Wesberry v. Sanders

WESBERRY et OF GOVERNOR SANDERS, v. al.

GEORGIA, et al. Argued 18-19, 1963. February No. 22. November Decided Cash, pro vice, by Frank T. hac special leave Court, II argued and Emmet J. Bondurant appel- the cause for DeJongh lants. With them on the brief was Franklin. Rodgers, Paul Attorney Assistant General of Georgia, argued appellees. the cause for him on With the brief Eugene Cook, Attorney Georgia. General of Terris,

Bruce by special J. of Court, argued leave curiae, cause for the United as States, urging amicus reversal. With him on the brief were Solicitor General Cox and Richard W. Schmude.

Mr. Justice Black delivered opinion of the Court. Appellants qualified are citizens and voters of Fulton County, and as such Georgia, are entitled to in con- vote gressional in Georgia’s elections Congressional Fifth Dis- trict. That district, one of ten created a 1931 Georgia statute,1 includes Fulton, DeKalb, and Rockdale Counties and has a population according to the 1960 census of 823,680. The average population of the ten districts is 394,312, than half less that of Fifth. One district, the Ninth, only has 272,154 people, less than one-third many as the Fifth. only Since Congress- there one man for district, each inequality of population means Fifth Congressman District’s represent has to from two to three times as many people as do Congress- men from some of the other Georgia districts. Code, Ga. §34-2301. deprived Claiming population disparities these right similarly them and voters situated under the Congressmen Federal Constitution to have their votes for given weight as the same the votes other Georgians, appellants brought this action under 42 §§ U. S. C. (3) asking 28 U. S. C. Georgia statute be declared invalid that the appellees, Secretary Georgia, Governor and of State of be enjoined from conducting elections under it. The com- alleged plaint appellants deprived were of the full benefit their vote, (1) violation 2,§ States, the Constitution of the pro- United vides that “The House shall com- posed of Members every chosen second Year the Peo- ple of (2) the several . . .”; States Due Process, and Equal Protection, Privileges and Immunities Clauses of the Fourteenth Amendment; (3) and part that of Section 2 of the provides Fourteenth which Amendment “Representatives that among shall be apportioned according several States respective to their numbers ....” The by ease was heard a three-judge District Court, which found from facts disputed, not unanimously, that:

“It is by clear any standard . . . that popu- of lation Fifth grossly District out of balance with of congressional that the other nine districts of Georgia and in fact, so much so that the removal of DeKalb and Rockdale Counties from the District, leaving only Fulton with a population of 556,326, exceeding would leave it average by slightly more forty per than cent.” Notwithstanding these findings, majority the court dismissed the citing complaint, guide as their Mr. Jus- tice minority opinion Frankfurter’s in Colegrove Green, v. 328 U. S. an opinion stating challenges appor-

2 Wesberry Vandiver, Supp. 276, v. 206 F. 279-280. only “political” districts raised

tionment of Although the justiciable. were not which questions, was on here based the dismissal below said that majority they relied nonjusticiability, and on equity” “want of present were peculiar no on circumstances reasoning they adopted language case; instead, in con- Colegrove opinion Frankfurter’s Justice Mr. wholly presented had appellants cluding disagreeing with Judge Tuttle, “political” question.3 from the dissented opinion, the court’s reliance on that injunction an though he would denied dismissal, Legislature ample give Georgia order to that time in apportionment. “abuses” in opportunity to correct the after Carr, which, He on Baker v. U. S. relied opinions it, Colegrove and all the full discussion allegations disparities population held state on which legislative justiciable raise claims districts grant probable jurisdiction. We noted may courts relief. agree Judge with Tuttle that S. 802. We U. weight has debasing appellants’ votes the State Congress guar- right to vote for abridged the members Constitution, that the anteed them States United declaratory judg- should have District Court entered ment that it error dis- effect, therefore miss suit. relief should be question what given we leave further consideration decision light existing the Court of District in circumstances. [Colegrove precedent be do not deem v. ... a “We Green] nonjusticiability political question in for based on of a dismissal the strong be volving here, but we deem it to au do equity thority following for dismissal for want of when the factors question involving political here balance: involved are considered on a government; political question branch of federal coordinate problem posing depriving difficult of a delicate solution without by district, others to vote unless we are to redistrict forthcoming may properly apportioned state; for relief from a be may Congress.” legislature; be afforded state and relief (footnote omitted). Supp., F. at 285

I. challenge to a 1901 supra, considered Carr, Baker v. of State apportionment providing statute Tennessee consti- the State’s and Senators under among counties apportionment called for which tution, voters “according qualified to the number or districts the State’s charged there complaint in each.” of the on the basis apportion command to constitutional in followed had been qualified number voters so discrimina- and that the districts were 1901 statute in number of voters torily disparate qualified “by virtue persons similarly were, situated plaintiffs pro- votes,” equal debasement of their denied the guaranteed them Fourteenth tection the laws alleged The cause there of the “debase- Amendment.4 legislators containing ment” of for state votes —districts varying people precisely numbers of widely —was in alleged Congressmen which was debase votes Green, Colegrove supra, present and in the case. The v. pointed opinion Court in Baker of Mr. Jus- out that Colegrove, upon reasoning tice Frankfurter in dismissing majority heavily below leaned “for want of equity,” approved by only three sitting.5 seven After of Cole- Justices full consideration grove, the (1) Court Baker held the District Court jurisdiction (2) had subject matter; quali- that the fied voters there standing sue; Tennessee had S., 369 U. at 188. Rutledge Colegrove Mr. Justice believed that the Court should equitable exercise its discretion to refuse relief because “The shortness remaining of the time the next makes it doubtful [before election] could, whether would, peti action or taken time to secure for tioners the S., effective relief seek.” 328 U. at 565. In a later separate opinion emphasized Colegrove he that his vote in had been “particular based on the circumstances” that case. Cook v. Fortson, 329 U. S.

6 cause of justiciable had stated plaintiffs

(3) that granted. be relief could action on which in Baker conclusions led these The reasons which Indeed, here. one persuasive equally are support holding that state on to our grounds there relied are we said: justiciable controversies apportionment Koenig v. Smiley Holm, 355, 285 S.U. . . v. Becker, S. and Carroll v. 285 U. Flynn, 285 U. 375, S. in the concerned the choice Koenig and set- Congress. Smiley, Carroll Federal justiciability questions issue in favor of tled the followed redistricting. The Court Colegrove although dis- in over the precedents these participated who of three of the seven Justices sent 6 in that decision.” Baker, past which referred to our deci- This statement congressional apportionment holding sions cases to and we adhere wholly we believe correct justiciable, Colegrove con- opinion to it. Justice Frankfurter’s Mr. 7 given Art. I, tended that of the Constitution had 4,§ authority” protect right “exclusive clear Congressmen,8 citizens to vote but we made it nothing language gives Baker in the of that article support state construction would immunize congressional apportionment a citi- laws debase power zen’s from the protect vote courts to from rights legislative constitutional of individuals power recognized since at least our decision destruction, Marbury Madison, 1 Gib- v. Cranch 1803. Cf. 6 Broom, S., at 232. Wood v. 287 U. Cf. also U. S. 1. Times, holding Places “The and Manner of for Senators Elections Representatives, prescribed Legis shall be in each State thereof; Congress may any lature but the time at Law make or except chusing Regulations, alter such as to the Places of Sena Const., tors. . S. 4. . IT. S., U. too Ogden, 9 Wheat. 1. The vote is

bons v. of society stripped judicial in our to be important free by interpretation an of Article I. This protection such ground no of justified dismissal can more be on the “want equity” ground “nonjusticiability.” than on the of We dismissing hold that District therefore Court erred complaint. II. brings agree

This us to with the merits. We the Dis- Georgia apportionment grossly trict Court that the 1931 against Congressional discriminates voters in Fifth District. A single Congressman represents from two to many as three times Fifth repre- District voters as are Congressmen sented each of Georgia from the other congressional apportionment districts. The statute thus contracts the expands value some and votes that of If others. Federal Constitution that when intends qualified voters elect Congress members of each vote be given weight any as much as other then this statute vote, cannot stand. hold that,

We construed in its historical context, command of Art. Representatives be chosen “by People of the several States” means that as “The House of composed shall be of Members every chosen People second Year States, of the several Qualifications the Electors in each requisite State shall have the Electors of the most Legislature. numerous Branch of the State

“Representatives apportioned among direct Taxes shall be may several States Union, according be included within this respective Numbers, to their by adding which shall be determined Persons, including the whole Number of free those bound to Service for a Term Years, excluding taxed, Indians not three fifths of all other Persons. The actual Enumeration be shall made within Meeting three Years after first of the United States, every subsequent and within Years, Term of ten in such Man- in a man’s vote one practicable is

nearly as rule This as much as another’s.10 be election to worth Representa- when automatically, course, is followed a basis, as was group on tives are chosen statewide our Nation’s years in the first 50 widespread practice suggest that extraordinary to history.11 would be It some such elections the votes inhabitants statewide thinly populated parts example, Georgia’s of State, weighted at two or three times District, Ninth could living populous in more people votes of value around parts State, example, the Fifth District for Sanders, do Gray S. 368. We 372 U. Atlanta. Cf. v. intended the Framers of the Constitution not believe that permit vote-diluting discrimination to the same containing device accomplished through the of districts To a say of inhabitants. that widely varied numbers vote worth more one district than another would run to our fundamental ideas of demo- only counter principle would government, cratic it cast aside Representatives “by People,” House elected for tenaciously fought and established principle at history of Constitutional Convention. The the Consti- relating tution, particularly part adop- it 2,§ tion of Art. who framed the Con- I, reveals those by Representatives ner The shall direct. Law Number every thirty Thousand, shall but shall not exceed one for each State Representative Const., .” have Least one . . . S. at U. provisions apportioning and direct taxes by Amendments, Fourteenth been amended and Sixteenth respectively. Georgia arguments violates We do not reach the that the statute Equal Privileges Process, Protection, the Due and Immunities Clauses of the Fourteenth Amendment. As still elec late as seven States conducted large. Representatives: Paschal, tions “The ‘Grand See House of Principle’?” Depository Contemp. 17 Law & Democratic (1952). Prob. the mechanics no matter what that, meant

stitution pop- was by districts, or whether statewide election, an the House of the basis of to be which was ulation Representatives. rebelling colonies Revolutionary War the

During the body Congress, Continental loosely were allied pass more than resolutions to do little authority with Before the war supplies. for men requests issue the ratifi- had and secured Congress proposed ended the association a somewhat closer States of cation Ar- Though the the Articles Confederation. under United government a central ticles established called, colonies were even then former States, as the like inde- sovereignty, retained most their States There together only bound treaties. pendent nations only a or branches: separate judicial no executive were members consisting single of a house. Like the regard each without State, of an ancient Greek league, given only was one vote in population, to size or It soon became clear the Confederation house. or to power without collect needed revenues adequate Congress adopted. Farsighted men enforce the rules its if necessary felt that a closer union was the States were dangers. foreign be from and domestic saved was the Convention of 1787, The Constitutional result purpose revising of the express called for “the sole and . . . .”12 Articles of Confederation When the Conven- 12 (Farrand ed. 3 The Records of the Federal Convention of 1787 1911) (hereafter “Farrand”). as cited complete during id., (Hugh Virginia); Carolina); of at 456 Williamson of North id., (James 253-254, 406, 449-450, 482-484 Pennsylvania). at Wilson of

11 have an ought to people of numbers put “equal vania it, “of representatives . . .” representatives of no. equal propor- hold the same ought clearly to districts different hold constituents respective their other, tion to each to each other.” The people. election delegates opposed

Some part fear on the arose out of the sharpest objection to if were population Delaware that small States like States like populous only representation basis of repre- enough number large would elect a Virginia overwhelming power the National wield sentatives to had no Arguing that the Convention Government.18 the Articles of Con- plan from the authority depart equal an vote gave each State federation Jersey said, of New Congress, Paterson National William maintained, of the States is to be sovereignty “If the immediately from drawn must be power no people: we have States, not from the vary the idea of equal sovereignty.” ^[19] To this end he State, in which each chamber single legislative proposed an A equal was to have Confederation, inas vote.20 delegates supported number plan.21 to count every wanted man’s vote delegates who State, each giving sharp their criticism alike were 17Id., at 180. Maryland declared Luther Martin of give equal so as to being treat or confederate

“that the States cannot liberty: up giving their up equality votes without an slavery system for 10 States: propositions were on the table they they do as of the votes can Va. Masts. & Pa. have that as 42/90 will please of the other ten: without a miraculous Union gain to make them nothing do, over one of the ten but Id., compleat rest ...” at 438. masters of the 19 Id., at 20 id., at 613. id., Carolina); g., id., 21 E. (Alexander of North Martin at Maryland); (Luther 437-438, Martin of 439-441, 444-445, 453-455 at Delaware). id., (Gunning 490-492 Bedford same voice the National regardless population, “to re- the Convention Legislature. Madison entreated 22 and confessedly unjust,” wch. was principle nounce a prepared every “was King Rufus of Massachusetts Govt, in a a than sit down under founded event, rather and which must be as representation principle vicious it would be unjust.” shortlived as ending near Convention without came dispute hope- for a a Both sides seemed time to be Constitution. with- lessly delegations Some threatened to obstinate. they get way.24 if did not draw from the Convention their and ris- Seeing controversy growing sharper emotions Benjamin Franklin ing, highly respected wise “part with on both pleaded delegates arose and sides to they may with their order that join some of demands, 25 At who accomodating proposition.” some last those supported representation people houses both supported brought who in neither those were if together, expressing they some the fear that did not differences, foreign reconcile prob- their “some sword will ably finally do work for us.” The deadlock was agreed broken a majority when of the States to what Compromise,27 has been called the Great based on proposal Roger had been repeatedly by advanced

22 Id., at 464.

23 Id., at 490.

24Gunning Bedford Delaware said: (with air) “We have been told dictatorial is the last mo- good Large ment for in favor a fair trial of a Governmt. . . . The they States dare dissolve the If confederation. do the small ones ally foreign good will find faith, some honor and who will more Id., by justice.” take them the hand and do them at 492. 25 Id., at 488. 26 Id., Gerry (Elbridge Massachusetts). George at 532 Mason Virginia urged “preferable appeal an “accomodation” to an by the world sides, the different as had been some talked of Id., Gentlemen.” at 533. id., See at 551. It delegates from Connecticut.28 and other Sherman including little State, hand provided on the one that each to have two Senators. Island, and Rhode Delaware would be con- guarantee that these Senators As further elected sidered state were to be emissaries, specially pro- it was legislatures, 3,§ state deprived vided in Article V State should ever that no in The other side equal representation of its the Senate. in Art. provided I, 2,§ as compromise that, the was should Representatives be members the House and should “by People chosen of the several States” the . . . accord- “apportioned among be the States several who ing respective to their While those Numbers.” yielded had represent people wanted both houses to Rep- yielded on the had on House of Senate, William of Connecticut resentatives. Samuel Johnson ought up people, had summed it well: “in one branch the in represented; other, the States.” The debates at one fact at the Convention make least abundantly delegates agreed clear: that when the “people” they intended that represent the House should in allocating Congressmen assigned to each the number solely by should be number of State determined State’s inhabitants.30 The embodied Ed- Constitution Randolph’s proposal periodic mund census to ensure representation people,” “fair idea an endorsed assuring Mason of inhabitants” “numbers id., id., (Roger Sherman); See at 342-343 at 461-462 (William Johnson). Samuel 29 Id., (Emphasis original.) at 462. Persons” While “free and those “bound to Service for a Term determining representation, of Years” were counted in Indians not counted, taxed were not and “three fifths of all other Persons” (slaves) computing populations. were included in the States’ every Also, Representative.” 2. State was to “at Least one Ibid. Farrand, 31 1 always representation

should be the measure Representatives.32 House of The also Convention over- whelmingly agreed to a by Randolph resolution offered apportionment squarely base on future numbers and to any delete delegates reference to wealth.33 And the de- by Elbridge Gerry feated motion made to limit number of from newer Western States so that would original never exceed number from States.34

It would principle solemnly defeat embodied Great Compromise equal representation in the House — for equal people numbers of us hold within that, —for legislatures the States, may congres- draw the lines of sional way districts such a give as to some voters greater choosing voice in a Congressman than others. The House Representatives, agreed, Convention represent people as individuals, and on a basis of complete equality each voter. delegates were quite aware of Madison called what the “vicious representation” in Great Britain35 whereby “rotten boroughs” with few inhabitants were represented in Parliament on or par almost on a greater with cities of population. urged Wilson people must be repre- sented as individuals, so that America escape- would

32 Id., at 579.

33 Id., at thought 606. Those who repre that one branch should by Roger sent wealth were told Sherman of Connecticut people “number of alone measuring best rule for wealth [was] well representation; as as Legislature gov if the were to be erned wealth, obliged would to estimate it numbers.” Id., at 582. 34 id., 2 rejected at thinking 3. The supported of those who proposal representation to limit western suggested by is the state ment of Pennsylvania Gouverneur Morris Busy that “The haunts of men not the wilderness, proper remote political School of id., Talents.” 1 at 583. 35 Id., at 464.

15 man system which one English under evils of the represent members to Parliament could two send million sent people while London’s borough Sarum Old borough delegates to rotten but The referred four.36 legislatures as the in some the state apportionments governmental action the Con- objectionable kind of congres- not tolerate in the election stitution should sional representatives.37 system The Federalist of divi-

Madison in described the congressional districts, sion of into the method States which he and others ^[38] assumed States probably would adopt: city Philadelphia supposed contain “The will sixty souls. It there- fifty between thousand choice of nearly fore form two districts for the Foederal Representatives.” ^[39] “[N] umbers,” he said, only are any “are way represent suitable wealth but event only proper scale representation.” ^[40] In state urging conventions, speakers ratification Consti- equal representation the theme of emphasized tution in Phila- permeated the House which had the debates 36 Id., boroughs” long disappeared since 457. “Rotten Today permanent Boundary Com parliamentary Great Britain. constituencies, changes periodic in the size of missions recommend these For population statutory under which standards shifts. Seats) (Redistribution of operate, House of Commons commissions see Schedule, 1958, 6, and of 1949, 66, 12 13 Geo. c. Second Acts of & 26, 7 Eliz. 6 & c. Schedule. 37 id., 2 at 241. 38 1904) g., (Lodge See, e. ed. of Alexander Hamilton Works (statement ratifying convention). to New York (Cooke 1961), at 389. Federalist, No. ed. Id., question There some about No. at 368. has been (Lodge ed. authorship 54 and The Federalist Numbers see generally was 1908) xxiii-xxxv, but it is now believed that Madison 1961) xxvii; The g., (Cooke ed. e. author, see, The Federalist “Settling 1945) Author (Van vi-vii; Brant, Federalist Doren ed. Federalist,” (1961). ship 67 Am. Hist. Rev. 71 16 Pinckney told South Cotesworth Charles

delphia.41 will Representatives House Convention, “the Carolina represent people, immediately by be elected .”42 individually . . . rights personal and their them emphasized ratifying conventions at the Speakers free of meant to be was House of of the state existing then some malapportionment Island, Connecticut, Rhode as those legislatures —such given power argued Carolina —and South vindi- to be used to meant I, 4,43 Art. in the representation equality people’s cate North John Steele at the Congress’ said power, House.44 allow Con- was not to be used to convention, Carolina another in answer to boroughs; gress to create rotten power its Congress might use suggestion that delegate’s Steele said living near the people seacoast, to favor off into “lay the state probably” would Congress “most “inconsistent with the and if it made laws districts,” uphold them, will not independent judges Constitution, 45 obey people nor will them.” 41 g., See, e. on the Conventions 2 The Debates in the Several State 1836) (Fisher (2d 11 Elliot ed. Adoption Federal Constitution Convention) (hereafter cited Ames, Massachusetts in the id., id., at 202 (Wil Connecticut); 21 (Oliver Wolcott, 4 at “Elliot”); id., at 257 (Charles Carolina); Davie, liam Richardson North Carolina). Pinckney, South 42 Id., at 304.

43 holding Times, Elections Senators “The Places and Manner Legis prescribed Representatives, in each State shall Congress may any make or thereof; at time Law lature but chusing Sena Regulations, except alter such as to Places Const., tors. . . .” S. U. §4. (Francis Dana, Conven Elliot, in the Massachusetts See id., tion) ; id., Massachusetts); (Rufus King, at 367 at 50-51 (James Virginia). Madison, 45 id., at 71.

17 James Wilson was adopted, the Constitution Soon after of this Associate Justice an Pennsylvania, then in Philadelphia which, gave a of lectures Court, series active most experience as one of drawing his the on he said: Convention, members of Constitutional the are Elections ought equal. 11 to be elections “[A] part in one given citizens, number of when equal, as are many representatives, choose as state, the any other number of citizens, chosen the same proportion of In the part manner, of the state. this constituents will representatives invariably same.” remain must construe light history It of such we is carrying I, Constitution, which, out 2,§ like views, provides of Madison and those of ideas “by People of the shall be chosen “apportioned among the and shall be several States” Num- according respective . . to their several States . our has held that surprising It Court bers.” is not gives persons qualified to vote constitu- this Article right vote and to have their votes counted. tional Ex 383; S. Parte Yar- v. 238 U. Mosley, United States right brough, only can this to vote 651. Not 110 U. S. consistently with cannot, not be outright, denied see destroyed by ballots, alteration United Article Classic, by stuffing or States v. diluted U. S. Saylor, United States v. 322 U. 385. the ballot see S. box, right precious country No more free than that of is having a in the of those who make laws voice election good rights, under must live. Other which, citizens, we if illusory basic, even most are vote leaves no room classi- undermined. Our Constitution abridges in a people way unnecessarily fication 1896) (Andrews 2 The of James ed. Works Wilson adopt Constitu- people urging In right. of The Federalist: Madison said No. tion, Repre- Fcederal be the electors are to “Who poor; not rich more than the Not the sentatives? haughty not ignorant; more than the learned than the humble names, more distinguished of heirs The elec- unpropitious and fortune. of obscure sons of the people of great body tors are to be the 47 States. . . United “one fairly mean, this to could have taken surely Readers Sanders, 368, S. Gray v. U. person, one vote.” Cf. 372 dis- congressional draw may possible While that is no excuse precision, tricts with mathematical making of plain objective ignoring our Constitution’s people equal numbers equal representation Representatives. for the House goal fundamental and common sense high justice That standard is the set for us. which the Founders

Reversed and remanded. Clark, dissenting in part concurring Mr. Justice in part. opinion of the

Unfortunately join I can neither the It is my Brother true Harlan. nor dissent Court of the Constitu- opening 2,§ that sentence of Art. I, “by are to be chosen provides tion my However, . . . .” People of the several States that both clearly Brother Harlan has demonstrated view, find- language preclude background the historical person, lays ipse down the dixit “one ing 2,§ congressional elections. one vote” that con- hand, agree majority I with the On the other scrutiny. This districting subject judicial gressional (Cooke 1961), Federalist, No. 57 ed. at 385. Holm, 285 U. S. Smiley v. ever since Court has so held companion cases, by two which is buttressed 355 (1932), and Carroll v. (1932), Flynn, 285 U. S. Koenig v. of the majority A Becker, (1932). S. 380 285 U. authority upon the felt, v. Green Colegrove Court con- justiciable complaint presented Smiley, that Colegrove Congress. exclusively to troversy not reserved Again, (1946). n. 3 Green, 549, 564, v. 328 U. S. opinion Carr, (1962), S. in Baker v. U. Smiley the issue “settled recognized of the Court questions justiciability favor agree with Brother I therefore cannot redistricting.” granted to supervisory power Harlan remedy. is the exclusive I, 4,§ under Art. congressional districts Georgia

I would examine the Clause Equal Protection against requirements myAs Brother Fourteenth Amendment. of the Black Green, the supra, in Colegrove v. said his dissent Amendment clause of the Fourteenth protection “equal permit not the . . . discrimination. It does forbids groups citizens or qualified out certain pick States to No vote at all. ... deny them the citizens would equal protection clause deny one would expressly would certain give a law that prohibit also . a full . . Such and others vote. citizens half-vote kind exactly to me legislation seems discriminatory prohibit.” was clause intended to equal protection At 569. pass upon the merits however, did not court,

The trial it did make although appear it does of the case, Georgia “grossly the Fifth District finding that congressional districts of the with other out of balance” on the the court dis- proceeding merits, Instead State. I equity. for lack of believe that missed the case In doing. my view we should therefore erred so court hearing the case for a and remand judgment vacate apply hearing court should At that on the merits. Carr, supra. in Baker v. laid down the standards The General As an caveat. I additional would enter recently has been Legislature sembly Georgia * three-judge of the order of the as a reapportioned result Supp. 205 F. Fortson, in Toombs v. District Court created a Joint Assembly has (1962). In addition, has Redistricting Study which Congressional Committee redistrict- on working problem been is cur- Assembly The General ing for months. several court is of the rently If remand the trial in session. on Assembly’s is of the General opinion that there likelihood I in an reapportioning appropriate manner, State after should deferred until relief believe coercive opportunity. had such an Assembly has General Harlan, dissenting. Mr. Justice day I expected had not to witness the when a deci- Supreme States would render Court United constitutionality of grave sion casts doubt on the is Representatives. House of It composition today’s effect exaggeration say an that such is the re- holding that the Constitution decision. Court’s Representatives either elections quires States to select nearly composed or elections districts “as large practicable” population places jeopardy of equal House present of almost all’the members of the the seats of Representatives. congressional 1962, Representa-

In in last election, 42 elected from dis- tives from States were be- tricts.1 In all but of those the difference five States, Laws, Sept.-Oct. 1962, *Georgia 7-31. Extra. Sess. 1 large Representatives (S), (1), were elected at in Alabama Alaska (1), (2), (1), (2), Mexico Ver Hawaii Nevada New Delaware (1). addition, Connecticut, Maryland, (1), Wyoming In mont and Representatives Ohio, elected of their Michigan, and Texas each one large. at

21 largest populations and districts tween smallest A 100,000 persons.2 magni- difference of exceeded average population the size districts the tude 3 500,000 State is less than is presumably which each among “as equality nearly districts as is practicable,” although does not reveal the Court its definition of that phrase.4 today’s impugns decision Thus, validity Representatives States, the election 398 from 37 leaving a “constitutional” House now members sitting.5 Iowa, Maine, Dakota, Hampshire, Thé five States are New North Together, Representatives.

and Rhode Island. elect 15 populations largest The of the smallest districts each State Appendix and the difference between them are contained in an to this opinion. only average population per The State in which the district is greater 500,000 Connecticut, average population than is where the (one per 507,047 Representative being large). district elected at largest The difference between the and smallest districts in Con is, however, 370,613. necticut nearly practicable” sweeps Court’s “as as is formula a host questions rug. great under the How a difference between the populations of various districts within a State is tolerable? Is one, standard an absolute or relative and if the latter to is the what population difference in to be related? Does the number of districts any within State have relevance? Is the number of voters or controlling? the number of inhabitants Is the relevant statistic the greatest disparity any between two districts in or the the State departure average average population per district, from the or a May little of both? the State consider factors such as area or (rivers, ranges) plainly natural boundaries mountain which are rele practicability representation? vant to the of effective answering questions There is an obvious lack of criteria for such these, points up impropriety whole- Court’s heavy-footed political hearted but entrance into arena. Representatives coming The 37 “constitutional” are those from eight large (plus States which elected their large one each Connecticut, Maryland, Michigan, Ohio, elected at Texas) coming and those from States in which the difference populations largest between the districts was less smallest not be avoided which could a Only demonstration rendering the effect in a decision justify Court would it, I is to declare constitu- inescapably as see which, a very composition of coordinate tionally defective the opin- The Court’s Government. branch the Federal it demonstration, is fails make such only to ion not unsound demonstrably logically on its face unsound historically.

I. reasoning carries coming with the grips Before is extraordinary consequences, important such I of the provisions of Article firmly mind have case: which control this Constitution Representatives shall be “Section House composed every chosen second Year Members States, of the several and the Electors People Qualifications requisite each shall have the State most numerous Branch of the State Electors Legislature. 100,000. 2, supra.

than See notes 1 and Since the difference between largest 89,250, average is and smallest districts in Iowa and the only Representa- population per 393,934, district in Iowa Iowa’s 7 might lose House tives well their seats well. This would leave a composed Representatives Representatives large of the 22 elected at plus eight elected districts. presume Representatives

These from conclusions that all part any congressional districting State which is found in- them, course, ordinarily valid would be affected. Some of would populations from districts of which were about that which come solely population. apportionment would from an based on But result only a court cannot erase the districts which do not conform the today, standard announced since invalidation of those districts would require that the lines of all the within the State be districts redrawn. all the from reapportionment, In the absence of a presumably found the standard would have to State violated large. be elected at appor- be and Taxes shall direct

“Representatives may be which among the several States tioned their re- according to within this Union, included by which shall be determined spective Numbers, includ- adding Persons, to the whole Number free and for a of Years, bound to Term ing those Service fifths of all other excluding taxed, Indians not three be actual Enumeration shall made Persons. The Meeting of the within Years after the first three every within sub- Congress States, of the United they Manner sequent Years, Term of ten such as Representa- Number of by shall Law direct. The thirty for Thou- every shall not exceed one tives at one but each State shall have Least sand, Representative ....

“Section 4. The Places and Manner Times, holding Representatives, Elections for Senators and prescribed Legislature shall each State be Congress may at Law thereof; any but the time except make or alter such to the Regulations, chusing Places of Senators. 5. Each Judge

“Section House shall be the Elections, Qualifications Returns and own its Members . . . will provisions

As be these constitutional shown, ante, their context,” p. “historical 7, establish: Representatives are apportioned among the several but largely, States entirely, according to population;

'2. plenary power the States select have their allotted with accordance any popular method of they subject election please, only supervisory to the power of Congress; supervisory

3. that power Congress is exclusive. legislation providing the absence of short,

In Congress, Georgia byor Legislature by equal districts right judicial relief no appellants these beyond it saying without they goes seek. It popu- whether equally to decide this Court province Rep- electing method preferable is the lated districts acted would have legislatures whether state resentatives, or adopted method, had such a fairly wisely more or in not state requiring has been whether derelict Once is clear legislatures follow that course. stake, that constitutional no ends there is case.

II. of provisions all reliance on other the Disclaiming particular in of the Fourteenth those Constitution, in which the relied appellants on below Amendment in Art. Court, provision holds the this the Court that Representatives “by People” for election of the means congressional nearly are be as is districts to “as ante, in practicable” equal population, pp. Stripped 7-8. context,” ante, of rhetoric p. 7, “historical in bears little to the evidence found the resemblance infra, pages history, 30-41, opinion of see the pp. Court’s holding only its bland supports with the assertion House principle Representatives ‘by “the of a of elected ” People’ be if “a the would “cast aside” vote is worth ante, e., i. in than in if another,” more one district p. State, electing single within a each districts equal population. are not in fact Representative, is, are elected Georgia’s Representatives however, that “by the People” Georgia, just of as from People other “by States are elected of several States.” This all that requires.6 is Constitution I expressly provides Since believe that the Constitution legislatures jurisdiction state shall have exclusive for artificial con- necessity its Although Court finds of importance I in of Article the undoubted struction All involved in this case. right right to is not vote, about “de- of do vote. The Court’s talk appellants and “dilution” of the vote is a model circu- basement” argument lar which the feed premises reasoning, exclusively on on Moreover, focusing the conclusion. disregard shape congres- numbers area and sional district as well within party affiliations the Court deals in which will district, abstractions recognized by the to politically unsophisticated even little political relevance the realities life.

In any very event, sentence of on which I, 2,§ exclusively the Court relies confers vote Representatives only on those whom the State has found qualified to vote for members “the most numerous Branch Legislature.” of the State Supra, p. So far as I Article concerned, power is within the State’s right only confer that on persons of of a par- wealth or if ticular sex the State or, chose, living specified areas Georgia State.7 Were find the residents problems congressional apportionment over of the kind involved case, is no there occasion me to whether, consider in the absence of provision, provisions such Constitution, other of the relied on appellants, would on rights confer them the which assert. 7Although parte was held Yarbrough, it in Ex 651, 110 U. S. and subsequent cases, vote to for a of member depends Constitution, on the opinion legislatures noted that prescribe qualifications of the States legislatures for electors of the thereby and for electors Representatives. of the of S., House 110 U. ante, p. 17, pp. 663. See infra, 45-46. The States which ratified the power. Constitution their exercised A property taxpaying qualification or everywhere. was in effect almost See, e. g., the New York 1777, VII, Constitution of Art. which re- stricted the “possessing vote freeholders a freehold of the value of twenty pounds, ... or have rented a tenement ... of the [who] Representatives to vote unqualified

Fifth District not vote they could Representatives, House of the State express according to the Congress, Representatives of the Constitu- provisions 2. Other § of Art. I, words I, but, as so relevant, of Art. course, tion would, far Geor- be within would concerned, disqualification is same very this it power. be, How can gia’s then, Rep- its Georgia apportioning from prevents sentence does it The truth is chooses? resentatives not. in position for its support to find purports

The Court for the provides 2,§ third paragraph among the States. apportionment Representatives from in that derives appearance support The section direct election the Court’s confusion two issues: apportionment Representatives within the States and the are among Those issues the States. treated in the Constitution. distinct, separately and were reasoning regard illus- The of the is fallacy Court’s by intervening discussion trated its obscured slide, ante, (see pp. 13-14), delegates from the of the intention allocating Con- Philadelphia at the Convention “that assigned gressmen number to each State should be solely by inhab- determined the number the State’s ante, p. solemnly itants,” “principle embodied in the Compromise equal representation the Great — ante, equal people,” p. numbers of House for The delegates did intention and clear former made yearly forty shillings, actually paid been value of rated statutory qualifications taxes to this State.” The constitutional and in the are set for electors various States out tabular form in People Thorpe, History A Constitutional of the American 1776-1850 quali- (1898), progressive property elimination of the 93-96. (Penni- Sait, fication described in American Parties and Elections Revolution, ed., 1952), man 16-17. At time “no serious yet upon privileges property, which, been made inroads had indeed, in most states a second of defense in the maintained line Although perhaps most, of them provision it.8 many, generally assuredly precise, also believed not —but of the Court9 —that way majority formalistic representation within the States should based popu- be on lation, not their into surreptitiously slip did belief phrase “by in the the People,” the Constitution to be dis- a years Shakespearian anagram. covered 175 later like from supporting Court, apportionment Far Representatives among shows how blindly the States has to its Representatives Court marched decision. were apportioned among on the States the basis free population plus population. three-fifths the slave no Since slave the inclusion of voted, three-fifths of their of apportionment gave number the basis the favored representation States far in voting excess their popula- tion. If, then, slaves were intended to be without repre- I sentation, Article did exactly what the says Court now it prohibited: “weighted” it the vote of voters in the slave States. Alternatively, might thought have been elected free men of State would speak also for the slaves. But added to since slaves representation only of their own State, Representa- high personal-property form qualifications required for member- ship legislature.” (footnote in the Id., omitted). at 16 Women were not Thorpe, op. cit., allowed to vote. supra, 93-96. generally op. cit., See Sait, supra, Jersey 49-54. New apparently al- women, lowed “inhabitants,” Thorpe, op. to vote until 1807. See cit., supra, Compare Const., N. J. 1776, Art. XIII, with N. J. Const., 1844, II, 1.¶ strictly that is Even “solely” true unless the word is deleted. compromise” departure The “three-fifths principle from the representation according to the number of inhabitants of a State. The Federalist, infra, pp. Cf. No. discussed 39-40. A more departure provision obvious was the that each State shall Representative regardless population. infra, pp. its See 28-29. delegates fact agree able were on a Senate com posed entirely regard population without on departures population-based from a House, supra, mentioned note indicates thought have been to could States from the slave tives indicating States, their own the slaves of only for speak a Repre- for possible believed that Convention both the non- for another speak group one elected sentative large in de- were Representatives and that voting group population the whole speaking of gree thought as still a State.10 of hollow- demonstrating the is a further basis

There I “one requires Article of the Court’s assertion that ness to be worth congressional in a election ... man’s vote ante, Nothing that the p. as 8. another’s,” as much although in fact that today does will disturb the Court average district an population 1960 the and Wyo- of Alaska, States 410,481,11 Nevada, was possibility they recognized principles com- that alternative that political might reality inconsistent bined with dictate conclusions equality. principle with an abstract of absolute numerical apportionment legislatures time of the of the state at the On (1930), Convention, Luce, Legislative Principles see Constitutional (1963), 331-364; Congressional Districting Hacker, 5. beyond surely is did not re It debate the Constitution Representatives according quire apportion the slave their States implica dispersion slaves their borders. The above within recognized by compromise of the three-fifths were Madison. tions infra, pp. Federalist, No. discussed 39-40. See The arbitrary points “quite grant representation pro- Luce portionate fifths slaves” to three of the number of as evidence that representation “the of men men” was not even in House question He intended. states: “There can no shadow of populations accepted landed, were as a measure of material interests — Legislative agricultural, industrial, commercial, short, property.” in Principles (1930), 356-357. Population: (here Census,

11 U. S. Bureau of Census of figure dividing popula is after, Census), obtained xiv. (which population Columbia, base excludes the of the District of tion population Territories, and the number of Indians not taxed) by Representatives. population the number of In 178,559,217, number was base although ming Representative Congress, each have are respective populations 226,167, 285,278, their disregard In entire 330,066.12 I, 2, population, guarantees every each of States and other State “at these Representative.” whimsical to Least one It is assert in guarantee an principle face absolute “equal representation equal the House for numbers of people” All “solemnly is embodied” Article I. provision there is representation bases the generally population on the House, entirely, but not of (cid:127) of each The provision representation the States. State in House of is not mere ex- ception to principle framed by majority; shows that no such principle is be found.

Finally array this hurdles to its decision which only by Court surmounts knocking them down is 4§ of Art. I which states simply:

“The Times, Places and Manner of holding Elec- tions for Senators and pre- be Representatives, shall scribed each by Legislature State thereof; but the Congress may any time Law make or alter such Regulations, except as to the Places of chusing (Emphasis Senators.” added.) delegates were well problem aware of “rotten boroughs,” as Court, ante, material cited pp. 14-15, plain. hereafter makes It cannot supposed delegates to the Convention would have labored to estab- lish principle equal representation only to bury it, one would thought beyond have discovery, and omit all mention of it from 4,§ which deals explicitly with the conduct of elections. Section 4 states without qualifica- tion that legislatures the state shall prescribe regulations for the conduct of elections for Representatives and, equally without qualification, may make or

12Census, 1-16. any indicate nothing regulations. There

alter such initial plenary grant on whatsoever limitation course, holding is, The Court’s supervisory power. legislatures power state only derogatory theoretically and both power of Congress, but also of infra, power. their See actually exercised as for no reason other upon both, It freezes pp. 42-45.13 present majority it seems wise than that for the selection theory particular political Court, Representatives.

III. turning “historical to the propriety is dubious There provisions speak con- of constitutional so context” might expect one sistently plainly. when But, from the sur- ambiguity, itself is free Constitution history already clear rounding makes what is even clearer. delegates repeatedly emphasizes, As the Court their Philadelphia frequently expressed Convention view representation population. should be based on favoring many were statements also, however, There property suffrage and monarchy qualifications limited expressions disapproval of unrestricted democ- racy.14 prove as on one of expressions Such little side this as do on other. Whatever the dom- case the Convention, thing the one political philosophy inant at degree unlikely in the last or clear: most seems delegates of many even the would subscribed to the provides 5 of which House Section Article “Each shall be Judge Elections, the the of of Returns its own Qualifications points away Members,” pro also from the Court’s conclusion. This leaving vision reinforces the evident scheme of the constitutional protection interests the the of federal involved in selection Congress. the of members of (1911) (hereafter Farrand, the

14 1 Records of Federal Convention Farrand), 48, 134-136, 288-289, 299, 534; 86-87, 533, II 202. Farrand ante, p. of one principle person, vote,” “one 18.15 More- approving population-based repre- the over, statements on how problem repre- sentation were focused the of apportioned among should the sentation States Representatives. Compromise the House of Great The the States concerned representation Congress. the of In all surrounding of of repre- the discussion basis all sentation of the House and discussion whether by legislatures should be elected or people nothing States, suggests there is assemblage Philadelphia “The by Convention was no means popular committed government, delegates few of the sympathy had democracy. for the habits or Indeed, institutions of interpreted democracy most of them rule and mob assumed that equality representation permit would spokesmen for the com beleaguered deputies mon man to outvote the of the uncommon man.” Congressional Hacker, Districting (1963), Legisla Luce, 7-8. See Principles tive (1930), respect apportionment 356-357. With House, “Property basis, humanity.” Luce states: was the Id., at 357.

Contrary statement, 18, to the ante, p. Court’s no reader of The fairly Federalist “could have taken . . . to mean” that [it] adopted principle Constitutional had Convention person, “one qualifications one vote” in contravention of the for electors which imposed. the States In No. Madison “It is said: a fundamental principle proposed Constitution, aggregate that as num- representatives ber of States, allotted the several is to be deter- by mined aggregate foederal rule founded on the number of inhab- light itants, choosing so the this allotted number in each State is by part inhabitants, to be exercised such as the State itself may designate. every State, proportion ... In a certain of in- deprived right by habitants are State, Constitution of the will who be included in the census which the Foederal Constitution apportions (Cooke representatives.” 1961) (Italics ed. added.) passage quotes, ante, p. from which the Court following, concludes with the “They overlooked the Court: [the right every are to be the who same exercise the electors] State of electing correspondent Legislature the branch of the of the State.” Id., at 385. mind delegates problem had in the remotely that the

even a State.16 districting of within discussed States is districting of within the subject The of provisions I, 4, with reference the explicitly states: neglects. The Court the so pointedly Court borough apportion- to rotten referred delegates “The kind legislatures some the state ments Constitution action governmental objectionable congressional rep- in the should not tolerate election Madison Ante, p. 15. The remarks of resentatives.” follows: by cited Court are as Govt, supposes of a that the necessity Geni. “The will fail or refuse Legislatures State sometimes expense common at their consult interest policy of local or re- conveniency prejudices. ferring Representa- of the House appointment Legislatures of and not to the people tives to the supposes result will be somewhat States, ques- This of the view mode, influenced [sic] Legislatures of the tion decide that seems ought not the uncontrouled States to have holding regulating places & manner of elec- times It great These tions. were words latitude. impossible might be to foresee all the abuses that the elec- discretionary power. made Whether tors voce, should vote ballot or viva should place place; assemble or that should di- shd vided into districts or all meet at one all place, for all or all in a representatives; vote district vote for a these district; number allotted & many points Legislatures. other would on the depend might materially appointments. affect the [sic] {ante, p. 15), example, References to Old Sarum occurred during apportionment Representa the debate on the method of among 449-450, tives the States. I Farrand had a favorite Legislatures the State Whenever mould care so to they would take to carry, measure they the candidates to favor regulations their as inequality the Besides, wished to succeed. particular Legislatures in the Representation rep- in their inequality a like produce would States, pre- in as it was Legislature, resentation the Natl. having power the the Counties sumable former case would secure it themselves giving there be in danger latter. What could controuling Legislaturef”17 to the Natl. power (Emphasis added.) response proposal of Madison to a

These remarks were provision congressional supervisory strike out the for power regulation Sup- § over the of elections in Art. 4. I, ported by others at contra- Convention,18 any respect, they clearly may dicted in indicate as as legislatures the Convention understood the state plenary power over the conduct of elections including power to district well or Representatives, subject only to the badly, supervisory power Congress. How, prevents can the that Art. I, 2,§ Court hold then, ‘ legislatures the state from districting as choose? If the Court were correct, Madison’s remarks would have pointless. been One would very expect, least, some to Art. limiting reference factor on the States. This is the “historical context” which the provide. Convention debates supplementary

Materials to the unequiv- debates are as ratifying ocal. In the conventions, sugges- there was no provisions tion that the I, 2, power § restricted Art. prescribe States to conduct elections con- ferred on them I, § None the Court’s ref- 17 II Farrand 240-241. 18Ibid. view supports ratification debates to the

erences “by Representatives election provision any application intended to have People” States; within the apportionment merely repeats what passage the cited instance, each were itself provides: Constitution by of the States.19 people to be elected the on the to unanimous silence sharp In contrast this being discussed, was I, 2,§ issue case when Art. and re- apportionment to repeated there references are Repre- problems affecting States’ selection lated 4. The debates § connection with sentatives in clearly state- as Madison’s ratifying in the conventions, Philadelphia Convention, supra, pp. 32-33, at ment only legislatures, subject indicate 4,§ that under state Congress, the ultimate control of could district as to chose. ap- Dana convention, Judge

At the Massachusetts to a proved gave Congress power prevent 4 § because Britain, “a legislature copying state from Great where cottages borough of but two or three has to send Parliament, representatives Birmingham,- while two large manufacturing lately sprung populous town, up, 20 one.” He cannot send noted the Rhode Island Legislature adopting” plan was “about which would

19 41-42, Mr. explicit. Parsons aswas

“Mr. vesting Congress PARSONS contended for powers the contained in the I], 4th section [of only powers necessary those were preserv- the ing union, securing also for but to the their people rights equal of . legislatures] election. . . [State might unequal make an of partial the division into states districts of the election representatives, or might disqualify even one third of the electors. powers Without these Congress, can people the no remedy; provides but 4th section rem- a edy, controlling power in a legislature, of composed and representatives senators of twelve with- states, out influence our commotions and factions, will hear impartially, who and preserve and restore 21Ibid.

22Id., at 50-51.

23Id., at 51. rights of elec- equal sacred people their

to be from Perhaps objected, it then will that tion. legis- the federal opposition interests supposed regulations; agree upon any lature, they may never of the for the interests necessary regulations but to the interests either opposed never be people can legislature; federal because of the branches mu- people require that the interests preserved be legislature should powers tual government. in order balance the unimpaired, to any Congress agree never on Indeed, if could no to the 4th certainly objection regulations, then regulations introduced remain; for the section can rule governing will elec- legislatures be the state agree tions, upon alterations’’24 until can added.) (Emphasis during discussion convention,

In York New regu- congressional power objected § Mr. Jones “might be con- power such so late because elections right, which, of an deprive as to essential strued states was design Constitution, true reserved explaining proposed 'to He resolution them.” only legislature if a power such state Congress had regulate elections neglected or or was unable to refused proposed to add to the resolution itself.26 Mr. Smith many “. . be divided into as dis- . that each state shall representatives as the is entitled each to, tricts representative by majority shall be chosen of votes.” designed prevent proposal He that his stated might repre- all large, elections at result from being part sentatives “taken a small of the state.” 24Id., at 26-27.

25Id., at 325.

26Id., at 325-326.

27Id., at 327.

28Ibid. was not intended proposal that his further explained He “to enable States but on the other requirement impose control of without act their discretion, states to districting, discussion After further Congress.” follows: was modified to read as proposed resolution nothing . . . that this Constitu- “[Resolved] legislature of prevent tion shall be construed time, to divide laws, from time to any pass state to districts as many into as convenient such state representatives to elect state shall be entitled from mak- legislature Congress, prevent nor to such district shall the electors in each ing provision, that who shall have States, a citizen of the choose United district, for term an inhabitant of the been of his elec- immediately preceding the time year one of such state.” representatives one tion, problem careful, advertent attention to Despite men- congressional districting, 2,§ never proposed fact significant is the that the Equally tioned. establish expressly empowering the States to resolution of a require- districts contains no mention equal population. ment that the districts during the discussion of Virginia convention, In the looked again unequivocally Madison stated that he 4,§ prevent unequal districting: solely to that section to thought regulation time, t was that the “. . . [I] electing representatives, manner, place, throughout the continent. Some should be uniform regulate principles the elections on the might states might regulate and others other- equality, them obviously diversity unjust. This would be wise. unequally states, now some regulated Elections are Carolina, respect with to Charles- South particularly 29Id., 30Id., at 329.

ton, represented by thirty members. Should people any by any state means de- be prived of suffrage, judged it was proper it should general be remedied govern- ment. It impossible time, found fix place, manner, and the election representatives, in the Constitution. necessary It was found regulation these, leave the in the place, to the first governments, state being acquainted as best with the subject situation the people, to the control general government, in order to enable produce it to uniformity, prevent and own its dissolution. And, considering governments the state general gov- ernment as bodies, acting distinct different independent capacities for people, it was thought particular regulations should be submitted to the former, general and the regulations to the latter. they exclusively Were under the control of the state governments, general government might easily be dissolved. But if they regulated be properly by the state legislatures, control will very probably never be exercised. power ap- pears to me satisfactory, unlikely as to be abused any part of the Constitution.”31 (Emphasis added.)

Despite apparent fear that 4 would be abused, suggested no one safely could deleted because 2§ made it unnecessary.

In North convention, Carolina again during dis- cussion of pointed § Mr. Steele out legis- that the state latures had power the initial regulate elections, and the North legislature Carolina regulate would first election at least “as proper.” think Respond-

31III Elliot’s Debates 367.

32 IV Elliot’s Debates 71. would favor the ing suggestion to the uphold he asserted that would not seacoast, the courts people obey nor the “laws inconsistent with the Consti- 33 (The tution.” particular possibilities that Steele had apparently Congress might attempt in mind were prescribe or “to make qualifications electors place of 34) elections inconvenient.” Steele was concerned with danger congressional usurpation, of under the belonging of of to the authority 4, power § States. Sec- tion was not mentioned. Pennsylvania

In the convention, James Wilson de- scribed placing “into as the hands of the state legislatures” power regulate but elections, retain- ing for Congress “self-preserving power” regula- to make tions general government lest “the prostrate ... lie mercy legislatures of the several states.” Without such power, govern- Wilson the state stated, ments might improper regulations” “make or “make no regulations at all.” Section 2 was not mentioned.

Neither of the numbers of The Federalist from which ante, quotes, Court pp. 15, 18, fairly supports its hold- ing. In No. Madison merely assumption stated his that Philadelphia’s population would entitle it to two Representatives in answering argument congres- sional constituencies would large good govern- be too ment.37 In No. 54, he discussed the inclusion of slaves basis of apportionment. He agreed said: “It is on all sides, that numbers are the best scale of wealth and taxa- tion, only are the proper representation.” scale of simply This statement was offered to show that the slave 33Ibid.

34 Ibid. 35 II Elliot’s Debates 440-441.

36Id., at 441. Federalist, (Cooke 37The 1961), No. 57 ed.

38Id., at 368. reasonably be included basis population could not of taxes and excluded from the apportionment direct representation. Further on in apportionment basis of pointed Madison Federalist, the same number out I cleavage which Article made between the fundamental among apportionment Representatives States within State: the selection each principle proposed is a fundamental “It Con- that as stitution, aggregate repre- number States, sentatives allotted the several is to be by a aggre- determined foederal rule founded on the gate number of inhabitants, choosing so the this allotted number in each State is to be exercised by part such of the State itself inhabitants, the may designate. qualifications The on which the right suffrage perhaps are the depend, not same in any two In States. dif- some the States the very ference is every material. In a certain State, proportion of deprived inhabitants are right this by the Constitution of the who will State, be in- cluded in the by census which the Foederal Consti- apportions tution representatives. In point this of view, the southern might States com- retort by plaint, insisting, principle that laid by down the Convention required that no regard should be had to policy particular States towards their own and inhabitants; that consequently, the slaves as inhabitants should have been admitted into the census according their to full number, in like manner with other who inhabitants, policy of other States, are not admitted to all rights of citizens.”39 In The Federalist, No. Hamilton discussed pro- vision of regulation of elections. He justified Congress’ power with “plain proposition, every that

39Id., at 369. its in the means ought to contain government itself he said: on, Further own preservation.”40 law could an election alledged will not be “It Constitution, into framed and inserted been have every always applicable have been which would country; change the situation probable discretionary denied it will therefore It somewhere. ought to exist power over elections conceded, readily there will, I be as presume, in which could only ways, power loere three it must disposed, reasonably been modified Legis- wholly in the National lodged been either have or Legislatures, pri- lature, wholly or the State latter, ultimately in the marily former. preferred been mode has with reason last regula- They have submitted the Convention. in the Foederal Government tion of for the elections administrations; which in local first instance improper prevail, no views ordinary and when cases, satisfactory; more convenient and may be both more authority a to the national they have reserved but extraordinary circum- whenever interpose, might necessary interposition render that stances added.) (Emphasis safety.”41 its dis- number of The Federalist does Thus, unequivocally of the view is regulation elections, cuss the legislatures plenary power over stated the state congressional subject only elections to such the conduct Congress might provide. regulations as itself language all of Art. upshot I, §§ this is The surrounding text, history and the 4, 2 and relevant 40Id., at 398. 41Id., at 398-399.

42

are all in strong direct contradiction of the consistent holding. Court’s The constitutional in the scheme vests States plenary power regulate of elections conduct for Representatives, and, protect order to the Federal Government, provides congressional for supervision the States’ exercise of their power. scheme, Within this the appellants do not assert, have the in the absence of provision equal by districts Georgia Legislature Congress. or the The constitutional right which the Court creates is manufactured out whole cloth.

IV. premise The unstated quite the Court’s conclusion obviously Congress is that dealt, has not and the it will deal, problem Court believes not with the of con- gressional apportionment in accordance with what Court believes to be sound political principles. Laying validity aside for the moment such consideration as a factor in constitutional interpretation, becomes history relevant examine the action under Art. 4. This history § reveals that the Court simply undertaking power exercise which the reserves to the Congress; Constitution it is also overrul- ing congressional judgment. power regulate exercised its elections for Representatives

the House of the first time when it provided Representatives from States “en- Representative” titled to more than one should be elected contiguous districts of territory, “no one district elect- ing Representative.” more than one requirement dropped,43 later and reinstated.44 In 1872, Congress required “be elected districts composed contiguous territory, containing 2,5 25,1842, June Act of Stat. 491. May 23,1850, Act of 9 Stat. 428. July 14, Act of Stat. 572.

43 . . . inhabitants, equal an number nearly practicable 45 Representative.” electing more than one one district no exactly Court districts which the provision equal This for in each subse- was carried forward effect, duplicates 1911.46 There was through statute apportionment quent following pro- 1920 census. The reapportionment no dropped was districts equally populated vision 47 although pro- revived, the 1929 1929 and not been has and, been amended apportionment have twice visions subsequent generally applicable were made 1941, and apportionments.48 censuses re- legislative history carefully 1929 Act is in Wood 287 S. 1. As there stated: viewed U. Broom, v. manifestly “It of the was the intention con- provision compactness, to re-enact as to respect with tiguity, equality population reappor- pursuant the districts to be created the Act of 1929. tionment under “This from and its appears act, the terms shows omission was de- legislative history question up, liberate. The was considered.” 287 U. at 7. S.,

Although little discussion of the reasons for omit there is ting requirement equally populated districts, in the as it provision fact that such a included bill was House,49 by the presented to the and was deleted of intention to do so,50 after debate notice House 45 2, 2, 1872, Feb. 17 28. Act of Stat. § 46 1882, 3, 6; 1891, 3, 22 25, 5, of Feb. Stat. Act of Feb. 7, Act § § 735; 16, 1901, 733, §3, 734; Stat. Act of Jan. 31 Stat. Act 26 13, Aug. 8, 1911, 14. 3, 37 Stat. 47 18,1929,46 of June Stat. 21. Act Apr. 1940, 162; 1941, 55 25, 15, 54 Stat. Act of Nov. Act 761. Stat. 1928, Cong., 1st Sess., H. R. 70th introduced on Mar. Cong. Rec. 4054. 50 Cong. 1499, 1584, 1602, Rec. The the omission was deliberate. no doubt that

leaves a suggested by re for the omission is likely explanation ought “the States floor of the House that mark on the making up apportionment their way own have their are Congressmen they they know the number when 51 going to have.” in subsequent Congresses apportionment Debates over rejection continued unhelpful explain generally are are some intimations that requirement; there of such exclusively for districting was a matter feeling imposed would Bills which persisted.52 the States nearly equally or requirement equally on the States regularly introduced districts were populated of them became law. House.53 None Dickinson). Cong. (remarks 1499 of Mr. Con 51 70 Rec. by ap gressional reports followed Record this statement was point Representative plause. debates, in the Lozier At another “power Congress determine in what manner the stated that lacked selecting Repre sovereign rights in their several States exercise their Congress Cong. . . . .” 70 Rec. 1496. See also sentatives in Mr. Ibid. remarks of Graham. 52 g., (remarks Rankin), See, Cong. of Mr. 4369 e. 86 Rec. 4368 (remarks (remarks McLeod); 4371 of Mr. 87 McLeod), of Mr. Moser). Cong. (remarks of Mr. Rec. Sess.; 5099, Cong., 4820, Cong., R. 76th 1st H. R. 76th 1st H. Sess.; 2648, Cong., Sess.; 6428, Cong., H. R. 82d 1st H. R. 83d 1st Sess.; Cong., Sess.; Ill, Cong., 814, H. R. 85th 1st H. R. 85th Sess.; 73, Sess.; 8266, Cong., 1st H. R. 86th 1st H. R. 86th Sess.; Cong., Sess.; 841; Cong., 1st H. R. 86th 1st H. R. Cong., 87th 1st Sess. proposed

Typical legislation Cong., 1st of recent H. R. 87th Sess., provide: which amends S. 2a to U. C. §

“(c) Representative entitled to more than one Each State (a) apportionment provided in under the subsection section, Representative shall establish for each a district com- posed contiguous compact territory, and the number of in- any vary habitants contained within district so established shall not per by dividing more centum from the number obtained than population States, total of such as established the last decennial Congress, by years, therefore, of about 50 period For re- on States the act, imposed legislative repeated popula- equal districts be quirement which the very requirement is the (This, course, tion. constitutionally required been now declares to have Court legislation.) implementing along all without of the States prob- attention to the giving express after Subsequently, with the requirement, Congress eliminated lem, own to find their solu- permitting the States intention of obtain con- repeated then, despite efforts Since tions. continued to again, Congress has leave gressional action cannot be and its to the States. It problem the solution fills contended, therefore, today Court’s decision that the Congress. contrary, the Court gap by a left the On the Congress. own judgment its the substitutes V. from departs accepted which the Court

The extent to by evidenced the principles adjudication is further today’s issue of on which the irrelevance to the cases Court relies. Yarbrough,

Ex a parte corpus 110 S. was habeas 651, U. validity which the Court sustained the proceeding, violating a group persons charged conviction of with conspire federal statutes which made crime deprive particular citizen of his federal and in rights, right to vote. the The issue before the Court was Congress power pass pro- or not the had laws whether census, by Representatives apportioned the number of to such State provisions (a) under the of subsection of this section.

“(d) Any Representative Congress elected from a district requirements which does not conform to the set forth in subsection (c) Repre- of this section shall be denied his seat the House of sentatives and the Clerk of the House shall refuse his credentials.” Congress 1128, bills introduced in the current

Similar are H. R. 2836, 4340, 7343, Cong., H. R. H. R. and H. R. 88th 1st Sess. §5508; R. S. R. S. §5520. from for a member to vote right tecting expressly relied on Court violence; the fraud and in this Only Id., at 660. power. sustaining 4, ain right to vote establish that in order to context, by federal right protected awas election dependent hold that did the Court law, law of States. and not on on Constitution the Constitution recognized Court Indeed, “as furnished the States qualification” “adopts of Con- electors members of its own qualification Each of the other three cases Id., gress.” at 663. ante, similarly acts p. 17, involved Court, cited of federal as violations statutes. prosecuted which were returns, filing false election acts in were question Mosley, 238 S. alteration 383, United States v. U. United States v. votes, certification and false ballots Classic, stuffing box, United ballot 299, S.U. has Saylor, 322 385. None of those cases States v. U. S. bearing present on the situation.55 slightest cases, Smiley companion Holm, and its two v. 285 U. S. 375; Becker, Koenig Flynn, Carroll v. 285 U. S. v. 285 U. S. separate opinion, ante, pp. my relies in his on which Brother Clark Smiley ques- presented 18-19, equally v. Holm two are irrelevant. provision first, negative, in was whether the tions: the answered empowered “Legislature” 4, of a State to in Art. which congressional prescribe regulations for elections meant that a by regu- provide a Governor’s veto over such State could not law for by legislature. ques- prescribed The second lations as had been congressional apportionment measures, tion, two was which concerned repealed 18, 1929, 21, had certain whether the Act of June 46 Stat. Aug. answering provisions 8, 1911, 37 Stat. 13. In of the Act of carry to out the intention question, the Court was concerned of Quite Congress enacting id., obviously, in the 1929 Act. See at 374. Smiley proposition therefore, v. Holm does not stand for the slightest my from it. There was not the Brother Clark derives Congress’ power prescribe regulations to intimation in that case judicial p. subject scrutiny, ante, 18, to such that for elections prescribe regulations congressional itself for elec- this Court could on the and that gives The Court scant attention, Green, which is Colegrove v. S. merits, U. aof directly point; in the Court there affirmed dismissal changes subsequent of alleging “by reason complaint Congressional population in districts the election Congress by in of created the Illinois of . compactness territory 1901 . lacked of Laws . Id., approximate equality population.” 550-551. Leaving day question to another of what v. Baker Carr, actually did can hardly U. S. decide, authority maintained on the Baker or anything else, today the Court does not invalidate Mr. Justice eminently Frankfurter’s in Colegrove correct statement that “the upon Congress Constitution has conferred ex- authority representation clusive fair by secure in popular States If House .... in failed exercising whereby its powers, are standards fairness remedy ultimately offended, the lies with people.” atS., problem 328 U. 554. The was described Mr. Jus- tice Frankfurter as “an aspect government from which the in view of what judiciary, has involved, been excluded clear intention the Constitution .” .. . Ibid. Mr. Justice Frankfurter not, speak did course, majority Colegrove; the Court but refusal for that give opinion reason to effect precedential does not justify give refusal to appropriate attention to the views expressed.56 there disregard tions in even purpose. contradiction of companion Smiley presented cases v. Holm no different issues wholly

and were decided on the basis of the decision in that case. part The Court Carr, supra, on v. relies Baker to immunize present Colegrove. its decision from the nothing force But contradictory Baker is that, political to the question view and other objections “justiciability” aside, the Constitution vests exclusive authority problem to deal the legislatures with of this in the state case Congress. and the

VI. the society and for our portents has Today’s decision This not a is recognized. be which should Court itself kind of individual the Court vindicates case in which the Process Clause by the Due rights assured that are Rochin contours,” “vague whose Amendment, Fourteenth much of course leave 165, 170, California, v. U. S. developments necessitated room for constitutional society. Nor dynamic conditions in a is changing requires the Court emergent an set facts case in which recognized protect constitu- principles to frame new The relief this case rights. judicial tional claim of our system doctrines of the fundamental strikes at one upholding In powers. the government, separation reforms in a field attempts claim, Court effect com- Constitution, plainly be, as can has which the exclusively political process. mitted no all Gov- This less than other branches Court, The Constitu- is bound the Constitution. ernment, authority to tion not confer on the Court blanket does step every political may into situation where branch thought stability fallen short. The of this to have ultimately depends only upon being institution its government branches of keep alert to other within equally recognition constitutional but upon bounds limitations on Court’s own functions the consti- system. tutional today saps political process.

What is done promise judicial intervention in matters this sort popular cannot but inertia in efforts for encourage politi- through cal political reform with process, inevi- process By table result itself weakened. yielding judicial to the demand for a remedy in this my instance, Court view does a disservice both and to broader system itself values of our government. fails disclose a con-

Believing complaint I affirm below claim, judgment stitutional would dismissing complaint. MR.

APPENDIX TO OPINION OF JUSTICE HARLAN.* Difference Between Largest State and Largest Number Smallest Smallest Representatives** District District Districts (8)................... Alabama ....... ....... (1)..................... ....... ....... Alaska (3)............. 663,510 198,236 465,274 Arizona (4)........... 575,385 332,844 242,541 Arkansas 287,061 (38).......... 588,933 301,872 California (4)............ 653,954 195,551 458,403 Colorado (6)......... 689,555 318,942 370, 613 Connecticut (1).................. Delaware ....... ....... (12)............ 660,345 237,235 423,110 Florida Georgia (10)............ 272,154 551,526 823, 680 (2).................... Hawaii ....... ....... (2).............. 409,949 257,242 152,707 Idaho (24)............ 552,582 273,879 278,703 Illinois (11)............ 697,567 290,596 406,971 Indiana (7)............... 89,250 442,406 353,156 Iowa (5)............. 539,592 373,583 166,009 Kansas 350,839 Kentucky (7)........... 610,947 260,108 272,179 (8)........... 536,029 263,850 Louisiana (2).............. 505,465 463,800 41,665 Maine Maryland 711,045 243,570 467,475 (8)........... 478,962 102,626 (12)...... 376,336 Massachusetts 802,994 Michigan (19).......... 177,431 625,563 (8).......... 482,872 375,475 107,397 Minnesota 313,369 Mississippi (5).......... 608,441 295,072 populations based on the 19Í30 *The of the districts are Census. The districts are those used in the election of current 88th Congress. populations in the districts are available Congressional biographical Cong., Directory, section of the 88th Sess. 2d

**435 in all.

Difference Between Largest State and Largest Number Smallest Smallest District District Districts 128,355 (10)........... 506,854 378,499 Missouri (2)........... 274,194 126,379 400,573 Montana (3)........... 404,695 125,812 530,507 Nebraska (1).................... ....... ....... Nevada (2)..... 56,715 Hampshire 331,818 275,103 New Jersey (15)........ 585,586 255,165 330,421 New (2)................ ....... New ....... Mexico (41)......... 120,815 471,001 350,186 New York (11)..... 213,600 491,461 277,861 North Carolina (2)....... 333,290 299,156 34,134 North Dakota . 236,288 489,868 (24).............. 726,156 Ohio 325,171 (6)........... 227,692 552,863 Oklahoma 257,649 Oregon (4)............. 522,813 265,164 Pennsylvania (27)....... 303,026 250,128 553,154 (2)........ 459,706 399,782 59,924 Rhode Island 229,320 (6)...... 531,555 302,235 South Carolina 314,824 (2)....... 182,845 497,669 South Dakota (9)........... 223,387 403,632 627,019 Tennessee 735,156 (23).............. 951,527 216,371 Texas 254,681 (2)............... 572,654 317,973 Utah (1)................... ....... ....... Vermont 226,728 Virginia (10)........... 539,618 312,890 167,972 (7)......... 342,540 Washington 510,512 Virginia (5)....... 422,046 303,098 118,948 West (10).......... 236,870 293,446 530,316 Wisconsin Wyoming (1).................. ....... .......

Mr. Justice Stewart.

I has power think it is established “this Court in a type against objection afford relief case of this are I the issues sub justiciable,”* cannot any possible implication contrary scribe to quotation Rutledge’s concurring opinion is from Justice *The Mr. Green, Colegrove S., v. at 565. 328 U. may lurk in Mr. dissenting opinion. Justice Harlan’s single qualification With I join the dissent because I think Mr. has unanswerably demon- Justice Harlan strated that Art. I, 2,§ gives the Constitution no mandate to this any Court or to court to ordain that con- gressional districts within each State must equal population. notes the Madison, James who took careful and gen- interpreting Convention, believed that in the Constitution later history adoption: consider the of its erations should defects, deformities, were the the diseases and the omi- “Such provide remedy, prospects, for which the Convention were a nous appreciating ought expounding in and which never to be overlooked & Id., remedy provided.” the Constitutional Charter was at 549. was aban- soon purpose modest May, this tion met creating challenge of a new greater doned for the under possible than was government of closer form assembled, after the Soon Convention Confederation. Virginia presented plan Randolph of Edmund but amend Articles of Confederation merely to Na- entirely Government with create an new National and a Executive, Judiciary, National tional National by to be Legislature one house elected Houses, of two first.13 house be elected people,” “the second legislature of should consti- how the be question controversy bitter of the Con- precipitated tuted the most minds of uppermost principle vention. One lived, no he each many delegates: that, matter where every other equal have a to that voter should voice Congress. support In electing members Virginia George Mason principle, an branch “argued strongly larger election of the grand to be people. depository It was democratic principle the Govt.” “If saying power Madison is not imme- agreed, James diately from proportion derived to their people, may paper we numbers, confederacy, make but will all.” Repeatedly, delegates rose to make same point: unfair, contrary it would be unjust, give a people many common sense to small number of as Senators or as were allowed to much larger groups16 short, Pennsyl- James Wilson of —in 13 1 id., at 20. 14 Id., at 48. 15 Id., at 472. 16See, g., id., e. (Benjamin Pennsylvania); at 197-198 Franklin of id., id., (Elbridge Gerry Massachusetts); at 286, at 465-466 id., (Alexander York); (Rufus King Hamilton of New at 489-490 id., (James Massachusetts); 446-449, 527-528 Madison

Notes

cited notes 44-45 of the Court’s See the materials ante, p. opinion, 16. Ames’ at the conven remark Massachusetts representatives represent people.” are typical: tion is “The (2d 1836) (here ed. II Elliot’s Debates on the Federal Constitution Convention, Debates), 11. In the South Carolina after Elliot’s Pinckney represent “be chosen as the House would so stated proportion people due of the Union . . . .” IV Elliot’s only provision Debates 257. But he had mind that other clear representation apportioned among would be of the Constitution that according population. None his remarks bears on the States Id., apportionment within the States. 256-257. 20 II Elliot’s Debates 49. “deprive Newport their towns and Providence of weight.” King Mr. noted the in Connecticut, situation “Hartford, where of their no largest towns, one sends delegates more than one their smallest corporations,” South parts Carolina: “The back of Carolina have greatly adoption increased constitution, since their frequently attempted have an un- alteration of this equal mode of representation from but members Charleston, having balance so much in favor, their will not consent to an alteration, and we see dele- gates Congress from Carolina in always chosen been delegates city.” King of that stated that power under necessary to “control in this case”; he otherwise, said, representatives “The . . . from that state will Carolina], not be chosen [South representatives but will of a faction the people, that state.”

Case Details

Case Name: Wesberry v. Sanders

Court Name: Supreme Court of the United States

Date Published: Feb 17, 1964

Citation: 376 U.S. 1

Docket Number: 22

Court Abbreviation: SCOTUS