*1 OF ROCKEFELLER, GOVERNOR WELLS v. YORK, NEW et al. April Argued January 13, 1969. Decided
No. 238. and filed brief McKay argued cause Robert B. appellant. *2 of Attorney General Zuckerman, George Assistant D. him With appellees. the cause York, argued New Attorney General, Lefkowitz, J. Louis the brief were on Hirshowitz, First Assistant se, A. and pro Samuel Attorney General. opinion the delivered Brennan
Mr. Justice Court. ante, v. Kirkpatrick argued was
This case n . a Dis- judgment three-judge the which affirmed 526, congressional 1967 invalid Missouri’s declaring trict Court a here a judgment Before us is districting statute. for the Southern District of District Court three-judge validity of York’s the New York which sustained New districting 1968, Laws statute, N. Y. congressional 1968 n . In (1968). 821 1967 that court Supp. 8. 281 F. districting apportion- statute down earlier had struck congressional 41 seats and had retained York’s ing New by action pending the case the New York jurisdiction deficiencies. plan’s redress the The court Legislature to thorough might a revision district lines recognized that upcoming congres- in time for 1968 possible the not be concluded nevertheless that election but sional “[t]here changes superimposed on the enough flagrant most inequalities.” to cure the present districts 421 aff’d, (1967). 389 S. Supp. 984, 992, 273 F. U. February a month and a half 28, 1968, after On the Legislature reconvened, the districting York statute attack was enacted. a presently under After hearing, on March three-judge court, the 1968, sustained the stating districting plan statute, afforded New opportunity “an to vote in York voters the 1968 and a of population on basis 1970 elections within reasonably comparable districts.” 281 F. Supp., (1968). jurisdiction. U. S. probable
We noted the District Court judgment as the reverse insofar We plan for use sustains election. against attacks two constitutional levels
Appellant equal-population (1) violates statute: that the statute Sanders, 1 (1964), S. 376 U. principle systematic and inten- represents (2) that the statute violating I, 2, of the gerrymander § Art. partisan tional We do and the Fourteenth Amendment. Constitution merits of, intimate no view reach, constitutionally impermis- upon the statute as attack of the District We hold that reversal gerrymander. sible today compelled our decision judgment Court’s Preisler, supra, which elucidates the com- *3 congressional districting the of that meet mand representation equal of numbers of equal standard nearly as people practicable. as correctly in its 1967 opinion The District Court held any a proponent that “there is burden on the of dis- tricting plan equality.” deviations from justify testimony F. at 987. The District Court took Supp., no justification hearing on of the question the held to Recognizing consider the 1968 statute. the statute, that virtually which was enacted with no debate on its merits the York Legislature, in either house of was the Legislative work of a Joint the Committee, court’s opinion the of Report refers to the Joint Committee as justifications the source of the relied as sufficient population disparities by to sustain the plan. created the 281 F. at 823-824. We have been Supp., referred to the same source. Report “gave
The recites that the Committee priority to the totals in the several they districts” as appeared in the 1960 decennial census “very and that given limited” consideration to population was shifts 1960. The Report within the State since recites further con- geographical considerations were “[o]ther to be districted, formation area the maintenance county facility of various integrity, up’ forthcoming Boards of Elections can ‘tool [1968] primary election, equality of population within of region, population throughout and state.” Report Legislative Interim of the Joint Com- Reapportionment Legislature mittee Y. on of State N. (1968). scheme, lay
The heart of the decision however, homogeneous seven sections of the as treat State regions and to region divide each into dis- virtually Thirty-one tricts of population. identical of 41 congressional New York’s districts were constructed on principle. The remaining districts were com- posed groupings showing of of whole counties. A chart the population of each district under the 1968 statute appears in the Appendix opinion. to this The seven regions (a) are: Long Suffolk and on Nassau Counties five having Island with districts average population an 393,391 of and a maximum average deviation from that of 208; (b) Queens County with having four districts an average population 434,672 and a maximum deviation average 120; (c) Kings County plus up district made part Kings part and of Queens, up district made County Richmond part Kings, having average seven districts popu- *4 lation 417,171 of a and maximum deviation from that
average 307; (d) of New York and Bronx Counties with eight districts having average an population of a 390,415 and maximum from average deviation that of 496; (e) Westchester and Putnam with Counties two having an average districts population of a 420,307 and maximum deviation that average of 161; (f) Wayne plus of part Monroe and the remainder of plus Monroe four other counties with two having districts average an population of a 410,688 and maximum deviation from Niagara Counties 256; (g) Erie and average of average population of having districts with three average from that a maximum deviation 435,652 country” were remaining districts The 10 “North of whole counties. groupings composed Preisler, It is clear that our decision that this scheme is uncon- compels the conclusion supra, there at that “the com- held, stitutional. We create I, 2,§ of Art. that States mand for provide equal representation equal districts which only population the limited people permits numbers of a despite good-faith variances are unavoidable absolute or for which equality, justifi- effort to achieve general The command, course, cation is shown.” population in all the equalize is to districts State only equalizing population and is not satisfied within defined sub-states. York could not not and does good-faith claim made a effort precise equality among achieve mathematical its con- gressional districts. New York tries to Rather, justify constructing its equal scheme districts within each of seven as a keep regions sub-states means to with distinct interests intact. But Kirk- we made clear in patrick accept population large “to variances, or in order to create small, specific districts interest orientations antithetical to the basic premise constitutional to provide equal command representation equal people.” numbers To accept scheme such permit as New York's would groups of districts with interest defined orientations be overrepresented expense of districts with different interest orienta- Equality tions. among districts a sub- justification state is inequality among all the districts in the State.
Nor are the variations in the country” “North districts justified by the fact that these districts are constructed of entire counties. Kirkpatrick supra.
547 appreciate We that the decision of the District Court entirely on an appraisal did rest merits of the York As plan. three-judge New noted when the earlier, District Court in 1967 then-existing districting held the plan unconstitutional, recognized it the imminence of the 1968 redistricting election made an unrealistic pos- sibility only “[tjhere and therefore enough said changes which can superimposed on the present dis- flagrant tricts to cure most 273 inequalities.” F. Supp., February at 992. 26, On York 1968, Legislature enacted the plan before us. March 20, On 1968, approved District Court plan for both the 1968 and 1970 elections. Since the 1968 primary election was three away months on March we 20, say cannot there was in per- error mitting the 1968 election proceed plan under despite its constitutional Kilgarlin infirmities. See Hill, 386 121 120, (1967); Bush, U. S. Martin v. 376 U. S. 223 (1964); Kirkpatrick 390 U. S. (1968). 939 ample But time to promulgate remains plan meeting constitutional standards before the election machinery must be set in motion for the 1970 election. We therefore reverse the judgment of the District approved insofar as it use the 1970 election and remand the case for the entry of a new judgment opinion. consistent with this
It is so ordered. APPENDIX TO OPINION OF THE COURT. Population Congressional of New York’s Districts 1968 Plan.
Under C.D. Dev. Description. % - 1 393,585 3.845 Part of Suffolk. — 2 393,465 3.874 Part of Suffolk, Part of Nassau. - 393,434 3.882 Part of Nassau. — 393,183 3.943 Part of Nassau. — 393,288 3.918 Part of Nassau. *6 Queens. of
434,615 6.178 Part + Queens. of 434,750 6.212 Part + Queens. 6.163 Part + 434.552 Queens. Part of 434,770 6.217 + Queens, Kings. Part of 1.905 Part of + 417.122 Kings. 417,090 1.897 Part + Kings. 417,298 Part of 1.948 + Kings. 417,040 Part of 1.885 + Kings. 417,080 1.895 Part + Kings. 417,090 1.898 Part of + Richmond, Kings. 417,478 Part of 1.992 + — 390,742 4.540 Part of New York. — 390,861 of New 4.511 Part York. — 390,023 of New York. 4.715 Part - 390,363 4.632 Part of New York. — York, 4.586 Part of New Part of Bronx. 390.552 — 390,492 4.601 Part of Bronx. — 390,228 4.665 Part of Bronx. — 390,057 4.707 Part of Bronx. 420,146 Putnam, 2.644 Part of Westchester. + 420,467 2.722 Part of Westchester. + Rockland, 409,349 Orange, Sullivan, Delaware. — Dutchess, Ulster, Columbia, Greene, 3.225 396.122 Schoharie. 425,822 Albany, Schenectady. 4.031 + 415,030 Rensselaer, Saratoga, Washington, 1.394 + Warren, Fulton, Hamilton, Essex. 425,905 Clinton, Jefferson, Lawrence, 4.051 St. + Lewis, Franklin, Oswego. — 385,406 Oneida, Madison, 5.843 Herkimer. 415,333 Chemung, Broome, Tioga, Tompkins. 1.468 + 423,028 Onondaga. 3.348 + — 386,148 Ontario, Yates, Seneca, Cayuga, 5.662 Cort-
land, Chenango, Otsego, M’gomery. 410,943 Monroe, Wayne. 0.396 Part of + CO CO 410,432 Monroe, Orleans, Genesee, 0.271 Part of + CO Wyoming, Livingston. - 382,277 Chautauqua, 6.608 Cattaraugus, Allegany, 00OO Steuben, Schuyler.
435,393 6.369 Part Erie. + 435,684 Erie, Niagara. 6.440 Part + 435,880 6.488 Part of Erie. + 409,324 State Mean. 435,880 (41st D.). Largest District C. 382,277 (38th D.). C. Smallest District Population (largest Citizen Variance district population). 1.139 to divided district the smallest Maximum Deviation above State Mean. 6.488% Maximum below State Mean. Deviation 6.608% Fortas, concurring. Mr. Justice in Court and its judgment I concur opinion relies except to the extent that opinion redistricting cases, opinion the Court’s the Missouri Preisler, ante, I have not p. *7 my concurring opinion stated in joined for the reasons in those cases. plan as a attempt York does not to defend its
good-faith approximate effort achieve districts of to argues it devised a based equality. It I regions. agree into with the grouping districts district- purposes of the majority that, substantially or ing here the State involved, figures order grossly disregard population or residence State. See recognize regional groupings within the to Avery County, 474, v. Midland 390 U. S. my dissent in 495 (1968). Harlan, Mr. Justice
Mr. Justice with whom Stewart dissenting.* joins, prior remained under Court’s
Whatever room this political process in play for the free decisions is now all but eliminated reapportionment matters of Marching today’s judgments. Draconian I, 2” of the Consti- § nonexistent “command Art. political slogan now the Court transforms tution,1 Kirkpatrick applies v. opinion also to No. *[This ante, p. 526.] Preisler, ante, ante, 546; v. at 531. I have 1 See my dissenting opinion Sanders, v.
discussed in into a constitutional path absolute. Strait indeed is the rule in righteous legislator. hand, Slide he must avoid all local thought county lines, traditions, politics, history, economics, so as to achieve the for- magic man, one one mula: vote. my
As Brothers White and Fortas demonstrate, perfection insistence on mathematical does not make its own figures sense even on terms. Census themselves inexact; our mobile population rapidly renders them obsolete; large groups of voters are ineligible unevenly distributed throughout Nevertheless, State. permit any legislative Court refuses room common compensate sense to inadequacies. for Census Bureau If justify no “scientific” data are available to a divergence holds figures, nothing census to open subterfuge.” be done —“we mean no avenue for Preisler, ante, Kirkpatrick v. at 535. all-pervasive legislative distrust of the process
This
alien to
completely
judicial
established notions
review.
Pennsylvania,
Butler v.
Even the not suggest himself does it is possible a proper apportionment plan to create which is at same time consistent per- demands of fect equality. plan mathematical The he advances con- templates a maximum deviation of from the state 4.7% represents an average, improvement 1.9 percentage points on the State’s deviation. More- 6.6% over, majority congres- under the State’s plan, sional no delegation represent less than 49.3% The population. appellant’s “improves” scheme this figure by 0.5%, increasing the number to See 49.8%. Appellant’s Appendix Perfection, D. however, is still away. 0.2% appellant’s plan
Although the offers such marginal benefits of voting egalitarianism, and although the rec- no suggestion ord contains of any other which even arguably permits expression the coherent of the popular rejects the will, the Court legislature’s proposal considered it seeks simply because to remain true to traditional *9 so, majority In the doing lines. county regional Reynolds in to be found warning salutary the ignores “Indiscriminate dis- Sims, (1964): 578-579 377 U. S. or any political for subdivision regard without tricting, boundary little more lines, be or natural historical gerrymandering.” partisan to invitation open than approach legislature’s the today the Court condemns Yet, defined districts with “permit[s] groups it because the at ex overrepresented to be interest orientations with different interest orientations.” pense of districts Ante, districting inevi all decisions course, Of groups. interest tably choices between different involve Reynolds legislatures prefer follow recognized, to But as county regional lines that the demands traditional so the con tempered by will be partisanship blatant history and tradition. If the believes straints of Court today fully representa it responsive has struck a blow more sorely it is mistaken. Even than democracy, tive in maxi past, likely the district lines to be drawn to political advantage party temporarily mize the in dominant public affairs. not here hopelessly malapportioned
We do deal with the its in unwilling to set own house order. Rather, before us whether question Consti- requires tution mathematics be substitute common in the I sense art statecraft. As do think apportionment plans by submitted the States of New York can properly regarded and Missouri as requirement imposed offensive in case whose constitutional I reasoning still —a impossible swallow, it but whose dictate find I bound —I myself consider dissent.
I judgments would reverse District Court cases the Missouri and affirm the decision York the New District case. *10 White,
Mr. Justice dissenting.* consistently I joined opinions have the Court’s ground establish legislative as one of the rules for dis- tricting single member districts should be substan- in tially equal population. I would not now dissent if present the Court’s judgments represented a measurable I thought contribution to the ends which had the Court in pursuing area, was this or even if I thought opinions not very useful but not harmful either. With all I respect, however, firmly due am convinced that the Court’s new rulings unduly rigid unwar- applications ranted Equal Protection Clause which unnecessarily will involve the courts in the abrasive task drawing district lines. Accepting for purposes constitutional that a State assign the task of apportioning its or con- gressional delegation to the legislature I itself, would not with the quibble legislative judgment if variations acceptably between districts were small. IAnd would willing be a population establish variation figure which if not exceeded would normally not call for judicial a intervention. As rule of a thumb, variation between largest and the smallest district of no more than 10% satisfy me, would quite absent unusual circum- 15% any present stances of these cases. very At the at least, this trivial I level, would be willing to view explanations state the variance with a more tolerant eye.
This would be far more reasonable than the Court’s demand for an illusory absolute but or for an apportionment plan which approaches goal this nearly so that no other suggested which would come 30, opinion applies also to No. *[This ante, p. 526.] demonstrates, As Mr. Justice nearer. Fortas they far from accurate when were were census figures and statisticians by professional enumerators compiled growth in 1960. Massive and shifts precision, bent on even more figures 1960 made the 1960 since is why That is a new census taken inaccurate years. the Court finds variation every When 3% constitutionally substantially figures imper- inexact perspective sticking trifle. losing missible it *11 arbitrary majority for the to discard the It also seems Sims, 377 Reynolds S. 533 suggestion (1964), U. seeks an legislature apportionment plan that if which political subdivisions, some respects boundaries equality from absolute would be constitu variations Reynolds tionally permissible. Of course, involved state legislative apportionment pains say and took to may leeway be more in that But there context. Reynolds today way invokes and in no distin districting. federal from state guishes Reynolds noted districting, “[indiscriminate any regard political without subdivision or natural boundary may or historical lines, little than more an open partisan invitation to gerrymandering.” S., U. at 578-579. The Court nevertheless now rules that regard for justification these boundaries is no for districts vary which no than more from the norm where 3% another regard have no for district lines reduces the to an variation even smaller figure. I have objections similar rejection to the Court’s geographical compactness as acceptable justification for minor among congressional variations districts. rejection This compactness virtues of will not be on lost those who would use congressional legislative districting bury to political their opposition.
In reality, course, districting is itself a gerrymander- ing in the sense that represents it a complex blend of historical considera- political, economic, regional, and will tions. In terms of the situation gerrymander, literally it equality not be much different if means what says only than “substantial” zero variation —rather —a equality which countenance some variations would among legislative pre- districts. Either will standard minority minority party vent a or a consistently controlling the state or congressional delegation, powerful both are forces legislative toward voter influence on equalizing perform- In representation ance. terms of effective for all voters there are minuscule differences between the two prevent standards. But neither rule can alone deliberate partisan if gerrymandering is considered an evil which the Fourteenth attempt Amendment should proscribe.
Today’s decisions on the one require precise hand ad- herence to admittedly inexact census and on figures, other downgrade a restraint on a far greater potential threat representation, gerrymander. Legislatures intent representation on minimizing *12 political selected or racial groups are invited to ignore political boundaries compact so long they districts as population adhere to equality among districts using standards which they we know and know are sometimes quite incorrect. I see little such a merit confusion of priorities.
Moreover, today’s will lead unnecessary decisions to an intrusion of the judiciary legislative into business. It would be one if thing possible. absolute were But, it is not. The admittedly, may be groping per se rule for a clean-cut, which will minimize confron- tations between legislatures courts and while also satis- fying the Fourteenth If so, Amendment. the Court is Today’s wide of the simply mark. results shift the area dispute points a few percentage down the scale; the disputes over engaged quibbling will now be courts questions such as whether a with a variation 1% larger variation, say is “better” than one with a 1.1% If county municipal or even boundaries are 2%. computer produce plans countless ignored, be differing very one little equality, absolute another, having very polit- but each its own different Ultimately, ical ramifications. the courts be asked apartment to decide whether some in an house families should vote in one district and some in if that another, apparent equality. would come closer to the standard of spacious Equal Protection Using language inject Clause to the courts into minor squabbles these unacceptable pre-emption legislative function. precipitate Not will the Court’s new rule necessarily a new round of and legislative districting, I fear but also that in the run the rather long courts, than legislatures nonpartisan or will mak- commissions, ing districting most of the decisions in the several States. best, compact Since even at and equal districts, the unavoidably boundary significant final lines have politi- cal repercussions, the courts should draw district lines unnecessarily. themselves I therefore dissent.