*1 from D. C. Appeal et al. C., v. P. B. I. Inc., and 757; 313 F. Reported below: Mass. from D. C. Appeal v. Parker. 71-1318. Davis remanded for vacated and cases Judgments C. D. Cal. ante, California, light of Miller v. consideration further Slaton, ante, p. 49; I Adult Theatre v. Paris p. 15; ante, States v. 12 California, p. 115; United Kaplan v. Orito, States v. Film, ante, p. United 123; Reels 200-ft. York, ante, p. Roaden ante, 483; 139; Heller v. New p. Virginia, v. Kentucky, ante, 496; and Alexander p. v. Douglas affirm ante, 836. Mr. would p. Justice judgments. joined Mr. Mr. Brennan, Justice Jus- and Mr. Justice would va- Marshall, tice Stewart judgments cate and remand the cases proceedings not inconsistent with his dissent in Paris Slaton, ante, Adult Theatre v. p. 73. Miller See v. Cali- ante, fornia, p. 47.
No. 71-1190.
et
Cenarrusa,
Summers
al. Secre-
tary of
et
Appeal
from D. C.
Idaho,
State
al.
Judgment
Idaho.
vacated and case remanded for further
consideration in light
of Mahan v.
Mr. Justice with whom The White, Chief Justice joins, dissenting.
This case should be affirmed. state- ment fails to identify any substantial factual or legal error committed the District Court and does not warrant a remand for further consideration in the light of recently decided reapportionment cases.
Appellants complain of a maximum total deviation from the ideal figure, resulting from 19.41% one district’s allegedly being overrepresented and 10.62% assert (appellants another actually overrepresentation were *2 variation of with a total underrepresentation, jurisdictional that the statement asserts 19.45%). The in No. 22 and District overrepresentation exists the sought justified by that it was to be the State on Air the Home grounds population that of Mountain Base, Force increased located the had District, 2,000 census, irrigation project since the 1970 that an growth District, population would cause further in the county and that detaching particular certain areas a was undesirable.
The appellants that “the assert, conclusory manner, population growth at Mountain Home Air Force Base disputed” anticipated and that “the in popu- growth is predicted lation high degree was not with a ac- of curacy.” The Court, accepted the justification, specifically referring to increases as lation being among justifications the offered for vari- ous population deviations. 342 (Idaho F. 289 288, 1972). In any event, no basis in find the statement for our disagreeing the District Court or with the legislature. If there had been a 2,000 increase in population since 1970 the legislature was quite right taking it into account, alleged and the deviation dis- appears. if Also, population correctly increases were they anticipated, need not have been ignored.
The alleged underrepresentation is claimed to exist in District No. 28 because improper exclusion from the count of “out-of-state and foreign stu- dents” attending private college within the District. Appellants complain that there should have been more effort to determine whether each individual student so excluded had in fact satisfied the residence requirements for voting. The District Court noted accepted col- of non-resident “exclusion of the factor
justifying cen- in the included which were students, lege upsetting the for no basis Id., at 289. There is sus.” at this many how students as to estimate legislative non- nonresident, treated as be college should particular count. 1970 census up part making voting persons reason a sound present fail to appellants Thus, again, District Court. of the judgment overturning the ex specify the does not jurisdictional statement It district. other the deviation tent of are legislative “11 districts that is said districts legislative “7 and that percent or more” by 3 more.” But or percent overrepresented *3 presented; is not any district extent of the deviation any particular that the deviation there is no indication without permissible that are exceed those district would Cummings, 412 Gaffney v. U. S. justification. (1973). (1973), County Custer should appellants assert that Finally, No. 9 rather than been included have no excuse that a wilder- District No. 20 and that it is popu- main separated area Custer ness ap- lation centers of District No. 9. Again, pellants no of whether or to what extent give indication either District 9 or District No. 20 varied in lation from the ideal district.
Insofar as can be ascertained from the jurisdictional statement, therefore, appears it that maintaining county or other local had very subdivision little to lines do districts that challenged by appellants. Appellants have not pre- light sented case that warrants a remand in of Mahan Gaffney, 410 U. 315 (1973), S. or White.