BROWN ET AL. v. THOMSON, SECRETARY OF STATE OF WYOMING, ET AL.
No. 82-65
Supreme Court of the United States
Argued March 21, 1983—Decided June 22, 1983
462 U.S. 835
Sue Davidson argued the cause and filed a brief for appellants.
Randall T. Cox, Assistant Attorney General of Wyoming, argued the cause pro hac vice for appellees Thyra Thomson et al. With him on the brief were A. G. McClintock, Attorney General, and Peter J. Mulvaney, Deputy Attorney General. Richard Barrett filed a brief for appellees James L. Thomson et al.
The issue is whether the State of Wyoming violated the Equal Protection Clause by allocating one of the 64 seats in its House of Representatives to a county the population of which is considerably lower than the average population per state representative.
I
Since Wyoming became a State in 1890, its legislature has consisted of a Senate and a House of Representatives. The State‘s Constitution provides that each of the State‘s counties “shall constitute a senatorial and representative district” and that “[e]ach county shall have at least one senator and one representative.” The senators and representatives are required to be “apportioned among the said counties as nearly as may be according to the number of their inhabitants.”
In 1963 voters from the six most populous counties filed suit in the District Court for the District of Wyoming challenging the apportionment of the State‘s 25 senators and 61 representatives. The three-judge District Court held that the apportionment of the Senate—one senator allocated to each of the State‘s 23 counties, with the two largest counties having two senators—so far departed from the principle of population equality that it was unconstitutional. Schaefer v. Thomson, 240 F. Supp. 247, 251-252 (Wyo. 1964), supple-
The 1971 reapportionment of the House was similar to that in 1963, with an average deviation of 15% and a maximum deviation of 86%. 1 App. Exhibits 18. Another constitutional challenge was brought in the District Court. The three-judge court again upheld the apportionment of the House, observing that only “five minimal adjustments” had been made since 1963, with three districts gaining a representative and two districts losing a representative because of population shifts. Thompson v. Thomson, 344 F. Supp. 1378, 1380 (Wyo. 1972).
The present case is a challenge to Wyoming‘s 1981 statute reapportioning its House of Representatives in accordance with the requirements of
The issue in this case concerns only Niobrara County, the State‘s least populous county. Its population of 2,924 is less than half of the ideal district of 7,337. Accordingly, the general statutory formula would have dictated that its population for purposes of representation be rounded down to zero. See
Appellants, members of the state League of Women Voters and residents of seven counties in which the population per representative is greater than the state average, filed this lawsuit in the District Court for the District of Wyoming. They alleged that “[b]y granting Niobrara County a representative to which it is not statutorily entitled, the voting privileges of Plaintiffs and other citizens and electors of Wyoming similarly situated have been improperly and illegally diluted in violation of the 14th Amendment....” App. 3-4. They sought declaratory and injunctive relief that would prevent the State from giving a separate representative to Nio-
The three-judge District Court upheld the constitutionality of the statute. 536 F. Supp. 780 (1982). The court noted that the narrow issue presented was the alleged discriminatory effect of a single county‘s representative, and concluded, citing expert testimony, that “the ‘dilution’ of the plaintiffs’ votes is de minimis when Niobrara County has its own representative.” Id., at 783. The court also found that Wyoming‘s policy of granting a representative to each county was rational and, indeed, particularly well suited to the special needs of Wyoming. Id., at 784.5
We noted probable jurisdiction, 459 U. S. 819 (1982), and now affirm.
A
In Reynolds v. Sims, 377 U. S. 533, 568 (1964), the Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” This holding requires only “that a State make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable,” for “it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters.” Id., at 577. See Gaffney v. Cummings, 412 U. S. 735, 745-748 (1973) (describing various difficulties in measurement of population).
We have recognized that some deviations from population equality may be necessary to permit the States to pursue other legitimate objectives such as “maintain[ing] the integrity of various political subdivisions” and “provid[ing] for compact districts of contiguous territory.” Reynolds, supra, at 578. As the Court stated in Gaffney, “[a]n unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in day-to-day operation are important to an acceptable representation and apportionment arrangement.” 412 U. S., at 749.
In view of these considerations, we have held that “minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Id., at 745. Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. See, e. g., Connor v. Finch, 431 U. S. 407, 418 (1977); White v. Regester, 412 U. S. 755, 764 (1973). A plan with larger
B
In this case there is no question that Niobrara County‘s deviation from population equality—60% below the mean—is more than minor. There also can be no question that Wyoming‘s constitutional policy—followed since statehood—of using counties as representative districts and ensuring that each county has one representative is supported by substantial and legitimate state concerns. In Abate v. Mundt, 403 U. S. 182, 185 (1971), the Court held that “a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality.” See Mahan v. Howell, supra, at 329. Indeed, the Court in Reynolds v. Sims, supra, singled out preservation of political subdivisions as a clearly legitimate policy. See 377 U. S., at 580-581.
Moreover, it is undisputed that Wyoming has applied this factor in a manner “free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U. S. 695, 710 (1964). The State‘s policy of preserving county boundaries is based on the State Constitution, has been followed for decades, and has been applied consistently throughout the State. As the
“[T]here is not the slightest sign of any group of people being discriminated against here. There is no indication that the larger cities or towns are being discriminated against; on the contrary, Cheyenne, Laramie, Casper, Sheridan, are not shown to have suffered in the slightest ... degree. There has been no preference for the cattle-raising or agricultural areas as such.” 536 F. Supp., at 788 (specially concurring).
In short, this case presents an unusually strong example of an apportionment plan the population variations of which are entirely the result of the consistent and nondiscriminatory application of a legitimate state policy.6 This does not mean
C
Here we are not required to decide whether Wyoming‘s nondiscriminatory adherence to county boundaries justifies the population deviations that exist throughout Wyoming‘s representative districts. Appellants deliberately have limited their challenge to the alleged dilution of their voting power resulting from the one representative given to Niobrara County.8 The issue therefore is not whether a 16% average deviation and an 89% maximum deviation, considering the state apportionment plan as a whole, are constitutionally permissible. Rather, the issue is whether Wyoming‘s policy of preserving county boundaries justifies the additional deviations from population equality resulting from the provision of representation to Niobrara County.9
We do not suggest that a State is free to create and allocate an additional representative seat in any way it chooses simply because that additional seat will have little or no effect on the remainder of the State‘s voters. The allocation of a representative to a particular political subdivision still may violate the Equal Protection Clause if it greatly exceeds the population variations existing in the rest of the State and if the State provides no legitimate justifications for the creation of that seat. Here, however, considerable population variations will remain even if Niobrara County‘s representative is eliminated. Under the 63-member plan, the average deviation per representative would be 13% and the maximum deviation would be 66%. See 1 App. Exhibits 22. These statistics make clear that the grant of a representative to Niobrara County is not a significant cause of the population deviations that exist in Wyoming.
Moreover, we believe that the differences between the two plans are justified on the basis of Wyoming‘s longstanding and legitimate policy of preserving county boundaries. See supra, at 841, n. 5, and 843-844. Particularly where there is no “taint of arbitrariness or discrimination,” Roman v. Sincock, 377 U. S., at 710, substantial deference is to be accorded the political decisions of the people of a State acting
The judgment of the District Court is
Affirmed.
JUSTICE O‘CONNOR, with whom JUSTICE STEVENS joins, concurring.
By its decisions today in this case and in Karcher v. Daggett, ante, p. 725, the Court upholds, in the former, the allocation of one representative to a county in a state legislative plan with an 89% maximum deviation from population equality and strikes down, in the latter, a congressional reapportionment plan for the State of New Jersey where the maximum deviation is 0.6984%. As a Member of the majority in both cases, I feel compelled to explain the reasons for my joinder in these apparently divergent decisions.
In my view, the “one-person, one-vote” principle is the guiding ideal in evaluating both congressional and legislative redistricting schemes. In both situations, however, ensuring equal representation is not simply a matter of numbers. There must be flexibility in assessing the size of the deviation against the importance, consistency, and neutrality of the state policies alleged to require the population disparities.
Both opinions recognize this need for flexibility in examining the asserted state policies.1 In Karcher, New Jersey
In addition, as the Court emphasizes, in this case we are not required to decide whether, and do not suggest that, “Wyoming‘s nondiscriminatory adherence to county boundaries justifies the population deviations that exist throughout Wyoming‘s representative districts.” Ante, at 846. Thus, the relevant percentage in this case is not the 89% maximum deviation when the State of Wyoming is viewed as a whole, but the additional deviation from equality produced by the allocation of one representative to Niobrara County. Ibid.
In this regard, I would emphasize a point acknowledged by the majority. See ante, at 844-845. Although the maximum deviation figure is not the controlling element in an apportionment challenge, even the consistent and nondiscriminatory application of a legitimate state policy cannot justify substantial population deviations throughout the State where the effect would be to eviscerate the one-person, one-vote principle. In short, as the Court observes, ibid., there is clearly
In the past, this Court has recognized that a state legislative apportionment scheme with a maximum population deviation exceeding 10% creates a prima facie case of discrimination. See, e. g., Connor v. Finch, 431 U. S. 407, 418 (1977). Moreover, in Mahan v. Howell, 410 U. S. 315, 329 (1973), we suggested that a 16.4% maximum deviation “may well approach tolerable limits.”2 I have the gravest doubts that a statewide legislative plan with an 89% maximum deviation could survive constitutional scrutiny despite the presence of the State‘s strong interest in preserving county boundaries. I join the Court‘s opinion on the understanding that nothing in it suggests that this Court would uphold such a scheme.
JUSTICE BRENNAN, with whom JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting.
The Court today upholds a reapportionment scheme for a state legislature featuring an 89% maximum deviation and a 16% average deviation from population equality. I cannot agree.
I
Although I disagree with today‘s holding, it is worth stressing how extraordinarily narrow it is, and how empty of likely precedential value. The Court goes out of its way to make clear that because appellants have chosen to attack only one small feature of Wyoming‘s reapportionment scheme, the Court weighs only the marginal unequalizing effect of that one feature, and not the overall constitutionality of the entire scheme. Ante, at 846, and nn. 8, 9; see ante, at 849 (O‘CONNOR, J., concurring). Hence, although in my view the Court reaches the wrong result in the case at hand, it is unlikely that any future plaintiffs challenging a state reapportionment scheme as unconstitutional will be so unwise as to limit their challenge to the scheme‘s single most objectionable feature. Whether this will be a good thing for the speed and cost of constitutional litigation remains to be seen. But at least plaintiffs henceforth will know better than to exercise moderation or restraint in mounting constitutional attacks on state apportionment statutes, lest they forfeit their small claim by omitting to assert a big one.
II
A
The Equal Protection Clause of the Fourteenth Amendment requires that a State, in apportioning its legislature, “make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U. S. 533, 577 (1964). Under certain conditions the Constitution permits small deviations from absolute equality in state legislative districts,1 but we have carefully circumscribed the range of permissible deviations as to both degree and kind. What is required is “a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U. S. 695, 710 (1964). “[T]he overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” Reynolds, supra, at 579.
It takes little effort to show that Wyoming‘s 1981 House of Representatives apportionment is manifestly unconstitutional under the test established by our cases, whether one considers the instance of Niobrara County alone or in combination with the large deviations present in the rest of the scheme.
It is conceded all around, of course, that appellants have shown a prima facie case of discrimination. Wyoming‘s 89% maximum deviation greatly exceeds our “under 10%” threshold; indeed, so great is the inequality in this plan that even its 16% average deviation from ideal district size exceeds the threshold we have set for maximum deviations. On the other hand, one might reasonably concede that the State has met the second and third steps. Wyoming‘s longstanding policy of using counties as the basic units of representation is a rational one, found by the District Court to be untainted by arbitrariness or discrimination. It appears as well that the deviations at issue could not be reduced (at least not without substantially increasing the size of the House of Representatives) consistently with Wyoming‘s goals of using county lines and assuring each county at least one representative. It cannot plausibly be argued, however, that Wyoming‘s plan passes the fourth test—that its deviations, even if justified by state policy, be within the constitutionally tolerable range of size.
We have warned that although maintenance of county or other political boundaries can justify small deviations, it cannot be allowed to negate the fundamental principle of one person, one vote. E. g., Connor, supra, at 419. Likewise, we have recognized that it may not always be feasible, within constitutional constraints, to guarantee each county or subdivision a representative of its own. “Carried too far, a scheme of giving at least one seat in one house to each political subdivision (for example, to each county) could easily result, in many States, in a total subversion of the equal-
“[S]parse population is not a legitimate basis for a departure from the goal of equality. A State with a sparse population may face problems different from those faced by one with a concentrated population, but that, without more, does not permit a substantial deviation from the average. Indeed, in a State with a small population, each individual vote may be more important to the result of an election than in a highly populated State. Thus, particular emphasis should be placed on establishing districts with as exact population equality as possible.” Chapman v. Meier, 420 U. S. 1, 24-25 (1975) (emphasis added).
Accord, Connor, supra, at 418-419, n. 18; see Reynolds, supra, at 580.
As the Court implicitly acknowledges, ante, at 843, Niobrara County‘s overrepresentation—60% compared to the ideal district size—cannot be considered “the kind of ‘minor’ variatio[n] which Reynolds v. Sims indicated might be justified by local policies counseling the maintenance of established political subdivisions in apportionment plans.” Kilgarlin, 386 U. S., at 123. In Kilgarlin, we expressed strong doubt that the 26% maximum deviation there could ever be permitted, ibid. In Mahan, we warned that a 16.4% maximum deviation, even though fully justified by state policy, “may well approach tolerable limits.” 410 U. S., at 329. See also Abate v. Mundt, 403 U. S. 182, 187 (1971). Here, by contrast, Niobrara County voters are given more than two and a half times the voting strength of the average Wyoming voter,
If the rest of the State is considered as well, the picture becomes even worse. The scheme‘s treatment of Niobrara County is not a single, isolated abuse, but merely the worst of many objectionable features. Of Wyoming‘s 23 counties, only 9 are within as much as 10% of population proportionality. The populations per representative of Sublette and Crook Counties are, respectively, 38% and 28% below the statewide average; those of Washakie and Teton Counties are 29% and 28%, respectively, above that figure. The average deviation from ideal district size is 16%. The figures could be spun out further, but it is unnecessary. It is not surprising, then, that the Court makes no effort to uphold the plan as a whole. On the contrary, at least two Members of the majority express their “gravest doubts that a statewide legislative plan with an 89% maximum deviation could survive
C
The Court attempts to escape these stark facts through two lines of reasoning, each relying on an unspoken legal premise. Neither withstands examination.
First, the Court apparently assumes that the only aspect of unequal representation that matters is the degree of vote dilution suffered by any one individual voter. See ante, at 847. The Court is mistaken. Severe dilution of the votes of a relatively small number of voters is perhaps the most disturbing result that may attend invalid apportionments, because those unfortunate victims may be virtually disfranchised. It is not the sole evil to be combated, however. It is equally illegal to enact a scheme under which a small group is greatly overrepresented, at the expense of all other voters in the State. Such a “rotten borough” plan3 does tend to yield small figures supposedly measuring the harm to single individuals, as the Court‘s opinion illustrates; but that analysis overlooks the fact that very large numbers of persons are adversely affected.4 It is the principle of equal representation, as well as the votes of individual plaintiffs, that a State may not dilute. Reynolds, supra, at 578. Just as the Equal Protection Clause does not permit a small class of voters to be deprived of fair and equal voting power, so does it forbid the elevation of a small class of “supervoters” granted an extraordinarily powerful franchise. We would not permit Wyoming, in its legislative elections, to grant a double- or triple-counted vote to 2,924 voters because they were named Jones, or because they were licensed to practice law—even though such an enactment would, by the Court‘s reasoning, have
The Court relies more directly on its unspoken assumption that we may judge the constitutionality of Niobrara County‘s representation by first severing that feature from the rest of the scheme, and then weighing it only by its incremental effect in increasing the degree of inequality present in the system as a whole.
“Appellants deliberately have limited their challenge to the alleged dilution of their voting power resulting from the one representative given to Niobrara County. The issue therefore is not whether a 16% average deviation and an 89% maximum deviation, considering the state apportionment plan as a whole, are constitutionally permissible. Rather, the issue is whether Wyoming‘s policy of preserving county boundaries justifies the additional deviations from population equality resulting from the provision of representation to Niobrara County.” Ante, at 846 (footnotes omitted).
The first leg of this logic—that the Niobrara problem is legally severable from the rest of the plan—is contradicted by our prior decisions. The second leg—that we should examine only the marginal unequalizing effect—leads to exceptionally perverse results.
We confronted an analogous situation in Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656 (1964). The State argued in Tawes that since the plaintiffs had allegedly conceded that one house of the Maryland Legislature was constitutionally apportioned, and the courts below had passed only on the apportionment of the other house, this Court was required to limit its consideration to the apportionment of the challenged house. We flatly rejected the argument:
“Regardless of possible concessions made by the parties and the scope of the consideration of the courts
below, in reviewing a state legislative apportionment case this Court must of necessity consider the challenged scheme as a whole in determining whether the particular State‘s apportionment plan, in its entirety, meets federal constitutional requisites. It is simply impossible to decide upon the validity of the apportionment of one house of a bicameral legislature in the abstract, without also evaluating the actual scheme of representation employed with respect to the other house. Rather, the proper, and indeed indispensable, subject for judicial focus in a legislative apportionment controversy is the overall representation accorded to the State‘s voters, in both houses of a bicameral state legislature. We therefore reject [the State‘s] contention that the Court is precluded from considering the validity of the apportionment of the Maryland House of Delegates.” Id., at 673.
Accord, Lucas v. Colorado General Assembly, 377 U. S. 713, 735, n. 27 (1964).5
Although we have not invariably adhered to this rule with regard to the two houses of a legislature, the concerns that led us in Tawes to examine both houses, despite the scope of the plaintiffs’ complaint, forbid us to consider the allocation of one seat without also examining the remainder of Wyoming‘s apportionment of its House of Representatives. A plan with only a single deviation—a good deal smaller than this one,
Here, Wyoming‘s error in granting Niobrara County voters a vote worth double or triple the votes of other Wyoming voters is compounded by the impermissibly large disparities in voting power existing in the rest of the apportionment plan. Supra, at 855. Yet, astonishingly, the Court manages to turn that damning fact to the State‘s favor:
“The allocation of a representative to a particular political subdivision still may violate the Equal Protection Clause if it greatly exceeds the population variations ex-
isting in the rest of the State and if the State provides no legitimate justifications for the creation of that seat. Here, however, considerable population variations will remain even if Niobrara County‘s representative is eliminated. . . . These statistics make clear that the grant of a representative to Niobrara County is not a significant cause of the population deviations that exist in Wyoming.” Ante, at 847.
Under this reasoning, the further Wyoming‘s apportionment plan departs from substantial equality, the more likely it is to withstand constitutional attack. It is senseless to create a rule whereby a single instance of gross inequality is unconstitutional if it occurs in a plan otherwise letter-perfect, but constitutional if it occurs in a plan that, even without that feature, flagrantly violates the Constitution. That, however, is precisely what the Court does today.6
JUSTICE O‘CONNOR, joined by JUSTICE STEVENS, states that she has “the gravest doubts that a statewide legislative plan with an 89% maximum deviation could survive constitutional scrutiny....” Ante, at 850 (concurring opinion). But the Court today holds that just such a plan does survive constitutional scrutiny. I dissent.