Majority — Warren C.J.
p. 533REYNOLDS, JUDGE, et al . v . SIMS et al .
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA.No. 23. Argued November 13, 1963.—Decided June 15, 1964*
Charging that malapportionment of the Alabama Legislature de-
prived them and others similarly situated of rights under the Equal
Protection Clause of the Fourteenth Amendment and the Alabama
Constitution, voters in several Alabama counties brought suit
against various officials having state election duties. Complainants
sought a declaration that the existing state legislative apportion-
ment provisions were unconstitutional; an injunction against
future elections pending reapportionment in accordance with the
State Constitution; or, absent such reapportionment, a mandatory
injunction requiring holding the 1962 election for legislators at
large over the entire State. The complaint alleged serious dis-
crimination against voters in counties whose populations had
grown proportionately far more than others since the 1900 census
which, despite Alabama’s constitutional requirements for legislative
representation based on population and for decennial reapportion-
ment, formed the basis for the existing legislative apportionment.
Pursuant to the 1901 constitution the legislature consisted of 106
representatives and 35 senators for the State’s 67 counties and sena-
torial districts; each county was entitled to at least one representa-
tive; each senate district could have only one member; and no
county could be divided between two senate districts. A three-
judge Federal District Court declined ordering the May 1962 pri-
mary election to be held at large, stating that it should not act
before the legislature had further opportunity to take corrective
measures before the general election. Finding after a hearing that
neither of two apportionment plans which the legislature there-
after adopted, to become effective in 1966, would cure the gross
inequality and invidious discrimination of the existing representa-
tion, which all parties generally conceded violated the Equal Pro-
tection Clause, and that the complainants’ votes were unconstitu-
tionally debased under all of the three plans at issue, the District
Court ordered temporary reapportionment for the 1962 general
^Together with No. 27, Vann et al. v. Baggett, Secretary of State
L of Alabama, et al., and No. 41, McConnell et al. v. Baggett, Secretary
I of State of Alabama, et al., also on appeal from the same court.
p. 534election by combining features of the two plans adopted by the
legislature, and enjoined officials from holding future elections under
any of the invalid plans. The officials appealed, claiming that the
District Court erred in holding unconstitutional the existing and
proposed reapportionment plans and that a federal court lacks
powTer affirmatively to reapportion a legislature; two groups of
complainants also appealed, one claiming error in the District
Court’s failure to reapportion the Senate according to popula-
tion, the other claiming error in its failure to reapportion both
houses on a population basis. Held:
1. The right of suffrage is denied by debasement or dilution of a
citizen’s vote in a state or federal election. Pp. 554-555.
2. Under the Equal Protection Clause a claim of debasement of
the right to vote through malapportionment presents a justiciable
controversy; and the Equal Protection Clause provides manageable
standards for lower courts to determine the constitutionality of a
state legislative apportionment scheme.
Baker v. Carr, 369 U. S.
186, followed. Pp. 556-557.
3. The Equal Protection Clause requires substantially equal
legislative representation for all citizens in a State regardless of
where they reside. Pp. 561-568.
(a) Legislators represent people, not areas. P. 562.
(b) Weighting votes differently according to where citizens
happen to reside is discriminatory. Pp. 563-568.
4. The seats in both houses of a bicameral legislature must under
the Equal Protection Clause be apportioned substantially on a
population basis. Pp. 568-576.
5. The District Court correctly held that the existing Alabama
apportionment scheme and both of the proposed plans are con-
stitutionally invalid since neither legislative house is or would
thereunder be apportioned on a population basis. Pp. 568-571.
6. The superficial resemblance between one of the Alabama
apportionment plans and the legislative representation scheme of
the Federal Congress affords no proper basis for sustaining that
plan since the historical circumstances which gave rise to the con-
gressional system of representation, arising out of compromise
among sovereign States, are unique and without relevance to the
allocation of seats in state legislatures. Pp. 571-577.
7. The federal constitutional requirement that both houses of a
state legislature must be apportioned on a population basis means
that, as nearly as practicable, districts be of equal population,
though mechanical exactness is not required. Somewhat more
p. 535flexibility may be constitutionally permissible for state legislative
apportionment than for congressional districting. Pp. 577-581.
(a) A state legislative apportionment scheme may properly
give representation to various political subdivisions and provide
for compact districts of contiguous territory if substantial equality
among districts is maintained. Pp. 578-579.
(b) Some deviations from a strict equal-population principle
are constitutionally permissible in the two houses of a bicameral
state legislature, where incident to the effectuation of a rational
state policy, so long as the basic standard of equality of popula-
tion among districts is not significantly departed from. P. 579.
(c) Considerations of history, economic or other group inter-
ests, or area alone do not justify deviations from the equal-
population principle. Pp. 579-580.
(d) Insuring some voice to political subdivisions in at least
one legislative body may, within reason, warrant some deviations
from population-based representation in state legislatures. Pp.
580-581.
8. In admitting States into the Union, Congress does not purport
to pass on all constitutional questions concerning the character of
state governmental organization, such as whether a state legisla-
ture’s apportionment departs from the equal-population principle;
in any case, congressional approval could not validate an uncon-
stitutional state legislative apportionment. P. 582.
9. States consistently with the Equal Protection Clause can
properly provide for periodic revision of reapportionment schemes,
though revision less frequent than decennial would be constitu-
tionally suspect. Pp. 583-584.
10. Courts should attempt to accommodate the relief ordered
to the apportionment provisions of state constitutions as far as
possible, provided that such provisions harmonize with the Equal
Protection Clause. P. 584.
11. A court in awarding or withholding immediate relief should
consider the proximity of a forthcoming election and the mechanics
and complexities of election laws, and should rely on general
equitable principles. P. 585.
12. The District Court properly exercised its judicial power in
this case by ordering reapportionment of both houses of the Ala-
bama Legislature for purposes of 1962 elections as a temporary
measure by using the best parts of the two proposed plans, each
of which it had found, as a whole, invalid, and in retaining juris-
diction while deferring a hearing on the issuance of a final injunc-
p. 536tion to give the reapportioned legislature an opportunity to act
effectively. Pp. 586-587.
208 F. Supp. 431, affirmed and remanded for further proceedings.
W. McLean Pitts argued the cause for appellants in
No. 23 and for appellees in Nos. 27 and 41. With him on
the briefs were Joseph E. Wilkinson, Jr. and Thomas G.
Gayle.
David J. Vann argued the cause for appellants in No.
27. With him on the brief were Robert S. Vance and
C. H. Erskine Smith.
John W. McConnell, Jr. argued the cause and filed a
brief for appellants in No. 41.
Appellee Richmond M. Flowers, Attorney General of
Alabama, argued the cause pro se. With him on the brief
was Gordon Madison, Assistant Attorney General.
Charles Morgan, Jr. argued the cause for appellees in
No. 23. With him on the brief for appellees Sims et al.
was George Peach Taylor. Jerome A. Cooper filed a
brief for appellees Farr et al.
Solicitor General Cox, by special leave of Court,
argued the cause for the United States, as amicus curiae,
urging affirmance. With him on the brief were Bruce J.
Terris and Richard W. Schmude.
Briefs of amici curiae were filed by Leo Pfeffer, Melvin
L. Wulf, Jack Greenberg and Robert B. McKay for the
American Jewish Congress et al., and by W. Scott Miller,
Jr. and George J. Long for Schmied, President of the
Board of Aidermen of Louisville, Kentucky.
Mr . Chief Just ice Warren delivered the opinion of
the Court.
Involved in these cases are an appeal and two cross-
appeals from a decision of the Federal District Court for
the Middle District of Alabama holding invalid, under
I
p. 537the Equal Protection Clause of the Federal Constitution,
the existing and two legislatively proposed plans for the
apportionment of seats in the two houses of the Alabama
Legislature, and ordering into effect a temporary reappor-
tionment plan comprised of parts of the proposed but
judicially disapproved measures.1
On August 26, 1961, the original plaintiffs (appellees
in No. 23), residents, taxpayers and voters of Jefferson
County, Alabama, filed a complaint in the United States
District Court for the Middle District of Alabama, in
their own behalf and on behalf of all similarly situated
Alabama voters, challenging the apportionment of the
Alabama Legislature. Defendants below (appellants in
No. 23), sued in their representative capacities, were
various state and political party officials charged with the
performance of certain duties in connection with state
elections.1 2 The complaint alleged a deprivation of rights
under the Alabama Constitution and under the Equal
Protection Clause of
the Fourteenth Amendment, and
asserted that the District Court had jurisdiction under
provisions of the Civil Rights Act, 42 U. S. C. §§
1983,
1988, as well as under 28 U. S. C. § 1343 (3).
The complaint stated that the Alabama Legislature
was composed of a Senate of 35 members and a House
of Representatives of 106 members. It set out relevant
portions of the 1901 Alabama Constitution, which pre-
scribe the number of members of the two bodies of the
p. 538State Legislature and the method of apportioning the
seats among the State’s 67 counties, and provide as
follows :
Art. IV, Sec. 50. “The legislature shall consist of
not more than thirty-five senators, and not more
than one hundred and five members of the house of
representatives, to be apportioned among the sev-
eral districts and counties, as prescribed in this Con-
stitution; provided that in addition to the above
number of representatives, each new county here-
after created shall be entitled to one representative.”
Art. IX, Sec. 197. “The whole number of sena-
tors shall be not less than one-fourth or more than
one-third of the whole number of representatives.”
Art. IX, Sec. 198. “The house of representatives
shall consist of not more than one hundred and
five members, unless new counties shall be created,
in which event each new county shall be entitled to
one representative. The members of the house of
representatives shall be apportioned by the legis-
lature among the several counties of the state,
according to the number of inhabitants in them,
respectively, as ascertained by the decennial census
of the United States, which apportionment, when
made, shall not be subject to alteration until the next
session of the legislature after the next decennial
census of the United States shall have been taken.”
Art. IX, Sec. 199. “It shall be the duty of the
legislature at its first session after the taking of the
decennial census of the United States in the year
nineteen hundred and ten, and after each subsequent
decennial census, to fix by law the number of rep-
resentatives and apportion them among the several
counties of the state, according to the number of
inhabitants in them, respectively; provided, that
p. 539each county shall be entitled to at least one
representative.”
Art. IX, Sec. 200. “It shall be the duty of the
legislature at its first session after taking of the decen-
nial census of the United States in the year nineteen
hundred and ten, and after each subsequent decen-
nial census, to fix by law the number of senators, and
to divide the state into as many senatorial districts
as there are senators, which districts shall be as
nearly equal to each other in the number of inhab-
itants as may be, and each shall be entitled to one
senator, and no more ; and such districts, when
formed, shall not be changed until the next appor-
tioning session of the legislature, after the next
decennial census of the United States shall have been
taken ; provided, that counties created after the next
preceding apportioning session of the legislature
may be attached to senatorial districts. No county
shall be divided between two districts, and no dis-
trict shall be made up of two or more counties not
contiguous to each other.”
Art. XVIII, Sec. 284. “. . . Representation in
the legislature shall be based upon population, and
such basis of representation shall not be changed by
constitutional amendments.”
The maximum size of the Alabama House was increased
from 105 to 106 with the creation of a new county in
1903, pursuant to the constitutional provision which
states that, in addition to the prescribed 105 House
seats, each county thereafter created shall be entitled to
one representative. Article IX, §§ 202 and 203, of the
Alabama Constitution established precisely the bound-
aries of the State’s senatorial and representative districts
until the enactment of a new reapportionment plan by
the legislature. These 1901 constitutional provisions,
specifically describing the composition of the senatorial
p. 540districts and detailing the number of House seats allo-
cated to each county, were periodically enacted as statu-
tory measures by the Alabama Legislature, as modified
only by the creation of an additional county in 1903, and
provided the plan of legislative apportionment existing
at the time this litigation was commenced.3
Plaintiffs below alleged that the last apportionment of
the Alabama Legislature was based on the 1900 federal
census, despite the requirement of the State Constitution
that the legislature be reapportioned decennially. They
asserted that, since the population growth in the State
from 1900 to 1960 had been uneven, Jefferson and other
counties were now victims of serious discrimination with
respect to the allocation of legislative representation. As
a result of the failure of the legislature to reapportion
itself, plaintiffs asserted, they were denied “equal suffrage
in free and equal elections . . . and the equal protection
of the laws” in violation of the Alabama Constitution and
the Fourteenth Amendment to the Federal Constitution.
The complaint asserted that plaintiffs had no other ade-
quate remedy, and that they had exhausted all forms of
relief other than that available through the federal courts.
They alleged that the Alabama Legislature had estab-
lished a pattern of prolonged inaction from 1911 to the
present which “clearly demonstrates that no reappor-
tionment . . . shall be effected”; that representation at
any future constitutional convention would be estab-
lished by the legislature, making it unlikely that the
membership of any such convention would be fairly rep-
resentative ; and that, while the Alabama Supreme Court
had found that the legislature had not complied with the
State Constitution in failing to reapportion according
p. 541to population decennially,4 that court had nevertheless
indicated that it would not interfere with matters of
legislative reapportionment.5
Plaintiffs requested that a three-judge District Court
be convened.6 With respect to relief, they sought a dec-
laration that the existing constitutional and statutory
provisions, establishing the present apportionment of
seats in the Alabama Legislature, were unconstitutional
under the Alabama and Federal Constitutions, and an
injunction against the holding of future elections for leg-
islators until the legislature reapportioned itself in ac-
cordance. with the State Constitution. They further
requested the issuance of a mandatory injunction, effec-
tive until such time as the legislature properly reappor-
tioned, requiring the conducting of the 1962 election for
legislators at large over the entire State, and any other
relief which “may seem just, equitable and proper.”
A three-judge District Court was convened, and three
groups of voters, taxpayers and residents of Jefferson,
Mobile, and Etowah Counties were permitted to inter-
4 See Opinion of the Justices, 263 Ala. 158, 164, 81 So. 2d 881, 887
(1955), and Opinion of the Justices, 254 Ala. 185, 187, 47 So. 2d 714,
717 (1950), referred to by the District Court in its preliminary
opinion.
205 F. Supp. 245, 247.
5 See Ex parte Rice, 273 Ala. 712, 143 So. 2d 848 (1962), where
the Alabama Supreme Court, on May 9, 1962, subsequent to the
District Court’s preliminary order in the instant litigation as well
as our decision in
Baker v. Carr, 369 U. S. 186, refused to review a
denial of injunctive relief sought against the conducting of the 1962
primary election until after reapportionment of the Alabama Legisla-
ture, stating that “this matter is a legislative function, and . . . the
Court has no jurisdiction. . . .” And in Waid v. Pool, 255 Ala. 441,
51 So. 2d 869 (1951), the Alabama Supreme Court, in a similar suit,
had stated that the lower court had properly refused to grant injunc-
tive relief because “appellants . . . are seeking interference by the
judicial department of the state in respect to matters committed by
the constitution to the legislative department.” 255 Ala., at 442, 51
So. 2d, at 870.
p. 542vene in the action as intervenor-plaintiffs. Two of the
groups are cross-appellants in Nos. 27 and 41. With
minor exceptions, all of the intervenors adopted the alle-
gations of and sought the same relief as the original
plaintiffs.
On March 29, 1962, just three days after this Court
had decided Baker v. Carr,
369 U. S. 186, plaintiffs moved
for a preliminary injunction requiring defendants to con-
duct at large the May 1962 Democratic primary election
and the November 1962 general election for members of
the Alabama Legislature. The District Court set the
motion for hearing in an order stating its tentative views
that an injunction was not required before the May 1962
primary election to protect plaintiffs’ constitutional
rights, and that the Court should take no action which
was not “absolutely essential” for the protection of the
asserted constitutional rights before the Alabama Legis-
lature had had a “further reasonable but prompt oppor-
tunity to comply with its duty” under the Alabama
Constitution.
On April 14, 1962, the District Court, after reiterating
the views expressed in its earlier order, reset the case for
hearing on July 16, noting that the importance of the
case, together with the necessity for effective action
within a limited period of time, required an early
announcement of its views.
205 F. Supp. 245. Relying
on our decision in Baker v. Carr, the Court found jurisdic-
tion, justiciability and standing. It stated that it was
taking judicial notice of the facts that there had been
population changes in Alabama’s counties since 1901, that
the present representation in the State Legislature was
not on a population basis, and that the legislature had
never reapportioned its membership as required by the
Alabama Constitution.7 Continuing, the Court stated
p. 543that if the legislature complied with the Alabama consti-
tutional provision requiring legislative representation to
be based on population there could be no objection on
federal constitutional grounds to such an apportionment.
The Court further indicated that, if the legislature failed
to act, or if its actions did not meet constitutional stand-
ards, it would be under a “clear duty” to take some action
on the matter prior to the November 1962 general elec-
tion. The District Court stated that its “present think-
ing” was to follow an approach suggested by Mr . Justic e
Clark in his concurring opinion in Baker v. Carr 8—
awarding seats released by the consolidation or revamp-
ing of existing districts to counties suffering “the most
egregious discrimination,” thereby releasing the strangle
hold on the legislature sufficiently so as to permit the
newly elected body to enact a constitutionally valid and
permanent reapportionment plan, and allowing eventual
dismissal of the case. Subsequently, plaintiffs were per-
mitted to amend their complaint by adding a further
prayer for relief, which asked the District Court to reap-
portion the Alabama Legislature provisionally so that the
rural strangle hold would be relaxed enough to permit
it to reapportion itself.
On July 12, 1962, an extraordinary session of the Ala-
bama Legislature adopted two reapportionment plans to
take effect for the 1966 elections. One was a proposed
constitutional amendment, referred to as the “67-Senator
Amendment.” 9 It provided for a House of Representa-
tives consisting of 106 members, apportioned by giving
3,244,286. Virtually all of the population gain occurred in urban
counties, and many of the rural counties incurred sizable losses in
population.
p. 544one seat to each of Alabama’s 67 counties and distributing
the others according to population by the “equal propor-
tions” method.10 11 Using this formula, the constitutional
amendment specified the number of representatives al-
lotted to each county until a new apportionment could
be made on the basis of the 1970 census. The Senate was
to be composed of 67 members, one from each county.
The legislation provided that the proposed amendment
should be submitted to the voters for ratification at the
November 1962 general election.
The other reapportionment plan was embodied in a
statutory measure adopted by the legislature and signed
into law by the Alabama Governor, and was referred to
as the “Crawford-Webb Act.”11 It was enacted as
standby legislation to take effect in 1966 if the proposed
constitutional amendment should fail of passage by a
majority of the State’s voters, or should the federal courts
refuse to accept the proposed amendment (though not
rejected by the voters) as effective action in compliance
with the requirements of
the Fourteenth Amendment.
The act provided for a Senate consisting of 35 members,
representing 35 senatorial districts established along
county lines, and altered only a few of the former dis-
tricts. In apportioning the 106 seats in the Alabama
House of Representatives, the statutory measure gave
each county one seat, and apportioned the remaining 39
on a rough population basis, under a formula requiring
increasingly more population for a county to be accorded
p. 545additional seats. The Crawford-Webb Act also provided
that it would be effective “until the legislature is reap-
portioned according to law,” but provided no standards
for such a reapportionment. Future apportionments
would presumably be based on the existing provisions of
the Alabama Constitution which the statute, unlike the
proposed constitutional amendment, would not affect.
The evidence adduced at trial before the three-judge
panel consisted primarily of figures showing the popula-
tion of each Alabama county and senatorial district ac-
cording to the 1960 census, and the number of represent-
atives allocated to each county under each of the three
plans at issue in the litigation—the existing apportion-
ment (under the 1901 constitutional provisions and the
current statutory measures substantially reenacting the
same plan), the proposed 67-Senator constitutional
amendment, and the Crawford-Webb Act. Under all
three plans, each senatorial district would be represented
by only one senator.
On July 21, 1962, the District Court held that the
inequality of the existing representation in the Alabama
Legislature violated the Equal Protection Clause of
the
Fourteenth Amendment, a finding which the Court noted
had been “generally conceded” by the parties to the liti-
gation, since population growth and shifts had converted
the 1901 scheme, as perpetuated some 60 years later, into
an invidiously discriminatory plan completely lacking in
rationality.
208 F. Supp. 431. Under the existing pro-
visions, applying 1960 census figures, only 25.1% of the
State’s total population resided in districts represented by
a majority of the members of the Senate, and only 25.7%
lived in counties which could elect a majority of the mem-
bers of the House of Representatives. Population-vari-
ance ratios of up to about 41-to-l existed in the Senate,
and up to about 16-to-l in the House. Bullock County,
with a population of only 13,462, and Henry County, with
a population of only 15,286, each were allocated two seats
p. 546in the Alabama House, whereas Mobile County, with a
population of 314,301, was given only three seats, and
Jefferson County, with 634,864 people, had only seven
representatives.12 With respect to senatorial apportion-
ment, since the pertinent Alabama constitutional provi-
sions had been consistently construed as prohibiting the
giving of more than one Senate seat to any one county,13
Jefferson County, with over 600,000 people, was given
only one senator, as was Lowndes County, with a 1960
population of only 15,417, and Wilcox County, with only
18,739 people.14
The Court then considered both the proposed constitu-
tional amendment and the Crawford-Webb Act to ascer-
12 A comprehensive chart showing the representation by counties
in the Alabama House of Representatives under the existing appor-
tionment provisions is set out as Appendix- D to the lower court’s
opinion. 208 F. Supp., at 447-449. This chart includes the num-
ber of House seats given to each county, and the populations of the
67 Alabama counties under the 1900, 1950, and 1960 censuses.
p. 547tain whether the legislature had taken effective action to
remedy the unconstitutional aspects of the existing ap-
portionment. In initially summarizing the result which
it had reached, the Court stated :
“This Court has reached the conclusion that nei-
ther the ‘67-Senator Amendment,’ nor the ‘Crawford-
Webb Act’ meets the necessary constitutional re-
quirements. We find that each of the legislative
acts, when considered as a whole, is so obviously
discriminatory, arbitrary and irrational that it be-
comes unnecessary to pursue a detailed development
of each of the relevant factors of the [federal con-
stitutional] test.” 15
The Court stated that the apportionment of one senator
to each county, under the proposed constitutional amend-
ment, would “make the discrimination in the Senate even
more invidious than at present.” Under the 67-Senator
Amendment, as pointed out by the court below, “[t]he
present control of the Senate by members representing
25.1% of the people of Alabama would be reduced to
control by members representing 19.4% of the people of
the State,” the 34 smallest counties, with a total popu-
lation of less than that of Jefferson County, would have
a majority of the senatorial seats, and senators elected
by only about 14% of the State’s population could pre-
vent the submission to the electorate of any future pro-
posals to amend the State Constitution (since a vote of
two-fifths of the members of one house can defeat a pro-
posal to amend the Alabama Constitution). Noting that
the “only conceivable rationalization” of the senatorial
apportionment scheme is that it was based on equal rep-
resentation of political subdivisions within the State and
is thus analogous to the Federal Senate, the District
Court rejected the analogy on the ground that Alabama
15 208 F. Supp., at 437.
p. 548counties are merely involuntary political units of the
State created by statute to aid in the administration of
state government. In finding the so-called federal anal-
ogy irrelevant, the District Court stated:
“The analogy cannot survive the most superficial
examination into the history of the requirement of
the Federal Constitution and the diametrically
opposing history of the requirement of the Alabama
Constitution that representation shall be based on
population. Nor can it survive a comparison of the
different political natures of states and counties.” 16
The Court also noted that the senatorial apportionment
proposal “may not have complied with the State Con-
stitution,” since not only is it explicitly provided that the
population basis of legislative representation “shall not be
changed by constitutional amendments,” 17 but the Ala-
bama Supreme Court had previously indicated that that
requirement could probably be altered only by constitu-
tional convention.18 The Court concluded, however, that
the apportionment of seats in the Alabama House, under
the proposed constitutional amendment, was “based upon
reason, with a rational regard for known and accepted
p. 549standards of apportionment.” 19 Under the proposed ap-
portionment of representatives, each of the 67 counties
was given one seat and the remaining 39 were allocated on
a population basis. About 43% of the State’s total pop-
ulation would live in counties which could elect a ma-
jority in that body. And, under the provisions of the
67-Senator Amendment, while the maximum population-
variance ratio was increased to about 59-to-l in the Sen-
ate, it was significantly reduced to about 4.7-to-l in the
House of Representatives. Jefferson County was given
17 House seats, an addition of 10, and Mobile County was
allotted eight, an increase of five. The increased rep-
resentation of the urban counties was achieved primarily
by limiting the State’s 55 least populous counties to one
House seat each, and the net effect was to take 19 seats
away from rural counties and allocate them to the
more populous counties. Even so, serious disparities
from a population-based standard remained. Montgom-
ery County, with 169,210 people, was given only four
seats, while Coosa County, with a population of only
10,726, and Cleburne County, with only 10,911, were each
allocated one representative.
Turning next to the provisions of the Crawford-Webb
Act, the District Court found that its apportionment of
the 106 seats in the Alabama House of Representatives,
by allocating one seat to each county and distributing the
remaining 39 to the more populous counties in diminish-
ing ratio to their populations, was “totally unaccept-
able.” 20 Under this plan, about 37% of the State’s total
p. 550Opinion of the Court. 377U.S.
population would reside in counties electing a majority
of the members of the Alabama House, with a maximum
population-variance ratio of about 5-to-l. Each repre-
sentative from Jefferson and Mobile Counties would rep-
resent over 52,000 persons while representatives from
eight rural counties would each represent less than 20,000
people. The Court regarded the senatorial apportion-
ment provided in the Crawford-Webb Act as “a step in
the right direction, but an extremely short step,” and but
a “slight improvement over the present system of rep-
resentation.” 21 The net effect of combining a few of the
less populous counties into two-county, districts and
splitting up several of the larger districts into smaller ones
would be merely to increase the minority which would
be represented by a majority of the members of the
Senate from 25.1% to only 27.6% of the State’s popu-
lation.22 The Court pointed out that, under the Craw-
ford-Webb Act, the vote of a person in the senatorial
district consisting of Bibb and Perry Counties would be
worth 20 times that of a citizen in Jefferson County, and
that the vote of a citizen in the six smallest districts
would be worth 15 or more times that of a Jefferson
County voter. The Court concluded that the Crawford-
receive two seats; counties with 90,000 to 150,000, three seats; those
with 150,000 to 300,000, four seats; counties with 300,000 to 600,000,
six seats; and counties with over 600,000 are given 12 seats.
p. 551Webb Act was “totally unacceptable” as a “piece of per-
manent legislation” which, under the Alabama Constitu-
tion, would have remained in effect without alteration at
least until after the next decennial census.
Under the detailed requirements of the various con-
stitutional provisions relating to the apportionment of
seats in the Alabama Senate and House of Representa-
tives, the Court found, the membership of neither house
can be apportioned solely on a population basis, despite
the provision in Art. XVIII, § 284, which states that
“[r] epresentation in the legislature shall be based upon
population.” In dealing with the conflicting and some-
what paradoxical requirements (under which the num-
ber of seats in the House is limited to 106 but each
of the 67 counties is required to be given at least one
representative, and the size of the Senate is limited to 35
but it is required to have at least one-fourth of the mem-
bers of the House, although no county can be given more
than one senator), the District Court stated its view that
“the controlling or dominant provision of the Alabama
Constitution on the subject of representation in the Leg-
islature” is the previously referred to language of § 284.
The Court stated that the detailed requirements of Art.
IX, §§ 197-200,
“make it obvious that in neither the House nor the
Senate can representation be based strictly and en-
tirely upon population. . . . The result may well
be that representation according to population to
some extent must be required in both Houses if
invidious discrimination in the legislative systems as
a whole is to be avoided. Indeed, ... it is the pol-
icy and theme of the Alabama Constitution to re-
quire representation according to population in both
Houses as nearly as may be, while still complying
with more detailed provisions.” 23
23 208 F. Supp., at 439.
p. 552The District Court then directed its concern to the
providing of an effective remedy. It indicated that it
was adopting and ordering into effect for the November
1962 election a provisional and temporary reapportion-
ment plan composed of the provisions relating to the
House of Representatives contained in the 67-Senator
Amendment and the provisions of the Crawford-Webb
Act relating to the Senate. The Court noted, however,
that “[t]he proposed reapportionment of the Senate in
the ‘Crawford-Webb Act,’ unacceptable as a piece of per-
manent legislation, may not even break the strangle
hold.” Stating that it was retaining jurisdiction and
deferring any hearing on plaintiffs’ motion for a perma-
nent injunction “until the Legislature, as provisionally
reapportioned . . . , has an opportunity to provide for
a true reapportionment of both Houses of the Alabama
Legislature,” the Court emphasized that its “moderate”
action was designed to break the strangle hold by the
smaller counties on the Alabama Legislature and would
not suffice as a permanent reapportionment. On July 25,
1962, the Court entered its decree in accordance with its
previously stated determinations, concluding that “plain-
tiffs . . . are denied . . . equal protection ... by vir-
tue of the debasement of their votes since the Legis-
lature of the State of Alabama has failed and continues
to fail to reapportion itself as required by law.” It
enjoined the defendant state officials from holding any
future elections under any of the apportionment plans
that it had found invalid, and stated that the 1962 elec-
tion of Alabama legislators could validly be conducted
only under the apportionment scheme specified in the
Court’s order.
After the District Court’s decision, new primary elec-
tions were held pursuant to legislation enacted in 1962
at the same special session as the proposed constitutional
amendment and the Crawford-Webb Act, to be effective
p. 553in the event the Court itself ordered a particular reappor-
tionment plan into immediate effect. The November
1962 general election was likewise conducted on the basis
of the District Court’s ordered apportionment of legisla-
tive seats, as Mr . Justice Black refused to stay the Dis-
trict Court’s order. Consequently, the present Alabama
Legislature is apportioned in accordance with the tem-
porary plan prescribed by the District Court’s decree.
All members of both houses of the Alabama Legislature
serve four-year terms, so that the next regularly scheduled
election of legislators will not be held until 1966. The
1963 regular session of the Alabama Legislature produced
no legislation relating to legislative apportionment, and24
i the legislature, which meets biennially, will not hold
I another regular session until 1965.
No effective political remedy to obtain relief against
the alleged malapportionment of the Alabama Legislature
appears to have been available.25 No initiative procedure
I exists under Alabama law. Amendment of the State
I Constitution can be achieved only after a proposal is
I adopted by three-fifths of the members of both houses of
I the legislature and is approved by a majority of the peo-
I pie,26 or as a result of a constitutional convention convened
I 24 Possibly this resulted from an understandable desire on the part
I of the Alabama Legislature to await a final determination by this
I Court in the instant litigation before proceeding to enact a permanent
I apportionment plan.
I 25 However, a proposed constitutional amendment, which would
■ have made the Alabama House of Representatives somewhat more
1 representative of population but the Senate substantially less so, was
■ rejected by the people in a 1956 referendum, with the more populous
■ counties accounting for the defeat.
I See the discussion in Lucas v. Forty-Fourth General Assembly of
B Colorado, post, pp. 736-737, decided also this date, with respect to
B the lack of federal constitutional significance of the presence or
B absence of an available political remedy.
I 26 Ala. Const., Art. XVIII, § 284.
II
p. 554after approval by the people of a convention call initiated
by a majority of both houses of the Alabama Legislature.27
Notices of appeal to this Court from the District Court’s
decision were timely filed by defendants below (appel-
lants in No. 23) and by two groups of intervenor-plain-
tiffs (cross-appellants in Nos. 27 and 41). Appellants in
No. 23 contend that the District Court erred in holding
the existing and the two proposed plans for the apportion-
ment of seats in the Alabama Legislature unconstitu-
tional, and that a federal court lacks the power to
affirmatively reapportion seats in a state legislature.
Cross-appellants in No. 27 assert that the court below
erred in failing to compel reapportionment of the Ala-
bama Senate on a population basis as allegedly required
by the Alabama Constitution and the Equal Protection
Clause of the Federal Constitution. Cross-appellants in
No. 41 contend that the District Court should have re-
quired and ordered into effect the apportionment of seats
in both houses of the Alabama Legislature on a popu-
lation basis. We noted probable jurisdiction on June 10,
1963. 374 U. S. 802.
Undeniably the Constitution of the United States pro-
tects the right of all qualified citizens to vote, in state as
well as in federal elections. A consistent line of decisions
by this Court in cases involving attempts to deny or
restrict the right of suffrage has made this indelibly clear.
It has been repeatedly recognized that all qualified voters
have a constitutionally protected right to vote, Ex parte
Yarbrough,
110 U. S. 651, and to have their votes counted,
United States v. Mosley, 238 U. S. 383. In Mosley the
Court stated that it is “as equally unquestionable that
the right to have one’s vote counted is as open to protec-
tion ... as the right to put a ballot in a box.” 238 U. S.,
p. 555at 386. The right to vote can neither be denied outright,
Guinn v. United States, 238 U. S. 347,
Lane v. Wilson, 307
U. S. 268, nor destroyed by alteration of ballots, see
United States v. Classic, 313 U. S. 299, 315, nor diluted
by ballot-box stuffing, Ex parte Siebold,
100 U. S. 371,
United States v. Saylor, 322 LT. S. 385. As the Court
stated in Classic, “Obviously included within the right
to choose, secured by the Constitution, is the right of
qualified voters within a state to cast their ballots and
have them counted . . . .”
313 U. S., at 315. Racially
based gerrymandering,
Gomillion v. Lightfoot, 364 U. S.
339, and the conducting of white primaries,
Nixon v.
Herndon, 273 U. S. 536, Nixon n . Condon,
286 U. S. 73,
Smith n . Allwright,
321 U. S. 649,
Terry v. Adams, 345
U. S. 461, both of which result in denying to some citizens
their right to vote, have been held to be constitutionally
impermissible. And history has seen a continuing ex-
pansion of the scope of the right of suffrage in this coun-
try.28 The right to vote freely for the candidate of one’s
choice is of the essence of a democratic society, and any
restrictions on that right strike at the heart of representa-
tive government. And the right of suffrage can be denied
by a debasement or dilution of the weight of a citizen’s
vote just as effectively as by wholly prohibiting the free
exercise of the franchise.29
p. 556In
Baker v. Carr, 369 U. S. 186, we held that a claim
asserted under the Equal Protection Clause challenging
the constitutionality of a State’s apportionment of seats
in its legislature, on the ground that the right to vote of
certain citizens was effectively impaired since debased and
diluted, in effect presented a justiciable controversy sub-
ject to adjudication by federal courts. The spate of sim-
ilar cases filed and decided by lower courts since our
decision in Baker amply shows that the problem of state
legislative malapportionment is one that is perceived to
exist in a large number of the States.30 In Baker, a suit
involving an attack on the apportionment of seats in the
Tennessee Legislature, we remanded to the District
Court, which had dismissed the action, for consideration
on the merits. We intimated no view as to the proper
constitutional standards for evaluating the validity of a
state legislative apportionment scheme. Nor did we
give any consideration to the question of appropriate
remedies. Rather, we simply stated:
“Beyond noting that we have no cause at this
stage to doubt the District Court will be able to
fashion relief if violations of constitutional rights are
found, it is improper now to consider what remedy
would be most appropriate if appellants prevail at
the trial.” 31
has full voting strength . . . [and] [t]he groups not in favor have
their votes discounted.”
p. 557We indicated in Baker, however, that the Equal Pro-
tection Clause provides discoverable and manageable
standards for use by lower courts in determining the con-
stitutionality of a state legislative apportionment scheme,
and we stated:
“Nor need the appellants, in order to succeed in this
action, ask the Court to enter upon policy determi-
nations for which judicially manageable standards are
lacking. Judicial standards under the Equal Pro-
tection Clause are well developed and familiar, and
it has been open to courts since the enactment of
the
Fourteenth Amendment to determine, if on the par-
ticular facts they must, that a discrimination reflects
no policy, but simply arbitrary and capricious
action.” 32
Subsequent to Baker, we remanded several cases to the
courts below for reconsideration in light of that decision.33
In
Gray v. Sanders, 372 U. S. 368, we held that the
Georgia county unit system, applicable in statewide pri-
mary elections, was unconstitutional since it resulted in
a dilution of the weight of the votes of certain Georgia
voters merely because of where they resided. After indi-
cating that the Fifteenth and
Nineteenth Amendments
prohibit a State from overweighting or diluting votes on
the basis of race or sex, we stated:
“How then can one person be given twice or ten
times the voting power of another person in a state-
wide election merely because he lives in a rural area
or because he lives in the smallest rural county?
Once the geographical unit for which a representa-
tive is to be chosen is designated, all who participate
in the election are to have an equal vote—whatever
their race, whatever their sex, whatever their occu-
p. 558pation, whatever their income, and wherever their
home may be in that geographical unit. This is
required by the Equal Protection Clause of
the
Fourteenth Amendment. The concept of ‘we the
people’ under the Constitution visualizes no pre-
ferred class of voters but equality among those who
meet the basic qualifications. The idea that every
voter is equal to every other voter in his State, when
he casts his ballot in favor of one of several compet-
ing candidates, underlies many of our decisions.” 34
Continuing, we stated that “there is no indication in the
Constitution that homesite or occupation affords a per-
missible basis for distinguishing between qualified voters
within the State.” And, finally, we concluded: “The
conception of political equality from the Declaration of
Independence, to Lincoln’s Gettysburg Address, to the
Fifteenth, Seventeenth, and
Nineteenth Amendments can
mean only one thing—one person, one vote.” 35
We stated in Gray, however, that that case,
“unlike Baker v. Carr, . . . does not involve a ques-
tion of the degree to which the Equal Protection
Clause of
the Fourteenth Amendment limits the
authority of a State Legislature in designing the geo-
graphical districts from which representatives are
chosen either for the State Legislature or for the
Federal House of Representatives. . . . Nor does it
present the question, inherent in the bicameral
form of our Federal Government, whether a State
may have one house chosen without regard to
population.” 36
34 3 72 U. S., at 379-380.
p. 559Of course, in these cases we are faced with the problem
not presented in Gray—that of determining the basic
standards and stating the applicable guidelines for
implementing our decision in Baker v. Carr.
In
Wesberry v. Sanders, 376 U. S. 1, decided earlier
this Term, we held that attacks on the constitutionality
of congressional districting plans enacted by state legis-
latures do not present non justiciable questions and
should not be dismissed generally for “want of equity.”
We determined that the constitutional test for the
validity of congressional districting schemes was one of
substantial equality of population among the various dis-
tricts established by a state legislature for the election of
members of the Federal House of Representatives.
In that case we decided that an apportionment of con-
gressional seats which “contracts the value of some votes
and expands that of others” is unconstitutional, since “the
Federal Constitution intends that when qualified voters
elect members of Congress each vote be given as much
weight as any other vote . . . .” We concluded that the
constitutional prescription for election of members of the
House of Representatives “by the People,” construed in
its historical context, “means that as nearly as is prac-
ticable one man’s vote in a congressional election is to be
worth as much as another’s.” We further stated:
“It would defeat the principle solemnly embodied
in the Great Compromise—equal representation in
the House for equal numbers of people—for us to
hold that, within the States, legislatures may draw
the lines of congressional districts in such a way as
to give some voters a greater voice in choosing a
Congressman than others.” 37
We found further, in Wesberry, that “our Constitution’s
plain objective” was that “of making equal repre-
37
376 U. S, at 14.
729-256 0-65-40
p. 560sentation for equal numbers of people the fundamental
goal . . . .” We concluded by stating:
“No right is more precious in a free country than
that of having a voice in the election of those who
make the laws under which, as good citizens, we
must live. Other rights, even the most basic, are
illusory if the right to vote is undermined. Our
Constitution leaves no room for classification of
people in a way that unnecessarily abridges this
right.” 38
Gray and Wesberry are of course not dispositive of or
directly controlling on our decision in these cases involv-
ing state legislative apportionment controversies. Ad-
mittedly, those decisions, in which we held that, in state-
wide and in congressional elections, one person’s vote
must be counted equally with those of all other voters in
a State, were based on different constitutional considera-
tions and were addressed to rather distinct problems.
But neither are they wholly inapposite. Gray, though
not determinative here since involving the weighting of
votes in statewide elections, established the basic prin-
ciple of equality among voters within a State, and held
that voters cannot be classified, constitutionally, on the
basis of where they live, at least with respect to vot-
ing in statewide elections. And our decision in Wes-
berry was of course grounded on that language of the
Constitution which prescribes that members of the Fed-
eral House of Representatives are to be chosen “by the
People,” while attacks on state legislative apportionment
schemes, such as that involved in the instant cases, are
principally based on the Equal Protection Clause of
the Fourteenth Amendment. Nevertheless, Wesberry
clearly established that the fundamental principle of rep-
sentative government in this country is one of equal
III
p. 561representation for equal numbers of people, without re-
gard to race, sex, economic status, or place of residence
within a State. Our problem, then, is to ascertain, in the
instant cases, whether there are any constitutionally cog-
nizable principles which would justify departures from
the basic standard of equality among voters in the
apportionment of seats in state legislatures.
A predominant consideration in determining whether a
State’s legislative apportionment scheme constitutes an
invidious discrimination violative of rights asserted under
the Equal Protection Clause is that the rights allegedly
impaired are individual and personal in nature. As
stated by the Court in
United States v. Bathgate, 246
U. S. 220, 227, “ [t]he right to vote is personal . . . .” 39
While the result of a court decision in a state legislative
apportionment controversy may be to require the re-
structuring of the geographical distribution of seats in a
state legislature, the judicial focus must be concentrated
upon ascertaining whether there has been any discrimi-
nation against certain of the State’s citizens which
constitutes an impermissible impairment of their consti-
tutionally protected right to vote. Like Skinner v. Okla-
homa,
316 U. S. 535, such a case “touches a sensitive
and important area of human rights,” and “involves one
of the basic civil rights of man,” presenting questions of
alleged “invidious discriminations . . . against groups or
types of individuals in violation of the constitutional
guaranty of just and equal laws.”
316 U. S., at 536, 541.
Undoubtedly, the right of suffrage is a fundamental mat-
p. 562ter in a free and democratic society. Especially since the
right to exercise the franchise in a free and unimpaired
manner is preservative of other basic civil and political
rights, any alleged infringement of the right of citizens
to vote must be carefully and meticulously scrutinized.
Almost a century ago, in
Yick Wo v. Hopkins, 118 U. S.
356, the Court referred to “the political franchise of
voting” as “a fundamental political right, because pre-
servative of all rights.”
118 U. S., at 370.
Legislators represent people, not trees or acres. Legis-
lators are elected by voters, not farms or cities or eco-
nomic interests. As long as ours is a representative form
of government, and our legislatures are those instruments
of government elected directly by and directly representa-
tive of the people, the right to elect legislators in a free
and unimpaired fashion is a bedrock of our political
system. It could hardly be gainsaid that a constitutional
claim had been asserted by an allegation that certain
otherwise qualified voters had been entirely prohibited
from voting for members of their state legislature. And,
if a State should provide that the votes of citizens in one
part of the State should be given two times, or five times,
or 10 times the weight of votes of citizens in another part
of the State, it could hardly be contended that the right
to vote of those residing in the disfavored areas had not
been effectively diluted. It would appear extraordinary
to suggest that a State could be constitutionally per-
mitted to enact a law providing that certain of the State’s
voters could vote two, five, or 10 times for their legisla-
tive representatives, while voters living elsewhere could
vote only once. And it is inconceivable that a state law
to the effect that, in counting votes for legislators, the
votes of citizens in one part of the State would be multi-
plied by two, five, or 10, while the votes of persons in
another area would be counted only at face value, could
be constitutionally sustainable. Of course, the effect of
p. 563state legislative districting schemes which give the same
number of representatives to unequal numbers of con-
stituents is identical.40 Overweighting and overvalua-
tion of the votes of those living here has the certain effect
of dilution and undervaluation of the votes of those liv-
ing there. The resulting discrimination against those
individual voters living in disfavored areas is easily
demonstrable mathematically. Their right to vote is
simply not the same right to vote as that of those living
in a favored part of the State. Two, five, or 10 of them
must vote before the effect of their voting is equivalent
to that of their favored neighbor. Weighting the votes
of citizens differently, by any method or means, merely
because of where they happen to reside, hardly seems jus-
tifiable. One must be ever aware that the Constitution
forbids “sophisticated as well as simple-minded modes of
discrimination.” Lane v. Wilson,
307 U. S. 268, 275;
Gomillion v. Lightfoot, 364 U. S. 339, 342. As we stated
in Wesberry v. Sanders, supra:
“We do not believe that the Framers of the Con-
stitution intended to permit the same vote-diluting
discrimination to be accomplished through the de-
vice of districts containing widely varied num-
bers of inhabitants. To say that a vote is worth
p. 564more in one district than in another would . . . run
counter to our fundamental ideas of democratic
government . . . .”41
State legislatures are, historically, the fountainhead of
representative government in this country. A number
of them have their roots in colonial times, and substan-
tially antedate the creation of our Nation and our Fed-
eral Government. In fact, the first formal stirrings of
American political independence are to be found, in large
part, in the views and actions of several of the colonial
legislative bodies. With the birth of our National Gov-
ernment, and the adoption and ratification of the Federal
41
376 U. S., at 8. See also
id., at 17, quoting from James Wilson,
a delegate to the Constitutional Convention and later an Associate
Justice of this Court, who stated:
“[A] 11 elections ought to be equal. Elections are equal, when a given
number of citizens, in one part of the state, choose as many repre-
sentatives, as are chosen by the same number of citizens, in any other
part of the state. In this manner, the proportion of the representa-
tives and of the constituents will remain invariably the same.” 2 The
Works of James Wilson (Andrews ed. 1896) 15.
And, as stated by Mr . Just ic e Dou gl as, dissenting, in MacDougall
v. Green, 335 U. S., at 288, 290:
“ [A] regulation . . . [which] discriminates against the residents of
the populous counties of the state in favor of rural sections . . .
lacks the equality to which the exercise of political rights is entitled
under
the Fourteenth Amendment.
“Free and honest elections are the very foundation of our repub-
lican form of government. . . . Discrimination against any group
or class of citizens in the exercise of these constitutionally protected
rights of citizenship deprives the electoral process of integrity. . . .
“None would deny that a state law giving some citizens twice the
vote of other citizens in either the primary or general election would
lack that equality which
the Fourteenth Amendment guarantees. . . .
The theme of the Constitution is equality among citizens in the exer-
cise of their political rights. The notion that one group can be
granted greater voting strength than another is hostile to our
standards for popular representative government.”
p. 565Constitution, state legislatures retained a most important
place in our Nation’s governmental structure. But rep-
resentative government is in essence self-government
through the medium of elected representatives of the
people, and each and every citizen has an inalienable
right to full and effective participation in the political
processes of his State’s legislative bodies. Most citizens
can achieve this participation only as qualified voters
through the election of legislators to represent them.
Full and effective participation by all citizens in state
government requires, therefore, that each citizen have an
equally effective voice in the election of members of his
state legislature. Modern and viable state government
needs, and the Constitution demands, no less.
Logically, in a society ostensibly grounded on repre-
sentative government, it would seem reasonable that a
majority of the people of a State could elect a majority
of that State’s legislators. To conclude differently, and
to sanction minority control of state legislative bodies,
would appear to deny majority rights in a way that far
surpasses any possible denial of minority rights that
might otherwise be thought to result. Since legislatures
are responsible for enacting laws by which all citizens are
to be governed, they should be bodies which are col-
lectively responsive to the popular will. And the con-
cept of equal protection has been traditionally viewed
as requiring the uniform treatment of persons standing
in the same relation to the governmental action ques-
tioned or challenged. With respect to the allocation
of legislative representation, all voters, as citizens of a
State, stand in the same relation regardless of where
they live. Any suggested criteria for the differentiation
of citizens are insufficient to justify any discrimination, as
to the w’eight of their votes, unless relevant to the permis-
sible purposes of legislative apportionment. Since the
achieving of fair and effective representation for all citi-
p. 566zens is concededly the basic aim of legislative apportion-
ment, we conclude that the Equal Protection Clause guar-
antees the opportunity for equal participation by all
voters in the election of state legislators. Diluting the
weight of votes because of place of residence impairs basic
constitutional rights under
the Fourteenth Amendment
just as much as invidious discriminations based upon fac-
tors such as race,
Brown v. Board of Education, 347 U. S.
483, or economic status,
Griffin v. Illinois, 351 U. S. 12,
Douglas v. California, 372 U. S. 353. Our constitutional
system amply provides for the protection of minorities
by means other than giving them majority control of
state legislatures. And the democratic ideals of equality
and majority rule, which have served this Nation so well
in the past, are hardly of any less significance for the pres-
ent and the future.
We are told that the matter of apportioning representa-
tion in a state legislature is a complex and many-faceted
one. We are advised that States can rationally consider
factors other than population in apportioning legislative
representation. We are admonished not to restrict the
power of the States to impose differing views as to politi-
cal philosophy on their citizens. We are cautioned about
the dangers of entering into political thickets and mathe-
matical quagmires. Our answer is this: a denial of con-
stitutionally protected rights demands judicial protection ;
our oath and our office require no less of us. As stated in
Gomillion v. Lightfoot, supra:
“When a State exercises power wholly within the
domain of state interest, it is insulated from federal
judicial review. But such insulation is not carried
over when state power is used as an instrument for
circumventing a federally protected right.” 42
42
364 U. S., at 347.
p. 567To the extent that a citizen’s right to vote is debased, he
is that much less a citizen. The fact that an individual
lives here or there is not a legitimate reason for over-
weighting or diluting the efficacy of his vote. The com-
plexions of societies and civilizations change, often with
amazing rapidity. A nation once primarily rural in
character becomes predominantly urban.43 Representa-
tion schemes once fair and equitable become archaic and
outdated. But the basic principle of representative gov-
ernment remains, and must remain, unchanged—the
weight of a citizen’s vote cannot be made to depend on
where he lives. Population is, of necessity, the starting
point for consideration and the controlling criterion for
judgment in legislative apportionment controversies.44
43 Although legislative apportionment controversies are generally
viewed as involving urban-rural conflicts, much evidence indicates
that presently it is the fast-growing suburban areas which are
probably the most seriously underrepresented in many of our state
legislatures. And, while currently the thrust of state legislative mal-
apportionment results, in most States, in underrepresentation of urban
and suburban areas, in earlier times cities were in fact overrepre-
sented in a number of States. In the early 19th century, certain of
the seaboard cities in some of the Eastern and Southern States pos-
sessed and struggled to retain legislative representation dispropor-
tionate to population, and bitterly opposed according additional rep-
resentation to the growing inland areas. Conceivably, in some
future time, urban areas might again be in a situation of attempting
to acquire or retain legislative representation in excess of that to
which, on a population basis, they are entitled. Malapportionment
can, and has historically, run in various directions. However and
whenever it does, it is constitutionally impermissible under the Equal
Protection Clause.
IV
p. 568A citizen, a qualified voter, is no more nor no less so
because he lives in the city or on the farm. This is the
clear and strong command of our Constitution’s Equal
Protection Clause. This is an essential part of the con-
cept of a government of laws and not men. This is at
the heart of Lincoln’s vision of “government of the peo-
ple, by the people, [and] for the people.” The Equal Pro-
tection Clause demands no less than substantially equal
state legislative representation for all citizens, of all places
as well as of all races.
We hold that, as a basic constitutional standard, the
Equal Protection Clause requires that the seats in both
houses of a bicameral state legislature must be appor-
tioned on a population basis. Simply stated, an individ-
ual’s right to vote for state legislators is unconstitution-
ally impaired when its weight is in a substantial fashion
diluted when compared with votes of citizens living in
other parts of the State. Since, under neither the ex-
isting apportionment provisions nor either of the pro-
posed plans was either of the houses of the Alabama
Legislature apportioned on a population basis, the Dis-
trict Court correctly held that all three of these schemes
were constitutionally invalid. Furthermore, the existing
apportionment, and also to a lesser extent the apportion-
ment under the Crawford-Webb Act, presented little
more than crazy quilts, completely lacking in rationality,
and could be found invalid on that basis alone.45 Al-
districting: With Reference to Baker v.
Carr, 15 Vand. L. Rev. 1265,
1275 (1962). See also the discussion in Baker v. Carr,
369 U. S., at
302-307. (Frankfurter, J., dissenting.)
p. 569though the District Court presumably found the appor-
tionment of the Alabama House of Representatives under
the 67-Senator Amendment to be acceptable, we conclude
that the deviations from a strict population basis are too
egregious to permit us to find that that body, under this
proposed plan, was apportioned sufficiently on a popu-
lation basis so as to permit the arrangement to be con-
stitutionally sustained. Although about 43% of the
State’s total population would be required to comprise
districts which could elect a majority in that body,
only 39 of the 106 House seats were actually to be
distributed on a population basis, as each of Alabama’s
67 counties was given at least one representative, and
population-variance ratios of close to 5-to-l would have
existed. While mathematical nicety is not a constitu-
tional requisite, one could hardly conclude that the Ala-
bama House, under the proposed constitutional amend-
ment, had been apportioned sufficiently on a population
basis to be sustainable under the requirements of the
Equal Protection Clause. And none of the other appor-
tionments of seats in either of the bodies of the Alabama
Legislature, under the three plans considered by the Dis-
trict Court, came nearly as close to approaching the re-
quired constitutional standard as did that of the House
of Representatives under the 67-Senator Amendment.
Legislative apportionment in Alabama is signally illus-
trative and symptomatic of the seriousness of this prob-
lem in a number of the States. At the time this
litigation was commenced, there had been no reappor-
Lowndes County, with 15,417, are allotted two representatives each.
And in the Alabama Senate, under the existing apportionment, a
district comprising Lauderdale and Limestone Counties had a 1960
population of 98,135, and another composed of Lee and Russell
Counties had 96,105. Conversely, Lowndes County, with only 15,417,
and Wilcox County, with 18,739, are nevertheless single-county sena-
torial districts given one Senate seat each.
p. 570tionment of seats in the Alabama Legislature for over
60 years.46 Legislative inaction, coupled with the un-
availability of any political or judicial remedy,47 had
resulted, with the passage of years, in the perpetuated
scheme becoming little more than an irrational anach-
ronism. Consistent failure by the Alabama Legislature
to comply with state constitutional requirements as to
the frequency of reapportionment and the bases of legis-
lative representation resulted in a minority strangle hold
on the State Legislature. Inequality of representation
in one house added to the inequality in the other. With
the crazy-quilt existing apportionment virtually con-
ceded to be invalid, the Alabama Legislature offered two
proposed plans for consideration by the District Court,
neither of which was to be effective until 1966 and neither
of which provided for the apportionment of even one of
the two houses on a population basis. We find that the
court below did not err in holding that neither of these
proposed reapportionment schemes, considered as a
whole, “meets the necessary constitutional requirements.”
And we conclude that the District Court acted properly
in considering these two proposed plans, although neither
was to become effective until the 1966 election and the
proposed constitutional amendment was scheduled to be
submitted to the State’s voters in November 1962.48
p. 571Consideration by the court below of the two proposed
plans was clearly necessary in determining whether the
Alabama Legislature had acted effectively to correct the
admittedly existing malapportionment, and in ascertain-
ing what sort of judicial relief, if any, should be afforded.
V.
Since neither of the houses of the Alabama Legislature,
under any of the three plans considered by the District
Court, was apportioned on a population basis, we would
be justified in proceeding no further. However, one of
the proposed plans, that contained in the so-called
67-Senator Amendment, at least superficially resembles
the scheme of legislative representation followed in the
Federal Congress. Under this plan, each of Alabama’s
67 counties is allotted one senator, and no counties are
given more than one Senate seat. Arguably, this is
analogous to the allocation of two Senate seats, in the
Federal Congress, to each of the 50 States, regardless of
population. Seats in the Alabama House, under the pro-
posed constitutional amendment, are distributed by giv-
ing each of the 67 counties at least one, with the remain-
ing 39 seats being allotted among the more populous
counties on a population basis. This scheme, at least
at first glance, appears to resemble that prescribed for the
Federal House of Representatives, where the 435 seats
are distributed among the States on a population basis,
although each State, regardless of its population, is given
at least one Congressman. Thus, although there are sub-
stantial differences in underlying rationale and result,49
p. 572the 67-Senator Amendment, as proposed by the Alabama
Legislature, at least arguably presents for consideration
a scheme analogous to that used for apportioning seats
in Congress.
Much has been written since our decision in Baker v.
Carr about the applicability of the so-called federal
analogy to state legislative apportionment arrange-
ments.50 After considering the matter, the court below
concluded that no conceivable analogy could be drawn
between the federal scheme and the apportionment of
seats in the Alabama Legislature under the proposed con-
feature of our unique federal system, only four States have less than
1/435 of the country’s total population, under the 1960 census. Thus,
only four seats in the Federal House are distributed on a basis other
than strict population. In Alabama, on the other hand, 40 of the
67 counties have less than 1/106 of the State’s total population. Thus,
under the proposed amendment, over % of the total number of seats
in the Alabama House would be distributed on a basis other than
strict population. States with almost 50% of the Nation’s total
population are required in order to elect a majority of the members
of the Federal House, though unfair districting within some of the
States presently reduces to about 42% the percentage of the country’s
population which reside in districts electing individuals comprising a
majority in the Federal House. Cf. Wesberry v. Sanders, supra,
holding such congressional districting unconstitutional. Only about
43% of the population of Alabama would live in districts which could
elect a majority in the Alabama House, under the proposed consti-
tutional amendment. Thus, it could hardly be argued that the pro-
posed apportionment of the Alabama House was based on population
in a way comparable to the apportionment of seats in the Federal
House among the States.
p. 573stitutional amendment.51 We agree with the District
Court, and find the federal analogy inapposite and irrel-
evant to state legislative districting schemes. Attempted
reliance on the federal analogy appears often to be little
more than an after-the-fact rationalization offered in de-
fense of maladjusted state apportionment arrangements.
The original constitutions of 36 of our States provided
that representation in both houses of the state legisla-
tures would be based completely, or predominantly, on
population.52 And the Founding Fathers clearly had no
intention of establishing a pattern or model for the appor-
tionment of seats in state legislatures when the system of
representation in the Federal Congress was adopted.53
Demonstrative of this is the fact that the Northwest
Ordinance, adopted in the same year, 1787, as the Federal
Constitution, provided for the apportionment of seats in
territorial legislatures solely on the basis of population.54
51 208 F. Supp., at 438. See the discussion of the District Court’s
holding as to the applicability of the federal analogy earlier in this
opinion, supra, at 547-548.
p. 574The system of representation in the two Houses of the
Federal Congress is one ingrained in our Constitution, as
part of the law of the land. It is one conceived out of
compromise and concession indispensable to the estab-
lishment of our federal republic.55 Arising from unique
historical circumstances, it is based on the consideration
that in establishing our type of federalism a group of
formerly independent States bound themselves together
under one national government. Admittedly, the orig-
inal 13 States surrendered some of their sovereignty in
agreeing to join together “to form a more perfect Union.”
But at the heart of our constitutional system remains the
concept of separate and distinct governmental entities
which have delegated some, but not all, of their formerly
held powers to the single national government. The fact
that almost three-fourths of our present States were never
in fact independently sovereign does not detract from our
view that the so-called federal analogy is inapplicable as a
sustaining precedent for state legislative apportionments.
The developing history and growth of our republic can-
not cloud the fact that, at the time of the inception of
the system of representation in the Federal Congress, a
compromise between the larger and smaller States on this
matter averted a deadlock in the Constitutional Conven-
tion which had threatened to abort the birth of our
Nation. In rejecting an asserted analogy to the federal
electoral college in Gray v. Sanders, supra, we stated:
“We think the analogies to the electoral college, to
districting and redistricting, and to other phases of
the problems of representation in state or federal
legislatures or conventions are inapposite. The in-
clusion of the electoral college in the Constitution, as
the result of specific historical concerns, validated
the collegiate principle despite its inherent numeri-
cal inequality, but implied nothing about the use of
p. 575an analogous system by a State in a statewide elec-
tion. No such specific accommodation of the latter
was ever undertaken, and therefore no validation of
its numerical inequality ensued.” 56
Political subdivisions of States—counties, cities, or
whatever—never were and never have been considered as
sovereign entities. Rather, they have been traditionally
regarded as subordinate governmental instrumentalities
created by the State to assist in the carrying out of state
governmental functions. As stated by the Court in
Hunter v. City of Pittsburgh, 207 U. S. 161, 178, these
governmental units are “created as convenient agencies
for exercising such of the governmental powers of the
State as may be entrusted to them,” and the “number,
nature and duration of the powers conferred upon
[them] . . . and the territory over which they shall be
exercised rests in the absolute discretion of the State.”
The relationship of the States to the Federal Government
could hardly be less analogous.
Thus, we conclude that the plan contained in the
67-Senator Amendment for apportioning seats in the Ala-
bama Legislature cannot be sustained by recourse to the
so-called federal analogy. Nor can any other inequitable
state legislative apportionment scheme be justified on
such an asserted basis. This does not necessarily mean
that such a plan is irrational or involves something other
than a “republican form of government.” We conclude
simply that such a plan is impermissible for the States
under the Equal Protection Clause, since perforce result-
ing, in virtually every case, in submergence of the equal-
population principle in at least one house of a state
legislature.
Since we find the so-called federal analogy inapposite
to a consideration of the constitutional validity of state
56 372 U. 8.» at 378.
729-256 0-65-41
p. 576legislative apportionment schemes, we necessarily hold
that the Equal Protection Clause requires both houses of
a state legislature to be apportioned on a population
basis. The right of a citizen to equal representation and
to have his vote weighted equally with those of all other
citizens in the election of members of one house of a
bicameral state legislature would amount to little if States
could effectively submerge the equal-population principle
in the apportionment of seats in the other house. If
such a scheme were permissible, an individual citizen’s
ability to exercise an effective voice in the only instru-
ment of state government directly representative of the
people might be almost as effectively thwarted as if
neither house were apportioned on a population basis.
Deadlock between the two bodies might result in com-
promise and concession on some issues. But in all too
many cases the more probable result would be frustration
of the majority will through minority veto in the house
not apportioned on a population basis, stemming directly
from the failure to accord adequate overall legislative
representation to all of the State’s citizens on a nondis-
criminatory basis. In summary, we can perceive no con-
stitutional difference, with respect to the geographical
distribution of state legislative representation, between
the two houses of a bicameral state legislature.
We do not believe that the concept of bicameralism is
rendered anachronistic and meaningless when the pre-
dominant basis of representation in the two state legis-
lative bodies is required to be the same—population. A
prime reason for bicameralism, modernly considered, is to
insure mature and deliberate consideration of, and to pre-
vent precipitate action on, proposed legislative measures.
Simply because the controlling criterion for apportioning
representation is required to be the same in both houses
does not mean that there will be no differences in the
composition and complexion of the two bodies. Different
VI
p. 577constituencies can be represented in the two houses. One
body could be composed of single-member districts while
the other could have at least some multimember districts.
The length of terms of the legislators in the separate
bodies could differ. The numerical size of the two bodies
could be made to differ, even significantly, and the geo-
graphical size of districts from which legislators are
elected could also be made to differ. And apportionment
in one house could be arranged so as to balance off minor
inequities in the representation of certain areas in the
other house. In summary, these and other factors could
be, and are presently in many States, utilized to engender
differing complexions and collective attitudes in the two
bodies of a state legislature, although both are appor-
tioned substantially on a population basis.
By holding that as a federal constitutional requisite
both houses of a state legislature must be apportioned
on a population basis, we mean that the Equal Protection
Clause requires that a State make an honest and good
faith effort to construct districts, in both houses of its
legislature, as nearly of equal population as is prac-
ticable. We realize that it is a practical impossibility to
arrange legislative districts so that each one has an iden-
tical number of residents, or citizens, or voters. Mathe-
matical exactness or precision is hardly a workable
constitutional requirement.57
In Wesberry v. Sanders, supra, the Court stated that
congressional representation must be based on population
as nearly as is practicable. In implementing the basic
constitutional principle of representative government as
enunciated by the Court in Wesberry—equality of popu-
p. 578lation among districts—some distinctions may well be
made between congressional and state legislative repre-
sentation. Since, almost invariably, there is a signifi-
cantly larger number of seats in state legislative bodies
to be distributed within a State than congressional seats,
it may be feasible to use political subdivision lines to a
greater extent in establishing state legislative districts
than in congressional districting while still affording ade-
quate representation to all parts of the State. To do so
would be constitutionally valid, so long as the result-
ing apportionment was one based substantially on
population and the equal-population principle was not
diluted in any significant way. Somewhat more flexibility
may therefore be constitutionally permissible with respect
to state legislative apportionment than in congressional
districting. Lower courts can and assuredly will work
out more concrete and specific standards for evaluating
state legislative apportionment schemes in the context of
actual litigation. For the present, we deem it expedient
not to attempt to spell out any precise constitutional
tests. What is marginally permissible in one State may
be unsatisfactory in another, depending on the particular
circumstances of the case. Developing a body of doctrine
on a case-by-case basis appears to us to provide the most
satisfactory means of arriving at detailed constitutional
requirements in the area of state legislative apportion-
ment. Cf. Slaughter-House Cases,
16 Wall. 36, 78-79.
Thus, we proceed to state here only a few rather general
considerations which appear to us to be relevant.
A State may legitimately desire to maintain the integ-
rity of various political subdivisions, insofar as possible,
and provide for compact districts of contiguous territory
in designing a legislative apportionment scheme. Valid
considerations may underlie such aims. Indiscriminate
districting, without any regard for political subdivision or
p. 579natural or historical boundary lines, may be little more
than an open invitation to partisan gerrymandering.
Single-member districts may be the rule in one State,
while another State might desire to achieve some flexi-
bility by creating multimember 58 or floterial districts.59
Whatever the means of accomplishment, the overriding
objective must be substantial equality of population
among the various districts, so that the vote of any citizen
is approximately equal in weight to that of any other
citizen in the State.
History indicates, however, that many States have de-
viated, to a greater or lesser degree, from the equal-popu-
lation principle in the apportionment of seats in at least
one house of their legislatures.60 So long as the diver-
gences from a strict population standard are based on
legitimate considerations incident to the effectuation of
a rational state policy, some deviations from the equal-
population principle are constitutionally permissible with
respect to the apportionment of seats in either or both
of the two houses of a bicameral state legislature. But
neither history alone,61 nor economic or other sorts of
p. 580group interests, are permissible factors in attempting to
justify disparities from population-based representation.
Citizens, not history or economic interests, cast votes.
Considerations of area alone provide an insufficient justi-
fication for deviations from the equal-population prin-
ciple. Again, people, not land or trees or pastures, vote.
Modern developments and improvements in transporta-
tion and communications make rather hollow, in the mid-
1960’s, most claims that deviations from population-based
representation can validly be based solely on geographical
considerations. Arguments for allowing such deviations in
order to insure effective representation for sparsely settled
areas and to prevent legislative districts from becoming
so large that the availability of access of citizens to their
representatives is impaired are today, for the most part,
unconvincing.
A consideration that appears to be of more substance in
justifying some deviations from population-based rep-
resentation in state legislatures is that of insuring some
voice to political subdivisions, as political subdivisions.
Several factors make more than insubstantial claims that
a State can rationally consider according political subdi-
visions some independent representation in at least one
body of the state legislature, as long as the basic standard
of equality of population among districts is maintained.
Local governmental entities are frequently charged with
various responsibilities incident to the operation of
state government. In many States much of the legis-
lature’s activity involves the enactment of so-called local
Ordinance of 1787, in explicitly providing for population-based rep-
resentation of those living in the Northwest Territory in their terri-
torial legislatures, clearly implied that, as early as the year of the
birth of our federal system, the proper basis of legislative representa-
tion was regarded as being population.
p. 581legislation, directed only to the concerns of particular
political subdivisions. And a State may legitimately
desire to construct districts along political subdivision
lines to deter the possibilities of gerrymandering. How-
ever, permitting deviations from population-based repre-
sentation does not mean that each local governmental
unit or political subdivision can be given separate repre-
sentation, regardless of population. Carried too far, a
scheme of giving at least one seat in one house to each
political subdivision (for example, to each county) could
easily result, in many States, in a total subversion of
the equal-population principle in that legislative body.62
This would be especially true in a State where the num-
ber of counties is large and many of them are sparsely
populated, and the number of seats in the legislative body
being apportioned does not significantly exceed the num-
ber of counties.63 Such a result, we conclude, would
be constitutionally impermissible. And careful judicial
scrutiny must of course be given, in evaluating state
apportionment schemes, to the character as well as the
degree of deviations from a strict population basis. But
if, even as a result of a clearly rational state policy of
according some legislative representation to political sub-
divisions, population is submerged as the controlling con-
sideration in the apportionment of seats in the particular
legislative body, then the right of all of the State’s citizens
to cast an effective and adequately weighted vote would
be unconstitutionally impaired.
VII
p. 582One of the arguments frequently offered as a basis
for upholding a State’s legislative apportionment ar-
rangement, despite substantial disparities from a popu-
lation basis in either or both houses, is grounded on con-
gressional approval, incident to admitting States into the
Union, of state apportionment plans containing devia-
tions from the equal-population principle. Proponents
of this argument contend that congressional approval of
such schemes, despite their disparities from population-
based representation, indicates that such arrangements
are plainly sufficient as establishing a “republican form
of government.” As we stated in Baker v. Carr, some
questions raised under the Guaranty Clause are nonjusti-
ciable, where “political” in nature and where there is a
clear absence of judicially manageable standards.64 Nev-
ertheless, it is not inconsistent with this view to hold that,
despite congressional approval of state legislative appor-
tionment plans at the time of admission into the Union,
even though deviating from the equal-population prin-
ciple here enunciated, the Equal Protection Clause can
and does require more. And an apportionment scheme in
which both houses are based on population can hardly be
considered as failing to satisfy the Guaranty Clause re-
quirement. Congress presumably does not assume, in
admitting States into the Union, to pass on all constitu-
tional questions relating to the character of state govern-
mental organization. In any event, congressional ap-
proval, however well-considered, could hardly validate an
unconstitutional state legislative apportionment. Con-
gress simply lacks the constitutional power to insulate
States from attack with respect to alleged deprivations of
individual constitutional rights.
VIII
p. 583That the Equal Protection Clause requires that both
houses of a state legislature be apportioned on a popula-
tion basis does not mean that States cannot adopt some
reasonable plan for periodic revision of their apportion-
ment schemes. Decennial reapportionment appears to be
a rational approach to readjustment of legislative repre-
sentation in order to take into account population shifts
and growth. Reallocation of legislative seats every 10
years coincides with the prescribed practice in 41 of the
States,65 often honored more in the breach than the ob-
servance, however. Illustratively, the Alabama Consti-
tution requires decennial reapportionment, yet the last
reapportionment of the Alabama Legislature, when this
suit was brought, was in 1901. Limitations on the fre-
quency of reapportionment are justified by the need for
stability and continuity in the organization of the legis-
lative system, although undoubtedly reapportioning no
more frequently than every 10 years leads to some imbal-
ance in the population of districts toward the end of the
decennial period and also to the development of resistance
to change on the part of some incumbent legislators. In
substance, we do not regard the Equal Protection Clause
as requiring daily, monthly, annual or biennial reappor-
tionment, so long as a State has a reasonably conceived
plan for periodic readjustment of legislative representa-
tion. While we do not intend to indicate that decennial
reapportionment is a constitutional requisite, compliance
with such an approach would clearly meet the minimal
IX
p. 584requirements for maintaining a reasonably current scheme
of legislative representation. And we do not mean to
intimate that more frequent reapportionment would not
be constitutionally permissible or practicably desirable.
But if reapportionment were accomplished with less fre-
quency, it would assuredly be constitutionally suspect.
Although general provisions of the Alabama Constitu-
tion provide that the apportionment of seats in both
houses of the Alabama Legislature should be on a popu-
lation basis, other more detailed provisions clearly make
compliance with both sets of requirements impossible.
With respect to the operation of the Equal Protection
Clause, it makes no difference whether a State’s appor-
tionment scheme is embodied in its constitution or in
statutory provisions. In those States where the alleged
malapportionment has resulted from noncompliance with
state constitutional provisions which, if complied with,
would result in an apportionment valid under the Equal
Protection Clause, the judicial task of providing effective
relief would appear to be rather simple. We agree with
the view of the District Court that state constitutional
provisions should be deemed violative of the Federal
Constitution only when validly asserted constitutional
rights could not otherwise be protected and effectuated.
Clearly, courts should attempt to accommodate the relief
ordered to the apportionment provisions of state constitu-
tions insofar as is possible. But it is also quite clear that
a state legislative apportionment scheme is no less viola-
tive of the Federal Constitution when it is based on state
constitutional provisions which have been consistently
complied with than when resulting from a noncompliance
with state constitutional requirements. When there is
an unavoidable conflict between the Federal and a State
Constitution, the Supremacy Clause of course controls.
p. 585X.
We do not consider here the difficult question of the
proper remedial devices which federal courts should utilize
in state legislative apportionment cases.66 Remedial tech-
niques in this new and developing area of the law will prob-
ably often differ with the circumstances of the challenged
apportionment and a variety of local conditions. It is
enough to say now that, once a State’s legislative appor-
tionment scheme has been found to be unconstitutional,
it would be the unusual case in which a court would be
justified in not taking appropriate action to insure that no
further elections are conducted under the invalid plan.
However, under certain circumstances, such as where an
impending election is imminent and a State’s election
machinery is already in progress, equitable considerations
might justify a court in withholding the granting of
immediately effective relief in a legislative apportionment
case, even though the existing apportionment scheme was
found invalid. In awarding or withholding immediate
relief, a court is entitled to and should consider the prox-
imity of a forthcoming election and the mechanics and
complexities of state election laws, and should act and
rely upon general equitable principles. With respect to
the timing of relief, a court can reasonably endeavor to
avoid a disruption of the election process which might
result from requiring precipitate changes that could make
unreasonable or embarrassing demands on a State in
adjusting to the requirements of the court’s decree. As
stated by Mr . Justice Dougla s , concurring in Baker
v. Carr, “any relief accorded can be fashioned in the light
of well-known principles of equity.” 67
p. 586We feel that the District Court in this case acted in a
most proper and commendable manner. It initially
acted wisely in declining to stay the impending primary
election in Alabama, and properly refrained from acting
further until the Alabama Legislature had been given an
opportunity to remedy the admitted discrepancies in the
State’s legislative apportionment scheme, while initially
stating some of its views to provide guidelines for legis-
lative action. And it correctly recognized that legisla-
tive reapportionment is primarily a matter for legisla-
tive consideration and determination, and that judicial
relief becomes appropriate only when a legislature fails
to reapportion according to federal constitutional requi-
sites in a timely fashion after having had an adequate
opportunity to do so. Additionally, the court below
acted with proper judicial restraint, after the Alabama
Legislature had failed to act effectively in remedying
the constitutional deficiencies in the State’s legislative
apportionment scheme, in ordering its own temporary
reapportionment plan into effect, at a time sufficiently
early to permit the holding of elections pursuant to that
plan without great difficulty, and in prescribing a plan
admittedly provisional in purpose so as not to usurp the
primary responsibility for reapportionment which rests
with the legislature.
We find, therefore, that the action taken by the District
Court in this case, in ordering into effect a reapportion-
ment of both houses of the Alabama Legislature for pur-
poses of the 1962 primary and general elections, by using
the best parts of the two proposed plans which it had
found, as a whole, to be invalid,68 was an appropriate and
Concurrence — Clark J.
p. 587well-considered exercise of judicial power. Admittedly,
the lower court’s ordered plan was intended only as a
temporary and provisional measure and the District
Court correctly indicated that the plan was invalid as
a permanent apportionment. In retaining jurisdiction
while deferring a hearing on the issuance of a final injunc-
tion in order to give the provisionally reapportioned legis-
lature an opportunity to act effectively, the court below
proceeded in a proper fashion. Since the District Court
evinced its realization that its ordered reapportionment
could not be sustained as the basis for conducting the
1966 election of Alabama legislators, and avowedly in-
tends to take some further action should the reappor-
tioned Alabama Legislature fail to enact a constitu-
tionally valid, permanent apportionment scheme in the
interim, we affirm the judgment below and remand the
cases for further proceedings consistent with the views
stated in this opinion.
It is so ordered.
Mr . Justice Clark , concurring in the affirmance.
The Court goes much beyond the necessities of this
case in laying down a new “equal population” principle
for state legislative apportionment. This principle seems
to be an offshoot of Gray v. Sanders,
372 U. S. 368, 381
(1963), i. e., “one person, one vote,” modified by the
“nearly as is practicable” admonition of Wesberry v.
Sanders,
376 U. S. 1, 8 (1964).* Whether “nearly as is
overall plan, under the proposed constitutional amendment, to be
unconstitutional. See 208 F. Supp., at 440-441. See the discussion
earlier in this opinion, supra, at 568-569.
| incidentally, neither of these cases, upon which the Court bases
its opinion, is apposite. Gray involved the use of Georgia’s county
unit rule in the election of United States Senators and Wesberry was
a congressional apportionment case.
p. 588Opinion of Stewa rt , J. 377U.S.
practicable” means “one person, one vote” qualified by
“approximately equal” or “some deviations” or by the
impossibility of “mathematical nicety” is not clear from
the majority’s use of these vague and meaningless
phrases. But whatever the standard, the Court applies
it to each house of the State Legislature.
It seems to me that all that the Court need say in this
case is that each plan considered by the trial court is “a
crazy quilt,” clearly revealing invidious discrimination
in each house of the Legislature and therefore violative of
the Equal Protection Clause. See my concurring opinion
in Baker v. Carr, 369 U. S. 186, 253-258 (1962).
I, therefore, do not reach the question of the so-called
“federal analogy.” But in my view, if one house of the
State Legislature meets the population standard, repre-
sentation in the other house might include some departure
from it so as to take into account, on a rational basis,
other factors in order to afford some representation to
the various elements of the State. See my dissenting
opinion in Lucas v. Forty-Fourth General Assembly of
Colorado, post, p. 741, decided this date.
Mr . Justi ce Stewart .
All of the parties have agreed with the District Court’s
finding that legislative inaction for some 60 years in the
face of growth and shifts in population has converted
Alabama’s legislative apportionment plan enacted in 1901
into one completely lacking in rationality. Accordingly,
for the reasons stated in my dissenting opinion in Lucas
v. Forty-Fourth General Assembly of Colorado, post,
p. 744, I would affirm the judgment of the District Court
holding that this apportionment violated the Equal
Protection Clause.
I also agree with the Court that it was proper for the
District Court, in framing a remedy, to adhere as closely
Dissent — Harlan J.
p. 589as practicable to the apportionments approved by the
representatives of the people of Alabama, and to afford
the State of Alabama full opportunity, consistent with
the requirements of the Federal Constitution, to devise
its own system of legislative apportionment.
Mr . Justic e Harlan , dissenting.*
In these cases the Court holds that seats in the legisla-
tures of six States 1 are apportioned in ways that violate
the Federal Constitution. Under the Court’s ruling it is
bound to follow that the legislatures in all but a few of
the other 44 States will meet the same fate.* 1 2 These deci-
sions, with
Wesberry v. Sanders, 376 U. S. 1, involving
congressional districting by the States, and Gray v. Sand-
ers,
372 U. S. 368, relating to elections for statewide office,
have the effect of placing basic aspects of state political
systems under the pervasive overlordship of the federal
judiciary. Once again,3 I must register my protest.
*[This opinion applies also to No. 20, WMCA, Inc., et al. v.
Lomenzo, Secretary of State of New York, et al., post, p. 633; No.
29, Maryland Committee for Fair Representation et al. v. Tawes,
Governor, et al., post, p. 656; No. 69, Davis, Secretary, State Board
of Elections, et al. v. Mann et al., post, p. 678; No. 307, Roman,
Clerk, et al. v. Sincock et al., post, p. 695; and No. 508, Lucas et al.
v. Forty-Fourth General Assembly of Colorado et al., post, p. 713.]
p. 590Har la n, J., dissenting. 377U.S.
Prelimi nary Stat eme nt.
Today’s holding is that the Equal Protection Clause
of the Fourteenth Amendment requires every State to
structure its legislature so that all the members of each
house represent substantially the same number of people;
other factors may be given play only to the extent that
they do not significantly encroach on this basic “popu-
lation” principle. Whatever may be thought of this
holding as a piece of political ideology—and even on that
score the political history and practices of this country
from its earliest beginnings leave wide room for debate
(see the dissenting opinion of Frankfurter, J., in Baker v.
Carr, 369 U. S. 186, 266, 301-323)—I think it demon-
strable that the Fourteenth Amendment does not impose
this political tenet on the States or authorize this Court
to do so.
The Court’s constitutional discussion, found in its
opinion in the Alabama cases (Nos. 23, 27, 41, ante,
p. 533) and more particularly at pages 561-568 thereof, is
remarkable (as, indeed, is that found in the separate opin-
ions of my Brothers Stewart and Clark , ante, pp. 588,
587) for its failure to address itself at all to the Four-
teenth Amendment as a whole or to the legislative
history of the Amendment pertinent to the matter at
hand. Stripped of aphorisms, the Court’s argument boils
down to the assertion that appellees’ right to vote has
been invidiously “debased” or “diluted” by systems of
apportionment which entitle them to vote for fewer leg-
islators than other voters, an assertion which is tied to
the Equal Protection Clause only by the constitutionally
frail tautology that “equal” means “equal.”
Had the Court paused to probe more deeply into the
matter, it would have found that the Equal Protection
Clause was never intended to inhibit the States in choos-
p. 591ing any democratic method they pleased for the appor-
tionment of their legislatures. This is shown by the lan-
guage of
the Fourteenth Amendment taken as a whole,
by the understanding of those who proposed and ratified
it; and by the political practices of the States at the time
the Amendment was adopted. It is confirmed by numer-
ous state and congressional actions since the adoption of
the Fourteenth Amendment, and by the common under-
standing of the Amendment as evidenced by subsequent
constitutional amendments and decisions of this Court
before Baker n . Carr, supra, made an abrupt break with
the past in 1962.
The failure of the Court to consider any of these mat-
ters cannot be excused or explained by any concept of
“developing” constitutionalism. It is meaningless to
speak of constitutional “development” when both the
language and history of the controlling provisions of the
Constitution are wholly ignored. Since it can, I think,
be shown beyond doubt that state legislative apportion-
ments, as such, are wholly free of constitutional limita-
tions, save such as may be imposed by the Republican
Form of Government Clause (Const., Art. IV, § 4),4 the
Court’s action now bringing them within the purview of
the Fourteenth Amendment amounts to nothing less
than an exercise of the amending power by this Court.
So far as the Federal Constitution is concerned, the
complaints in these cases should all have been dismissed
below for failure to state a cause of action, because what
p. 592Har la n, J., dissenting. 377 U. S.
has been alleged or proved shows no violation of any
constitutional right.
Before proceeding to my argument it should be ob-
served that nothing done in Baker v. Carr, supra, or in
the two cases that followed in its wake, Gray v. Sanders
and Wesberry v. Sanders, supra, from which the Court
quotes at some length, forecloses the conclusion which
I reach.
Baker decided only that claims such as those made here
are within the competence of the federal courts to adjudi-
cate. Although the Court stated as its conclusion that
the allegations of a denial of equal protection presented
“a justiciable constitutional cause of action,” 369 U. S.,
at 237, it is evident from the Court’s opinion that it was
concerned all but exclusively with justiciability and gave
no serious attention to the question whether the Equal
Protection Clause touches state legislative apportion-
ments.5 Neither the opinion of the Court nor any of the
concurring opinions considered the relevant text of the
Fourteenth Amendment or any of the historical materials
bearing on that question. None of the materials was
briefed or otherwise brought to the Court’s attention.6
I
p. 593In the Gray case the Court expressly laid aside the ap-
plicability to state legislative apportionments of the “one
person, one vote” theory there found to require the strik-
ing down of the Georgia county unit system. See
372
U. S., at 376, and the concurring opinion of Stewart , J.,
joined by Clark , J.,
id., at 381-382.
In Wesberry, involving congressional districting, the
decision rested on Art. I, § 2, of the Constitution. The
Court expressly did not reach the arguments put forward
concerning the Equal Protection Clause. See
376 U. S.,
at 8, note 10.
Thus it seems abundantly clear that the Court is en-
tirely free to deal with the cases presently before it in
light of materials now called to its attention for the first
time. To these I now turn.
A. The Language of
the Fourteenth Amendment.
The Court relies exclusively on that portion of § 1
of
the Fourteenth Amendment which provides that no
State shall “deny to any person within its jurisdiction
the equal protection of the laws,” and disregards entirely
the significance of § 2, which reads:
“Representatives shall be apportioned among the
several States according to their respective numbers,
counting the whole number of persons in each State,
excluding Indians not taxed. But when the right to
vote at any election for the choice of electors for
President and Vice President of the United States,
Representatives in Congress, the Executive and Judi-
cial officers of a State, or the members of the Legis-
lature thereof, is denied to any of the male inhab-
itants of such State, being twenty-one years of age,
and citizens of the United States, or in any way
abridged, except for participation in rebellion, or
p. 594other crime, the basis of representation therein shall
be reduced in the proportion which the number of
such male citizens shall bear to the whole number
of male citizens twenty-one years of age in such
State.” (Emphasis added.)
The Amendment is a single text. It was introduced
and discussed as such in the Reconstruction Committee,7
which reported it to the Congress. It was discussed as
a unit in Congress and proposed as a unit to the States,8
which ratified it as a unit. A proposal to split up the
Amendment and submit each section to the States as a
separate amendment was rejected by the Senate.9 What-
ever one might take to be the application to these cases
of the Equal Protection Clause if it stood alone, I am
unable to understand the Court’s utter disregard of the
second section which expressly recognizes the States’
power to deny “or in any way” abridge the right of their
inhabitants to vote for “the members of the [State] Leg-
islature,” and its express provision of a remedy for such
denial or abridgment. The comprehensive scope of the
second section and its particular reference to the state
legislatures preclude the suggestion that the first section
was intended to have the result reached by the Court
today. If indeed the words of the Fourteenth Amend-
ment speak for themselves, as the majority’s disregard
of history seems to imply, they speak as clearly as may
be against the construction which the majority puts on
them. But we are not limited to the language of the
Amendment itself.
p. 595B. Proposal and Ratification of the Amendment.
The history of the adoption of
the Fourteenth Amend-
ment provides conclusive evidence that neither those who
proposed nor those who ratified the Amendment believed
that the Equal Protection Clause limited the power of
the States to apportion their legislatures as they saw fit.
Moreover, the history demonstrates that the intention to
leave this power undisturbed was deliberate and was
widely believed to be essential to the adoption of the
Amendment.
(i) Proposal of the amendment in Congress.—A reso-
lution proposing what became
the Fourteenth Amend-
ment was reported to both houses of Congress by the
Reconstruction Committee of Fifteen on April 30, 1866,10
The first two sections of the proposed amendment read:
“Sec . 1. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property with-
out due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.
“Sec . 2. Representatives shall be apportioned
among the several States which may be included
within this Union, according to their respective num-
bers, counting the whole number of persons in each
State, excluding Indians not taxed. But whenever,
in any State, the elective franchise shall be denied to
any portion of its male citizens not less than twenty-
one years of age, or in any way abridged except for
participation in rebellion or other crime, the basis
of representation in such State shall be reduced in
the proportion which the number of such male citi-
p. 596zens shall bear to the whole number of male citizens
not less than twenty-one years of age.” 11
In the House, Thaddeus Stevens introduced debate on
the resolution on May 8. In his opening remarks,
Stevens explained why he supported the resolution
although it fell “far short” of his wishes:
“I believe it is all that can be obtained in the present
state of public opinion. Not only Congress but the
several States are to be consulted. Upon a careful
survey of the whole ground, we did not believe that
nineteen of the loyal States could be induced to ratify
any proposition more stringent than this.” 11 12
In explanation of this belief, he asked the House to
remember “that three months since, and more, the com-
mittee reported and the House adopted a proposed
amendment fixing the basis of representation in such way
as would surely have secured the enfranchisement of
every citizen at no distant period,” but that proposal had
been rejected by the Senate.13
He then explained the impact of the first section of
the proposed Amendment, particularly the Equal Protec-
tion Clause.
“This amendment . . . allows Congress to correct
the unjust legislation of the States, so far that the
p. 597law which operates upon one man shall operate
equally upon all. Whatever law punishes a white
man for a crime shall punish the black man precisely
in the same way and to the same degree. Whatever
law protects the white man shall afford ‘equal’ pro-
tection to the black man. Whatever means of re-
dress is afforded to one shall be afforded to all.
Whatever law allows the white man to testify in
court shall allow the man of color to do the same.
These are great advantages over their present codes.
Now different degrees of punishment are inflicted,
not on account of the magnitude of the crime, but
according to the color of the skin. Now color dis-
qualifies a man from testifying in courts, or being
tried in the same way as white men. I need not
enumerate these partial and oppressive laws. Un-
less the Constitution should restrain them those
States will all, I fear, keep up this discrimination,
and crush to death the hated freedmen.” 14
He turned next to the second section, which he said he
considered “the most important in the article.” 15 Its
effect, he said, was to fix “the basis of representation in
Congress.”16 In unmistakable terms, he recognized the
power of a State to withhold the right to vote:
“If any State shall exclude any of her adult male citi-
zens from the elective franchise, or abridge that right,
she shall forfeit her right to representation in the
same proportion. The effect of this provision will
be either to compel the States to grant universal suf-
frage or so to shear them of their power as to keep
them forever in a hopeless minority in the national
Government, both legislative and executive.” 17
p. 598Closing his discussion of the second section, he noted
his dislike for the fact that it allowed “the States to
discriminate [with respect to the right to vote] among
the same class, and receive proportionate credit in
representation.” 18
Toward the end of the debate three days later, Mr.
Bingham, the author of the first section in the Recon-
struction Committee and its leading proponent,19 con-
cluded his discussion of it with the following:
“Allow me, Mr. Speaker, in passing, to say that
this amendment takes from no State any right that
ever pertained to it. No State ever had the right,
under the forms of law or otherwise, to deny to any
freeman the equal protection of the laws or to abridge
the privileges or immunities of any citizen of the
Republic, although many of them have assumed
and exercised the power, and that without rem-
edy. The amendment does not give, as the second
section shows, the power to Congress of regulating
suffrage in the several States.” 20 (Emphasis added.)
He immediately continued:
“The second section excludes the conclusion that
by the first section suffrage is subjected to congres-
sional law; save, indeed, with this exception, that as
the right in the people of each State to a republican
government and to choose their Representatives in
Congress is of the guarantees of the Constitution,
by this amendment a remedy might be given directly
for a case supposed by Madison, where treason might
change a State government from a republican to a
p. 599despotic government, and thereby deny suffrage to
the people.” 21 (Emphasis added.)
He stated at another point in his remarks:
“To be sure we all agree, and the great body of the
people of this country agree, and the committee thus
far in reporting measures of reconstruction agree,
that the exercise of the elective franchise, though it
be one of the privileges of a citizen of the Republic,
is exclusively under the control of the States.”22
(Emphasis added.)
In the three days of debate which separate the opening
and closing remarks, both made by members of the Re-
construction Committee, every speaker on the resolution,
with a single doubtful exception,23 assumed without ques-
tion that, as Mr. Bingham said, supra, “the second sec-
tion excludes the conclusion that by the first section
suffrage is subjected to congressional law.” The assump-
tion was neither inadvertent nor silent. Much of the de-
bate concerned the change in the basis of representation
effected by the second section, and the speakers stated
repeatedly, in express terms or by unmistakable implica-
tion, that the States retained the power to regulate suf-
frage within their borders. Attached as Appendix A
hereto are some of those statements. The resolution was
adopted by the House without change on May 10.24
p. 600Harl an , J., dissenting. 377 U. S.
Debate in the Senate began on May 23, and followed
the same pattern. Speaking for the Senate Chairman of
the Reconstruction Committee, who was ill, Senator
Howard, also a member of the Committee, explained the
meaning of the Equal Protection Clause as follows:
“The last two clauses of the first section of the
amendment disable a State from depriving not
merely a citizen of the United States, but any per-
son, whoever he may be, of life, liberty, or property
without due process of law, or from denying to him
the equal protection of the laws of the State. This
abolishes all class legislation in the States and does
away with the injustice of subjecting one caste of
persons to a code not applicable to another. It pro-
hibits the hanging of a black man for a crime for
which the white man is not to be hanged. It pro-
tects the black man in his fundamental rights as a
citizen with the same shield which it throws over the
white man. Is it not time, Mr. President, that we
extend to the black man, I had almost called it the
poor privilege of the equal protection of the law? . . .
“But, sir, the first section of the proposed amend-
ment does not give to either of these classes the right
of voting. The right of suffrage is not, in law, one
of the privileges or immunities thus secured by the
Constitution. It is merely the creature of law. It
has always been regarded in this country as the result
of positive local law, not regarded as one of those
fundamental rights lying at the basis of all society
and without which a people cannot exist except as
slaves, subject to a depotism [sic].”25 (Emphasis
added.)
Discussing the second section, he expressed his regret
that it did “not recognize the authority of the United
States over the question of suffrage in the several States
p. 601at all . . . .” 26 He justified the limited purpose of the
Amendment in this regard as follows:
“But, sir, it is not the question here what will we
do; it is not the question what you, or I, or half a
dozen other members of the Senate may prefer in
respect to colored suffrage; it is not entirely the ques-
tion what measure we can pass through the two
Houses; but the question really is, what will the
Legislatures of the various States to whom these
amendments are to be submitted do in the premises;
what is it likely will meet the general approbation
of the people who are to elect the Legislatures, three
fourths of whom must ratify our propositions before
they have the force of constitutional provisions?
“The committee were of opinion that the States
are not yet prepared to sanction so fundamental a
change as would be the concession of the right of
suffrage to the colored race. We may as well state
it plainly and fairly, so that there shall be no mis-
understanding on the subject. It was our opinion
that three fourths of the States of this Union could
not be induced to vote to grant the right of suffrage,
even in any degree or under any restriction, to the
colored race. . . .
“The second section leaves the right to regulate
the elective franchise still with the States, and does
not meddle with that right.” 27 (Emphasis added.)
There was not in the Senate, as there had been in the
House, a closing speech in explanation of the Amend-
ment. But because the Senate considered, and finally
adopted, several changes in the first and second sections,
even more attention was given to the problem of voting
rights there than had been given in the House. In the
p. 602Senate, it was fully understood by everyone that neither
the first nor the second section interfered with the right
of the States to regulate the elective franchise. Attached
as Appendix B hereto are representative statements from
the debates to that effect. After having changed the pro-
posed amendment to the form in which it was adopted,
the Senate passed the resolution on June 8, 1866.28 As
changed, it passed in the House on June 13.29
(ii) Ratification by the ‘Toyal” States.—Reports of
the debates in the state legislatures on the ratification of
the Fourteenth Amendment are not generally available.30
There is, however, compelling indirect evidence. Of
the 23 loyal States which ratified the Amendment before
1870, five had constitutional provisions for apportion-
ment of at least one house of their respective legislatures
which wholly disregarded the spread of population.31
p. 603Ten more had constitutional provisions which gave
primary emphasis to population, but which applied
also other principles, such as partial ratios and recogni-
tion of political subdivisions, which were intended to
favor sparsely settled areas.32 Can it be seriously con-
tended that the legislatures of these States, almost two-
thirds of those concerned, would have ratified an amend-
ment which might render their own States’ constitutions
unconstitutional ?
Nor were these state constitutional provisions merely
theoretical. In New Jersey, for example, Cape May
County, with a population of 8,349, and Ocean County,
with a population of 13,628, each elected one State Sen-
ator, as did Essex and Hudson Counties, with populations
of 143,839 and 129,067, respectively.33 In the House, each
county was entitled to one representative, which left 39
seats to be apportioned according to population.34 Since
there were 12 counties besides the two already mentioned
which had populations over 30,000,35 it is evident that
there were serious disproportions in the House also. In
§ HI, cl. 1; R.
p. 604Har lan , J., dissenting. 377 U. S.
New York, each of the 60 counties except Hamilton
County was entitled to one of the 128 seats in the As-
sembly.36 This left 69 seats to be distributed among
counties the populations of which ranged from 15,420 to
942,292.37 With seven more counties having populations
over 100,000 and 13 others having populations over
50,000,38 the disproportion in the Assembly was neces-
sarily large. In Vermont, after each county had been
allocated one Senator, there were 16 seats remaining to
be distributed among the larger counties.39 The smallest
county had a population of 4,082 ; the largest had a popu-
lation of 40,651 and there were 10 other counties with
populations over 20,000.40
(iii) Ratification by the “reconstructed” States.—
Each of the 10 “reconstructed” States was required to
ratify the Fourteenth Amendment before it was read-
mitted to the Union.41 The Constitution of each was
scrutinized in Congress.42 Debates over readmission
36 N. Y. Const., 1846, Art. HI, §§ 2, 5. Census 50-51.
p. 605were extensive.43 In at least one instance, the problem
of state legislative apportionment was expressly called to
the attention of Congress. Objecting to the inclusion of
Florida in the Act of June 25, 1868, Mr. Farnsworth
stated on the floor of the House:
“I might refer to the apportionment of representa-
tives. By this constitution representatives in the
Legislature of Florida are apportioned in such a
manner as to give to the sparsely-populated portions
of the State the control of the Legislature. The
sparsely-populated parts of the State are those
where there are very few negroes, the parts inhab-
ited by the white rebels, the men who, coming in
from Georgia, Alabama, and other States, control
the fortunes of their several counties. By this con-
stitution every county in that State is entitled to a
representative. There are in that State counties
that have not thirty registered voters ; yet, under this
constitution, every one of those counties is entitled
constitutions for their own government. They have voluntarily
[ formed such constitutions, under the direction of the Government of
the United States. . . . They have sent us their constitutions.
Those constitutions have been printed and laid before us. We have
I looked at them; we have pronounced them republican in form; and
I all we propose to require is that they shall remain so forever. Sub-
I ject to this requirement, we are willing to admit them into the
I Union.” Cong. Globe, 40th Cong., 2d Sess., 2465 (1868). See also
I the remarks of Mr. Butler, infra, p. 606.
I The close attention given the various Constitutions is attested by
I the Act of June 25, 1868, which conditioned Georgia’s readmission
I on the deletion of “the first and third subdivisions of section seven-
I teen of the fifth article of the constitution of said State, except the
I proviso to the first subdivision . . . .” 15 Stat. 73. The sections
I involved are printed in Sen. Ex. Doc. No. 57, 40th Cong., 2d Sess.,
I 14-15.
Compare
United States v. Florida, 363 U. S. 121, 124-127.
I 43 See, e. g., Cong. Globe, 40th Cong., 2d Sess., 2412-2413, 2858-
I 2860, 2861-2871, 2895-2900, 2901-2904, 2927-2935, 2963-2970,
I 2998-3022,3023-3029 (1868).
p. 606to a representative in the Legislature; while the pop-
ulous counties are entitled to only one representative
each, with an additional representative for every
thousand inhabitants.” 44
The response of Mr. Butler is particularly illuminating:
“All these arguments, all these statements, all the
provisions of this constitution have been submitted
to the Judiciary Committee of the Senate, and they
have found the constitution republican and proper.
This constitution has been submitted to the Senate,
and they have found it republican and proper. It
has been submitted to your own Committee on Re-
construction, and they have found it republican and
proper, and have reported it to this House.” 45
The Constitutions of six of the 10 States contained pro-
visions departing substantially from the method of ap-
portionment now held to be required by the Amendment.46
And, as in the North, the departures were as real in fact
as in theory. In North Carolina, 90 of the 120 repre-
sentatives were apportioned among the counties without
regard to population, leaving 30 seats to be distributed by
numbers.47 Since there were seven counties with popu-
lations under 5,000 and 26 counties with populations over
15,000, the disproportions must have been widespread and
substantial.48 In South Carolina, Charleston, with a
population of 88,863, elected two Senators; each of the
other counties, with populations ranging from 10,269 to
p. 60742,486, elected one Senator.49 In Florida, each of the 39
counties was entitled to elect one Representative; no
county was entitled to more than four.50 These prin-
ciples applied to Dade County, with a population of 85,
and to Alachua County and Leon County, with popula-
tions of 17,328 and 15,236, respectively.51
It is incredible that Congress would have exacted rati-
fication of
the Fourteenth Amendment as the price of
readmission, would have studied the State Constitutions
for compliance with the Amendment, and would then
have disregarded violations of it.
The facts recited above show beyond any possible
doubt:
(1) that Congress, with full awareness of and
attention to the possibility that the States would
not afford full equality in voting rights to all their
citizens, nevertheless deliberately chose not to inter-
fere with the States’ plenary power in this regard
when it proposed
the Fourteenth Amendment;
(2) that Congress did not include in the Four-
teenth Amendment restrictions on the States’ power
to control voting rights because it believed that if
such restrictions were included, the Amendment
would not be adopted; and
(3) that at least a substantial majority, if not all,
of the States which ratified
the Fourteenth Amend-
ment did not consider that in so doing, they were
accepting limitations on their freedom, never before
questioned, to regulate voting rights as they chose.
Even if one were to accept the majority’s belief that it
is proper entirely to disregard the unmistakable implica-
p. 608tions of the second section of the Amendment in constru-
ing the first section, one is confounded by its disregard
of all this history. There is here none of the difficulty
which may attend the application of basic principles
to situations not contemplated or understood when
the principles were framed. The problems which con-
cern the Court now were problems when the Amendment
was adopted. By the deliberate choice of those re-
sponsible for the Amendment, it left those problems
untouched.
C. After 1868.
The years following 1868, far from indicating a de-
veloping awareness of the applicability of the Four-
teenth Amendment to problems of apportionment,
demonstrate precisely the reverse: that the States re-
tained and exercised the power independently to appor-
tion their legislatures. In its Constitutions of 1875 and
1901, Alabama carried forward earlier provisions guar-
anteeing each county at least one representative and fix-
ing an upper limit to the number of seats in the House.52
Florida’s Constitution of 1885 continued the guarantee of
one representative for each county and reduced the max-
imum number of representatives per county from four to
three.53 Georgia, in 1877, continued to favor the smaller
counties.54 Louisiana, in 1879, guaranteed each parish
at least one representative in the House.55 In 1890, Mis-
sissippi guaranteed each county one representative, estab-
lished a maximum number of representatives, and pro-
vided that specified groups of counties should each have
approximately one-third of the seats in the House, what-
p. 609ever the spread of population.56 Missouri’s Constitution
of 1875 gave each county one representative and other-
wise favored less populous areas.57 Montana’s original
Constitution of 1889 apportioned the State Senate by
counties.58 In 1877, New Hampshire amended its Con-
stitution’s provisions for apportionment, but continued to
favor sparsely settled areas in the House and to appor-
tion seats in the Senate according to direct taxes paid;59
the same was true of New Hampshire’s Constitution of
1902.60
In 1894, New York adopted a Constitution the peculiar
apportionment provisions of which were obviously in-
tended to prevent representation according to population:
no county was allowed to have more than one-third of
all the Senators, no two counties which were adjoining or
“separated only by public waters” could have more than
one-half of all the Senators, and whenever any county
became entitled to more than three Senators, the total
number of Senators was increased, thus preserving to the
small counties their original number of seats.61 In addi-
tion, each county except Hamilton was guaranteed a seat
in the Assembly.62 The North Carolina Constitution of
1876 gave each county at least one representative and
fixed a maximum number of representatives for the whole
House.63 Oklahoma’s Constitution at the time of its ad-
mission to the Union (1907) favored small counties by
the use of partial ratios and a maximum number of
seats in the House; in addition, no county was per-
mitted to “take part” in the election of more than seven
p. 610representatives.64 Pennsylvania, in 1873, continued to
guarantee each county one representative in the House.65
The same was true of South Carolina’s Constitution of
1895, which provided also that each county should elect
one and only one Senator.66 Utah’s original Constitution
of 1895 assured each county of one representative in the
House.67 Wyoming, when it entered the Union in 1889,
guaranteed each county at least one Senator and one
representative.68
D. Today.
Since the Court now invalidates the legislative appor-
tionments in six States, and has so far upheld the
apportionment in none, it is scarcely necessary to com-
ment on the situation in the States today, which is, of
course, as fully contrary to the Court’s decision as is
the record of every prior period in this Nation’s history.
As of 1961, the Constitutions of all but 11 States, roughly
20% of the total, recognized bases of apportionment other
than geographic spread of population, and to some ex-
tent favored sparsely populated areas by a variety of
devices, ranging from straight area representation or
guaranteed minimum area representation to complicated
schemes of the kind exemplified by the provisions of New
York’s Constitution of 1894, still in effect until struck
down by the Court today in No. 20, post, p. 633.69 Since
p. 611Tennessee, which was the subject of Baker v. Carr, and
Virginia, scrutinized and disapproved today in No. 69,
post, p. 678, are among the 11 States whose own Constitu-
tions are sound from the standpoint of the Federal Con-
stitution as construed today, it is evident that the actual
practice of the States is even more uniformly than their
theory opposed to the Court’s view of what is constitu-
tionally permissible.
E. Other Factors.
In this summary of what the majority ignores, note
should be taken of the Fifteenth and
Nineteenth Amend-
ments. The former prohibited the States from denying
or abridging the right to vote “on account of race, color,
or previous condition of servitude.” The latter, certified
as part of the Constitution in 1920, added sex to the pro-
hibited classifications. In
Minor v. Happersett, 21 Wall.
162, this Court considered the claim that the right of
women to vote was protected by the Privileges and
Immunities Clause of
the Fourteenth Amendment. The
Court’s discussion there of the significance of the Fif-
teenth Amendment is fully applicable here with respect
to
the Nineteenth Amendment as well.
“And still again, after the adoption of the four-
teenth amendment, it was deemed necessary to adopt
a fifteenth, as follows: ‘The right of citizens of the
United States to vote shall not be denied or abridged
by the United States, or by any State, on account of
race, color, or previous condition of servitude.’ The
fourteenth amendment had already provided that no
State should make or enforce any law which should
abridge the privileges or immunities of citizens of
the United States. If suffrage was one of these priv-
ileges or immunities, why amend the Constitution
to prevent its being denied on account of race, &c.?
Nothing is more evident than that the greater must
p. 612include the less, and if all were already protected why
go through with the form of amending the Consti-
tution to protect a part?” Id., at 175.
In the present case, we can go still further. If consti-
tutional amendment was the only means by which all
men and, later, women, could be guaranteed the right to
vote at all, even for federal officers, how can it be that
the far less obvious right to a particular kind of apportion-
ment of state legislatures—a right to which is opposed a
far more plausible conflicting interest of the State than
the interest which opposes the general right to vote—can
be conferred by judicial construction of the Fourteenth
Amendment? 70 Yet, unless one takes the highly im-
plausible view that the Fourteenth Amendment controls
methods of apportionment but leaves the right to vote
itself unprotected, the conclusion is inescapable that the
Court has, for purposes of these cases, relegated the Fif-
teenth and Nineteenth Amendments to the same limbo
of constitutional anachronisms to which the second sec-
tion of the Fourteenth Amendment has been assigned.
Mention should be made finally of the decisions of this
Court which are disregarded or, more accurately, silently
overruled today. Minor v. Happersett, supra, in which
the Court held that the Fourteenth Amendment did not
p. 613confer the right to vote on anyone, has already been
noted. Other cases are more directly in point. In Cole-
grove v. Barrett,
330 U. S. 804, this Court dismissed “for
want of a substantial federal question” an appeal from
the dismissal of a complaint alleging that the Illinois leg-
islative apportionment resulted in “gross inequality in
voting power” and “gross and arbitrary and atrocious dis-
crimination in voting” which denied the plaintiffs equal
protection of the laws.71 In Remmey v. Smith,
102 F.
Supp. 708 (D. C. E. D. Pa.), a three-judge District Court
dismissed a complaint alleging that the apportionment
of the Pennsylvania Legislature deprived the plaintiffs
of “constitutional rights guaranteed to them by the Four-
teenth Amendment.” Id., at 709. The District Court
stated that it was aware that the plaintiffs’ allegations
were “notoriously true” and that “the practical disen-
franchisement of qualified electors in certain of the elec-
tion districts in Philadelphia County is a matter of com-
mon knowledge.” Id., at 710. This Court dismissed the
appeal “for the want of a substantial federal question.”
342 U. S. 916.
In Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40,
the Supreme Court of Tennessee dismissed an action for
a declaratory judgment that the Tennessee Apportion-
ment Act of 1901 was unconstitutional. The complaint
alleged that “a minority of approximately 37% of the
voting population of the State now elects and controls
20 of the 33 members of the Senate; that a minority of
40% of the voting population of the State now controls
63 of the 99 members of the House of Representatives.”
Id., at 276, 292 S. W. 2d, at 42. Without dissent, this
Court granted the motion to dismiss the appeal.
352
U. S. 920. In Radford v. Gary,
145 F. Supp. 541
(D. C. W. D. Okla.), a three-judge District Court was
p. 614convened to consider “the complaint of the plaintiff to
the effect that the existing apportionment statutes of
the State of Oklahoma violate the plain mandate of the
Oklahoma Constitution and operate to deprive him of the
equal protection of the laws guaranteed by the Fourteenth
Amendment to the Constitution of the United States.”
Id., at 542. The plaintiff alleged that he was a resident
and voter in the most populous county of the State, which
had about 15% of the total population of the State but
only about 2% of the seats in the State Senate and less
than 4% of the seats in the House. The complaint re-
cited the unwillingness or inability of the branches of the
state government to provide relief and alleged that there
was no state remedy available. The District Court
granted a motion to dismiss. This Court affirmed with-
out dissent. 352 U. S. 991.
Each of these recent cases is distinguished on some
ground or other in Baker v. Carr. See 369 U. S., at 235-
236. Their summary dispositions prevent consideration
whether these after-the-fact distinctions are real or imagi-
nary. The fact remains, however, that between 1947 and
1957, four cases raising issues precisely the same as those
decided today were presented to the Court. Three were
dismissed because the issues presented were thought in-
substantial and in the fourth the lower court’s dismissal
was affirmed.72
I have tried to make the catalogue complete, yet to
keep it within the manageable limits of a judicial opin-
ion. In my judgment, today’s decisions are refuted by
II
p. 615the language of the Amendment which they construe and
by the inference fairly to be drawn from subsequently
enacted Amendments. They are unequivocally refuted
by history and by consistent theory and practice from
the time of the adoption of
the Fourteenth Amendment
until today.
i The Court’s elaboration of its new “constitutional”
doctrine indicates how far—and how unwisely—it has
i strayed from the appropriate bounds of its authority.
The consequence of today’s decision is that in all but the
I handful of States which may already satisfy the new
| requirements the local District Court or, it may be, the
I state courts, are given blanket authority and the consti-
I tutional duty to supervise apportionment of the State
I Legislatures. It is difficult to imagine a more intolerable
I and inappropriate interference by the judiciary with the
I independent legislatures of the States.
In the Alabama cases (Nos. 23, 27, 41), the District
I Court held invalid not only existing provisions of the
I State Constitution—which this Court lightly dismisses
I with a wave of the Supremacy Clause and the remark
I U. S. 347;
Lane v. Wilson, 307 U. S. 268. The rationale of the Texas
I cases is almost certainly to be explained by the Court’s reluctance to
I decide that party primaries were a part of the electoral process for
■ purposes of
the Fifteenth Amendment. See Newberry v. United
I States,
256 U. S. 232. Once that question was laid to rest in
United
■ States v. Classic, 313 U. S. 299, the Court decided subsequent cases
I involving Texas party primaries on the basis of
the Fifteenth Amend-
■ ment. Smith v. Allwright,
321 U. S. 649; Terry v. Adams, 345 U. S.
I 461.
■ The recent decision in
Gomillion v. Lightfoot, 364 U. S. 339, that
■ a constitutional claim was stated by allegations that municipal lines
■ had been redrawn with the intention of depriving Negroes of the
■ right to vote in municipal elections was based on the Fifteenth
■ Amendment. Only one Justice, in a concurring opinion, relied on
■ the Equal Protection Clause of
the Fourteenth Amendment. Id., at
■ 349.
p. 616that “it makes no difference whether a State’s appor-
tionment scheme is embodied in its constitution or in
statutory provisions,” ante, p. 584—but also a proposed
amendment to the Alabama Constitution which had
never been submitted to the voters of Alabama for rati-
fication, and “standby” legislation which was not to be-
come effective unless the amendment was rejected (or
declared unconstitutional) and in no event before 1966.
Sims v. Frink, 208 F. Supp. 431. See ante, pp. 543-551.
Both of these measures had been adopted only nine days
before,73 at an Extraordinary Session of the Alabama Leg-
islature, convened pursuant to what was very nearly a
directive of the District Court, see Sims v. Frink, 205 F.
Supp. 245, 248. The District Court formulated its own
plan for the apportionment of the Alabama Legislature,
by picking and choosing among the provisions of the
legislative measures. 208 F. Supp., at 441-442. See
ante, p. 552. Beyond that, the court warned the legis-
lature that there would be still further judicial reappor-
tionment unless the legislature, like it or not, undertook
the task for itself. 208 F. Supp., at 442. This Court now
states that the District Court acted in “a most proper
and commendable manner,” ante, p. 586, and approves the
District Court’s avowed intention of taking “some fur-
ther action” unless the State Legislature acts by 1966,
ante, p. 587.
In the Maryland case (No. 29, post, p. 656), the State
Legislature was called into Special Session and enacted
a temporary reapportionment of the House of Delegates,
under pressure from the state courts.74 Thereafter, the
p. 617Maryland Court of Appeals held that the Maryland Sen-
ate was constitutionally apportioned. Maryland Com-
mittee for Fair Representation v. Tawes, 229 Md. 406,
184 A. 2d 715. This Court now holds that neither
branch of the State Legislature meets constitutional re-
quirements. Post, p. 674. The Court presumes that since
“the Maryland constitutional provisions relating to legis-
lative apportionment [are] hereby held unconstitutional,
the Maryland Legislature . . . has the inherent power to
enact at least temporary reapportionment legislation
pending adoption of state constitutional provisions”
which satisfy the Federal Constitution, id., at 675. On
this premise, the Court concludes that the Maryland
courts need not “feel obliged to take further affirmative
action” now, but that “under no circumstances should
the 1966 election of members of the Maryland Legisla-
ture be permitted to be conducted pursuant to the
existing or any other unconstitutional plan.” Id., at 676.
In the Virginia case (No. 69, post, p. 678), the State
Legislature in 1962 complied with the state constitutional
requirement of regular reapportionment.75 Two days
later, a complaint was filed in the District Court.76
Eight months later, the legislative reapportionment was
sions of the Maryland Constitution to be invalid, to “declare that
the Legislature has the power, if called into Special Session by the
Governor and such action be deemed appropriate by it, to enact
a bill reapportioning its membership for purposes of the November,
1962, election.” Maryland Committee for Fair Representation v.
Tawes, 228 Md. 412, 438-439, 180 A. 2d 656, 670. On remand, the
opinion of the Circuit Court included such a declaration. The opin-
ion was filed on May 24, 1962. The Maryland Legislature, in
Special Session, adopted the “emergency” measures now declared
unconstitutional seven days later, on May 31, 1962.
p. 618declared unconstitutional. Mann v. Davis, 213 F. Supp.
577. The District Court gave the State Legislature two
months within which to reapportion itself in special ses-
sion, under penalty of being reapportioned by the court.77
Only a stay granted by a member of this Court slowed the
process; 78 it is plain that no stay will be forthcoming in
the future. The Virginia Legislature is to be given “an
adequate opportunity to enact a valid plan”; but if it
fails “to act promptly in remedying the constitutional
defects in the State’s legislative apportionment plan,” the
District Court is to “take further action.” Post, p. 693.
In Delaware (No. 307, post, p. 695), the District Court
entered an order on July 25, 1962, which stayed proceed-
ings until August 7, 1962, “in the hope and expectation”
that the General Assembly would take “some appropriate
action” in the intervening 13 days. Sincock v. Terry,
207 F. Supp. 205, 207. By way of prodding, presumably,
the court noted that if no legislative action were taken
and the court sustained the plaintiffs’ claim, “the present
General Assembly and any subsequent General Assembly,
the members of which were elected pursuant to Section 2
of Article 2 [the challenged provisions of the Delaware
Constitution], might be held not to be a de jure legisla-
ture and its legislative acts might be held invalid and
unconstitutional.” Id., at 205-206. Five days later, on
July 30, 1962, the General Assembly approved a pro-
posed amendment to the State Constitution. On August
7, 1962, the District Court entered an order denying the
p. 619defendants’ motion to dismiss. The court said that it
did not wish to substitute its judgment “for the collective
wisdom of the General Assembly of Delaware,” but that
“in the light of all the circumstances,” it had to proceed
promptly. 210 F. Supp. 395, 396. On October 16, 1962,
the court declined to enjoin the conduct of elections in
November. 210 F. Supp. 396. The court went on to
express its regret that the General Assembly had not
adopted the court’s suggestion, see 207 F. Supp., at 206-
207, that the Delaware Constitution be amended to make
apportionment a statutory rather than a constitutional
matter, so as to facilitate further changes in apportion-
ment which might be required. 210 F. Supp., at 401. In
January 1963, the General Assembly again approved the
proposed amendment of the apportionment provisions of
the Delaware Constitution, which thereby became effec-
tive on January 17, 1963.79 Three months later, on April
17, 1963, the District Court reached “the reluctant con-
clusion” that Art. II, § 2, of the Delaware Constitution
was unconstitutional, with or without the 1963 amend-
ment. Sincock v. Duffy, 215 F. Supp. 169, 189. Ob-
serving that “the State of Delaware, the General
Assembly, and this court all seem to be trapped in a kind
of box of time,” id., at 191, the court gave the General
Assembly until October 1, 1963, to adopt acceptable pro-
visons for apportionment. On May 20, 1963, the Dis-
trict Court enjoined the defendants from conducting any
elections, including the general election scheduled for
November 1964, pursuant to the old or the new consti-
tutional provisions.80 This Court now approves all these
p. 620proceedings, noting particularly that in allowing the 1962
elections to go forward, “the District Court acted in a
wise and temperate manner.” Post, p. 710.81
Records such as these in the cases decided today are
sure to be duplicated in most of the other States if they
have not been already. They present a jarring picture of
courts threatening to take action in an area which they
have no business entering, inevitably on the basis of po-
litical judgments which they are incompetent to make.
They show legislatures of the States meeting in haste
and deliberating and deciding in haste to avoid the threat
of judicial interference. So far as I can tell, the Court’s
only response to this unseemly state of affairs is ponderous
insistence that “a denial of constitutionally protected
rights demands judicial protection,” ante, p. 566. By thus
refusing to recognize the bearing which a potential for
granted a stay of the injunction until disposition of the case by this
Court. Since the Court states that “the delay inherent in following
the state constitutional prescription for approval of constitutional
amendments by two successive General Assemblies cannot be allowed
to result in an impermissible deprivation of appellees’ right to an
adequate voice in the election of legislators to represent them,” post,
p. 711, the lid has presumably been slammed shut again.
p. 621conflict of this kind may have on the question whether
the claimed rights are in fact constitutionally entitled to
judicial protection, the Court assumes, rather than sup-
ports, its conclusion.
It should by now be obvious that these cases do not
mark the end of reapportionment problems in the courts,
i Predictions once made that the courts would never have
to face the problem of actually working out an apportion-
ment have proved false. This Court, however, continues
I to avoid the consequences of its decisions, simply assuring
I us that the lower courts “can and . . . will work out more
I concrete and specific standards,” ante, p. 578. Deeming
I it “expedient” not to spell out “precise constitutional
I tests,” the Court contents itself with stating “only a few
I rather general considerations.” Ibid.
I Generalities cannot obscure the cold truth that cases
I of this type are not amenable to the development of judi-
I cial standards. No set of standards can guide a court
I which has to decide how many legislative districts a State
I shall have, or what the shape of the districts shall be, or
I where to draw a particular district line. No judicially
I manageable standard can determine whether a State
■ should have single-member districts or multimember dis-
I tricts or some combination of both. No such standard
I can control the balance between keeping up with popu-
I lation shifts and having stable districts. In all these re-
■ spects, the courts will be called upon to make particular
■ decisions with respect to which a principle of equally
■ populated districts will be of no assistance whatsoever.
H Quite obviously, there are limitless possibilities for dis-
H tricting consistent with such a principle. Nor can these
■ problems be avoided by judicial reliance on legislative
■ judgments so far as possible. Reshaping or combining
■ one or two districts, or modifying just a few district lines,
■ is no less a matter of choosing among many possible
p. 622solutions, with varying political consequences, than reap-
portionment broadside.82
The Court ignores all this, saying only that “what is
marginally permissible in one State may be unsatisfac-
tory in another, depending on the particular circumstances
of the case,” ante, p. 578. It is well to remember that the
product of today’s decisions will not be readjustment of a
few districts in a few States which most glaringly depart
from the principle of equally populated districts. It will
be a redetermination, extensive in many cases, of legis-
lative districts in all but a few States.
Although the Court—necessarily, as I believe—provides
only generalities in elaboration of its main thesis, its
opinion nevertheless fully demonstrates how far removed
these problems are from fields of judicial competence.
Recognizing that “indiscriminate districting” is an invita-
tion to “partisan gerrymandering,” ante, pp. 578-579, the
Court nevertheless excludes virtually every basis for the
formation of electoral districts other than “indiscriminate
districting.” In one or another of today’s opinions, the
Court declares it unconstitutional for a State to give
effective consideration to any of the following in estab-
lishing legislative districts:
(1) history; 83
(2) “economic or other sorts of group interests”; 84
(3) area;85
(4) geographical considerations; 86
(5) a desire “to insure effective representation for
sparsely settled areas”; 87
p. 623(6) “availability of access of citizens to their rep-
resentatives”; 88
(7) theories of bicameralism (except those ap-
proved by the Court);89
(8) occupation; 90
(9) “an attempt to balance urban and rural
power.” 91
(10) the preference of a majority of voters in the
State.92
So far as presently appears, the only factor which a State
may consider, apart from numbers, is political subdivi-
sions. But even “a clearly rational state policy” recog-
nizing this factor is unconstitutional if “population is
submerged as the controlling consideration . . . .” 93 94
I know of no principle of logic or practical or theoretical
politics, still less any constitutional principle, which estab-
lishes all or any of these exclusions. Certain it is that the
Court’s opinion does not establish them. So far as the
Court says anything at all on this score, it says only that
“legislators represent people, not trees or acres,” ante, p.
562; that “citizens, not history or economic interests, cast
votes,” ante, p. 580; that “people, not land or trees or pas-
tures, vote,” ibid?* All this may be conceded. But it is
surely equally obvious, and, in the context of elections,
more meaningful to note that people are not ciphers and
that legislators can represent their electors only by speak-
p. 624ing for their interests—economic, social, political—many
of which do reflect the place where the electors live. The
Court does not establish, or indeed even attempt to make
a case for the proposition that conflicting interests within
a State can only be adjusted by disregarding them when
voters are grouped for purposes of representation.
Conclus ion .
With these cases the Court approaches the end of the
third round set in motion by the complaint filed in Baker
v. Carr. What is done today deepens my conviction
that judicial entry into this realm is profoundly ill-
advised and constitutionally impermissible. As I have
said before, Wesberry v. Sanders, supra, at 48, I believe
that the vitality of our political system, on which in the
last analysis all else depends, is weakened by reliance on
the judiciary for political reform; in time a complacent
body politic may result.
These decisions also cut deeply into the fabric of our
federalism. What must follow from them may eventually
appear to be the product of state legislatures. Neverthe-
less, no thinking person can fail to recognize that the after-
math of these cases, however desirable it may be thought
in itself, will have been achieved at the cost of a radical
alteration in the relationship between the States and the
Federal Government, more particularly the Federal Judi-
ciary. Only one who has an overbearing impatience with
the federal system and its political processes will believe
that that cost was not too high or was inevitable.
Finally, these decisions give support to a current mis*
taken view of the Constitution and the constitutional
function of this Court. This view, in a nutshell, is that
every major social ill in this country can find its cure
in some constitutional “principle,” and that this Court
should “take the lead” in promoting reform when other
branches of government fail to act. The Constitution is
p. 625not a panacea for every blot upon the public welfare, nor
should this Court, ordained as a judicial body, be thought
of as a general haven for reform movements. The Con-
stitution is an instrument of government, fundamental to
which is the premise that in a diffusion of governmental
authority lies the greatest promise that this Nation will
realize liberty for all its citizens. This Court, limited in
function in accordance with that premise, does not serve
its high purpose when it exceeds its authority, even to
satisfy justified impatience with the slow workings of the
political process. For when, in the name of constitu-
tional interpretation, the Court adds something to the
Constitution that was deliberately excluded from it, the
Court in reality substitutes its view of what should be so
for the amending process.
I dissent in each of these cases, believing that in none
of them have the plaintiffs stated a cause of action. To
the extent that Baker v. Carr, expressly or by implication,
went beyond a discussion of jurisdictional doctrines inde-
pendent of the substantive issues involved here, it should
be limited to what it in fact was: an experiment in ven-
turesome constitutionalism. I would reverse the judg-
ments of the District Courts in Nos. 23, 27, and 41
(Alabama), No. 69 (Virginia), and No. 307 (Delaware),
and remand with directions to dismiss the complaints.
I would affirm the judgments of the District Courts in
No. 20 (New York), and No. 508 (Colorado), and of
the Court of Appeals of Maryland in No. 29.
APPENDIX A TO OPINION OF MR. JUSTICE
HARLAN, DISSENTING.
Statements made in the House of Representatives
during the debate on the resolution proposing
the
Fourteenth Amendment.*
*A11 page references are to Cong. Globe, 39th Cong., 1st Sess.
(1866).
p. 626Appendix A to Opinion of Har la n, J., dissenting. 377 U. S.
“As the nearest approach to justice which we are
likely to be able to make, I approve of the second
section that bases representation upon voters.” 2463
(Mr. Garfield).
“Would it not be a most unprecedented thing that
when this [former slave] population are not per-
mitted where they reside to enter into the basis of
representation in their own State, we should receive
it as an element of representation here; that when
they will not count them in apportioning their own
legislative districts, we are to count them as five
fifths (no longer as three fifths, for that is out of the
question) as soon as you make a new apportion-
ment?” 2464—2465 (Mr. Thayer).
“The second section of the amendment is osten-
sibly intended to remedy a supposed inequality in
the basis of representation. The real object is to
reduce the number of southern representatives in
Congress and in the Electoral College; and also to
operate as a standing inducement to negro suffrage.”
2467 (Mr. Boyer).
“Shall the pardoned rebels of the South include in
the basis of representation four million people to
whom they deny political rights, and to no one of
whom is allowed a vote in the selection of a Repre-
sentative?” 2468 (Mr. Kelley).
“I shall, Mr. Speaker, vote for this amendment;
not because I approve it. Could I have controlled
the report of the committee of fifteen, it would have
proposed to give the right of suffrage to every loyal
man in the country.” 2469 (Mr. Kelley).
“But I will ask, why should not the representation
of the States be limited as the States themselves
limit suffrage? ... If the negroes of the South are
p. 627not to be counted as a political element in the gov-
ernment of the South in the States, why should they
be counted as a political element in the government
of the country in the Union?” 2498 (Mr. Broomall).
“It is now proposed to base representation upon suf-
frage, upon the number of voters, instead of upon
the aggregate population in every State of the
Union.” 2502 (Mr. Raymond).
“We admit equality of representation based upon the
exercise of the elective franchise by the people. The
proposition in the matter of suffrage falls short of
what I desire, but so far as it goes it tends to the
equalization of the inequality at present existing;
and while I demand and shall continue to demand
the franchise for all loyal male citizens of this coun-
try—and I cannot but admit the possibility that ulti-
mately those eleven States may be restored to rep-
resentative power without the right of franchise be-
ing conferred upon the colored people—I should feel
myself doubly humiliated and disgraced, and crim-
inal even, if I hesitated to do what I can for a
proposition which equalizes representation.” 2508
(Mr. Boutwell).
“Now, conceding to each State the right to regulate
the right of suffrage, they ought not to have a repre-
sentation for male citizens not less than twenty-one
years of age, whether white or black, who are de-
prived of the exercise of suffrage. This amendment
will settle the complication in regard to suffrage and
representation, leaving each State to regulate that
for itself, so that it will be for it to decide whether
or not it shall have a representation for all its male
citizens not less than twenty-one years of age.”
2510 (Mr. Miller).
p. 628Appendix A to Opinion of Harl an , J., dissenting. 377 U. S.
“Manifestly no State should have its basis of
national representation enlarged by reason of a por-
tion of citizens within its borders to which the elec-
tive franchise is denied. If political power shall be
lost because of such denial, not imposed because of
participation in rebellion or other crime, it is to be
hoped that political interests may work in the line
of justice, and that the end will be the impartial en-
franchisement of all citizens not disqualified by crime.
Whether that end shall be attained or not, this will
be secured: that the measure of political power of
any State shall be determined by that portion of its
citizens which can speak and act at the polls, and
shall not be enlarged because of the residence within
the State of portions of its citizens denied the right
of franchise. So much for the second section of the
amendment. It is not all that I wish and would
demand; but odious inequalities are removed by it
and representation will be equalized, and the political
rights of all citizens will under its operation be, as
we believe, ultimately recognized and admitted.”
2511 (Mr. Eliot).
“I have no doubt that the Government of the
United States has full power to extend the elective
franchise to the colored population of the insurgent
States. I mean authority; I said power. I have
no doubt that the Government of the United States
has authority to do this under the Constitution; but
I do not think they have the power. The distinc-
tion I make between authority and power is this:
we have, in the nature of our Government, the right
to do it; but the public opinion of the country is
such at this precise moment as to make it impossible
we should do it. It was therefore most wise on the
part of the committee on reconstruction to waive this
matter in deference to public opinion. The situa-
p. 629tion of opinion in these States compels us to look to
other means to protect the Government against the
enemy.” 2532 (Mr. Banks).
“If you deny to any portion of the loyal citizens of
your State the right to vote for Representatives you
shall not assume to represent them, and, as you have
done for so long a time, misrepresent and oppress
them. This is a step in the right direction; and al-
though I should prefer to see incorporated into the
Constitution a guarantee of universal suffrage, as
we cannot get the required two thirds for that, I
cordially support this proposition as the next best.”
2539-2540 (Mr. Farnsworth).
APPENDIX B TO OPINION OF MR. JUSTICE
HARLAN, DISSENTING.
Statements made in the Senate during the debate on
the resolution proposing
the Fourteenth Amendment.*
“The second section of the constitutional amend-
ment proposed by the committee can be justified
upon no other theory than that the negroes ought to
vote; and negro suffrage must be vindicated before
the people in sustaining that section, for it does not
exclude the non-voting population of the North,
because it is admitted that there is no wrong in ex-
cluding from suffrage aliens, females, and minors.
But we say, if the negro is excluded from suffrage
he shall also be excluded from the basis of representa-
tion. Why this inequality? Why this injustice?
For injustice it would be unless there be some good
reason for this discrimination against the South in
excluding her non-voting population from the basis
*A11 page references are to Cong. Globe, 39th Cong., 1st Sess.
(1866).
p. 630Appendix B to Opinion of Har la n, J., dissenting. 377 U. S.
of representation. The only defense that we can
make to this apparent injustice is that the South
commits an outrage upon human rights when she
denies the ballot to the blacks, and we will not
allow her to take advantage of her own wrong, or
profit by this outrage. Does any one suppose it pos-
sible to avoid this plain issue before the people? For
if they will sustain you in reducing the representa-
tion of the South because she does not allow the
negro to vote, they will do so because they think
it is wrong to disfranchise him.” 2800 (Senator
Stewart).
“It [the second section of the proposed amendment]
relieves him [the Negro] from misrepresentation in
Congress by denying him any representation what-
ever.” 2801 (Senator Stewart):
“But I will again venture the opinion that it [the
second section] means as if it read thus: no State
shall be allowed a representation on a colored popu-
lation unless the right of voting is given to the
negroes—presenting to the States the alternative of
loss of representation or the enfranchisement of the
negroes, and their political equality.” 2939 (Senator
Hendricks).
“I should be much better satisfied if the right of suf-
frage had been given at once to the more intelligent
of them [the Negroes] and such as had served in our
Army. But it is believed by wiser ones than myself
that this amendment will very soon produce some
grant of suffrage to them, and that the craving for
political power will ere long give them universal suf-
frage. . . . Believing that this amendment prob-
ably goes as far in favor of suffrage to the negro as is
practicable to accomplish now, and hoping it may in
p. 631the end accomplish all I desire in this respect, I
shall vote for its adoption, although I should be glad
to go further.” 2963-2964 (Senator Poland).
“What is to be the operation of this amendment?
Just this: your whip is held over Pennsylvania, and
you say to her that she must either allow her negroes
to vote or have one member of Congress less.” 2987
(Senator Cowan).
“Now, sir, in all the States—certainly in mine, and
no doubt in all—there are local as contradistinguished
from State elections. There are city elections,
county elections, and district or borough elections;
and those city and county and district elections are
held under some law of the State in which the city
or county or district or borough may be; and in
those elections, according to the laws of the States,
certain qualifications are prescribed, residence within
the limits of the locality and a property qualification
in some. Now, is it proposed to say that if every
man in a State is not. at liberty to vote at a city or a
country or a borough election that is to affect the
basis of representation?” 2991 (Senator Johnson).
“Again, Mr. President, the measure upon the table,
like the first proposition submitted to the Senate
from the committee of fifteen, concedes to the
States . . . not only the right, but the exclusive
right, to regulate the franchise. ... It says that
each of the southern States, and, of course, each other
State in the Union, has a right to regulate for itself
the franchise, and that consequently, as far as the
Government of the United States is concerned, if the
black man is not permitted the right to the franchise,
it will be a wrong (if a wrong) which the Govern-
p. 632Appendix B to Opinion of Harl an , J., dissenting. 377 U. S.
ment of the United States will be impotent to
redress.” 3027 (Senator Johnson).
“The amendment fixes representation upon num-
bers, precisely as the Constitution now does, but
when a State denies or abridges the elective fran-
chise to any of its male inhabitants who are citizens
of the United States and not less than twenty-one
years of age, except for participation in rebellion or
other crime, then such State will lose its representa-
tion in Congress in the proportion which the male
citizen so excluded bears to the whole number of male
citizens not less than twenty-one years of age in the
State.” 3033 (Senator Henderson).
Cases cited
-
Baker v. Carr
369 U. S. 186
SCOTUS
1962-03-26
at 15, at 302-307, at 301-323, at 237, at 235-
236
p. 534, p. 541, p. 542, p. 543, p. 556, p. 557, p. 558, p. 559, p. 568, p. 572, p. 582, p. 585, p. 588, p. 590, p. 591, p. 592, p. 611, p. 614, p. 624, p. 625
-
208 F. Supp. 431
208 F. Supp. 431
p. 536, p. 545, p. 616
-
205 F. Supp. 245
205 F. Supp. 245
at 675, at 676
p. 541, p. 542, p. 616, p. 617
-
Ex parte Yarbrough
110 U. S. 651
SCOTUS
1884-03-03
p. 554
-
United States v. Mosley
238 U. S. 383
SCOTUS
1915-06-21
p. 554
-
Guinn v. United States
238 U. S. 347
SCOTUS
1915-06-21
p. 555
-
Lane v. Wilson
307 U. S. 268
SCOTUS
1939-05-22
p. 555, p. 563, p. 615
-
United States v. Classic
313 U. S. 299
SCOTUS
1941-05-26
at 315
p. 555, p. 615
-
Ex parte Siebold
100 U. S. 371
SCOTUS
p. 555
-
Gomillion v. Lightfoot
364 U. S. 339
SCOTUS
1960-11-14
at 347
p. 555, p. 563, p. 566, p. 615
-
Nixon v. Herndon
273 U. S. 536
SCOTUS
1927-03-07
p. 555
-
Nixon v. Condon
286 U. S. 73
SCOTUS
1932-05-02
p. 555
-
Smith v. Allwright
321 U. S. 649
SCOTUS
1944-04-03
p. 555, p. 615
-
Terry v. Adams
345 U. S. 461
SCOTUS
1953-05-04
p. 555, p. 615
-
Gray v. Sanders
372 U. S. 368
SCOTUS
1963-03-18
at 376, at 381-382
p. 557, p. 558, p. 559, p. 560, p. 574, p. 587, p. 589, p. 592, p. 593
-
Wesberry v. Sanders
376 U. S. 1
SCOTUS
1964-02-17
at 14, at 8, at 17
p. 559, p. 560, p. 563, p. 564, p. 572, p. 577, p. 587, p. 589, p. 592, p. 593, p. 624
-
United States v. Bathgate
246 U. S. 220
SCOTUS
1918-03-04
p. 561
-
Skinner v. Oklahoma ex rel. Williamson
316 U. S. 535
SCOTUS
1942-06-01
at 536
p. 561
-
Yick Wo v. Hopkins
118 U. S. 356
SCOTUS
1886-05-10
at 370
p. 562
-
Brown v. Board of Education
347 U. S. 483
SCOTUS
1954-05-17
p. 566
-
Griffin v. Illinois
351 U. S. 12
SCOTUS
1956-04-23
p. 566
-
Douglas v. California
372 U. S. 353
SCOTUS
1963-03-18
p. 566
-
Hunter v. City of Pittsburgh
207 U. S. 161
SCOTUS
1907-11-18
p. 575
-
Butchers' Benevolent Ass'n v. Crescent City Live-Stock Landing & Slaughter-House Co.
16 Wall. 36
SCOTUS
p. 578
-
United States v. Florida
363 U. S. 121
SCOTUS
1960-05-31
p. 605
-
Minor v. Happersett
21 Wall. 162
SCOTUS
at 175
p. 611, p. 612
-
330 U. S. 804
330 U. S. 804
p. 613
-
102 F. Supp. 708
102 F. Supp. 708
at 709, at 710
p. 613
-
Remmey v. Smith
342 U. S. 916
SCOTUS
1952-01-28
p. 613
-
Bobbins v. New Jersey
352 U. S. 920
SCOTUS
1956-12-03
p. 613
-
145 F. Supp. 541
145 F. Supp. 541
at 542
p. 613, p. 614
-
Texas v. New Mexico
352 U. S. 991
SCOTUS
1957-02-25
p. 614
-
Newberry v. United States
256 U. S. 232
SCOTUS
1921-05-02
p. 615
-
213 F. Supp. 577
213 F. Supp. 577
p. 618
-
207 F. Supp. 205
207 F. Supp. 205
at 205-206
p. 618
-
210 F. Supp. 395
210 F. Supp. 395
p. 619
-
210 F. Supp. 396
210 F. Supp. 396
p. 619
-
215 F. Supp. 169
215 F. Supp. 169
at 191
p. 619, p. 621
Statutes and regulations cited
-
-
Amend. XIV
p. 533, p. 537, p. 540, p. 544, p. 545, p. 557, p. 558, p. 560, p. 564, p. 566, p. 590, p. 591, p. 592, p. 593, p. 594, p. 595, p. 602, p. 604, p. 607, p. 611, p. 612, p. 614, p. 615, p. 625, p. 629
-
Amend. XIX
p. 557, p. 558, p. 611, p. 612
-
Amend. XV
p. 615
-