*1 WHITE, SECRETARY OF STATE OF TEXAS WEISER et al. Argued February
No. 71-1623. 1973 Decided June *2 Court, in Part I of which opinion the J., the of delivered White, J., and which C. Burger, in Part II of joined and Members all and RehN- BlackmuN, Powell, Stewart, BreNnaN, Douglas, concurring opinion, in which J., joined. Powell, filed a JJ., quist, post, p. 798. J., joined, J.,C. Marshall, RehNquist, Burger, of opinion II of concurring part in Part the opinion an J., filed Court, post, p. 798. the Jr., for Black, appellant. the argued
Charles L. cause Martin, C. former were himWith on the briefs Crawford Hill, L. Attorney Gen- Attorney Texas, of John General Barron, Attorney General, John M. First Assistant eral, D. McDaniel. and Samuel for argued appellees.
Lawrence Fischman the cause Rosenberg. Doug- him David H. J. on the brief was With appellees Henry las McGuire filed a brief for Archer, Van al. Jr., et opinion
Mr. Justice White delivered the of the Court.
This case the congressional concerns of State Texas. On of 1971, June the Governor the of State Texas (S. into law signed Senate Bill One Tex. 1), Acts, B. Sess., 62d 1st Called c. Leg., p. 38, providing of congressional redistricting B. 1 State. S. divided congressional State into for the ensuing districts decennium.1 Based figures, census absolute 1Prior to passage of S. de Texas Senate had twice redistricting bills, passed by House, with total deviations feated smaller than the total deviation in S. B. would mean population equality districts among in each district. 466,530 The by 477,856 created B. 1 from a in the high varied 13th 458,581 to a low of 15th District. District The 13th District exceeded the ideal district 2.43% popula- and the The 15th District was smaller 1.7%. tion 10,275 per- difference between the two districts was and their sons, percentage total deviation was 4.13%. The ratio of the 13th the 15th was 1.04 to 1. The average deviation all districts from the ideal dis- 466,530 3,421 trict of persons.2 was .745% redistricting The Texas the 24 districts under B. 1 follows: *3 6th, 1971, appellees, On October residents 16th, and 19th filed suit 13th, congressional districts, Northern the United States District Court for the District of against Secretary Texas State appellant, Ap- Texas and the chief election officer of the State. pellees alleged of the Texas B. 1 seats embodied violated their rights under Art. I, 2, Equal § and the Protection Clause They Fourteenth Amendment.3 an in- requested junction against B. 1, use of S. an requiring order a new apportionment or the use of plan submitted with their complaint, or at-large plan elections. The appended appellees’ original which complaint, came to be called Plan B, generally followed redistricting pattern of S. 1.B. However, the district lines were adjusted necessary where so popu- achieve smaller lation variances among districts. Plan B created dis- tricts from varying 466,930 to 466,234, for a total absolute deviation between the largest and smallest district of persons. exceeded the ideal .086% and District Four was under the ideal .063%, for a total percentage deviation of Although fol- .149%. lowed the district lines of B. 1 where possible, order to achieve maximum equality, Plan cut across 18 county more lines than did S. B. I.4
3 subsequent At a pretrial conference, the Fourteenth Amendment claims were eliminated. 4 Plan resulted in following districting: Absolute Variance District Population from Ideal 1 466,545 15+ 2 466,565 35+ 3 466,266 -264 4 466,234 -296 5 466,620 90+
787 28 C. §§ court was convened. U. S. three-judge A prior January days several 2284. On filed an amended appellees of the hearing case, scheduled which came to plan, an alternative complaint suggesting substantially B, Plan unlike Plan called Plan C. be in S. B. the districts disregarded configuration frankly admitted the authors Instead, attempt an represented found, the District Court any con- without regard to attain lower deviations The districts population. other sideration than 467,173 high from Plan C varied larg- The 1,318 persons. as a a difference low, 465,855 and the smallest overpopulated .139%, est was district devia- underpopulated by percentage total .145%, the greater had 14 being tion Plan C .284%. districts with deviations B, eight deviations than Absolute Variance Ideal Population from
466,285 -245 -194 466,336 + + 466,704 174 148 466,678 466,313 -217 466,258 -272 466,930 +400 + 466,663 133 - 466,437 93 -171 466,359 + 133 466,663 - 98 466,432 17 10 466,520 18 - + 119 466,649 19 - 16 466,514 466,753 +223 + 466,707 -106 466,424 466,875 +345 *5 Plan B, and two found to those equal B.5 in Plan than those smaller deviations argu- heard Court January District 21, 1972, On depositions. various received into evidence ment and Rely- its decision. the court announced day, The next Preisler, Kirkpatrick decision upon this Court’s ing B. 1 declared S. Court (1969), District U. S. from “conduct- enjoined appellant unconstitutional or based any primary general elections permitting ing 1.” The District- established the districts adoption ordered the “the Court for the districts of the State this Court following Plan C resulted districts: Variance Absolute Ideal Population from
465,986 -544 466,817 +287 466,835 +305 467,108 +578 466,258 -272 467,023 +493 466,336 -194 466,704 +174 466,678 +148 466,303 -227 466,569 39+ 466,926 +396 467,173 +648 - 466,437 466,359 -171 465,941 -589 466,340 -190 466,520 - 466,154 -376 466,654 +124 466,875 +345 466,707 +177 466,167 -363 465,855 -675 *6 789 6 Noting of Texas.” that its order was entered “without of the prejudice and branches executive and proceed of Texas the State to consideration plan any constitutionally permissible adoption of other of ses- congressional redistricting regular at a called or of retained sion the the Court Legislature,” jurisdiction purposes considering any “for of such the of plan by which the might adopted be the Legislature of State Texas until is congressional enacted on to based the Twentieth Decennial Census be conducted in 1980.”
This on Court, application of appellant, granted stay of the of order the (1972). District Court. TJ. 1065 S. The 1972 congressional elections were therefore conducted the plan under in B. 1. probable embodied S. We noted jurisdiction of appeal. the (1972). 409 U. S.
6The selecting District Court’s entire discussion its reasons for Plan C follows: any plan
“Defendant has not submitted of reapportionment as an proposed plans, alternative to B. 1. Plaintiffs have B two and C. B Plan is on B. significantly based but has a lower deviation solely than S. B. 1. Plan C based significantly is on and is compact contiguous more and than either S. B. 1 or . . . The Court has considered and C, Plans as well as the sub- intervening plaintiffs, mitted that concludes best principle man, effectuates of ‘one one vote’ enunciated Supreme Court.” 7The District granted Court's order also to leave intervene to Henry Archer, Van County Republican Chairman Party, Bexar intervenors, others. The appellees Court, suggested in this filed a reapportionment plan complaint-in-intervention with their was which rejected by the District Court pressed here. The District jurisdiction Court also retained purpose extending impending February 7, 1972, filing congressional date for candidates “in the event it is known made Court that a called [the District] Legislature session will reapportionment.” include However, the special Governor refused to call a session legislature.
I be representatives I, 2, § Art. The command of was eluci States” People of the several “by chosen Sanders, (1964), 376 U. S. Wesberry dated Preisler, 527-528, S., U. Kirkpatrick among congres population variances permit only those *7 despite good-faith a that “are unavoidable sional districts justifica or for which equality, absolute effort to achieve Rocke Id., also Wells v. 531.8 See tion shown.” Kirkpatrick and Wells feller, (1969). 394 U. S. providing statutes invalidated state percentage congressional having federal total districts In both respectively. and 13.1%, deviations 5.97% not demon we concluded the deviations did cases, that equality a and good-faith strate effort to achieve absolute justified. not sufficiently were now in are percentage The deviations before us S. B. Wells, in Kirkpatrick smaller than invalidated and those but we with the District Court under agree that, cases, standards of were they “unavoidable,” those and mathematically were not as equal as reasonably possible. Both Plans B and demonstrate this and the much, really dispute State does not it.'9
8Kirkpatrick “reject[ed] argument v. Preisler Missouri’s that there is a percentage population fixed or enough numerical variance small satisfy question be considered de minimis and to without the ‘as nearly practicable’ S., concluded, standard.” 394 U. at 530. We population “Unless among congressional variances districts are shown despite to have resulted [good-faith] effort, such the State must justify variance, each Id., no matter how small.” at 531. passage Prior to the of S. B. passed the Texas House twice a reapportionment bill with lower deviations. Each bill had a Although total deviation of both bills were ulti 2.5%. mately in defeated the Senate, passage by their House, and in very existence, deed their possible indicates that it was practicable to construct redistricting a scheme with lower deviations among districts than those embodied in B.S. Wells, not find Kirkpatrick legally in “we do
Also, if justified are acceptable argument that variances attempt a to avoid they necessarily from State’s result congres fragmenting political drawing subdivisions municipal, district lines along existing county, sional Kirkpatrick v. political other boundaries.” subdivision Preisler, supra, at 533-534. The in B. present State the variances asserts (cid:127) represent efforts
nevertheless State good-faith promote “constituency-representative relations,”10 policy frankly aimed at relation- maintaining existing ships between con- congressmen incumbent their seniority stituents preserving members delegation the State’s have in achieved the United States Representatives. House of in- disparage We do not this terest. We have, reapportion- the context of state ment, may said that the fact that boundaries “district have been drawn a way that minimizes the number contests present between incumbents does not and of *8 itself establish Richardson, invidiousness.” Burns v. U. n. 16 (1966). Gaffney Cummings, Cf. ante, 752. at But we need not decide whether this state is interest to justify sufficient the deviations at issue here, for admittedly purpose serves this well as
10“Appellant earnestly submits 'constituency- that the term representative term; relations’ the very is more accurate indeed it is why hard to see those representation who are so concerned about stigmatize should as a euphemism mere brings a term which in both parties representational relationship (The assumptions .... may seem to be that Congressman while a job, like his con no stituency Congressman, can like its or care whether he continues to represent it or Congressman not —and possibly that no can learn to constituency enough know his well to serve it better than can he constituency serve another by, may be, young selected for him it a Dallas.) mathematician in name, Under either appellant would entirely defend this proper, motive if the burden of that defense fell him on Appellant the facts herein.” Brief for 72. population to closely more adhering B. while as S. there- population variations, 1 and its equality.11 S. B. goal, state necessary to achieve the asserted were not fore, in it.12 rejecting was correct the District Court Kirk- that straightforwardly argues also Appellant require not to patrick and Wells should be modified so as congressional variances dis- population among “small” justified by in be the State. tricts involved this case to it over urged, proof S. B. absent invidiousness is population districts, among and above the variances its It I, clear, however, § does violate Art. is point population that at some or level in vari- size, import ances do individ- invidious devaluation of the passed by appears plans It that the House defeated two may goal achieving also the Senate have fostered while lower this population variances. 12Appellant legisla contends that the authors S. B. and the passing plan, projected population ture in on took into account among Remembering shifts districts. that districting plan years will be in least 10 five con effect at gressional might elections, argues legislature appellant that properly population changes devising redistricting plan. consider a Kirkpatrick Preisler, recognized In we these shifts “[w]here degree predicted high accuracy, can be States that are a redistrieting properly S., may 535. We consider them.” 394 U. were, however, careful note: to Findings
“By subterfuge. open this we mean to no avenue for applied thoroughly trends must be documented hoc, Ibid. systematic, manner.” throughout not an ad the State attempt justify present case, In Texas’ we conclude that far standard. the deviations found falls short this vague barren, exception The of scattered and record with the *9 testimony, adequate deposition in documentation of assertions alleged that projected shifts and firm evidence the the upon. in relied shifts were fact preceded suggestion passage of S. B. was There is some that also
by fill dispute who Second as to would the goal justification urge alleged this as a seat. The State does not from this whether in B. can we tell record the deviations S. nor dispute. S. in resolved this B. fact represent a failure him and ual's vote and to accord fair representation. Appellant effective this and concedes differently would locate the line than the Court did in Kirkpatrick Keeping congres- Wells. in mind that sional are not intertwined and with freighted so strictly local interests state as are districts and compared relatively that, latter, they are rep- enormous, point with each variation percentage almost we are not inclined to resenting 5,000 people, Kirkpatrick and Wells. so particularly disturb This Howell, light in Mahan v. S. decided (1973), 410 U. Term, Wesberry, earlier this we where reiterated that the Kirkpatrick, and Wells line of would to cases continue govern congressional reapportionments, although hold- ing rigor that the of the rule of inappro- those cases was priate reapportionments for state under the challenged Equal Protection Clause of the Fourteenth Amendment.
II The District properly rejected Court B. but it had before it both Plan B and Plan there remains C, question whether court correctly chose im- plement the latter.13 B adhered to the basic dis- trict configurations found in adjusted but lines, district where necessary, order to achieve maxi- mum population equality among districts. Each district generally contained the same counties equivalent district S. B. I.14 Plan on the other was hand, based entirely upon population considerations 13The plan court had before it a plaintiffs- submitted and, possibly, intervenors plans. Only other Plan B and Plan C appear seriously to have urged by been parties and considered court, only plans those are defended before this Court. B, presented by “Plan Appellees, merely plan took the legislature adjusted greater equality to achieve present court, graphic manner, legislature in a what the could *10 configura- district adhere attempt to no made and to submitted plans were Both in B. I.15 found tions that deciding After appellees. Court District the ordered Court the District unacceptable, B. was announcing decision, its C. In of Plan implementation only: court said sig- and is solely population on “Plan C is based either than contiguous compact and nificantly more considered . . The Court has or Plan . S. B. Plan best that B and C . . concludes Plans . vote’ 'one one principle man, effectuates Supreme Court.” by the enunciated prop- if the Court Appellant that, even District argues erly 1, it should have selected struck down S. B. Appellees rather Plan C. defend than selection Plan C an of the remedial discretion as exercise they against Court, doing argue so although plan a that they proposed frequently urged the District Court.
From recognized “reap- we have that beginning, portionment primarily a matter for consid- judicial eration and determination, and that relief appropriate only becomes when a fails re- legislature apportion according requisites to federal constitutional attempt disposed population have if it done had been make an at equality Appellees Brief for . . . 15Appellees’ complaint explained amended as follows: legislature
“That had a statute desired to enact consonant I, Constitution, with the mandate of Article U. S. § contiguous plan compact is a which made each as district nearly equal practicable, population as other as to each district taking solely taking into account and not account into including preservation factors’ 'economic’ or ‘other 'social/ 'cultural/ plan the congressman, same of incumbent it could have enacted substantially plan C annexed as set forth Exhibit similar to that though set forth incorporated reference hereto and herewith length is hereinafter referred to That herein. such ‘Plan C.’” *11 oppor timely adequate after had an having
in a fashion Sims, Reynolds 533, 377 U. S. tunity to do so.” v. id., id., at (1964). also, 584, 586-587; See at 588-589 view J.). have adhered to the (opinion We Stewart, legislatures “primary jurisdiction” that state have over Maryland Committee reapportionment. See Tawes, Representation Fair 656, 377 U. v. S. Mann, Davis v. 377 U. S. Roman (1964); 678, (1964); Sincock, v. Burns 377 U. 711-712 709-710, (1964); Richardson, Klahr, v. 84-85; Ely S., 384 U. at v. Chavis, 114 (1971); Whitcomb v. 403 U. S. S.U. 124, 160-161 (1971); Sixty-seventh Minnesota State Beens, Senate v. Mahan 406 U. S. (1972); 195-201 Howell, S., at 327. a U. Just as dis federal trict in the court, context legislative reapportion ment, policies should follow the and preferences of the State, expressed statutory pro constitutional visions or in the plans proposed legislature, state whenever adherence to state policy does not requirements detract from the of the Federal Con a similarly we hold that stitution, district court should policies honor state reap the context of congressional portionment. In fashioning reapportionment plan in choosing among plans, a court district should pre-empt the legislative task nor “intrude state Chavis, policy any more Whitcomb necessary.” than supra, at 160.
Here, it is clear that B, to a greater extent than did Plan C, adhered legislature desires state while attempting to achieve population equality among districts. a1, duly enacted statute of the State of Texas, established the State’s 24 congressional districts with locations and configurations appro- found priate by the duly elected members of the two houses of the Texas Legislature. As we have often noted, re- apportionment a complicated process. Districting inevitably impact and sharp political inevitably has charged by those be made must decisions political Here ante, Cummings, Gaffney v. See the task. pursuit legislature made were decisions those Its de- interests. state important were deemed of what course in the unnecessarily put aside not be cisions should held were remedy what appropriate relief fashioning con- between variations population impermissible to be districts. gressional attempt an represented concede, parties as all B, legisla the state preferences districting
to adhere Indeed, variances. eliminating while ture *12 a to equality population of goal B Plan achieved existence Despite the did Plan C. than greater extent implementation ordered of Plan the District Court B, legisla ignored all which, parties, Plan as conceded C, solely on districts policy and constructed districting tive The District considerations. the basis of alternatives, in choice. Given the Court erred -this very Plan with its imposed have court should not have on State. It should political impact, different clearly approximated implemented Plan which B, most while reapportionment plan legislature, of the state requirements. The court said satisfying constitutional only compact and that Plan C is more “significantly Plan B contiguous” than B. both Plan and Plan C But feature if the contiguous and, even districts, in Plan compact, C can be called more the District preferences Court’s do not override whatever state goals in were embodied and, derivatively, S. Plan B. powers “The remedial of an equity court must be ade quate task, they but are not unlimited. Here the broadly District erred in so brushing Court aside state apportionment policy without solid constitutional or equitable so.” grounds doing Chavis, Whitcomb v. supra, 161. If good at there was a reason for adopt- failed District Court B, than rather
ing to state it. defer to state Court should course, the
Of con- only policy where that fashioning relief policy vulner- and is not itself norms sistent with constitutional not, should The District Court to legal challenge. able reme- providing name of refrain from policy, state violations to redress constitutional fully adequate dies But adjudicated and must be rectified. which have been hold that the the District Court did not or here, suggest policy districting preserve so as to was constituencies of incumbents uncon- repeat We what we stitutional even undesirable. legislative reapportion- have said in the context of state may ment: “The fact been that district boundaries have in way drawn that minimizes the number contests between present does in and itself incumbents Richardson, establish Burns v. S., invidiousness.” 384 U. ante, at Gaffney Cummings, 752; n. Cf. Taylor McKeithen, (1972). 407 U. And note we that appellees themselves submitted Plan to the Dis- trict Court and defended it on the basis it adhered goals, state as embodied in B. 1, eliminating while *13 impermissible deviations.16
The judgment of the District Court invalidating S. B. is affirmed. The adoption of Plan how- is,C ever, reversed, and the case is remanded further proceedings consistent with opinion. this
It
is so ordered.
16S. B. 1 is conceded
sought
also to have
county
adherence to
admittedly
lines. While Plan B
county
cuts more
lines than does
it also achieves lower deviations. Because both Plan B and
required
Plan C
political
were
to fracture more
boundaries than did
S. B.
in order to achieve
equality among districts,
appellant
does not contend that Plan
unacceptable
is
because of
cutting
county
more
of
lines.
The
Justice
whom
Chief
Powell,
Mr. Justice
Rehnquist
concurring.
join,
Mr. Justice
and
Kirkpatrick
Court when
of the
a member
I been
Had
Rocke
v.
Wells
and
Preisler,
(1969),
However may Kirkpatrick this be, virtually indistinguishable from this case, and and until the unless Court decides to reconsider that I decision, will follow it. join I
Accordingly, opinion. Court’s Mr. Justice Marshall, concurring part. I join While Part I of the Court’s I opinion, can agree II with Part wherein the Court reverses the District *14 *Mr. Justice joined Stewart Mr. Justice opinion. Harlan’s
799 only Plan B insofar selection Plan C over Court's B the fact that Plan comes that determination rests “precise achieving goal closer than Plan C to Preisler, Kirkpatrick v. 394 equality,” mathematical see Rockefeller, (1969). U. S. 530-531 See also Wells v. 526, (1969). of the view Whatever the merits U. S. be that a will not legislature’s may merely down boundaries struck because “district way in a have been drawn that minimizes number present contests between Burns v. Richard incumbents,” son, entirely 384 U. 89 n. it is 73, (1966), another matter to suggest that a federal district court which has particular determined reapportionment plan that a fails to comport constitutional of “one requirement man, one vote” must, drafting and its adopting own remedial plan, give apparent consideration to the desires political state In controlling powers. my opinion, judicial process remedial in the reapportionment area— any as in area —should be a fastidiously neutral and ob jective free one, political of all guided considerations and only by controlling principle constitutional of strict accuracy in representative apportionment. Here the Dis gave trict Court ample recognition to legislature’s “primary responsibility”* in apportionment area of when it added that its redistricting order was “without prejudice to the legislative and executive branches of the State of proceed Texas to with the consideration and adoption of any other constitutionally permissible plan of congressional redistricting at a called or regular session of the Legislature of the State of Texas.” Nevertheless, because the District Court failed to adhere strictly to the principle of precision mathematical in selecting between its choice of Plan C must be reversed. g., Maryland e. *See, Representation Committee Fair Tawes, 377 U. S. (1964); Ely Klahr, (1971); U. S. Burns v. Richardson, (1966). 384 U. S. 84-85