversies it, nothing else, under has made it judicially course, unenforceable. if con Of troversy judicial falls within power, depends it “on how plaintiff] he casts his Pan American action,” Petroleum [the rp. Court, Co v. Superior U. S. whether brings he himself jurisdictional within a statute. But judicial competence wanting, where it cannot be created by invoking one clause of the rather Constitution than essentially another. When what was a Guarantee Clause well, claim was sought laid, Equal under the Pro tection Clause Telephone Telegraph States & Pacific Oregon, supra, had difficulty Co. Court no in “dis- evaluating inquire In the Court’s determination not to into authority government, that, of the charter it must be remembered throughout country, Dorr sympathy “had received the press. cause, therefore, distinctly party Democratic His became *92 Warren, Supreme History issue.” 2 Court United States (Rev. 1937), ed. 186. of ex- any resulting from forms pelling mere confusion . . .” things of . pression considering substance the at U. S., precisely appellants State,” Here attack “the State as States perceived as it was be attacked the Pacific basis of id., complaint the case, 150. Their is them. Legislature the hurts representation of Tennessee minority Tennessee,” They that “a now rules assert in a “distortion apportionment statute results the Assembly system,” the that the General of constitutional people “a of of the longer body representative is no the principle basic “contrary of all to the Tennessee,” State Accepting appel . .” representative government . . of know issue, one can this lants’ own formulation from a hawk. Such a claim would be non- handsaw any under justiciable merely IV, 4, not under Art. but § very of fact that Constitution, clause virtue of political a federal court is not forum for debate. Massa Mellon, supra. chusetts v.
But not on claim appellants, course, do rest this Clause, simpliciter. In invoking Equal Protection they representative govern assert that .distortion complained by systematic ment discrimi produced way “a against them, by nation debasement their . regard . . .” Does this with due votes characterization, derived, anything for the facts from which it is add appellants’ case? charge At blush, first of discrimination based on legislative underrepresentation given appearance
31Appellants allege legislature’s also discrimination allocation of certain tax burdens benefits. Whether or discrimina such Equal tion would violate Protection Clause if the tax statutes challenged proper Jackson, proceeding, in a see Dane v. were Nashville, Wallace, 589; C. L. S. cf. & St. R. Co. v. S. U. 288 U. allegations 268, these recitative do not affect nature controversy appellants’ complaints present. *93 private, claim, more less than the assertion impersonal
that government appear the frame of Appellants is askew. as representatives class, class prejudiced of a that is as a in contradistinction the How- polity entirety. to its ever, deprivation the discrimination relied the of on is what appellants proportionate conceive to be their share of political This, practical influence. of is the effect course, of any gov- allocation of within power the institutions of Hardly political authority ernment. any distribution of that could be non- rendering government assailed republican similarly would fail to to the operate prejudice of some the within groups, advantage others, to body politic. ingenuous the It see, would be not to consciously blind that deny, to the real battle over and referendum, delegation initiative or over a power to local rather than battle authority, state-wide is the disparate among between forces whose influence is organs government may various power to whom given. shift power No but works a shift corresponding iin political among influence groups composing society. :
What, then, question legislative apportion- Appellants ment? to have right invoke vote and to their But they permitted votes counted.32 are to vote their They go votes are counted. to the cast polls, they ballots, they their their representatives send to state “right” Appellants would find a one’s ballot on have counted authority Mosley, 383; United States v. S. United v. U. States Classic, 299; Saylor, 313 U. S. States All United U. S. 385. conspiracies sharp that these hold is cases that to commit certain practices which, election, election in a federal cause ballots not to weight may receive given them, which the law has in fact amount deprivations constitutionally right secured to vote federal Bathgate, see officers. But United States v. U. S. 220. suggest cases do not so much as exists a there constitutional weight upon might properly limitation relative law which ballots, respective entitle even federal elections. represent- simply complaint Their
councils. or powerful sufficiently numerous atives are —in representa- adopted has basis of short, that Tennessee Talk of “debase- are dissatisfied. they tion with speak cannot talk. “dilution” is circular One ment” or until of a of the value vote “dilution” “debasement” or *94 a as to what a standard of reference there is first defined actually asked of the is should be worth. What vote among competing bases to choose this case is Court among competing really, representation ultimately, of — an order to establish political philosophy theories of —in government of for the State of Ten- appropriate frame thereby all States of the nessee and for Union. ignore the matter, analogies In a abstract such they betray reason. history unrealities; of deal in facts through a a a device has, is not case which State This Negroes denied or Jews oblique sophisticated, however a persons only a or them third or vote, given redheaded Lightfoot, a sixth of a That vote. was Gomillion an 339. What Tennessee illustrates is old and U. S. of widespread representation represen still method — only respec geographical division, part tation local preference to population others, others, tive of for —in sooth, appealing. Appellants more contest this choice disagree and seek to make this Court the arbiter of the They Equal ment. would make Protection Clause adjudication, asserting equality charter if guarantees comports, which it the assurance equal weight every vote, to voter’s least the basic con ception ought to representation proportionate be to reference which population, standard the reason may plans judged. apportionment ableness of political conception legally find such a To enforceable unspecific guarantee protection of equal broad and Borden, rewrite See Luther v. . Constitution the.. "Certainly, “equal protection” is supra. no more secure judicial judgment permissibility foundation for of varying representative government forms of than is “Republican “equal Form.” Indeed since protection only standing can mean an equality persons laws” in the same relation to is governmental whatever action challenged, the equal determination whether treatment is presupposes determination concerning the nature of the relationship. This, respect with apportionment, means an inquiry representation into the theoretic base in an acceptably republican state. For a court could not deter- mine the equal-protection issue without fact first determining Republican-Form issue, simply because what is will equal-protection purposes reasonable upon depend what frame government, basically, protection” allowed. To divorce “equal “Republi- from can half Form” to talk about a question. representation proportioned
The notion that to the geographic spread of population universally accepted is so *95 necessary as a equality element of man man between it must taken be to the standard a political of preserved equality by the Fourteenth Amendment —that it in is, appellants’ words “the principle basic of repre- government” is, sentative it put to not true. bluntly, — However desirable and by among however desired some the great political thinkers and framers of our govern- it has ment, generally never been today practiced, or the It past. was not the English it system, was not system, the colonial it system was not the chosen for the government by national the Constitution, it was not the system or exclusively even predominantly by practiced the States at time adoption the of of the Fourteenth Amendment, it is not predominantly practiced by the today. States judges, Unless the judges of this Court, are private make their of political views wisdom the meas- ure of the Constitution —views which in all honesty can- give but the if appearance, not reflect the of reality, so ines- partisan politics business
involvement with the Four- controversies —the apportionment part capably product,” Jackman historical Amendment, “itself a teenth Co., guide no for 22, provides v. Rosenbaum 260 U. S. problem. representation oversight the judicial M. W. J. Britain. 1958, Professor 1. Great Writing of the history the British summarized aptly Mackenzie population: representation proportioned principle “ programme of the part districts’ formed ‘Equal electoral part only England 1830s, of radical reform realised.” Until has not been programme of that which representa- century, the sole base the late nineteenth (with exceptions relevant) certain not now tion borough returned county unit: each geographical local English for usually two fixed number members, its Prior to Reform units, regardless population.34 total system Act of was marked the almost populous northern industrial disfranchisement had centers, grown significant size had advent of the Industrial not been Revolution granted borough representation, the existence of borough, playing part the rotten its substantial struggle Crown’s continued control of Commons.35 In ten English counties, numbering southernmost quarter three and a million had people, two hundred and thirty-five parliamentary representatives, while six counties, northernmost with more than three and a half million had people, sixty-eight.36 It was said that one eighty appointed hundred and persons three hundred and *96 33Mackenzie, (1958) (hereafter, Mackenzie), Free Elections 108. English (2d 1936) Ogg, (hereafter, Government Politics ed. Ogg), 248-250, 257; Seymour, England Electoral Reform in (1915) (hereafter, Seymour), Wales 46-47. 35Ogg Seymour 45-52; Carpenter, 257-259; Development The (1930) Thought (hereafter, Carpenter), American Political 45-46. 36Ogg 258. a half than Less members the Commons.37 fifty had remarked Madison the Federalist earlier, century thousand by less than six House was returned that half the England and Scotland.38 people million eight partisan politi- of a fierce product the The Act of charges gerrymander- and the occasion of struggle cal effected eradication foundation,39 ing not without inequalities of extreme numerical only the most adopt principle It did not system. unreformed merely disfran- population, but based on representation borough and enfran- rotten among the chised certain quite without centers —still most of the urban chised In the wake of relative numbers.40 regard to their inequality: substantial electoral Act there remained sixteen times represented of Cornwall were boroughs county’s eastern as the weightily, judged by population, in ten average population ratio of seats division; and a half times counties was four agricultural about three Honiton, with manufacturing divisions; ten with Liver- represented inhabitants, equally thousand In 1866 had four hundred thousand.41 pool, which began to be advocated apportionment population in the but was not made the basis generally House, although year act of that the redistribution of apportion representation gauged by did more evenly, Population standard.42 increased population shifts surviving representation 1884 the ratio inequalities;
37Seymour 51. Federalist, (Wright 1961), Compare No. 56 at 382. ed. Seymour 49. This of the restricted as well takes account franchise apportionment principle. as the effect of local-unit 39 Seymour 52-76.
40Ogg 26-4-265; Seymour 318-319. gross inequality, Seymour For these and other instances of see
320-325. 333-346; Ogg Seymour
304 twenty-two times more than boroughs
in many small dispari- forty-to-one Manchester, Birmingham that of in the 1870’s and, sum, elsewhere, found could be ties returned two-thirds electorate a fourth of the 1880’s, the House.43 members of distribute attempt English systematic first The Act 1885.44 was the Redistribution by population seats as much as inequality of left ratios of The statute still by fifteen to one had increased to one,45which seven to to “shock- again responded In 1918 Parliament 1912.46 partisan and to inequality,47 conditions of ingly bad” In redis- inspiration,48 by redistribution.49 political by the House of periodic footing put tribution was on Seats) year,50 Act of that (Redistribution of Commons responsibility for continuing primary which committed a agencies the Commons to administrative reapportioning Scotland, England, Wales (Boundary Commissions respectively).51 The Commis- Ireland, and Northern certain rules for their sions, having regard prescribed reports intervals guidance, prepare designated are to Parliament, along Secretary’s for the Home submission to give with the of an Order Council to effect to the draft 43Seymour 349, 490-491.
44Seymour 489-518. 108; Seymour see also 513-517. Mackenzie
46Ogg 270.
47Ogg 253. 48Ogg 270-271.
49Ogg 273-274. VI, 7 & 8 c. The 1944 was amended the House Geo. Act (Redistribution Seats) VI, Act, 1947, of Commons 10 & Geo. two, provisions, and the with in the c. other were consolidated Seats) (Redistribution Act, 1949, House of Commons 12 & 13 VI, (Redistribu Geo. c. since amended the House of Commons Seats) Act, 1958, II, tion of 6 & 7 Eliz. c. 26. Butler, Seats, generally The See Redistribution of 33 Public (1955). Administration districting rules
Commissions’ recommendations. of representation by population, basic adopt principle *98 by direc- principle significantly the modified although as respect prac- as far geographic tions to local boundaries special to take account ticable, and discretion shape the and geographical conditions, including size, accessibility original 1944 of constituencies. the Under exercise of Act, provided (subject the rules to the conditions respecting special geographical the discretion and for Commons regard to the total size of the House of prescribed by Act) single- as far practicable, so as twenty- member than districts should not deviate more percent (population five from the divided quota electoral of constituencies). However, apparently number at Boundary recommendation Commission for England, twenty-five percent standard was eliminated as in 1947, replaced by pro- too restrictive flexible vision that are as constituencies to be near the electoral quota as practicable, expressly a rule which is subordi- to special geographic nated both the consideration of con- ditions and to that preserving local boundaries.52 Free twenty-five of the percent rule, up drew Commissions plans among of distribution in which inequalities dis- run, tricts ordinary eases, high and, as one two to in the of a few extraordinary constituencies, case three to one.53 The Boundary action of the for Eng- Commission land was twice challenged the courts in 1954—the claim being that the Commission had statutory violated rules 50, supra. However, given See note Commissions are discretion depart application boundary from the strict of the local rule to disparities avoid constituency excessive between the electorate of a quota, and the constituency electoral or between the electorate of neighboring and that of discussion, constituencies. For detailed see Craig, See also Mackenzie Parliament and Butler, supra, Boundary Commissions, note 127. [1959] Public Law 23. in both judgment for its the standards prescribing —and In Hammersmith intervene. Judges declined cases the England,54, Boundary Commission v. Borough Council for con- of the the nature opinion was of an, J., Harm inap- the matter Acts made of the scheme troversy and the Home Harper interference, judicial propriate R.,M. Evershed, Appeal, per Secretary55 the Court wide adverting to the approval, with Harman, J., quoting under the Commission to the discretion entrusted range of parlia- character the delicate remarking Acts, court, sought engage it was in which mentary issues same conclusion.56 reached the Seats) (Redistribution
The House of Commons law. to the further amendments Act, made two 1958,57 *99 Boundary Com to the recommendation Responsive permitted between England,58 the interval mission for a new doubled, more than reports Commission suggestion And at the years.59 maximum fifteen ease the future that “It would the same Commission irrita and remove much local labours of the Commission of each con [requiring tion if Rule 5 the electorate quota practicable] the electoral as stituency be as near so amended to allow us to make recommen were to be in such preserving quo any dations the status area where to be desirable and not inconsistent appeared course 56 55 54 The court reserved the [1955] Times, 1 Ch. 238. Dee. 15, question p. 4, whether a cols 3-4. judicial remedy might appeared be found in a case in which it that a Commission had manifestly complete disregard in acted of the Acts. supra. Note Report Boundary England First Periodical Commission for (1954), 4, par. [Cmd. 9311] Act, supra, the 1949 see note Under the intervals between reports were be not years, less than three nor more than seven with qualifications. certain The 1958 Act raised the minimum to ten and years. the maximum to fifteen Rules,”
with the broad intention of the the Commis- sions were directed to consider the inconveniences attend- upon constituencies, ant the alteration of and the local might ties which alteration The Home Sec- such break. retary’s view of this amendment was that it worked to “a presumption against making changes erect unless there is a very strong case for them.” guiding 2. The Colonies polit- Union. For the Eng- ical theorists of the Revolutionary generation, system lish in representation, most salient aspects its of numerical was a inequality, model to be avoided, Nevertheless, followed.62 the basic English principle apportioning representatives the local among govern- entities, mental rather counties, among towns than units of approximately equal population, early had taken In some, root the colonies.63 as in Massachusetts Island, Rhode numbers of electors were taken into account, rough fashion, by allotting increasing fixed quotas representatives to several or classes of towns graduated by towns population, but most of the colonies delegates respect were allowed to the local units without to numbers.64 This resulted in grossly unequal electoral representation units.65 The ratio one North Carolina county eight was more than times that another.66 Moreover, boroughs appeared,67 American rotten had *100 apportionment made an first in politi- was instrument the
60 supra, Report, 4, par. First Periodical note 20. 61 (5th 1957-1958), 582 H. Deb. ser. 230. C. 62 56, supra, Federalist, 38; Tudor, See The note Life of James No. (1823), Otis 188-190. 63 Gerrymander (1907) Griffith, Development Rise The (hereafter, Griffith), 23-24. (1930) 64 Luce, Legislative Principles (hereafter, Luce), 336-342.
65 25. Griffith 66 15-16, n. 1. Griffith 67Griffith 28. 308 governors the or the struggles King royal
cal between the legislatures,68 later, colonial between and, and the in regions growing tidewater colonies and the older the Philadelphia in Convention interior.69 Madison the Representation “inequality adverted States, arguing . . .”70 Legislatures particular Congress necessary power was to confer on it ultimately to manner of regulate times, places and selecting Representatives,71 in order to forestall the over- represented securing counties’ themselves a similar over- example representation the national The councils. Carolina, overrepresentation where Charleston’s South continuing bone of contention between the tidewater was country, and the back was cited Madison in the Vir- in the ginia King Convention and Massachusetts Convention, support power, King same also from spoke inequality arising of the extreme numerical town-representation system.72 Connecticut’s inequalities period. Such survived the constitutional largely The United States Constitution itself did not adopt Apportionment principle numbers. legislature among national the States was the most one of 73 problems Convention; difficult for the its solution— 74 involving representation State and the Senate compromise three-fifths the House75—left neither apportioned proportionately chamber population. 54; Carpenter 48-49, 26, 28-29; Griffith Luce 339-340. 87; 26-29, Carpenter Griffith 31. Farrand, (1911), 70 II 71 Records of the Convention Federal power provided. I, §4, The cl. 1. Art. id., (2d 367; 1891), III Elliot’s Debates ed. II at 50-51. op. cit., supra, Madison, Farrand, See in I note at 321: “The difficulty great Representation; lies in the affair of and if this could adjusted, all others would be surmountable.” Federalist, (Wright 1961), The See No. 62 ed. at 408-409. id., Federalist, See No. at 369-374. *101 Within the States, power electoral continued to be allotted to favor the tidewater.76 in his Notes on Jefferson, Vir- ginia, “very recorded the unequal” representation there: individual in differing population by counties a ratio of more than seventeen to one elected the same number of representatives, Virginia’s those nineteen thousand of fifty thousand men who lived between the falls of the rivers and the seacoast half returned the State’s senators and almost half its In in delegates.77 South Carolina 1790, the three districts, population lower with white less than twenty-nine twenty thousand elected senators and seventy assembly members; while uplands more than one hundred and eleven thousand persons white fifty-four elected seventeen senators and assemblymen.78
In the early nineteenth century, the demands of interior became more insistent. apportionment quarrel Virginia major precipitating was factor the calling of a constitutional convention 1829. Bitter animosities convention, threatening racked the the State with disunion. At last a compromise gave twenty three hundred and thousand people of the west senators, against thirteen the nineteen senators returned sixty-three the three hundred people thousand east, agreement. It adopted polls commanded at the but left the western counties so dissatisfied that there were threats of and realignment revolt with the State of Maryland.79
Maryland, had however, dispropor- her own numerical representative County tions. In one vote Calvert 76Carpenter 1955), Jefferson, Virginia (Peden Notes on the State of ed. (Memorial Writings 118-119. See also II of Thomas Jefferson ed. 1903), 160-162. 78Carpenter 139-140. 79Griffith 102-104. *102 hun- and almost two County, five Frederick
was worth by eighteen represented were people thousand dred twenty.80 elected others fifty while thousand members, system county-representation result of the This was the after which, Massachusetts except for And, of allotment. at representation by population adopt did long struggle, town-representation principle mid-century, a similar throughout New forms prevail various continued inequalities.81 gross often attendant, all its England, with Four- the time at 3. States ratification of The sev- Amendment, those later admitted. teenth and the first half of throughout eral state conventions and fierce sectional century nineteenth were scenes rep- geographic allocation party respecting strifes variety appor- a wide product Their resentation.82 recognized the element tionment methods which Particularly in differing ways degrees. and population contention that the Four- pertinent appraisal of the limiting teenth Amendment embodied a standard regard principles freedom of the States with to the is an legislative apportionment bases of local examina- thirty-three apportionment provisions tion of the of the States which ratified the Amendment between 1866 and respective may at their times of ratification. These (A) ratifying States groups: considered two other than whose constitutions, the ten Southern States shortly at the time of ratification or were the thereafter, work of the Reconstruction Act conventions;83
80Griffith 104-105. Bowen, supra, 17-18, 343-350. note Luce records that County, having in 1824 Providence three-fifths of Rhode Island’s twenty-two population, only seventy-two representatives, elected of its Providence, and that the town of more than double the size of New port, Newport’s representatives. had half number of 130-137; 364-367; Carpenter Luce Griffith 116-117. 428; 2, 14, See Stat. Stat. thirty-three States. All (B) the ten Reconstruction-Act significant, because demonstrate how unfounded they are could have ratifying is the States assumption theory or agreed apportionment practice, on a standard voting for the suggestion how baseless the Equal they sought Protection Clause to establish test appellants’ argument mold for which —if apportionment is sound —struck down sub silentio not a few of their own provisions. state constitutional But the constitutions Reconstruction-Act an ten States have added *103 scarcely for it importance, thought Congress adoption was for of which so solicitous as to make the readmission Fourteenth Amendment Congress respec- of the States turn their late rebel on tive ratifications of have it, approved would constitutions under again, appellants’ theory contemporane- which — — ously offended the Amendment.
A. twenty-three ratifying Of the of the first States group, eight or seven had constitutions which demanded or allowed both apportionment of houses on basis with population,84 unqualifiedly only or qualifications preservation respecting local boundaries.85 Three population among Various employed indices were the States which took account factor numbers. counted Some all inhabitants, g., 1844, Const., IV, § 3; some, only N. e. J. Art. white g., inhabitants, Const., 1848, III, § 8; some, Ill. Art. e. male inhab twenty-one, g., Const., 1851, 4-5; some, itants over e. IV, Ind. Art. §§ qualified g., voters, Const., 1834, 6; e. II, Tenn. Art. some §§4 g., aliens, Const., 1846, e. II, 4, (and excluded Y.N. Art. §§ persons color); untaxed some excluded untaxed Indians and mili tary g., Const., personnel, 1866-1867, II, e. Neb. Art. For §3. present purposes differences, although unimportant these revealing divergences representation theory, fundamental will be disregarded. 1857, 5, 6, 7; Const., IV, 1848, III, Const., Ore. Art. Ill. Art. §§ 8, 9; Const., 1851, IV, 4, 5, 6; Const., 1857, Ind. Art. Minn. §§ §§ essentially a population on what apportioned
more having in one counties house base, but provided moiety ratio —a or two-thirds— fraction of a specified each of these three representative.86 Since should have a fractional chambers, their the size of States limited in fact Michigan, at least has operate and, rule could — produce inequalities substantial numerical operated87 —to 5; Const., IV, § 2; Const., 1848, IV, Art. to3 Mass. Art. Wis. §§ 1866-1867, II, XXI, XXII; Const., Neb. Art.. Amends. § 3. provision periodic reapportion All of these but Minnesota made for XV, 13, provided that ment. Nevada’s Constitution of Art. § state should the federal interim decennial enumerations censuses representation houses, for did not serve as the bases both but equality expressly require reapportionment fixed either numerical intervals. provisions contain forbid
Several of these constitutions which recognition splitting require counties or otherwise of local g., See, Const., e. in Ill. boundaries. the severe restriction Ill, inevitably provisions produce Art. 9. Such will almost numeri- § inequalities. See, University Oklahoma, example, Bureau cal Research, Legislative Apportionment of Government in Oklahoma (1956), However, regard their in this turn 21-23. because effect will idiosyncratic factors, pro- on local and because other constitutional *104 significant inequality, provisions a visions are more source of these are disregarded. here 86 Const., 1834, II, (two-thirds Tenn. Art. 4 ratio to 6 of a §§ co.unty representative House); Const., a in entitles to one W. Va. (one-half 1861-1863, IV, 4, 7, 8, 5, Art. 9 of a a ratio entitles §§ county representative House); Const., 1850, to one in the Mich. (one-half IV, county Art. 2 to 4 of a ratio entitles each thereafter §§ organized House). representative Oregon to in the In one and Iowa major-fraction applied gave only a rule House a seat not moiety having single having ratio, counties a of a but to all counties multiple than more half a ratio in excess of the of a ratio. Ore. Const., IV, 6, supra; 1857, 85, Const., III, 1857, Art. note Iowa Art. § 33, 34, 35, 37, 89, note §§ infra. 87 Bone, Attempting Comply Reapportionment See States with Requirements, (1952). Contemp. 387, & 17 Law Prob. 391
313 Iowa sparsely populated in favor counties.88 more than by her small the rule that no favored counties a dis- representative combined in might four counties popula- compromised and Kansas and New York trict,89 assuring county-representation principles by tion and inhabitants, of its every county, regardless of the number in respective at least one seat their Houses.90 recognized factor of numbers Ohio Maine The gave representa- different device. former House half a county having ratio, representa- tive to each two a ratio representatives tives for three three-quarters, single representative for three and a additional ratios, latter, each after apportioning additional The ratio.91 base, gave each town of among population counties on representative, fifteen hundred inhabitants one each town inhabitants thousand, fifty three seven hundred two representatives, increasing and so on intervals twenty-six fifty two hundred and thousand, inhabitants— larger receiving towns of that size per- the maximum number representatives: depar- mitted The seven.92 ture from numerical equality systems under these apparent: Maine, assuming the incidence of towns although appears, It altogether clear, also section is provisions Virginia’s controlling apportion of West Constitution operate populous ment of senators would favor of State’s less regions limiting single any county to a maximum of two senators. Const., 1861-1863, IV, W. Va. Art. 4.§ Const., III, 1857, 33, 35, Iowa Art. 34, 37. §§ Const., 1846, III, (except County); N. Y. Art. Hamilton §§ Const., 1859, 2; Kan. provisions Art. Art. Kansas § require periodic apportionment censuses, based on but do not equal terms demand districts. Const., 1851, XI, Ohio Art. 1 to XI, 5. See Art. 6 to 9 §§ §§ apportionment. for Senate Const., 1819, IV, First, IV, Me. Art. Pt. 3. See Art. Pt. §§ *105 Second, 2, for apportionment Senate based on § numbers. 314 by fac- ratios would differ representative categories,
all Similarly, minimum. at a one, a half to two and tors of small, one counties, of its however gave each Missouri ratios, three three representatives two for representative, repre- six one additional representatives for ratios, Hamp- six.93 New for ratios above sentative each three of one representative to each town allotted shire and one polls voting age male fifty ratable hundred for of three hundred representative each increment more figure;94 apportioned its Senate was above among proportion districts based on the population but Pennsylvania, In the basis of paid.95 of direct taxes inhabitants; both apportionment houses was taxable every thirty-five hun- county and in the House at least dred had a nor could more than representative, taxables representative dis- joined forming three counties be while in trict; city county the Senate no or could have twenty-five thirty-three more than four of the State’s senators.96
Finally, four States apportioned at least one House with no In regard population. whatever Connecticut97 representation and Vermont98 the House was on town basis; gave Rhode Island one senator to of its towns each cities,99 Jersey, and New one to each of its counties.100
93 Const., 1865, IV, 2, 7, Mo. Art. IV, 8, Art. 4 to 8. See for §§ §§ apportionment Senate on based numbers. 94 fifty, Towns smaller than one hundred and if situated it so “very join voting pur inconvenient” them to other towns poses, might permitted by legislature representative. to send a Const., 1792, Second, XI; Second, Pt. N. H. IX to Pt. XXVI. § §§ Const., 1838, amended, I, 4, 6, Pa. Art. §§ Const., 1818, Third, Conn. Art. 3.§ Const., 1793, II, Vt. c. 7.§ Const., VI, R. I. Art. 1.§ Const., IV, N. J. Art. cl. One. §
315 any was other Nor, States, appor- these House principle equal tioned on a strict numbers: Connecticut gave each of its counties a minimum of two senators101 Jersey county assured each Vermont, New one;102 Island, gave and in Rhode representative;103 representative one to each town or no town or city, least than total number city could have more one-sixth in the House.104 Among
B.
ten late
States affected
Confederate
only
appear
four did
Acts,
the Reconstruction
it
apportionment
legislative
of both state
houses would or
In
might
strictly
be based
on
North Caro-
population.105
South
and Alabama,109
lina,106
Louisiana,108
Carolina,107
was
county (in
Louisiana,
parish)
each
the case of
each
irrespective
at least one seat in the lower House
assured
exhausted,
respectively,
distribution which
numbers —a
101
Const., 1818,
Conn.
Amend. II.
on three- the basis of the number two-fifths and three-fifths quarters, one-quarter, before representatives, number of possible maximum assignment population on single seat was available Carolina, moreover, in South Senate basis; and county, except from each composed of one member elected *107 House, In each sent two.110 Florida’s that Charleston and an additional seat for county guaranteed had one seat up a maximum of every registered voters to thousand 111 whose seats representatives; while Senate Georgia, four dis- among forty-four single-member were distributed contiguous composed counties,112 of three tricts each in its as follows: three assigned representation House counties, two to each populous seats to each of six most to thirty-one next most one each of the populous, might remaining ninety-five.113 expected, As be one- pattern proved minimum has representative-per-county incompatible equality,114 Georgia’s with numerical
110 II, Const., 1868, S. C. Art. 8.§ 111 2, 1868, XIV, XIV, par. Const., par. Fla. Art. 1. See Art. apportionment. Senate 112 legislative Const., 1868, III, The Art. 2. extent of author Ga. § ity unclear, appears it that to alter these districts is but the structure forty-four contiguous counties for districts is meant three each permanent. be 113 1868, III, legislative Const., Art. Ga. extent author § ity apportionment unclear, appears to alter the but it permanent. three-tiered structure meant 114See, Durfee, Representation Legis Apportionment in the g., e. Constitutions, Study 1091, A 43 L. lature: of State Mich. Rev. 1097 (1945); Short, States That Have Not Met Their Constitutional Requirements, Contemp. (1952); Harvey, Reap- 377 17 Law & Prob. portionments Legislatures Legal Requirements, Law of State 17 & — (1952). Contemp. study For an excellent case Prob. inequalities deriving solely one-member-per-county numerical from a provision Ohio, Aumann, Hangs On, minimum see Rural Ohio (1957). Mun. Nat. Rev. 191-192
county-clustering system produced representative- has counties, ratio disparities, largest between the and smallest than sixty more to one.115 C. The constitutions of the thirteen States which Congress admitted to the after the Union ratification of the Fourteenth Amendment pattern. showed similar Six required permitted of them apportionment of both Houses subject only qualifications population, con cerning local boundaries.117 Wyoming, apportioning by population, guaranteed to each of its counties at least one seat in each and Idaho, prescribed House,118 (after legislative session) the first apportionment may should be “as be provided by gave county each law,” at least one In Oklahoma, House mem representative.119 bers apportioned among were give counties so as to one Kelsay, States, Unrepresentative Dauer and 44 Nat. Mun. Rev. (1955). (This Georgia is the effect of a later constitutional *108 provision, 1945, Const., 2-1501, substantially Ga. similar to that of § 1868.) system subsequently The same adopted three-tiered has been Florida, Const., 1885, VII, 3, 4, Fla. Art. where its effects have §§ inequalities eighty Kelsay, been of the order of to one. Dauer and supra, 575, 587. 116The constitutions discussed are those under which the new States
entered the Union. 117 Const., 1876, 47; V, 45, Const., 1889, 2, Colo. Art. N. D. Art. §§ §§ 29, 35; Const., III, 1889, § 5; Const., 1889, S. D. Art. Wash. Art. II, 3, 6; Const., 1895, 4; 1911, IX, 2, Const., Utah Art. N. M. §§ §§ following IV, pro Art. The Colorado and Constitutions Utah § 41. reapportionment “according vide for to ratios to be fixed law” periodic legisla after census and enumeration. In New Mexico authorized, commanded, reapportion periodically. ture is but not to equality repre North Dakota not in does terms demand in House sentation; assigned among members to are the several senatorial districts, equal population. are of 118 3; Wyo. Const., 1889, III, Legislative Department, Art. § III, Apportionment, 2, Art. 3. §§ 119 III, Const., Idaho Art. 4.§
318 three-quarters, a half two for ratio and ratio, for
seat up to maximum additional ratio and one for each Montana per county.120 required representatives seven periodic House on the basis its reapportionment by law121 according ratios to be fixed to enumerations in the as counties represented counties were but its county having one senator.122 Alaska123 each Senate, among a number of senators apportioned Hawaii124 each districts; respective their Houses constitutionally fixed sub periodically reapportioned by population, were to be guar moiety rule Alaska125 and Hawaii’s ject to constitutionally to each of four representative antee of one assigned designated The Arizona Constitution areas.126 one county giving in each representation house, to each representatives from seven or two senators and one to making provision reapportionment.127 each, no for 120 (j). Const., (b) V, (a), V, Art. 10 See Art. 9 Okla. § §§ (b) apportionment Senate based on numbers. 9 Const., 1889, VI, Art. Mont. 3. §§ Const., 1889, V, §4; VI, Art. Art. The effective Mont. §4. are, first, provisions there shall be no more than one senator and, second, county, from that no senatorial district shall consist each county. of more than one Const., 1956, VI, 7; XIV, exact Alaska Art. Art. § § may changes in boundaries of the be modified to conform to districts approximate districts, House but their numbers of senators and their preserved. perimeters are to be Const., 1950, III, Hawaii Art. 2.§ equal Const., 1956, VI, 3, 4, 6. The Alaska Art. method of §§ proportions is used. equal Const., 1950, III, pro Hawaii Art. 4. The method of § *109 portions used, and, sub-apportionment for within the four “basic” areas, moiety a form of rule obtains. Const., IV, 1910, 2,
127 Ariz. Art. Pt. basis On the §1. figures, apportionment yielded, example, for census senatorial- ratio differential of more four to one between and than Mohave Maricopa Cochise or between Mohave and Counties. II Thirteenth (1910), Census of United States 71-73.
4. Detailed recent Contemporary apportionment. present-day studies are available to describe the constitu- statutory fifty in apportionment tional status of They States.128 twentieth-century demonstrate decided from away population trend as the exclusive base of representation. only a dozen state constitutions Today, provide for periodic legislative reapportionment of both houses a substantially unqualified application of the population standard,129 only about a dozen pre- more scribe such reapportionment single for chamber. even “Specific provision in county representation at least legislature increasingly one house of the state has been since adopted century. the end of the 19th . . .”130 twenty guarantee More than States at county now each in least one seat one of their houses regardless popula- and in tion, county given others or town units are nine equal representation in legislative branch, one whatever the number of each course, unit’s inhabitants. Of numer- ically considered, “These result provisions invariably over-representation the least .” populated areas. . . political And an effort to curb the dominance of metro- politan regions, at least ten now limit maximum States any county city) single (or, cases, entitlement some pertinent provisions The state constitutional are set forth (1960-1961), 54-58; XIII tabular form in Book of the States Greenfield, Emery, Legislative Reapportionment: Ford and Califor (University 1959), Perspective California, Berkeley, nia National respects An earlier treatment now outdated in but 81-85. several Durfee, supra, Harvey, still useful is note 114. See discussions in supra, 114; Shull, Implications note Political and of State Partisan Legislative Apportionment, Contemp. 417, 17 Law & Prob. 418-421 (1952). legislature Nebraska’s unicameral is included in this count. 130Greenfield, supra, Emery, Ford and note 131Harvey, supra, Tabor, Gerrymander note at 367. See ing Legislative Districts, of State and Federal 16 Md. L. Rev. (1956). 282-283 *110 of substantial source
in one house —another legislative disproportion.132 numerical legislatures that the knowledge it is common
Moreover, date, even where reapportionment up to kept have In require particular, it.133 state constitutions terms representation greater per capita pattern according of same rural, relatively sparsely populated areas —the to finds pattern expression various state constitu- provisions,134 given tional and which has been effect England has, States, and in some of the elsewhere135— the law legislative been made inaction the face 132See, g., Ray, The e. Mather and Iowa Senatorial Districts Can Reapportioned Plan, 535, Be Rev. Possible Iowa L. 536-537 —A (1954). 133See, g., Walter, Reapportionment e. Representation, and Urban Academy 195 Annals of the and American Political Social Science 11, (1938); Bone, supra, Legislative 12-13 note inaction provisions rejecting principle equal state constitutional numbers generally prevailing inequality both have contributed numerical representation country. Walter, supra, Compare in this with Baker, Vote, Value, (1958). One One 47 Nat. Mun. Rev. 134See, g., 116-117; 370; Merriam, e. 364-367, Griffith Luce Amer 244-245; (1929), Legislation, Apportionment ican Political Ideas New Senate, York State 31 St. John’s L. Rev. 341-342 (1957). 135 1947, Boundary England, impressed In Commission for “. . . advantages accessibility large compact urban [that regions] widely enjoy . . . over scattered rural areas . . . came they conveniently support the conclusion that could electorates quota, majority excess of the electoral in the would of cases prefer unity par do so rather than suffer of local severance liamentary purposes” general “in urban constituencies could —that conveniently support large more electorates than rural constitu Report Boundary Eng . . . .” Initial encies Commission for (1947), Grazia, 110-111; also land 5. See Mackenzie De [Cmd. 7260] Theory Apportionment, Contemp. General 17 Law & Prob. (1952). 261-262
population Throughout country, shifts.136 urban given higher representation suburban areas tend to be *111 ratios than do rural areas.137 widely if among
The stark fact is that the numerous varying principles practices legis- and that control state apportionment today any generally pre- lative there is vailing feature, geographic inequality feature population relation to the standard.138 Examples could endlessly In multiplied. New Jersey, counties of 136 Walter, supra, 133; Walter, Reapportionment See note of State Legislative Districts, 20, (1942). 37 Ill. L. Rev. The urban- 37-38 rural apportionment controversy. conflict often the core of See supra, Durfee, 114, 1093-1094; Short, supra, 114, note note at 381. 137Baker, 11-19; Rural (1955), Versus Urban Political Power MacNeil, Representation Legislatures, Urban in State 18 State Gov (1945); Mayors, ernment 59 United States Conference of Govern By People, People, People (ca. 1947). ment theOf For the 138See, in 130, 131, addition to the authorities cited in notes 137, supra, 144, infra, (all containing and examples and 140 to other Law, text), Hurst, than those remarked The Growth of American (1950), 41-42; Assn., The Law Makers American Political Science Legislatures, Committee Legislatures on American American State (Zeller 1954), 34-35; Gosnell, Democracy, ed. The Threshold of (1948), 179-181; Legislative Lewis, Apportionment Freedom and Courts, (1958); the Federal L. 1057, Harv. Rev. 1059-1064 Fried man, Reapportionment Myth, 184,185-186 (1960); 49 Nat. Civ. Rev. Cong. (remarks support Rec. 14901-14916 of Senator Clark and ing materials); Rep. 2533, 24; H. R. Cong., No. 85th 2d Sess. H. R. Cong., 38-40; Representation Doc. No. 84th Hadwiger, 1st Sess. in the Missouri Assembly, General Mo. L. Rev. 180-181 (1959); Hamilton, Beardsley Coats, Legislative Reapportionment in Indiana: Some Observations Suggestion, and a 35 Notre Dame Law. (1960); Pennsylvania Corter, 368-370 Apportionment, Ponders Q. Temple (1959). Concerning L. gerry 283-288 the classical mander, Griffith, passim; 395-404; see Luce Brooks, Political Parties (3d 1933), and Electoral foreign examples Problems ed. 472-481. For disproportion, Hogan, of numerical see Representation Election and (1945), 95; Theory Finer, (Rev. and Practice of Modern Government 1949), ed. 551-552. more than nine hundred and of
thirty-five thousand single respectively each have inhabitants five thousand range districts Minnesota Representative senator.139 107,246 inhabitants.140 Ratios 7,290 inhabitants from vary as much as California representation of senatorial Oklahoma, In to one.141 ninety-seven hundred and two for House constituencies range is ten to one Cole- one for Senate constituencies.142 roughly sixteen to House population 592—elects two brook, Connecticut — population 177,397 representatives; Hartford — —also examples and fifth of these first, elects two.143 The third which subor- products provisions are the of constitutional in apportion- population regional dinate considerations ment; legislative inaction; the second is the result of *112 legislative fourth derives from both constitutional and A survey sum, sources. made reveals that less 1955, thirty percent population than of the inhabit districts sufficient to elect a House thirteen States and majority majority figures Senate nineteen States.144 These show more than generally individual variations from a accepted standard equality. They of electoral show that there is by not —as there has never been —a standard
139Baker, supra, 137, Jersey legislation note at 11. Recent New provides reapportionment by for of the State’s lower House executive following subsequent action each United States census to that of 1961, apportionment J. 1960. N. Laws c. 1. The is to be made on population, county the basis of save that each is assured at least one Senate, In however, House seat. the State’s constitutional com mand, county single senator, regardless population. each elects a of Const., 1947, IV, II, par. N. J. Art. § 140Note, 141Greenfield, (1958). 617, 42 Minn. L. Rev. 618-619 Emery, supra, 128, Ford note at 3. 142 University Oklahoma, Research, of Bureau of Government Apportionment (1959), Problem in Oklahoma 16-29. 143 (1956). 1 Labor’s Economic Rev. Kelsay, Unrepresentative States, Dauer and 44 Nat. Mun. Rev. 571, 572, (1955). place equality apportionment as a factor in
which the of can be measured. no
Manifestly, Equal supplies Protection Clause guide judicial apportionment for clearer examination Appor- methods than would the Clause itself. Guarantee tionment, by subject extraordinary its character, complexity, involving after the fundamental the- —even in a concerning represented oretical issues what is to be representative fought legislature have been out or com- promised geography, demography, —considerations electoral economic social cohesions or convenience, divergencies among particular local groups, communica- tions, practical effects of like political institutions lobby and the city machine, ancient traditions and ties usage, respect proven settled long incumbents of experience status, and senior mechanics, mathematical censuses relevant compiling data, and a host of others.145 (Redistribu See Second Schedule to the House of Commons Seats) Act, 1949, VI, tion of & 13 Geo. c. amended (Redistribution Seats) Act, House Commons II, Eliz. 6 & 7 26, 2, English experience c. and the described in text at notes 50 to § 61, supra. Report Assembly See also the Interim Committee Reapportionment, (1951) Assembly on Elections California (hereafter, Report), California Committee “The geographic 37: —the people desires socio-economic—the desires of the elected —the political parties officeholders—the desires of these and do can —all legitimately operate only ‘relatively within framework of the *113 equal population factor, in districts’ but within also the factors of contiguity compactness. county Assembly legal and The and line operate ‘equal theoretically restrictions outside the framework of in population might conceivably districts.’ All the have the factors weight situation; another, in might same one in some be factors con siderably important making more than others in the final determina Virginia legislative A many tion.” committee . adverted to “. . topographical barriers, divergent such as difficulties natural business interests, highway, and of social lack communication rail or breaking of up political long disinclinations communities to of ties standing, resulting requesting in some cases of districts with remain populations averages equal more than their rather than have their country reap- to the responses throughout
Legislative have glaringly Census portionment demands of lend themselves not factors that that these are confirmed staple judicial of a are the to evaluations nature equipped adjudi- judges or for are determinations which And native experience or wit. training or legal cate this every strand of true because this is the more so contending meet intricate of values web complicated, significance practical politics.146 forces of partisan may results is that the next election apportionment battles are over- Apportionment of it. differ because It will party intra-party contests.147 whelmingly add a of friction and tension federal- virulent source judiciary state to embroil the federal them.148 relations representation changed Report with the conditions.” of the Joint Re-apportionment of into Committee on the the State Senatorial Districts, Virginia Delegates, Assembly, House House of General (1922), Planning H. Doc. 1-2. And the Tennessee State Com- No. mission, concerning problem congressional redistricting spoke belonging- loyal- of “tradition relates to sense of [which] — to groups ties and items of interest with friends and fellow common circumstance, region.” citizens of like environment or Tennessee Planning Redistricting Congress Commission, State Pub. No. for (1950), page. first 146See, g., Report, e. California Committee at 52. very reapportionment process is, by nature, politi-
"... its [T]he politics reapportionment long cal. . . . There will as a representative government exists form .... impossible boundary
“It is to draw a district line without that line’s having significance. political some . . .” 147See, g., Celler, Congressional Apportionment Past, Present, e. — Future, Contemp. (1952), speaking 17 Law & Prob. 268 history congressional apportionment: reading
“. . .A mere the debates the Constitutional Con- [from contemporary Congresses] question vention appor- down to on conflicting large tionment reveals interests of the and small partisan politics permeates states and the extent to entire problem.” Congressional See (Apportionment), Standards Districts Hearings before Subcommittee No. 2 of the Committee on
IV. contend that Appellants, however, federal courts may provide standard which the Fourteenth Amend- by ment lacks provisions reference to the of the constitu- tion of argument although Tennessee. The is that greater same or disparities strength may of electoral suffered to exist immune from federal judicial review they States where result from apportionment legislation consistent with state constitutions, Legisla- the Tennessee may ture abridge rights which, on its its own face, appears constitution to give, without that act denying equal protection of the laws. It is said that the law of Tennessee, expressed by the words of its written con- stitution, has made the basic among policies choice favor of representation proportioned to population, that it is no longer open to the State to allot its voting power on other principles.
This reasoning does not analysis. bear Like claims invoking state requirement constitutional have been rejected here good and for reason. It is settled that whatever consequences federal may derive from a dis- crimination worked a state statute must be the same as if the same discrimination were written into the Judiciary, House Representatives, Cong., 23, 86th 1st Sess. con- cerning proposed provision judicial enforcement of certain laying standards out of districts: “Mr. Kasem. You provision do not think embody- [a ing language: compact ‘in as practicable’] might form as result depending a decision upon political judge? inclinations of the you
“Mr. Celler. impugning Are integrity of our Federal judiciary? No; just recognize “Mr. Kasem. I their frailties.” human
For torn, an instance of fancy, a court political fact or over the issues involved in reapportionment, Lashly see Becker, State ex rel. 290 Mo. and.especially 235 S. dissenting opinion W. Higbee, J., Mo., W., 235 S. at 1037. *115 Nashville, L. R. & St. law. C.
State’s fundamental v. S. 362. And see Castillo Browning, U. Co. v. R. McConnico, Louisville & N. 674; Coulter v. 168 U. S. Co. Co., 608-609; Owensboro Waterworks 599, 196 U. S. Louisiana, Owensboro, S. 38; Hebert v. U. v. U. S. Hughes, v. S. 312, 316-317; Snowden U. which, by their own
Appellants complain practice years. sixty has been the law of Tennessee for allegations, of 1901 created They allege Apportionment that the Act unequal passed unequal districts still maintains when They allege Legislature districts. that the has since 1901 purposefully unequal retained districts. And the Su preme Court of Tennessee has refused invalidate the establishing unequal law these Kidd districts. v. McCan less, 40; 200 Tenn. 2d appeal S. W. dismissed here in 352 In U. S. 920. these what said circumstances, Browning case, supra, clearly governs this case:
“. Here, according petitioner’s . . all claim, own organs conforming practice, the state are to a systematic, than forty years, unbroken for more questioned now for the first time. It would be a narrow conception jurisprudence to confine the notion of ‘laws’ to what is found on the written books, disregard statute and to gloss which life has upon written it. practice Settled state cannot supplant constitutional guarantees, but it can es- tablish what is state law. Equal The Protection Clause did not an empty write formalism into the Constitution. Deeply embedded ways traditional carrying out state policy, such as those of which petitioner complains, are tougher often and truer law than the dead words of the written text. . . . Equal Protection [T]he Clause is not a command of candor. . . .” respecting its policy apportionment
Tennessee’s law and practice years be, are what 60 show them to not what to its appellants and, according cull from the unenforced judiciary, own unenforceable words of its Constitution. here footing, therefore, statute comes on the same would the apportionment Jersey, laws of New California Connecticut,149 supposed is unaffected its re- pugnance to state language constitutional on which appellants rely.150
In
aspect, however,
another
case,
the Kidd McCanless
*116
supra, introduces a factor peculiar to
which
litigation,
this
only emphasizes
duty
declining
of
the exercise of
judicial jurisdiction.
federal
In all of
apportionment
cases which have come before the
a
Court,
consideration
which has been
weighty
determining their non-justicia-
bility has
difficulty
been the
or
of
impossibility
devising
judicial
effective
remedies
class
An injunc
of case.
restraining
tion
a general
unless
legislature
election
reapportions
paralyze the
would
critical centers of a State’s
political system
political
and threaten
dislocation whose
consequences are
A
not foreseeable
declaration
.
devoid
139-143, supra.
See text at notes
apportionment
Decisions of state courts which have entertained
respective
not,
course,
cases under
their
state constitutions do
very
involve the
different
judi
considerations relevant
to federal
adjudication
cial
intervention.
State-court
does not
involve the
problems
delicate
of federal-state
relations which would inhere
judicial power
the exercise of
impose
federal
restrictions
upon
shaping
governmental
the States’
of their own
institutions.
Moreover,
generally speak
totally
state constitutions
specificity
with a
lacking
attempted
generalities
utilization of the
Fourteenth
apportionment
Amendment
expressly
matters. Some
commit
apportionment
judicial
see,
g.,
Const.,
to state
review,
e. N. Y.
III,
they
they
Art.
not,
precisely
and even where
do
do
fix the
§
judicial judgment respecting
representa
criteria for
the allocation of
strength
See,
g., Asbury
tive
within the electorate.
e.
Park Press.
Inc., Woolley,
33 N. J.
be an idle threat.151 complexities the same itself State: remap could apportionment review of judicial impede effective of these consideration impossible a make a court’s fortiori And original an matter. the choice as imponderables by district, how opposed at to elections large elections sweeping politi a matter unequal districts, ever political implications, enormous judgment having cal certainly beyond the reach of which are the nature and appraisal by, understanding of, capacity informed courts. case has closed Tennessee, moreover,
In the McCanless unsatisfactory and dangerous off these among several even the state courts modes of relief. case was suit <\That seeking Act and Reapportionment the 1901 attacking or, and an of the Act’s enforcement injunction declaration alternatively, elec- compelling a writ of mandamus state large, or, again tion alter- officials hold the elections natively, a reapportioning decree of the court the State. relief, Chancellor all but entertained denied coercive declaratory rendering judg- suit purpose for the *117 despite an ment. It was his that invalidation of the view present legislature elected, statute under 'which the de body possess authority that would continue to to facto maintaining reapportion, and that therefore the of the disruption suit did of the government. not threaten the Supreme agreed that no coercive Tennessee Court be it granted; particular, said, relief could “There Assembly no of-law for election of our provision General by Tenn., an at over at large election the State.” 292 W. at 42. 2d, Thus, legislature S. elected at suggestion Appellants’ that, although may no relief need be jurisdiction ought given, “spur” be legislative to retained as to not action does merit discussion.
large legislative would not be the constituted legally authority however, of the State. reversed, The court declaratory give relief, Chancellor’s determination to holding ground that the which demurrer asserted a striking orderly of the would disrupt down statute process of government should have been sustained:
“(4) It seems and we hold that obvious therefore if the Act of 1901 is declared unconstitutional, to be then de cannot be to main- applied doctrine facto tain present Assembly members of the General holding office. If the Chancellor correct expired this statute has by passage of the decade following its enactment then for reason all the same prior apportionment by acts have a like expired lapse time and are we non-existent. Therefore only any would existing not have members of Assembly appor- the General but we would no have act tionment whatever under a new election could be held for the election members Assembly. General holding
“The ultimate unconsti- result of Act lapse of tutional reason of the time would deprive present Legislature the means us electing ultimately a new about the bring one and Tenn., destruction the State itself.” 200 281- at 44. 2d, 292 S. W. Federal enforcing A Constitution is federal court sure, bound the remedial doctrines of the not, to be pertinent But it to the state courts. must consider impropriety exercising jurisdiction its those propriety or of its it control. state-law effects decree which cannot itself authority requisite A provide federal court cannot *118 the proper governing body the of State legislature make striking down the And it be doubted that cannot Tennessee. challenged equal protec on the here statute reap failure to grounds no than less on grounds, tion valid the State of all decennially, deprive would portion ruling and —under the legislation apportionment an law-based deprive the State of effective McCanless — among considerations, Just such legislative branch. were Luther present, others here determinative Oregon Borden and the initiative cases.152 had in the jurisdiction the District Although Court it very power restricted sense of to determine whether case that class of adjudicate claim, could the is of subject, the nature of its political controversy which, by judicial is unfit for federal action. judgment The Court, dismissing complaint District for failure state a on can granted, claim which relief should therefore be affirmed.
Dissenting opinion of Mr. Justice whom Harlan, Mr. joins. Justice Frankfurter opinion of Mr. Justice dissenting Frankfurter, join, departure
in which I the abrupt demonstrates majority makes judicial history by putting from federal courts into this area of state concerns —an area in this which, instance, Tennessee state courts them- selves have refused to enter.
It does not from opinion say detract his panorama judicial history though evincing it unfolds, underlying steadfast principle keeping federal courts out of domains, tendency, these has because variants in expression, becloud in a analysis given case. respect With due to the majority, I think has happened here. cuts through
Once one thicket of discussion devoted to “jurisdiction,” “standing,” “justiciability,” “po- 24, supra. See note *119 straightforward litical a issue question,” emerges there my in of this case. Does which, view, determinative a complaint disclose of a federal consti- violation words, tutional in a right, other claim over which jurisdiction United States District Court would have under (3) 28 U. S. C. 1343 C. The § § U. S. 1983? majority opinion actually ques- does not discuss this basic tion, as one Justice to but, concurring observes, seems Ante, p. my “sub However, decide it silentio.” 261. opinion, appellants’ allegations, all of accepting them true, not, parsed infringe- do down an whole, or as show by rights ment of any by Tennessee assured the Four- complaint teenth Amendment. I Accordingly, believe the should have claim been dismissed for “failure state a upon granted.” Proc., which relief can Fed. Rules Civ. (6). 12 (b) Rule recognize
It is at once essential to this case for what it is. The issue here relates not a method of elec- state by toral apportionment which seats in the House federal are Representatives allocated, solely right but to the of a to fix the representation State' "basis of own its legislature. it is decided Until first to what extent that right limited the Federal Constitution, and whether what Tennessee failed has done or to do this instance any runs limitation, afoul such we need reach the “justiciability” issues of or “political question” any Colegrove other considerations which such cases as Green, 328 U. S. led Court adjudi- to decline to a challenge cate to a apportionment state affecting seats in the federal House of in the absence of Representatives, a controlling Act Congress. Broom, See also Wood v. 287 U. S. appellants’ claim in this ultimately case rests
entirely on the Equal Protection Clause of Fourteenth Amendment. It is asserted that Tennessee has violated the Equal Protection Clause maintaining in effect legislative grossly favors
system apportionment against of the State as representation rural sections its Stripped essentials its urban communities. complaint to set forth three constitutional purports claims of varying breadth:
(1) Equal requires Protection Clause legislative given each cast in elections be vote state approximately weight. equal
(2) existing apportionment this, Short as to legislators state is so unreasonable amount an arbitrary capricious act of classification on part which is offensive Legislature, Tennessee Equal Protection Clause. any In
(3) existing apportionment is event, the Fourteenth rendered invalid under Amendment it flies in the face of the Tennessee Con- because stitution. given
For opinion, reasons Mr. Justice Frankfurter’s ante, pp. mani- 325-327, propositions the last of these festly I untenable, and need not dealt with further. turn the other two.
I. I nothing Equal can find Protection Clause elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be so structured as to with approximate reflect equality every only the voice voter. prop- Not is that osition as history, by my refuted shown Brother but strikes deep it into the heart of our Frankfurter, Its system. acceptance require federal turn would us to our the regard always backs on Court has judgment legislatures shown for the of state and courts basically on matters of local concern. analysis,
In what lies at the core of this con- the last function of troversy opinion is a difference of as to the surely beyond argu- It representative government. devising responsibility ment that those who have the may consider that system representation permissibly should be taken into factors other than bare numbers Senate is account. The existence of the United States may ignore consider that we proof enough of that. To Legislature’s judgment this instance the Tennessee an body product asymmetrical was the because would effect be to assume the apportionment electoral accept must very disputed. conclusion here Hence we present Legislature form of the Tennessee realistically, or, embodiment of the State’s more choice, compromise, competing political philosophies. its between empowered by Equal have been The federal courts judge Clause to whether this resolution Protection political conflict is desirable or undesir- State’s internal *121 able, wise or unwise. regulatory tax respect to state statutes
With is measures, example, “day for it has been said that gone when this Court uses the . . . Fourteenth Amend- state . . . they may ment to strike down laws because unwise, improvident, harmony particular or out of with a Co., v. Lee Optical Williamson thought.” school of compelling S. I would think it all more U. principle us to this is follow of self-restraint when what freedom of a to deal with so intimate involved is the State legislative a concern as the structure of its own branch. imposes The Federal Constitution no limitation on the government may gen- form which a state other than take erally committing duty guar- to the United to States every Republican “a antee to State Form of Government.” And, my conclusively proves Brother Frankfurter so (ante, pp. 308-317), immutably no intention to fix governments for state representatives selecting
means of or Founders of either the in the minds have been could Amendment. the Fourteenth draftsmen Constitution in the Federal nothing there is short, In choosing from acting irrationally, prevent State, a to to it thinks best suited any structure legislative electoral I would people. of its interests, temper, customs MacDougall v. settled thought proposition have (at Green, 281, which the Court observed 335 U. S. is a political power to “assume that function p. 283) that disregard practicalities is exclusively of numbers Peters, and reaffirmed South v. government,” strength A choice to distribute electoral S. 276. State’s U. according rather than among geographical units, certainly is no population, less rational deci census policy levy sion of than would be .its choice to a tax on property legisla rather than tax on income. are Both respect tive from judgments equal entitled this Court. II. system apportionment
The claim that Tennessee’s is capricious so unreasonable as to amount to a classi- voting strength fication of up stands no better under dispassionate analysis. again has said time and Equal Court that the Pro-
tection does not demand of Clause state enactments either identity g., E. rigid equality. mathematical Allied Bowers, Stores Ohio 358 U. S. 527-528, cited; authorities there McGowan v. Maryland, 366 U. S. 420, 425-426. All prohibited dis- “invidious *122 bearing crimination” no rational any per- relation to policy missible of the State. Lee Optical Williamson v. Co., supra, deciding And in whether such dis- practiced crimination has been by a State, it must be mind a “statutory borne in that discrimination will not if any be set aside state of facts reasonably may con- It supra. Maryland, McGowan v. it.” justify ceived uncon- holding of calls for alone that inequality is not an on is based inequality if the only stitutionality; it. condemn this Court standard impermissible may in this case made for the claim the basis then is What representatives senators of state that the distribution constitutionally or of some capriciousness product is the arranged has It is that Tennessee policy? prohibited dilute purpose to districts with deliberate its electoral Lightfoot, cf. race, of one Gomillion voting strength the intentionally group religious 339, or that some S.U. legislature the charge that Nor it underrepresented. allotting representatives caprice in sheer indulged has or of dice, of the of a throw county on the basis to each relation to the rational bearing no determinant some other is that the claim Rather, apportionment. question of substantially unreasonably retained has Legislature State was representatives of senators and same allocation refusing recognize by statute established urban between balance population great shift meantime. that has occurred rural communities appor- 1901 the that even as of alleged It is further state allocate in that it did not invalid, was tionment with accordance the counties among legislators Tennessee of the II, in Art. § out set formula have appellants support In of this Constitution. as of 1901 six indicates that a Table furnished underrep- were overrepresented were counties in the nothing in fact shows Table But that resented. each instance of discrepancy; significant way of lacking who is either representative only one county it is evident perfectly is further it or added. And than the cir- nothing more are attributable variations of voters resulted enumeration the then cumstance pre- which the respect to with remainders in fractional in some Tennessee Constitution cise formula *123 336 slightly disregarded.
instances such de minimis Unless departures significance, are statistics deemed of these certainly provide no charge substantiation for the apportionment arbitrary the 1901 capricious. Indeed, they contrary. show the essentials, charge
Thus reduced to its of arbitrari- capriciousness ness and entirely rests on the consistent Legislature refusal of the past Tennessee over the years pattern apportionment to alter a that was reasonable when conceived.
A Federal say passage District Court is asked to that the of time has rendered the apportionment obsolete to point where its continuance becomes vulnerable under the Fourteenth Amendment. But is not this matter one involves a classic legislative judgment? Surely it province lies within the a legislature state to conclude existing that an representatives allocation of senators and constitutes desirable geographical balance of and demo- graphical representation, or that stability interest of of government it would be best to defer for some further time the redistribution legislature. of seats the state I
Indeed, hardly would think it if unconstitutional legislature’s expressed state reason for establishing or an maintaining electoral imbalance between its rural and population urban protect were to agricultural State’s interests from weight the sheer of numbers of those resid- ing its cities. A may, State after all, take account of the interests of its population rural in the distribution of tax e. burdens, g., Sugar American Rfg. Louisiana, Co. v. recognition S. special U. problems agricultural interests has repeatedly been reflected g., federal e. legislation, Capper-Volstead Act, Stat. 388; Agricultural Adjustment Act of 1938, 52 Stat. 31. exemption agricultural Even the activities from state criminal statutes of general otherwise application has not been deemed offensive to Equal Protection Clause. Texas, the Fourteenth Tigner S. Does U. upon a stricter limitation State’s impose Amendment *124 representatives to its central apportionment political of local I not. These are matters of government? think policy, judiciary on wisdom of which the federal permitted qualified judgment. neither nor to sit that suggestion my Brother Frankfurter such as by courts lack standards which to decide cases this, only question “justiciabil- is relevant not to the ity,” also, perhaps fundamentally, but more to the any cognizable determination whether constitutional claim has been asserted this case. are unable Courts to decide when it is that an apportionment originally entering valid becomes void because the factors into such basically a decision are appropriate only legis- matters for judgment. long lative And so as a possible there exists legislative rational policy retaining existing an appor- tionment, such a legislative decision cannot be said to breach the bulwark against and caprice arbitrariness that the Fourteenth Amendment affords. Certainly, with all due respect, facile arithmetical argument contained in II my Part separate Brother Clark’s opinion (ante, pp. 253-258) provides no tenable basis for considering that has there been such a breach in (See this instance. Appendix to opinion.) this
These conclusions can hardly
escaped by
suggesting
that capricious state action might be found were it to
appear that a
majority
the Tennessee
legislators,
refusing to consider reapportionment, had been actuated
in perpetuating
self-interest
political
their own
offices
unworthy
other
or improper motives. Since Fletcher
Peck,
From premises find it to catch one will not difficult appellants have this decision. The fact that the underlie of their asserted political unable to obtain redress been regarded as a matter which grievances appears to be for judi- stretch find some basis should the Court to lead Equal Protection Clause cial intervention. While the notably for the Court eschews ex- invoked, opinion the undis- past decisions, with plaining how, consonant can considered to show a facts this case puted majority provision. constitutional violation of that accepted argument, pressed have seems to authority if asserts this merely this Court bar, “malapportioning” States will Tennessee other field, so that appropriate political action, with quickly respond fed- concerned about the greatly this need not be Court in these matters. becoming courts further involved eral wholly failed to reckon majority At the same time the has if may optimistic hold in store with what the future doing Thus, not fulfilled. what the Court prediction is experimenta- an in judicial more adventure reflects piece adjudication. a solid of constitutional tion than been for want dismissal of this case should have Whether Hood, suggested as is in Bell S. jurisdiction or, U. complaint to state a claim 678, 682-683, failure *126 upon granted, judgment which relief could be District Court was correct. conclusion, appropriate say
In it is one need not that citizen, as a with what Tennessee has or agree, done failed majority in order to as a what the deprecate, judge, do, doing today. is Those observers of Court who see primarily refuge as the last for the correction of all it matter inequality injustice, no what its nature or source, applaud will no doubt this decision and its break continuing consider that past.
with the Those who in authority depends large respect national for the Court’s of self-restraint and disci- upon measure its wise exercise adjudication, will view the decision pline constitutional deep with concern.
I affirm. would
APPENDIX TO OPINION OF MR. JUSTICE
HARLAN. op Inadequacy as Meas- Arithmetical Formulas op Rationality op Tennessee’s ures
Apportionment. concurring opinions appear separate Two of the three does not Equal to concede that Protection Clause approximately guarantee to each state voter vote weight Legislature. equal the State Whether existing constitutional is apportionment Tennessee is recognized depend only “any on it can find whether rationality” (ante, possible it justification p. 265); is if only to be struck down “the discrimination here does any pattern” (ante, 258). not fit p. concurring opinions, my
One that of Brother suggests no reasons which would a find- justify Stewart, ing present legislators distribution of state unconstitutionally arbitrary. The same is true majority opinion. My Brother on the other Clark, hand, concludes that “the apportionment picture in a topsy-turvical Tennessee is of gigantic proportions” (ante, p. 254), solely on the basis of certain pre- statistics sented the text of his separate opinion and included a more extensive appended Table my thereto. In view, analysis only defective not because the “total rep- resentation” formula set out footnote 7 of opinion (ante, p. 255), rests on faulty mathematical foundations, but, basically, more because the approach taken wholly *127 determina- legislative a factors justifying all other ignores apportion- devising proper sort involved tion of the Legislature. a State ment for into account matters any of such other failing to take
In formula mathematical particular on a focusing my Brother unsound, shown, patently which, as will be bring to unwittingly I served has, submit, opinion Clark’s the view that very support reasons that into bas-relief could on which relief does not state a claim complaint elec- holding warrant state For order to granted. be Protection Equal under the apportionment toral invalid constitu- in line with well-established Clause, court, permissible none of the tional must find that doctrine, on which it none formulas policies possible particular rationally justify based could might have been inequalities.
I. outset, apportion- At the it cannot be denied that set out in the Tennessee Constitu- explicitly ment rules are based on the follow- tion are rational. These rules (1) to ing obviously permissible policy determinations: (2)' the divi- units; prohibit utilize counties as electoral dis- any county composition sion of of electoral tricts; (3) county allot to that has a substantial each voting population average least two-thirds of the —at voting population per county separate repre- “direct —a ; (4) (multicounty sentative” to create “floterial” districts representative districts) up made of more than one county; (5) require that such districts be composed adjoining counties.1 a framework unavoidably Such provisions II, The relevant of the Tennessee Constitution are Art. 5 and 6: §§ representatives Apportionment Repre- “Sec. 5. number of —The. periods shall, making enumeration, sentatives several apportioned among districts, according the several counties or to the *128 any inequalities under unreliable arithmetic
leads to whereby repre- counties’“total mathematical formula sought particularly to be measured. It sentation” is egregiously deceptive disparities if the formula results in my opinion applied. proposed in is Brother Clark’s computes county’s representa- That formula a “total by adding (1) representa- tion” the number of “direct (2) county a elect; is entitled to fraction of tives” any in other seats House which are allo- Tennessee county jointly cated to that with one or more others (3) triple in district”; a “floterial the number of sena- county (4) triple alone; is tors the to elect entitled any a seats in the fraction Tennessee Senate which county jointly are allocated to that with one or more multicounty in others senatorial district. The fractions (2) (4) computed by allotting items are used for county equal in a combined an each district share voting population seat, regardless House or of the Senate up counties make of each of the that election district.2 qualified each; seventy-five, number of voters in and shall not exceed population half, until the of the State shall be one million and a ninety-nine; any county having Provided, shall never exceed that two-thirds be ratio shall entitled to one member. Apportionment shall, “Sec. 6. senators. —The number of Senators o/ periods making enumeration, apportioned at the several be among according the several counties or districts to the number of qualified each, electors in and shall not exceed one-third the number representatives. apportioning among In the Senators the different may by any county counties, counties, the fraction be lost in apportionment Representatives, of members to the House of shall up county may be made to such Senate, or counties in the as near as practicable. composed be is counties, When district of two or more they adjoining; forming shall and no counties shall be divided in a district.” clearly spelled This formula is not opinion, out in the but it is necessarily figures presented. inferred from the County, are Knox example, representation” is said to have a “total of 7.25. It formula in that it eliminates patently
This deficient voting power from consideration the relative together dis- joined single counties that are election assigns unrealistically trict. As a result, the formula County of a senator, Moore one-third addition its representative {ante, p. 255), direct it must be although voting strength Eighteenth obvious that Moore’s negligible. Senatorial District almost Since Moore County only eligible could of a total vote 2,340 cast votes 30,478 district, the senatorial it should truth be *129 as of a represented by considered one-fifteenth senator. arguendo, Assuming, any representation” that “total figure is representation” Moore’s “total significance, 2.3 1.23, should be suggested by
The formula Brother Clark must be my adjusted assuredly regardless thinks, whether one as I do not, requires that the Federal each Constitution vote weight. given equal be is sim- necessary The correction ply real political may, to reflect the facts of life. It be course, representative’s true that the floterial “function (1) representatives (value (2) 3.00); repre- elects three direct one (value (3) two-county .50); sentative from district one direct (value 3.00); (4) four-county senator one senator in a district (value .75). Appendix opinion Clark, ante, See of Mr. Justice pp. 262-264. “adjusted” representation” measuring If this formula “total applied concurring opinion to the other “horribles” cited in the {ante, p. 255), purportedly it that these counties—which reveals have equal representation” distinctly unequal voting popu “total but representation” lation —do not have the same “total at all. Rather having representation County, than the same as Rutherford Moore County only has about what Rutherford has. Decatur 40% only County representation County. has of the of Carter 55% substantially underrepre While Loudon Anderson are Counties proximity sented, County, this is because of their Knox which outweighs their Sixth votes Senatorial District and Eighth District. Floterial 256). can p. whole district” But represent {ante,
is to long it that so elections within the district gainsaid be each county-unit system, are decided not by adding the total number of county casts one but vote, candidate, for each the concern individual votes cast with representatives primarily will the most the elected populous counties the district?
II. any mathematical for- suggest I not mean to do a proper albeit an would be touch- mula, “adjusted” one, rationality present measure the of the or of stone to plan. For, as the appellants’ proposed apportionment con- appended my opinion Table Brother Clark’s so clusively applies sug- whether one the formula he shows, voting adjusted proportional to reflect gests or one that plan apportion- an election no strength district, within Ten- principal policies consistent with the ment provide proportionately equal nessee Constitution could representation” “total for each of Tennessee’s counties. in Exhibits pattern suggested by appellants *130 “B” is said to complaint “A” and attached to their “fair which accords with the Tennessee distribution” Con- of stitution, and under each the election districts represents approximately equal voting population. But by “adjusted” formula, plan even when tested gross representation” “total disparities reveals that would appear “crazy quilt.” make it to be a For example, Loudon with County, voting population twice the of Humphreys County would representation have less than and Humphreys, about one-third representation of County, only Warren which has Among 73 more voters. populous the more counties, discrepancies similar would appear. Although County Anderson has only somewhat over more voters than County, Blount it would have 10% And Blount representation. more approximately 75% representation two-thirds the approximately would have voters.4 which has less County, about Montgomery 13% III. to the case purely approach fault with a statistical mathematical formula particular hand lies not with the to take account of the fact but the failure
used, along with legislative policies, of legitimate multitude demography, could .geography circumstances coun- seeming disparities among electoral account for the set out in the Tennessee Constitu- principles ties. The significant. some of those that were deemed just tion are those may accepted have been considered Others responsibility appor- with the for Tennessee’s entrusted purposes judging And for constitu- tionment. Protection it must be tionality Equal under the Clause controlling remembered that what on the issue “rationality” Legislature may is not what the State actually may have considered but what it be deemed to have considered. by my example,
For the list “horribles” cited (ante, Brother all p. 255), “underrepresented” Clark are semiurban: all contain of over municipalities counties 10,000 population.5 say, however, This is not to that the disparities serious, so, my These are as if not more when Brother applied appellants’ proposal. example, formula is to the For Clark’s if the seven him counties chosen as illustrative are examined as they represented appellants’ distribution, would be under the Moore County, voting population given with a more electoral 2,340, strength voting population County, than Decatur with a 5,563. County (voting population 23,302) Carter has more “total 20% representation” County (voting population 33,990), than Anderson County (voting population more than Rutherford 25,316). 33% 5Murfreesboro, County (pop. Elizabethton, Rutherford 16,017); *131 County (pop. 10,754); Ridge, County (pop. Carter Oak Anderson Book, 27,387). pp. Tennessee Blue 143-149. county neces- any municipality such within
presence be proportional representation its sarily demands an “urban in order to render it consistent with reduced Other considera- plan apportionment. versus rural” outweigh Legislature’s and desire may tions intervene proper so as to balance to distribute seats achieve a county, urban and rural interests. The size of between loca- area, may in terms of its total be factor.6 Or the county major industry may tion within a of some be strength.7 thought voting Again, to call dilution of the combination of certain smaller counties with their heavily populated neighbors more senatorial or may “floterial” districts result in apparent arithmetic inequalities.8
More broadly, disparities strength in electoral among the various in Tennessee, counties both those relied upon my Brother others, may and be Clark example, For Washington approxi Carter and Counties are each mately large Maury as as and Madison Counties in terms 60% square miles, may explain disparity and this between their “total representation” figures. example, For being “semi-urban,” County addition to Blount City the location of Alcoa, Company where the Aluminum large smelting rolling America located a plant. has aluminum may explain This representation” the difference between its “total County, that of Gibson large industry which has no such municipality large Maryville. contains no as example, County For (voting population Chester 6,391) is one presently of those overrepresented. that is said to be But under the appellants’ proposal, populous Chester would be combined with County Madison in a “floterial others, district” and with four includ ing Shelby County, in a senatorial Consequently, district. its total representation according Appendix my to the Brother Clark’s opinion (Ante, 262.) would be p. .19. This would have the effect disenfranchising county’s all the Similarly, County’s voters. Rhea 9,000 almost voters voting strength would find their so diluted as to practically nonexistent. *132 geo- economic,9 political,10 by for various accounted by is made allegation No considerations. graphic is the result of existing apportionment that appellants any legisla- always at work than are other forces any arguments record, briefs, and the process; tive appellants to the fact that attest Court themselves at a trial. nothing further put forward could legis- variety permissible disregarding the wide By enter into state electoral may lative considerations highly has turned a my Brother Clark apportionment puzzle. arithmetical elementary an process into complex portion of the State that example, primarily the eastern For it is (along of Mem malapportionment with Cities complaining industry is Nashville). section is where phis But the eastern density, population even outside where principally located and appor Consequently, if Tennessee is areas, highest. large urban constitutionally interests, it was agricultural tioning in favor of its representation from do, reduce pecessarily it would entitled east. surely justify limiting the political reasons example, sound For numbers; Tennessee, the House legislative to workable chambers might been deemed desir It have and the at 33. is set at 99 Senate any single ceiling representation from therefore, on able, to set representation. The county deprive of individual as not to others so large among with urban discrepancies four counties proportional limiting repre policy of may to a conscious be attributable centers manner. sentation in this County four counties each is surrounded example, Moore For voting population to exceed two-thirds which has sufficient pre (which county is the standard voting population per average assignment of a direct the Tennessee Constitution scribed representatives. Conse qualifying for direct representative), thus assigned representative of its own County quently must Moore joined with voting it cannot be population because despite its small multicounty district, and the Tennessee Con any neighbors in a itsof nonadjacent note combining with counties. See prohibits it stitution 1, supra. only by reality analysis
It is that such an blinking can essentially legislative stand and determination subject can judicial inquiry. be made the
IV. Apart policies suggested from such as those which would *133 justify particular inequalities, suffice to there is a further consideration which rationally could have led the Ten- Legislature, nessee the exercise of a deliberate choice, to maintain the status an quo. Rigidity appor- pattern may legislative policy tionment be as much a a provision periodic reapportion- decision for In may ment. the interest of stability, State write fundamental a permanent into its law distribution legislators among its various election thus districts, ignoring Indeed, in population. forever shifts several by providing States have achieved this result for mini- mum representation polit- and maximum from various ical such as counties, districts, cities, subdivisions Legisla- towns. Harvey, Reapportionments See State Legal Requirements, Contemp. 17 Law & Probs. tures — (1952), 364, 368-372.
It is that one any said cannot find rational standard Legislature what the Tennessee has failed to do over past years. surely But one need not search far to rationality the Legislature’s find continued refusal to recognize growth population of the urban that has accompanied development industry past over the half decade. The existence of slight disparities between rural areas does not overcome the fact that the foremost apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population. IAnd understand it to be conceded by at least some of the majority that policy is not rural it favors merely because unconstitutional rendered voters. recognized process apportionment the electoral
Once give-and-take legislative product it is—the what often conflict— policies that among compromise and of put these at once principles constitutional the relevant federal courts. out of the appellants