Majority — Warren C.J.
p. 656MARYLAND COMMITTEE FOR FAIR REPRE-
SENTATION et al . v. TA WES, GOVERNOR OF
MARYLAND, et al .
APPEAL FROM THE COURT OF APPEALS OF MARYLAND.
No. 29. Argued November 13-14, 1963.—Decided June 15, 1964.
The Maryland Senate under the 1867 Constitution has 29 seats, one
for each of 23 counties and six for the City of Baltimore’s legisla-
tive districts. The State’s five most populous political subdivi-
sions with over three-fourths of the 1960 population are repre-
sented by only slightly over one-third of the Senate’s membership,
and, prior to 1962 temporary legislation, were represented by less
than one-half of the House of Deliegates’ membership. Appel-
lants, including voters in those subdivisions, sued appellee officials
in a state court seeking a declaration that the legislative appor-
tionment deprived them and others similarly situated of rights
protected under the Equal Protection Clause, and sought a declara-
tion that the legislature’s failure to convene a constitutional con-
vention approved by a majority of the voters in 1950 violated
the State Constitution. The circuit court, after reversal of its
order dismissing the complaint, held that as to certain counties
there was invidious discrimination in the apportionment of the
House but refrained from passing on the validity of the sena-
torial apportionment. The legislature thereafter enacted legisla-
tion whose effect was to give those five most populous subdivisions
55.6% of the members of the House, but failed to pass a consti-
tutional amendment reapportioning the House. On another re-
mand the circuit court held that the Senate apportionment, al-
though established on a nonpopulation, geographical basis, was
constitutional, and the Maryland Court of Appeals affirmed, hold-
ing that the appeal did not question the House apportionment
and upholding the Senate apportionment, in part in reliance on
an analogy to the Federal Senate. Opposition of legislators from
the less populous counties accounted for failure of many reap-
portionment bills, and Maryland law makes no provision for
reapportionment or the initiation of legislation or constitutional
amendments by the people. Held:
1. This Court cannot decide on the validity of the apportion-
ment of one house of a bicameral legislature without also evaluat-
ing the actual apportionment of the other. P. 673.
p. 6572. Whether or not the House is apportioned on a population
basis, Maryland’s legislative representation scheme cannot be sus-
tained under the Equal Protection Clause because of the gross
disparities from population-based representation in the apportion-
ment of Senate seats. P. 673.
3. Seats in both houses of a bicameral state legislature must,
under the Equal Protection Clause, be apportioned substantially
on a population basis. Reynolds v. Sims, ante, p. 533, followed.
P. 674.
4. Neither house of the Maryland Legislature, even after the
temporary legislation, is apportioned sufficiently on a population
basis to be constitutionally sustainable. P. 674.
5. The same constitutional standards apply whether an appor-
tionment scheme is evaluated in the state or federal courts.
P. 674.
6. Reliance on the “federal analogy” to sustain the Maryland
apportionment scheme is misplaced. Reynolds v. Sims, supra,
followed. P. 675.
7. The Maryland Legislature has sufficient time before the 1966
elections to reapportion the General Assembly, but under no
circumstances should those elections be conducted under the exist-
ing or other unconstitutional plan. Pp. 675-676.
229 Md. 406, 184 A. 2d 715, reversed and remanded.
Alfred L. Scanlan argued the cause for appellants.
With him on the brief were John B. Wright and Johnson
Bowie.
Robert S. Bourbon, Assistant Attorney General of
Maryland, argued the cause for appellees. With him on
the brief was Thomas B. Finan, Attorney General of
Maryland.
Solicitor General Cox, by special leave of Court, argued
the cause for the United States, as amicus curiae, urging
reversal. With him on the brief were Bruce J. Terris and
Richard W. Schmude.
Theodore I. Botter, First Assistant Attorney General
of New Jersey, argued the cause for the State of New
Jersey et al, as amici curiae, urging affirmance. With him
I
p. 658on the brief were the Attorneys General of their respec-
tive States as follows: Arthur J. Sills of New Jersey,
Robert W. Pickrell of Arizona, Duke W. Dunbar of Colo-
rado, Bert T. Kobayashi of Hawaii, Allan G. Shepard of
Idaho, Edwin K. Steers of Indiana, William M. Fergu-
son of Kansas, Jack P. F. Gremillion of Louisiana, T.
Wade Bruton of North Carolina, Helgi Johanneson of
North Dakota, Walter E. Alessandroni of Pennsylvania,
J. Joseph Nugent of Rhode Island, Frank L. Farrar of
South Dakota and Charles Gibson of Vermont.
Briefs of amici curiae were filed by Robert G. Tobin,
Jr., Douglas H. Moore, Jr. and Richard J. Sincoff for
Montgomery County, Maryland, urging reversal; 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 Louis-
ville, Kentucky.
Mr . Chief Justice Warren delivered the opinion of
the Court.
This case involves an appeal from a decision of the
Maryland Court of Appeals upholding the validity, under
the Equal Protection Clause of the Fourteenth Amend-
ment to the Federal Constitution, of the apportionment
of seats in the Maryland Senate.
Appellants, residents, taxpayers and voters in four
populous Maryland counties (Anne Arundel, Baltimore,
Montgomery and Prince George’s) and the City of
Baltimore, and an unincorporated association, originally
brought an action in the Circuit Court of Anne Arundel
County, in August 1960, challenging the apportionment
of the Maryland Legislature. Defendants below, sued
in their representative capacities, were various officials
p. 659charged with duties in connection with state elections.
Plaintiffs below alleged that the apportionment of both
houses of the Maryland Legislature, pursuant to Art. Ill,
§§ 2 and 5, of the 1867 Maryland Constitution, as
amended, discriminated against inhabitants of the more
populous counties and the City of Baltimore by accord-
ing these persons substantially less representation than
that given to persons residing in other areas of the State.
They contended that the alleged legislative malappor-
tionment violated the Equal Protection Clause of
the
Fourteenth Amendment since that provision prohibits
any State from “denying, diluting or restricting the
equality of voting rights or privileges among classes of
otherwise eligible voters similarly situated,” and asserted
that there was no political remedy practicably available
under Maryland law to obtain the relief sought.
Plaintiffs below sought a declaratory judgment that
Art. Ill, § § 2 and 5, of the Maryland Constitution deny
them and those similarly situated rights protected under
the Equal Protection Clause, and that the failure of the
Maryland Legislature to reapportion its membership in
accordance with a formula which would reasonably re-
flect present population figures deprived them of their
constitutional rights. Plaintiffs also requested a declara-
tion that the failure of the Maryland General Assembly
to convene a constitutional convention as approved by a
majority of the State’s voters in the general election of
1950 violated various provisions of the State Constitution.
Plaintiffs requested that, unless the November 1962
election and elections thereafter were conducted on an
at-large basis, the court enjoin defendants from perform-
ing various election duties until such time as the General
Assembly should submit for a referendum vote by eligible
state voters an amendment to Art. Ill, § § 2 and 5, which
would reapportion the membership of the Maryland Leg-
islature on a population basis in conformity with the
p. 660requirements of
the Fourteenth Amendment. Plaintiffs
also asked the court to retain jurisdiction of the case until
the General Assembly submitted such a constitutional
amendment to the State’s voters.
On February 21, 1961, the Circuit Court sustained
defendants’ demurrers to plaintiffs’ complaint and dis-
missed the complaint without leave to amend. On
appeal, the Maryland Court of Appeals, on April 25,1962,
splitting 5-to-2, reversed the order of the Circuit Court
and remanded the case for a hearing on the merits. 228
Md. 412, 180 A. 2d 656. Finding that the federal ques-
tions raised were not non justiciable in a Maryland state
court, the Maryland Court of Appeals, after discussing
this Court’s decision in
Baker v. Carr, 369 U. S. 186,
stated that
“if any action needs to be taken in order to bring the
State’s system of legislative apportionment into con-
formity with the requirements of
the Fourteenth
Amendment . . . , it is preferable from the point of
view of responsible self-government that the State’s
own duly constituted officials and the people them-
selves undertake the task, rather than leave to the
Federal judiciary the delicate and perhaps unwelcome
task of doing so.” 1
While recognizing that “[t]here was no need in Baker v.
Carr ... for the Supreme Court to pass upon the power
of a State court to deal with questions of State legislative
apportionment,” the Maryland Court of Appeals found
“implicit in the vacation of the judgment and remand by
the Supreme Court of the United States to the Supreme
Court of Michigan of the case of Scholle v. Hare” this
Court’s view that cases challenging the constitutionality
of state legislative apportionments are “appropriate for
consideration by a State court . ...”1 2 Finding “a
1228 Md., at 419, 180 A. 2d, at 659.
p. 661strong implication in the Baker decision that there must
be some reasonable relationship of population, or eligible
voters, to representation in the General Assembly, if an
apportionment is to escape the label of constitutionally-
prohibited invidious discrimination,” the Maryland court
nevertheless stated that it was not “possible (or advisable
if it were possible) to state a precise, inflexible and in-
tractable formula for constitutional representation in the
General Assembly.” 3 In remanding to the lower state
court to “receive evidence to determine whether or not
an invidious discrimination does exist with respect to
representation in either or both houses” of the Maryland
Legislature, the Court of Appeals stated that, if the
Maryland constitutional provisions relating to legislative
apportionment were held invalid as to the November
1962 election, the Circuit Court should “also declare that
the Legislature has the power, if called into Special Ses-
sion by the Governor and such action be deemed appro-
priate by it, to enact a bill reapportioning its membership
for purposes” of that election.
On May 24, 1962, the Circuit Court, after receiving
various exhibits and hearing argument, held that the
apportionment of the Maryland House of Delegates in-
vidiously discriminated against the people of Baltimore,
Montgomery and Prince George’s Counties, but not
against the people of Baltimore City or Anne Arundel
County, and that therefore Art. Ill, § 5, of the Maryland
Constitution, which apportions seats in the House of
Delegates, violates the Equal Protection Clause of
the
Fourteenth Amendment. Although stating that the ap-
portionment of the Maryland Senate might be “constitu-
tionally based upon area and geographical location regard-
less of population or eligible voters,” the Circuit Court
refrained from formally passing on the validity of the
senatorial apportionment. The lower court also stated
p. 662that the Maryland Legislature had the power to enact a
statute providing for the reapportionment of the House
of Delegates as well as to propose a constitutional amend-
ment providing for such a reapportionment. It with-
held the granting of injunctive relief but retained juris-
diction to do so before the November 1962 election if
such became appropriate.
On May 31, 1962, the Maryland Legislature, called
into special session by the Governor, enacted temporary
“stop-gap” legislation reapportioning seats in the House
of Delegates, by allocating 19 added seats to the more
populous areas of the State.4 However, the legislature
failed to pass a proposed constitutional amendment re-
apportioning the Maryland House. The newly enacted
apportionment statute expires automatically on January
1, 1966, except that, if a constitutional amendment super-
seding the statutory provisions is submitted to the voters
at the 1964 general election and is rejected, the statute
will continue in force until January 1, 1970. The statute
further provides that upon its expiration the House of
Delegates shall again be apportioned according to Art.
Ill, § 5, which the Circuit Court had previously held
unconstitutional. No appeal was taken from the Circuit
Court’s decision holding invalid the existing apportion-
ment of the Maryland House of Delegates.
Following the Circuit Court’s failure to rule upon the
validity of the senatorial apportionment, plaintiffs ap-
pealed this question to the Maryland Court of Appeals.
On June 8, 1962, the Court of Appeals ordered the case
remanded to the Circuit Court for a prompt decision on 1
whether Art. Ill, § 2, of the Maryland Constitution, i
apportioning seats in the Senate, was valid or invalid
under the Equal Protection Clause. On June 28, 1962,
the Circuit Court held that the apportionment of the
Maryland Senate did not violate the Federal Constitu-
p. 663tion because it felt that an apportionment based upon
area and geographical location, without regard to popu-
lation, served to protect minorities, preserve legislative
checks and balances, and prevent hasty, though tempo-
rarily popular, legislation, and accorded with history, tra-
dition and reason, placing considerable reliance on a
comparison of that body of the Maryland Legislature
with the Federal Senate.
On July 23, 1962, the Maryland Court of Appeals,
splitting 5-to-3, in a per curiam order affirmed the Circuit
Court’s decision holding valid the apportionment of the
Maryland Senate, noting that its reasons would be stated
in an opinion to be filed at a later date. Plaintiffs’ mo-
tion for reargument, calling attention to recent decisions
and developments relating to legislative apportionment,
was denied by the Maryland Court of Appeals on Septem-
ber 11, 1962. On September 25, 1962, the Court of
Appeals filed its opinion. 229 Md. 406, 184 A. 2d 715.
It stated initially that the appeal did not question the
apportionment of the Maryland House. Continuing, the
Maryland court indicated that it was affirming the deci-
sion below and upholding the constitutionality of the
senatorial apportionment, on the grounds that: (1) Each
Maryland county has since 1837 had the same number
of Senate seats, except that Baltimore City had periodi-
cally been given additional representation, and Maryland
counties “have always been an integral part of the state
government” and have consistently possessed and main-
tained “distinct individualities”; (2) since the idea of a
bicameral legislature assumes two different methods of
apportionment in the two Houses to check “hasty and ill-
conceived legislation,” one house can be constitutionally
apportioned on a nonpopulation, geographical basis; and
(3) geographical representation in the Maryland Senate,
based on political subdivisions, is closely analogous to the
representation of the States in the Federal Senate. The
dissenting judges pointed out that the House of Dele-
II
p. 664Opinion of the Court. 377U.S.
gates, even as reapportioned, was still not apportioned
on a population basis, and that gross disparities from
population-based representation existed in the senatorial
apportionment. The dissenters found that neither his-
tory nor reliance on the so-called federal analogy pro-
vided a rational basis for such gross disparities from
population-based representation as were found in the
apportionment of the Maryland Legislature, before and
after the 1962 reapportionment. Since the Maryland
Court of Appeals upheld the senatorial apportionment
plan, the November 1962 election of senators was con-
ducted pursuant thereto, and delegates were elected under
the scheme provided by the 1962 legislation. Notice of
appeal to this Court from the Maryland Court of Appeals’
decision was timely filed, and we noted probable jurisdic-
tion on June 10, 1963. 374 U. S. 804.
The Maryland Constitution of 1867 vests legislative
power in a bicameral General Assembly consisting of a
Senate and a House of Delegates. According to official
census figures, Maryland had a 1960 population of
3,100,689, and the combined population of the five most
populous political subdivisions of Maryland—the coun-
ties of Anne Arundel, Baltimore, Montgomery and Prince
George’s, and the City of Baltimore—was 2,336,409.
Thus, about 75.3% of the State’s total population lived in
these five most populous subdivisions, as of 1960, while
about 24.7% lived in the remaining 19 counties of the
State. Under Art. Ill, § 2, of the Maryland Constitu-
tion, each of the State’s 23 counties is allocated one seat
in the Maryland Senate, and each of the six legislative
districts of the City of Baltimore is also entitled to one
Senate seat—resulting in a total of 29 seats in the Mary-
land Senate. Thus, the five most populous political sub-
divisions, with over three-fourths of the State’s total 1960
population, are represented by only 10 senators, or slightly
p. 665over one-third of the membership of that body. On the
other hand, the remaining 19 counties, with an aggregate
population of less than one-fourth of the State’s popula-
tion, are nevertheless represented by 19 senators, almost
two-thirds of the members of that body.5 And the 15
least populous counties, with only 14.1% of the total
state population, can elect a controlling majority of the
members of the Maryland Senate. A maximum popula-
tion-variance ratio of almost 32-to-l exists between
the most populous and least populous counties. Kent
County, with a 1960 population of 15,481, and Calvert
County, where only 15,826 resided, are each entitled to
one Senate seat, while Baltimore County, with a 1960
population of 492,428, is likewise entitled to only one
senator.
As to the apportionment of the Maryland House of
Delegates, Art. Ill, § 5, of the Maryland Constitution,
in force when this litigation was commenced but subse-
quently held unconstitutional by the Maryland courts
and superseded by the temporary legislation enacted in
1962, prescribed the representation accorded to each of
the State’s political subdivisions in the Maryland House.
The membership of the House was numerically fixed at
123 by this constitutional provision, with each county
being given at least two House seats. Seven counties
were given two seats each, five counties were allocated
three seats, and four counties were given four House
members. The remaining seven counties, including all
of those four populous counties where appellants reside,
were each allotted six House seats, and the six legislative
districts of the City of Baltimore were given six delegates
p. 666each.6 Under the then-existing House apportionment,
the five most populous political subdivisions, with 75.3%
of the State’s 1960 population, elected only 60 delegates,
or less than one-half of the members of the House of Dele-
gates, while the other 19 counties, with only 24.7% of
the population, were represented by 63 delegates, or
51.3% of the total membership. A maximum population-
variance ratio of over 12-to-l existed between the most
populous and least populous counties. Baltimore County,
with a 1960 population of 492,428, had only the same
number of House seats, six, as did Garrett and Somerset
Counties, whose combined 1960 population was 40,043.
Under the 1962 temporary legislation reapportioning
the Maryland House of Delegates, the only practical
effect is to add 19 House seats, increasing the member-
ship of that body from 123 to 142, for the four-year terms
of delegates elected in November 1962. Seven seats were
added for Baltimore County, four delegates each were
added for Montgomery and Prince George’s Counties, two
of Baltimore City’s legislative districts were given two
and one additional seats, respectively, and one seat was
p. 667added for Anne Arundel County. The basic scheme em-
bodied in the temporary legislation is to allocate two
House seats to each county and to each of the six Balti-
more City legislative districts, and then to distribute the
remaining seats, out of a fixed number of 123, among the
counties on a population basis. The new law pro-
vided, however, that during the initial four-year period
of its operation, “and for any additional period during
which . . . [it] may be extended,” each county and legis-
lative district would be entitled, as a minimum, to the
number of House seats that it had on January 1, 1962.
Thus, this means that in actuality there will be more than
123 delegates and that the counties and legislative dis-
tricts which were allegedly overrepresented under the old
constitutional provisions will retain much of their former
relative power. Under the new legislation, the five most
populous subdivisions, with 75.3% of the State’s 1960
population, elect 79 delegates, or 55.6% of the members
in the Maryland House. The remaining 19 counties,
with less than one-fourth of the State’s population, elect
44.4% of the members of the House of Delegates. Coun-
ties with only 35.6% of the State’s total population elect
a majority of the members of the House under the 1962
legislation. A maximum population-variance ratio of
almost 6-to-l still exists between the most populous and
least populous House districts. A delegate from Somer-
set County represents an average of 6,541 persons,
whereas a delegate from Baltimore County represents an
average of 37,879. Under both the previous and present
apportionment provisions, members of both the Senate
and the House of Delegates in Maryland are all elected
to serve four-year terms.7 None of the Maryland coun-
ties, under either the old or revised House apportion-
ment schemes, were divided into districts for the purpose
p. 668of electing delegates. Rather, all House members are
elected at large within each county (and legislative dis-
trict), regardless of the number of seats allocated thereto.8
Maryland law makes no provision for the initiation of
legislation or constitutional amendments by the people.9
Certain constitutional provisions provide, however, for
the taking, at a general election each 20 years, of “the
sense of the People in regard to calling a Convention for
altering this Constitution.” 10 Pursuant to these provi-
sions, a statewide referendum on whether a constitutional
convention, which would have the power to propose
amendments to the Maryland Constitution, including
amendments relating to the reapportionment of repre-
sentation in the General Assembly, should be called was
submitted to the State’s voters at the general election in
1950. An overwhelming majority of the voters (by a
vote of 200,439 to 56,998) indicated their approval of
the calling of a constitutional convention. Nevertheless,
even though numerous bills providing for the convening
of a constitutional convention were introduced into the
p. 669General Assembly between 1951 and 1962, the General
Assembly repeatedly refused to enact the necessary ena-
bling legislation.11 Thus, despite the favorable vote of
the State’s electorate, no constitutional convention has
ever been convened. The next such vote will not be
taken until 1970, and, even if the people again approve
the calling of a constitutional convention, it cannot be
actually convened without the enactment of enabling leg-
islation by the Maryland General Assembly.
Although over 10 reapportionment bills were introduced
into the General Assembly between 1951 and 1960, all
failed to pass because of opposition by legislators from
the less populous counties. Both houses of the General
Assembly, during its 1960 regular session, declined to pass
bills incorporating the limited reapportionment recom-
mendations of a special commission created by the Gov-
ernor in 1959 to investigate and report on the matter of
legislative reapportionment. Numerous proposed reap-
portionment amendments and reapportionment bills were
introduced at the regular session of the Maryland
Legislature in 1961 and 1962, but all failed of passage.
Relief from the allegedly discriminatory apportion-
ment through constitutional amendment was also appar-
ently unavailable, as a practical matter, to appellants.
Article XIV, § 1, of the Maryland Constitution requires
a three-fifths affirmative vote of the membership of both
houses of the General Assembly in order to have proposed
constitutional amendments submitted to the State’s voters
at a referendum. Admittedly, legislators from the less * I
p. 670populous counties controlled each house of the Maryland
Legislature. And even if a constitutional convention
were convened, representation at the convention would
be based on the allocation of seats in the allegedly
malapportioned General Assembly.12 Significantly, the
Maryland Court of Appeals, in its initial opinion in this
litigation, stated that “the chances of the appellants’
obtaining relief from the infringement upon their alleged
constitutional rights, other than from the courts, is so
remote as to be practically nil.” 13
Neither in the Maryland Constitution nor in the state
statutes is there any provision relating to the reappor-
tionment of representation in the General Assembly.
Apart from the limited and temporary reapportionment
of the House enacted at the 1962 special session of the
Maryland Legislature, following the holding of the Cir-
cuit Court that the House apportionment provisions of
the Maryland Constitution were invalid, all efforts since
1867 to achieve a substantial reapportionment of seats in
the General Assembly, with two rather minor exceptions,
have been futile.14 In 1900, the City of Baltimore,
because of its expanding population, was given an addi-
tional Senate seat and an additional legislative district,
bringing its total to four senators and legislative districts.
III
p. 671Two additional senators and two more legislative districts
were added to Baltimore City’s representation in 1922.
Apart from these increases in the legislative representa-
tion of the City of Baltimore, membership in the Mary-
land Senate remains as provided for in the 1867 Consti-
tution. And, until 19 additional House seats were
created and distributed among the five most populous
political subdivisions in 1962, representation in the House
of Delegates had been based, for a period of 95 years, on
the limited-population formula embodied in the 1867
Maryland Constitution.15
In its unreported opinion holding the Maryland sena-
torial apportionment valid, the Circuit Court, after
referring to the reapportionment of seats in the House
of Delegates by the Maryland Legislature, stated: “It
appears, therefore, and the Petitioners have conceded,
that the Lower House has been legally reapportioned
according to population.” And the Maryland Court of
Appeals, in its opinion upholding the Circuit Court’s
decision that the senatorial apportionment was constitu-
tionally valid, pointed out that the instant appeal was
from the lower court’s decision on remand of the pre-
viously undecided question as to the validity of the
senatorial apportionment, and stated: “No question is
presented as to the validity of the ‘stop-gap’ legislation
or the reapportionment of the House of Delegates.” 16
Questioning the validity of the majority’s assumption in
this regard, the dissenters stated:
“The majority of this Court in the present case
seems to accept tacitly, if not expressly, the view
I 15 For a discussion of various aspects of the Maryland legislative
apportionment situation, including the instant litigation, see Note,
Senate Reapportionment—The Maryland Experience, 31 Geo. Wash.
L. Rev. 812 (1963).
16 229 Md., at 410, 184 A. 2d, at 716.
I 729-256 0-65-47
p. 672that if one house of the Maryland General Assembly
(the Senate) may be apportioned on a basis which
ignores disparities of population, the other house
(the House of Delegates) must be apportioned with
due regard to population, and assumes that the
House of Delegates now is so apportioned. It is
true that the apportionment of the House is not
under attack on this appeal and no question with
regard thereto is now before us. It is also true,
however, that even as reapportioned by the May
1962 Special Session of the General Assembly, con-
siderable disparities still exist in a number of
instances, though previous disparities have been
materially reduced. . . . There is no such close
relationship between population and representation
as in the case of the Michigan House .... Surely,
the present Maryland apportionment is not so closely
related to population as is that of the House of Rep-
resentatives of the Congress of the United States.
In that respect the Federal analogy is far from
perfect.” 17
Appellants have continually asserted that not only is |
the constitutional validity of the apportionment of the
Maryland Senate at issue in this appeal, but that also
presented for decision is the sufficiency, under the Four-
teenth Amendment to the Federal Constitution, of “the I
combined total representation provided for in both
Houses of the Maryland General Assembly.” Appellees, I
on the other hand, have repeatedly contended that the I
sole question presented in this appeal is whether one I
house of a bicameral state legislature, i. e., the Maryland I
Senate, can be apportioned on a basis other than popu- I
lation, where the other house is presumably apportioned I
on a strict population basis. Appellees have argued that, I
p. 673since the courts below assumed and appellants allegedly
conceded that the Maryland House of Delegates, as reap-
portioned in 1962, is apportioned on a population basis,
and since the decisions of the state courts below here
appealed from considered only the validity of the appor-
tionment of the Maryland Senate, this Court is precluded
from considering the validity of the apportionment of the
Maryland House and is required to assume that that body
is now apportioned on a population basis.
Regardless of possible concessions made by the parties
and the scope of the consideration of the courts below, in
reviewing a state legislative apportionment case this
Court must of necessity consider the challenged scheme
as a whole in determining whether the particular State’s
apportionment plan, in its entirety, meets federal con-
stitutional requisites. It is simply impossible to decide
upon the validity of the apportionment of one house of
a bicameral legislature in the abstract, without also
evaluating the actual scheme of representation employed
with respect to the other house. Rather, the proper, and
indeed indispensable, subject for judicial focus in a legis-
lative apportionment controversy is the overall repre-
sentation accorded to the State’s voters, in both houses
of a bicameral state legislature. We therefore reject
appellees’ contention that the Court is precluded from
considering the validity of the apportionment of the
Maryland House of Delegates. We cannot be compelled
to assume that the Maryland House is presently appor-
tioned on a population basis, when that is in fact plainly
not so. Furthermore, whether or not the House is ap-
portioned on a population basis, the scheme of legislative
representation in Maryland cannot be sustained under
the Equal Protection Clause of the Federal Constitution,
because of the gross disparities from population-based
representation in the apportionment of seats in the
Maryland Senate.
IV
p. 674In Reynolds v. Sims, ante, p. 533, decided also this
date, we held that seats in both houses of a bicameral state
legislature are required, under the Equal Protection
Clause, to be apportioned substantially on a population
basis. Neither house of the Maryland Legislature, even
after the 1962 legislation reapportioning the House of
Delegates, is apportioned sufficiently on a population
basis to be constitutionally sustainable. Thus, we con-
clude that the Maryland Court of Appeals erred in hold-
ing the Maryland legislative apportionment valid, and
that the decision below must be reversed.
We applaud the willingness of state courts to assume
jurisdiction and render decision in cases involving chal-
lenges to state legislative apportionment schemes.18
However, in determining the validity of a State’s appor-
tionment plan, the same federal constitutional standards
are applicable whether the matter is litigated in a federal
or a state court. Maryland’s plan is plainly insufficient
under the requirements of the Equal Protection Clause
as spelled out in our opinion in Reynolds.19
p. 675For the reasons stated in Reynolds,20 appellees’ reliance
on the so-called federal analogy as a sustaining principle
for the Maryland apportionment scheme, despite signifi-
cant deviations from population-based representation in
both houses of the General Assembly, is clearly mis-
placed.21 And considerations of history and tradition,
relied upon by appellees, do not, and could not, provide
a sufficient justification for the substantial deviations
from population-based representation in both houses of
the Maryland Legislature.
In view of the circumstances of this case, we feel it
inappropriate to discuss remedial questions at the present
time.22 Since all members of both houses of the Mary-
land General Assembly were elected in 1962, and since all
Maryland legislators are elected to serve four-year terms,
the next election of legislators in Maryland will not be
conducted until 1966. Thus, sufficient time exists for
the Maryland Legislature to enact legislation reappor-
tioning seats in the General Assembly prior to the 1966
primary and general elections. With the Maryland con-
stitutional provisions relating to legislative apportion-
ment hereby held unconstitutional, the Maryland Legis-
lature presumably has the inherent power to enact at
least temporary reapportionment legislation pending
adoption of state constitutional provisions relating to
has no state constitutional provision requiring decennial legislative
reapportionment.
| 20 See Reynolds v. Sims, ante, pp. 571-576.
I 21 Additionally, the Maryland legislative apportionment scheme
here attacked fails to resemble the plan of representation in the
Federal Congress in at least two important respects: the Maryland
I House, even as reapportioned in 1962, is clearly not apportioned on
I a population basis, and political subdivisions are not accorded the
I same number of senatorial seats, since, although each of Maryland’s
I 23 counties is given only one Senate seat, six senators are allotted
I to the City of Baltimore.
I 22 See Reynolds v. Sims, ante, p. 585.
p. 676legislative apportionment which comport with federal
constitutional requirements.23
Since primary responsibility for legislative apportion-
ment rests with the legislature itself, and since adequate
time exists in which the Maryland General Assembly can
act, the Maryland courts need feel obliged to take further
affirmative action only if the legislature fails to enact a
constitutionally valid state legislative apportionment
scheme in a timely fashion after being afforded a further
opportunity by the courts to do so. However, under no
circumstances should the 1966 election of members of the
Maryland Legislature be permitted to be conducted pur-
suant to the existing or any other unconstitutional plan.
We therefore reverse the judgment of the Maryland
Court of Appeals, and remand the case to that Court for
further proceedings not inconsistent with the views stated
here and in our opinion in Reynolds v. Sims.
It is so ordered.
Mr . Justice Clark concurs in the reversal for the
reasons stated in his concurring opinion in Reynolds v.
Sims, ante, p. 587, decided this date.
[For dissenting opinion of Mr . Just ice Harlan , see
ante, p. 589.]
Mr . Justi ce Stew art .
In this case there is no finding by this Court or by the
Maryland Court of Appeals that Maryland’s apportion-
p. 677ment plan reflects “no policy, but simply arbitrary and
capricious action or inaction.” Nor do I think such a
finding on the record before us would be warranted. Con-
sequently, on the basis of the constitutional views ex-
pressed in my dissenting opinion in Lucas v. Forty-
Fourth General Assembly of Colorado, post, p. 744. I
would affirm the judgment of the Maryland Court of
Appeals unless the Maryland apportionment “could be
shown systematically to prevent ultimate effective ma-
jority rule.” The Maryland court did not address itself
to this question. Accordingly, I would vacate the judg-
ment and remand this case to the state court for full
consideration of this issue.
Statutes and regulations cited