BURNS, GOVERNOR OF HAWAII v. RICHARDSON ET AL.
No. 318
SUPREME COURT OF THE UNITED STATES
April 25, 1966
384 U.S. 73
Argued February 21, 1966
James T. Funaki argued the cause for appellants in No. 323 and appellees in Nos. 318 and 409. With him on the brief was Eugene W. I. Lau.
Yukio Naito argued the cause for appellants in No. 409 and appellees in Nos. 318 and 323. With him on the brief were Kazuhisa Abe, appellant, pro se, and Robert Kimura.
Robert G. Dodge and Masaji Marumoto argued the cause and filed briefs for appellees in all three cases. With Mr. Dodge on the brief for appellee Richardson was William S. Richardson, appellee, pro se.
Richard K. Sharpless filed a brief for Harold S. Roberts, as amicus curiae, urging affirmance.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This reapportionment case was brought in the District Court of Hawaii by residents and qualified voters of the City and County of Honolulu, appellees in each of the three appeals consolidated here. They alleged that Hawaii‘s legislative apportionment was unconstitutional under our decisions in Reynolds v. Sims, 377 U. S. 533, and companion cases.1 William S. Richardson, Lieutenant Governor of Hawaii, also an appellee in all three appeals, was named defendant in his capacity as the state officer responsible for supervising state elections. John A. Burns, Governor of Hawaii, appellant in No. 318, intervened as a party plaintiff. Members of the State
Under the Hawaii Constitution, adopted in 1950 and put into effect upon admission to statehood in 1959, the State is divided into four major counties, referred to in the State Constitution as “basic areas.” Each county is made up of a group of islands, separated from each of the other counties by wide and deep ocean waters. The principal island of the City and County of Honolulu, the most populous county, is the island of Oahu. It is the State‘s industrial center, principal tourist attraction, and site of most of the many federal military establishments located in the State. In 1960, 79% of the State‘s population lived there. The three other counties, primarily rural and agricultural, are Hawaii County, Maui County, and Kauai County.2
The apportionment article of the State Constitution was framed to assure that the three small counties would choose a controlling majority of the State Senate and that the population center, Oahu, would control the State House of Representatives. Thus, Art. III, § 2, of the State Constitution apportions a 25-member senate among six fixed senatorial districts, assigning a specified number of seats to each. Fifteen senate seats, a controlling majority, are allocated among Hawaii, Kauai and
For the State House of Representatives, on the other hand, the State Constitution establishes 18 representative districts, 10 of which are on Oahu, and requires the Governor to apportion the 51-member body among these districts on the basis of the number of voters registered in each. The first apportionment occurred in 1959, just prior to statehood, and was based on registration figures for the 1958 territorial election. It produced 13 multimember representative districts and five single-member districts, and allocated 36 representatives, a controlling majority, to Oahu.4 The Governor is required to reap-
This apportionment scheme was first attacked in the Supreme Court of Hawaii, within a month after we decided Reynolds v. Sims. That court refused to pass on the validity of the apportionment at that time. It noted the imminence of the 1964 election and stated its belief that, consistent with the Hawaii Constitution, judicial proceedings should await legislative proposals for a constitutional amendment or a constitutional convention. Guntert v. Richardson, 47 Haw. 662, 394 P. 2d 444. Compare Reynolds v. Sims, 377 U. S., at 585. A special legislative session was then called by the Governor to consider reapportionment. It failed to act.
This suit was brought on August 13, 1964. A three-judge court was convened, as required by
In the February 17 order the District Court decided not to fashion its own reapportionment plan for the senate. Nor did it instruct the legislature to reapportion the senate or to propose constitutional amendments for that purpose.5 Instead, it directed the legislature to sub-
The court chose the convention route over the legislative route for two reasons. Under the Hawaii Constitution all elections necessary to adoption of amendments proposed by a constitutional convention may be held on a special basis. Legislative proposals, on the other hand, may be submitted only at a general election. In starting the machinery necessary for a convention, the court hoped that a valid permanent plan could be presented to the electorate and adopted before the next general election, to be held in 1966. The second reason was that the court doubted that the legislature would be able to agree on an amendment proposal for reapportioning the senate, in view of the failure of the previously called legislative special session to act.
The special elections necessary under the court‘s order, however, entailed substantial expense. On motion of the intervening legislators, which showed substantial progress towards a legislative proposal for amendment, the court on March 9, 1965, modified its order. As suggested by the parties, it suspended the February 17 order and instead required the legislature to enact three separate statutes before turning to regular legislative business. One statute was to propose an interim senate apportionment plan, using registered voters as a basis, to be submitted to the court. If approved, it would be adopted by the court as its plan for use in the 1966 general election. The second statute was to propose a constitutional amendment embodying pertinent provisions of the interim plan, to be submitted to the people for approval at that election. The third statute was to submit the question of calling a constitutional convention to the electorate at the 1966 general election.
Under the total apportionment scheme which resulted from this enactment, Oahu would not have any single-member districts in either the house or the senate. The distribution of registered voters in Oahu is such that Oahu‘s 10 representative districts have two to six representatives each, and its five senatorial districts each would have either three or four senators. Hawaii County would be a single senatorial district represented by three senators and have five representative districts, four choosing a single representative and the fifth electing three. Maui County would be a single senatorial district electing two senators and have two representative districts, one electing four, and the other a single representative.
The new senate apportionment scheme was submitted to the court immediately upon passage. By opinion and order of April 28, 1965, the District Court disapproved it, and reinstated the provision of its earlier order requiring immediate resort to the convention method.9 240 F. Supp. 724. It expressly approved the use of the registered voters measure of population. Its disapproval was based on the legislative decision not to create single-member senatorial districts for Oahu but merely to increase the number of multi-member senatorial districts on that island from two to five. It was not contended that the apportionment failed to meet the standard of Reynolds v. Sims if the use of multi-member districts and the use of registered voters as the apportionment base did not offend the Equal Protection Clause.10
In May 1965, the Governor filed a notice of appeal to this Court from certain provisions of the two orders and thereafter the participating senators and representatives also filed notices of appeal from parts of the orders.11
I.
All parties concede the invalidity of the provisions of Art. III, § 2, apportioning the senate on the basis of geography rather than population, and of the provision of
We agree that, once the District Court decided to permit legislative action, it could and should have made clear to the Hawaii Legislature that it could propose modification of the house as well as the senate plan, both as to the interim apportionment to be adopted under
We are dealing here, however, only with the interim plan. The State remains free to adopt other plans for apportionment, and the present interim plan will remain in effect for no longer time than is necessary to adopt a permanent plan. The 1966 general elections are imminent, and election machinery must be put into operation before further proceedings could be completed. In this context, the question of embarrassment of state legislative deliberations may be put aside. For present purposes, H. B. 987 may be treated together with the existing house apportionment as a new, overall proposal for interim apportionment. The only question for us is whether, viewing the resulting plan in its en-
II.
The April 28 opinion began analysis in terms of the interim senate apportionment plan‘s effect upon representation in the State‘s scheme of representation as a whole. The District Court was not concerned with population disparities, however, but with what it considered to be a difference in representational effectiveness between multi-member and single-member legislative districts.13 In an informal memorandum circulated among
“We believe that the Senate should be redistricted into single senatorial districts, although we may approve two-member districts if and only if the legislature can affirmatively show substantial reasons therefor. There may very well be valid reasons for one or two 2-member districts in the neighboring islands but we perceive no justification whatsoever for other than single member districts on the Island of Oahu, particularly the heavily populated areas thereof.”
The opinion of April 28 clearly reveals that the court was still convinced that only single-member senatorial districting on Oahu would be appropriate. It felt, for example, that the legislature had “built monoliths” into the districting scheme by making the boundaries of the third senatorial district and the eighth representative district one and the same, thus enabling the same constituency to elect four representatives and three senators, and by fashioning the sixth senatorial district almost entirely from the fifteenth representative district, from which six representatives and four senators would be elected. It also felt that in setting up the senatorial districts on Oahu the legislature had not taken into account “community of interests, community of problems, socio-economic status, political and racial factors“; and, finally, that “the legislature‘s adamant insistence on three and four-member senatorial districting was the conscious or unconscious—though not unnatural—reluctance of the affected senators to carve out single-member districts which thereafter would in all probability result in a political duel-to-the-death with a fellow and neighbor senator.” 240 F. Supp., at 730-731.
It may be that this invidious effect can more easily be shown if, in contrast to the facts in Fortson, districts are large in relation to the total number of legislators, if districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district, or if such districts characterize both houses of a bicameral legislature rather than one. But the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record. Cf. McGowan v. Maryland, 366 U. S. 420. That demonstration was not made here.14 In relying on conjecture as to the effects of multi-member districting rather than demonstrated fact, the court acted in a manner more appropriate to the body responsible for drawing up the districting plan. Speculations do not supply evidence that the multi-member districting was designed to have or had the invidious effect necessary to a judgment of
The dispute over use of distribution according to registered voters as a basis for Hawaiian apportionment arises because of the sizable differences in results produced by that distribution in contrast to that produced by the distribution according to the State‘s total population, as measured by the federal census figures. In 1960 Oahu‘s share of Hawaii‘s total population was 79%. Its share of persons actually registered was 73%. On the basis of total population, Oahu would be assigned 40 members of the 51-member house of representatives; on the basis of registered voters it would be entitled to 37 representatives.17 Probably because of uneven distribution of military residents—largely unregistered—the differences among various districts on Oahu are even more striking. For example, on a total population basis, Oahu‘s ninth and tenth representative districts would be entitled to 11 representatives, and the fifteenth and sixteenth representative districts would be entitled to eight. On a reg-
The holding in Reynolds v. Sims, as we characterized it in the other cases decided on the same day, is that “both houses of a bicameral state legislature must be apportioned substantially on a population basis.”19 We start with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured. Although total population figures were in fact the basis of comparison in that case and most of the others decided that day, our discussion carefully left open the question what population was being referred to. At several points, we discussed substantial equivalence in terms of voter population or citizen population, making no distinction between the acceptability of such a test and a test based on total population.20 Indeed, in WMCA, Inc. v. Lomenzo, 377 U. S. 633, decided the same day, we treated an apportionment based upon United States citizen population as presenting problems
Use of a registered voter or actual voter basis presents an additional problem. Such a basis depends not only upon criteria such as govern state citizenship, but also upon the extent of political activity of those eligible to register and vote. Each is thus susceptible to improper influences by which those in political power might be able to perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process,
As the District Court noted, the 1950 constitutional convention discussed three possible measures, total population, state citizen population, and number of registered voters, in considering how the State House of Representatives should be apportioned. Apportionment under the Organic Act had been on the basis of citizen population; this had proved difficult to administer because statistics were not readily available. Total population was disfavored because the census tracts, by which it is determined and reported, did not necessarily comport with traditional local boundaries. Registered voters was chosen as a reasonable approximation of both citizen and total population—readily determinable, conveniently
Hawaii‘s special population problems might well have led it to conclude that state citizen population rather than total population should be the basis for comparison. The District Court referred to the continuing presence in Hawaii of large numbers of the military: “Hawaii has become the United States’ military bastion for the entire Pacific and the military population in the State fluctuates violently as the Asiatic spots of trouble arise and disappear. If total population were to be the only acceptable criterion upon which legislative representation could be based, in Hawaii, grossly absurd and disastrous results would flow . . . .” 238 F. Supp., at 474.24 Similarly, the court referred to the distortion in census figures attributable to “the large number of tourists who continually flow in and out of the State and who . . . for census purposes are initially at least, counted as part of Hawaii‘s census population . . . .” Id., at 475. (Footnote omitted.) Both the tourists and the military tend to be highly concentrated on Oahu and, indeed, are largely confined to particular regions of that island. Total population figures may thus constitute a substantially distorted reflection of the distribution of state citizenry. If so, a finding that registered voters distribution does
Because state citizen population figures are hard to obtain or extrapolate, a comparison of the results which would be obtained by use of such figures with the results obtained by using registered voter figures is difficult. But the District Court found that military population of Oahu, and its distribution over that island, was sufficient to explain the already noted differences between total population and registered voters apportionments, both as among Hawaii‘s four counties and as among Oahu‘s representative districts. The District Court noted “that there is nothing in the State Constitution or the Hawaii statutes which per se excludes members of the armed forces from establishing their residence in Hawaii and thereafter becoming eligible to vote. This court finds no scheme in Hawaii‘s Constitution or in the statutes implementing the exercise of franchise which is aimed at disenfranchising the military or any other group of citizens.” 238 F. Supp., at 475. No issue was raised in the proceedings before it that military men had been excluded improperly from the apportionment base.25
We are not to be understood as deciding that the validity of the registered voters basis as a measure has been established for all time or circumstances, in Hawaii or elsewhere. The District Court was careful to disclaim any holding that it was a “perfect basis.” We agree. It may well be that reapportionment more frequently than every 10 years, perhaps every four or eight years, would better avoid the hazards of its use. Use of presidential election year figures might both assure a high level of participation and reduce the likelihood that varying degrees of local interest in the outcome of the election would produce different patterns of political activity over
IV.
Our conclusion that the interim apportionment should apply to the 1966 election requires that the provisions of the order of February 17 mandating an immediate special election on the question of calling a constitutional convention should remain inoperative. The imminence of the 1966 elections precludes any further action pending that event. But the question remains what role the District Court has in bringing about a permanent reapportionment as promptly as reasonably may be after that election. We believe it should retain jurisdiction of the case to take such further proceedings as may be appropriate in the event a permanent reapportionment is not made effective. We note that the electorate will vote at the 1966 election on the question whether a constitutional convention should be convened. We see no reason, however, why the newly elected legislature should either be compelled to propose amendments or be precluded from proposing them. The legislature will doubt-
The District Court is accordingly directed on remand to enter an appropriate order (1) adopting H. B. No. 987 and the existing house apportionment as an interim legislative apportionment for Hawaii and (2) retaining jurisdiction of the cause for all purposes.
Our judgment shall issue forthwith.
Vacated and remanded.
MR. JUSTICE FORTAS took no part in the consideration or decision of this case.
MR. JUSTICE HARLAN, concurring in the result.
Because judicial responsibility requires me, as I see things, to bow to the authority of Reynolds v. Sims, 377 U. S. 533, despite my original and continuing belief that the decision was constitutionally wrong (see my dissenting opinion, 377 U. S., at 589 et seq.), I feel compelled to concur in the Court‘s disposition of this case. Even under Reynolds, however, I cannot agree with the rationale, elaborated in Part III of the Court‘s opinion, by which Hawaii‘s registered voter base is sustained. As I read today‘s opinion, registered voter figures are an acceptable basis for apportionment only so long as they
Many difficult questions of judgment, relating both to policy and to administrative convenience, must be resolved by a State in determining what statistics to use in establishing its apportionment plan. I would not read Reynolds as precluding a State from apportioning its legislature on any rational basis consistent with Reynolds’ philosophy that “people,” not other interests, must be the basis of state legislative apportionment. I think apportionment on the basis of registered voters is a rational system of this type, and that it is therefore permissible under Reynolds regardless of whether in the particular case it approximates some other kind of a population apportionment.
MR. JUSTICE STEWART, concurring in the judgment.
At the time Reynolds v. Sims was decided, I expressed the belief that “the Equal Protection Clause demands but two basic attributes of any plan of state legislative apportionment. First, it demands that, in the light of the State‘s own characteristics and needs, the plan must be a rational one. Secondly, it demands that the plan must be such as not to permit the systematic frustration of the will of a majority of the electorate of the State.” Lucas v. Colorado General Assembly, 377 U. S. 713, at pp. 753-754 (dissenting opinion).
Time has not changed my views. I still believe the Court misconceived the requirements of the Equal Protection Clause in Reynolds v. Sims and its companion cases. But so long as those cases remain the law, I must bow to them. And even under those decisions there is surely room for at least as much flexibility as the Court today accords to Hawaii. Accordingly, I concur in the judgment.