Majority — Warren C.J.
p. 678DAVIS, SECRETARY, STATE BOARD OF
ELECTIONS, et al . v. MANN et al .
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA.
No. 69. Argued November 14, 18, 1963.—Decided June 15, 1964.
Complainants, certain Virginia voters, brought this action against
appellants, various officials having state election duties, challenging
the statutory provisions apportioning seats in the Virginia Legis-
lature as violative of the Equal Protection Clause. While the
Virginia Constitution provides for decennial reapportionment the
establishment of districts rests in the discretion of the legislature,
which has been guided chiefly by population but which has also
considered factors such as compactness and contiguity of territory,
geographic features, and community of interests. Under the exist-
ing apportionment, the State is divided into 36 senatorial dis-
tricts, with 40 senators, and 70 House districts with 100 delegates.
The maximum population-variance ratios between the most pop-
ulous and least populous senatorial and House districts are, re-
spectively, 2.65-to-l and 4.36-to-l; and under the 1962 apportion- !
ment about 41.1% of the State’s total population reside in districts
electing a majority of the Senate, and about 40.5% in districts
electing a majority of the House. No adequate political remedy I
for legislative reapportionment exists in Virginia and no initiative I
procedure is provided for. Appellants before the three-judge court I
which was convened to decide the case showed the number of I
military or military-related personnel in the areas where com- I
plainants resided, disparities from population-based representation I
among the various States in the Federal Electoral College, and I
results of a comparative study showing Virginia as eighth among I
the States in population-based legislative representativeness. The I
District Court entered an interlocutory order holding Virginia’s 1
legislative apportionment unconstitutional and refused to abstain I
pending the obtaining of the state courts’ views on the validity of I
the apportionment. The Court refused to defer deciding the case I
until after the January 1964 regular session of the legislature and I
retained jurisdiction for the entry of necessary orders. Held: ■
1. Neither of the houses of the Virginia General Assembly is I
apportioned sufficiently on a population basis to be constitutionally I
sustainable. P. 690. I
p. 6792. Where a federal court’s jurisdiction is properly invoked and
the relevant state constitutional and statutory provisions are plain
and unambiguous, abstention is not necessary. P. 690.
3. The Equal Protection Clause applies to failure to meet federal
constitutional requirements whether the legislature periodically
reapportions or fails to act. P. 691.
4. The fact that large numbers of military or military-related
personnel reside in the same areas as appellees cannot justify under-
representation of those areas because the nature of their employ-
ment alone provides no proper basis for discrimination; there was
no showing that the legislature took this factor into account in
making the apportionment; and even if it had the maximum
population-variance ratios would have remained impermissible.
Pp. 691-692.
5. The apportionment was not sustainable, either factually or
legally, as involving an attempt to balance urban and rural power
in the legislature. P. 692.
6. Analogy to deviations from population in the Federal Elec-
toral College provides no constitutional basis for sustaining a
state apportionment scheme under the Equal Protection Clause.
P. 692.
7. It would be inappropriate for this Court to consider the
remedies for malapportionment of the legislature since the next
election of Virginia legislators does not occur until 1965; the
legislature has ample time to effect a valid reapportionment; and
the District Court has retained jurisdiction to grant relief under
equitable principles if necessary to ensure that no further elections
are held under an unconstitutional scheme. Pp. 692-693.
213 F. Supp. 577, affirmed and remanded.
David J. Mays and R. D. Mcllwaine III, Assistant
Attorney General of Virginia, argued the cause for appel-
lants. With them on the briefs were Robert Y. Button,
Attorney General of Virginia, and Henry T. Wickham.
Edmund D. Campbell and Henry E. Howell, Jr. argued
the cause for appellees. With Mr. Campbell on the brief
for appellees Mann et al. was E.
I
p. 680voters of Norfolk, Virginia, were Leonard B. Sachs and
Sidney H. Kelsey.
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 Justice Warren delivered the opinion of
the Court.
Presented for decision in this case is the validity, under
the Equal Protection Clause of
the Fourteenth Amend-
ment to the Federal Constitution, of the apportionment
of seats in the legislature of the Commonwealth of
Virginia.
Plaintiffs below, residents, taxpayers and qualified
voters of Arlington and Fairfax Counties, filed a com-
plaint on April 9, 1962, in the United States District
Court for the Eastern District of Virginia, in their own
behalf and on behalf of all voters in Virginia similarly
situated, challenging the apportionment of the Virginia I
General Assembly. Defendants, sued in their representa-
tive capacities, were various officials charged with duties in
connection with state elections. Plaintiffs claimed rights
under provisions of the Civil Rights Act, 42 U. S.
p. 681against plaintiffs and “all other voters of the State Sena-
torial and House districts” in which they reside, since
voters in Arlington and Fairfax Counties are given sub-
stantially less representation than voters living in other
parts of the State. Plaintiffs asserted that the discrim-
ination was violative of
the Fourteenth Amendment as
well as the Virginia Constitution, and contended that the
requirements of the Equal Protection Clause of the Fed-
eral Constitution, and of the Virginia Constitution, could
be met only by a redistribution of legislative representa-
tion among the counties and independent cities of
the State “substantially in proportion to their respective
populations.” Plaintiffs asserted that they “possess an
inherent right to vote for members of the General Assem-
bly . . . and to cast votes that are equally effective with
the votes of every other citizen” of Virginia, and that this
right was being diluted and effectively denied by the dis-
criminatory apportionment of seats in both houses of the
Virginia Legislature under the statutory provisions at-
tacked as being unconstitutional. Plaintiffs contended
that the alleged inequalities and distortions in the alloca-
tion of legislative seats prevented the Virginia Legislature
from “being a body representative of the people of the
Commonwealth,” and resulted in a minority of the people
of Virginia controlling the General Assembly.
The complaint requested the convening of a three-
judge District Court. With respect to relief, plaintiffs
sought a declaratory judgment that the statutory scheme
of legislative apportionment in Virginia, prior as well as
subsequent to the 1962 amendments, contravenes the
Equal Protection Clause of
the Fourteenth Amendment
and is thus unconstitutional and void. Plaintiffs also
requested the issuance of a prohibitory injunction re-
straining defendants from performing their official duties
relating to the election of members of the General Assem-
bly pursuant to the present statutory provisions. Plain-
p. 682tiffs further sought a mandatory injunction requiring
defendants to conduct the next primary and general elec-
tions for legislators on an at-large basis throughout the
State.
A three-judge District Court was promptly convened.
Residents and voters of the City of Norfolk were per-
mitted to intervene as plaintiffs against the original
defendants and against certain additional defendants,
election officials in Norfolk. On June 20, 1962, all of the
plaintiffs obtained leave to amend the complaint by add-
ing an additional prayer for relief which requested that,
unless the General Assembly “promptly and fairly” reap-
portioned the legislative districts, the Court should
reapportion the districts by its own order so as to accord
the parties and others similarly situated “fair and pro-
portionate” representation in the Virginia Legislature.
Evidence presented to the District Court b.y plaintiffs
included basic figures showing the populations of the var-
ious districts from which senators and delegates are
elected and the number of seats assigned to each. From
that data various statistical comparisons were derived.
Since the 1962 reapportionment measures were enacted
only two days before the complaint was filed and made
only small changes in the statutory provisions relat-
ing to legislative apportionment, which had been last
amended in 1958, the evidence submitted covered both
the present and the last previous apportionments. De-
fendants introduced various exhibits showing the num-
bers of military and military-related personnel in the City
of Norfolk and in Arlington and Fairfax Counties, dis-
parities from population-based representation among the
various States in the Federal Electoral College, and
results of a comparative study of state legislative appor-
tionment which show Virginia as ranking eighth among
the States in population-based legislative representative-
ness, as reapportioned in 1962.
p. 683On November 28, 1962, the District Court, with one
judge dissenting, sustained plaintiffs’ claim and entered
an interlocutory order holding the apportionment of the
Virginia Legislature violative of the Federal Constitution.
213 F. Supp. 577. The Court refused to dismiss the case
or stay its action on the ground, asserted by defendants,
that plaintiffs should be required first to procure the
views of the state courts on the validity of the apportion-
ment scheme. Instead, it held that, since neither the
1962 legislation nor the relevant state constitutional pro-
visions were ambiguous, no question of state law neces-
sitating abstention by the Federal District Court was
presented. In applying the Equal Protection Clause to
the Virginia apportionment scheme, the Court stated that,
although population is the predominant consideration,
other factors may be of some relevance “in assaying the
justness of the apportionment.” Stating that the Fed-
eral Constitution requires a state legislative apportion-
ment to “accord the citizens of the State substantially
equal representation,” the Court held that the inequalities
found in the statistical information relating to the popu-
lation of the State’s various legislative districts, if unex-
plained, sufficiently showed an “invidious discrimination”
against plaintiffs and those similarly situated. The Court
rejected any possibility of different bases of representa-
tion being applicable in the two houses of the Virginia
Legislature, stating that, in Virginia, each house has “a
direct, indeed the same, relation to the people,” and that
the principal present-day justification for bicameralism
in state legislatures is to insure against precipitate action
by imposing greater deliberation upon proposed legisla-
tion. Because of the gross inequalities in representation
among various districts in both houses of the Virginia
Legislature, the Court put the burden of explanation on
defendants, and found that they had failed to meet it.
Consequently, the Court concluded that the discrimina-
p. 684684 OCTOBER TERM, 1963. I
Opinion of the Court. 377 U. S. I
tion against Arlington and Fairfax Counties and the City I
of Norfolk was a grave and “constitutionally impermis- I
sible” deprivation, violative of the Equal Protection I
Clause of
the Fourteenth Amendment. I
With respect to relief, the Court stated that, while it I
would have preferred that the General Assembly itself I
correct the unconstitutionality of the 1962 apportionment I
legislation, it would not defer deciding the case until after I
the next regular session of the Virginia Legislature in I
January 1964, because senators elected in November 1963 ■
would hold office until 1968 and delegates elected in 1963 I
would serve until 1966. Deferring action would thus re- I
suit in unreasonable delay in correcting the injustices in ■
the apportionment of the Senate and the House of fl
Delegates, concluded the Court. fl
The District Court’s interlocutory order declared that ■
the 1962 apportionment violated the Equal Protection fl
Clause and accordingly was void and of no effect. It I
also restrained and enjoined defendants from proceeding ■
with the conducting of elections under the 1962 legisla- ■
tion, but stayed the operation of the injunction until Jan- H
uary 31, 1963, so that either the General Assembly could B
act or an appeal could be taken to this Court, provided H
that, if neither of these steps was taken, plaintiffs might H
apply to the District Court for further relief. Finally, H
the court below retained jurisdiction of the case for the H
entry of such orders as might be required. H
An appeal to this Court was timely noted by defend- H
ants. On application by appellants, The Chief Justi ce , fl
on December 15, 1962, granted a stay of the District fl
Court’s injunction pending final disposition of the case fl
by this Court. Because of this stay, the November 1963 fl
election of members of the Virginia Legislature was fl
conducted under the existing statutory provisions. We H|
noted probable jurisdiction on June 10, 1963. 374 U. S. fl
803. ■
II
p. 685The Virginia Constitution provides for a Senate of not
more than 40 nor less than 33 members, in Art. IV, § 41,
and for a House of Delegates of not more than 100 nor
less than 90 seats, in Art. IV, § .42. Senators are elected
quadrennially and delegates biennially. At all relevant
times, state statutes have fixed the number of senators
at 40 and the number of delegates at 100. Pursuant to
the state constitutional requirement of legislative reap-
portionment at least decenially, contained in Art. IV,
§ 43, the General Assembly has reapportioned senatorial
and House seats in 1932, 1942, and 1952, as well as in
1962, and in 1958 the apportionment statutes were
amended.1 The Virginia Constitution contains no ex-
1 Reapportionment in 1952 was accomplished only after the Gov-
ernor convened a special session of the Virginia Legislature for that
purpose, since the legislature had adjourned without enacting any
statutes reallocating representation. In anticipation of the constitu-
tional mandate to reapportion in 1962, the Virginia Governor, in
January 1961, appointed a commission on redistricting. In doing
its work, this commission employed the assistance of the Bureau of
Public Administration of the University of Virginia. Suggesting that
Senate and House districts should be, as nearly as practicable, equal
in population, the Bureau submitted two alternative plans for the
apportionment of the House and three alternative plans for the
apportionment of Senate seats. These plans all followed the various
criteria traditionally considered in previous apportionments, and
complied with the constitutionally prescribed size limitations on both
of the houses. In late 1961, the commission filed its report recom-
mending a redistricting plan different from any of the plans submitted
by the Bureau. Its plan, based more on political compromise than
any of the Bureau’s suggested plans, deviated further from popula-
tion-based representation than any of the Bureau’s proposals. At
its 1962 regular session, the Virginia General Assembly completely
disregarded both the commission report and the plans prepared by
I the Bureau, and adopted apportionment schemes of its own for each
house, in practical effect making only minimal changes in the exist-
ing statutory provisions. These enactments, of course, are the ones
I principally complained of by appellees in this litigation.
p. 686Opinion of the Court. 377 U. S. I
press standards, however, for the apportionment of legis- I
lative representation, and leaves the task of establishing I
districts solely up to the discretion of the legislature. I
With respect to political subdivisions, Virginia has 98 I
counties and 32 independent cities. Despite the absence I
of any specific provisions in the State Constitution, popu- I
lation has generally been traditionally regarded as the I
most important factor for legislative consideration in I
reapportioning and redistricting. Because cities and I
counties have consistently not been split or divided for I
purposes of legislative representation, multimember dis- I
tricts have been utilized for cities and counties whose I
populations entitle them to more than a single representa- I
tive, resulting in there always being less than 100 dele- ■
gate districts and less than 40 senatorial districts. And, ■
because of a tradition of respecting the integrity of the I
boundaries of cities and counties in drawing district lines, ■
districts have been constructed only of combinations of I
counties and cities and not by pieces of them. This has ■
resulted in the periodic utilization of floterial districts 2 ■
p. 687where contiguous cities or counties cannot be combined
to yield population totals reasonably close to a popula-
tion ratio figure determined by dividing the State’s total
population by the number of seats in the particular legis-
lative body. Various other factors, in addition to popu-
lation, which have historically been considered by Vir-
ginia Legislatures in enacting apportionment statutes
include compactness and contiguity of territory in form-
ing districts, geographic and topographic features, and
community of interests among people in various districts.
Section 24—14 of the Virginia Code, as amended in 1962,
provides for the apportionment of the Virginia Senate,
and divides the State into 36 senatorial districts for the
allocation of the 40 seats in that body. With a total
state population of 3,966,949, according to the 1960 cen-
sus, and 40 Senate seats, the ideal ratio would be one
senator for each 99,174 persons. Under the 1962 statute,
however, Arlington County is given but one senator for
its 163,401 persons, only .61 of the representation to which
it would be entitled on a strict population basis. The
City of Norfolk has only .65 of its ideal share of senatorial
representation, with two senators for a population of
305,872. And Fairfax County (including the cities of
Fairfax and Falls Church), with two senators for 285,194
people, has but .70 of its ideal representation in the Vir-
ginia Senate. In comparison, the smallest senatorial
district, with respect to population, has only 61,730, and
the next smallest 63,703.3 Thus, the maximum popula-
than the ideal district size, was presumably felt not to be entitled
to a separate House seat. The solution was the creation of a floterial
district comprising the two political subdivisions, thereby according
Lynchburg additional representation and giving Amherst County a
voice in the Virginia House, without having to create separate addi-
tional districts for each of the two political subdivisions.
p. 688tion-variance ratio between the most populous and least
populous senatorial districts is 2.65-to-l. Under the
1962 senatorial apportionment, applying 1960 population
figures, approximately 41.1% of the State’s total popula-
tion reside in districts electing a majority of the members
of that body.4
Apportionment of seats in the Virginia House of Dele-
gates is provided for in § 24-12 of the Virginia Code, as
amended in 1962, which creates 70 House districts and
distributes the 100 House seats among them. Dividing
the State’s total 1960 population by 100 results in an
ideal ratio of one delegate for each 39,669 persons. Fair-
fax County, with a population of 285,194, is allocated
only three House seats under the 1962 apportionment
provisions, however, thus being given only .42 of its ideal
representation. While the average population per dele-
gate in Fairfax County is 95,064, Wythe County, with
only 21,975 persons, and Shenandoah County, with a
population of only 21,825, are each given one seat in the
Virginia House.5 The maximum population-variance
in its opinion a chart showing the composition (by counties and cities)
and populations of, and the number of senators allotted to, var-
ious senatorial districts, and comparing these figures with the sena-
torial representation given Arlington, Fairfax and Norfolk. 213 F.
Supp., at 581-582.
p. 689ratio, between the most populous and least populous
House districts, is thus 4.36-to-l. The City of Norfolk,
with 305,872 people, is given only six House seats, and
Arlington County, with a population of 163,401, is allo-
cated only three. Under the 1962 reapportionment of
the House of Delegates, 40.5% of the State’s population
live in districts electing a majority of the House mem-
bers. Twenty-seven House districts have more than
three times the representation of the people of Fairfax
County, 12 districts have twice the representation of
Arlington County, and six, twice that of Norfolk.
No adequate political remedy to obtain legislative
reapportionment appears to exist in Virginia.6 No ini-
tiative procedure is provided for under Virginia law.
Amendment of the State Constitution or the calling of
a constitutional convention initially requires the vote of
a majority of both houses of the Virginia General Assem-
bly.7 Only after such legislative approval is obtained is
such a measure submitted to the people for a referendum
vote. Legislative apportionment questions do not ap-
pear to have been traditionally regarded as non justiciable
by Virginia state courts, however,8 and appellees could
III
p. 690possibly have sought and obtained relief in a state court
as well as in a Federal District Court.* 9
In Reynolds v. Sims, ante, p. 533, decided also this
date, we held that the Equal Protection Clause requires
that seats in both houses of a bicameral state legislature
must be apportioned substantially on a population basis.
Neither of the houses of the Virginia General Assembly,
under the 1962 statutory provisions here attacked, is ap-
portioned sufficiently on a population basis to be consti-
tutionally sustainable. Accordingly, we hold that the
District Court properly found the Virginia legislative
apportionment invalid.
Appellants’ contention that the court below should have
abstained so as to permit a state court to decide the ques-
tions of state law involved in this litigation is without
merit. Where a federal court’s jurisdiction is properly
invoked, and the relevant state constitutional and statu-
tory provisions are plain and unambiguous, there is no
necessity for the federal court to abstain pending deter-
mination of the state law questions in a state court.
McNeese v. Board of Education, 373 U. S. 668. This is
especially so where, as here, no state proceeding had been
courts will also adjudicate questions relating to the validity of the
State’s legislative apportionment scheme under the provisions of the
Federal Constitution.
p. 691instituted or was pending when the District Court’s juris-
diction was invoked. We conclude that the court below
did not err in refusing to dismiss the proceeding or stay
its action pending recourse to the state courts.
Undoubtedly, the situation existing in Virginia, with
respect to legislative apportionment, differs not insignifi-
cantly from that in Alabama. In contrast to Alabama,
in Virginia the legislature has consistently reapportioned
itself decennially as required by the State Constitution.
Nevertheless, state legislative malapportionment, whether
resulting from prolonged legislative inaction or from
failure to comply sufficiently with federal constitutional
requisites, although reapportionment is accomplished
periodically, falls equally within the proscription of the
Equal Protection Clause.
We reject appellants’ argument that the underrepresen-
tation of Arlington, Fairfax and Norfolk is constitution-
ally justifiable since it allegedly resulted in part from the
fact that those areas contain large numbers of military
and military-related personnel. Discrimination against
a class of individuals, merely because of the nature of
their employment, without more being shown, is consti-
tutionally impermissible. Additionally, no showing was
made that the Virginia Legislature in fact took such a
factor into account in allocating legislative representa-
tion.10 11 And state policy, as evidenced by Virginia’s elec-
tion laws, actually favors and fosters voting by military
and military-related personnel.11 Furthermore, even if
p. 692such persons were to be excluded in determining the pop-
ulations of the various legislative districts, the discrimi-
nation against the disfavored areas would hardly be satis-
factorily explained, because, after deducting military and
military-related personnel, the maximum population-
variance ratios would still be 2.22-to-l in the Senate and
3.53-to-l in the House.
We also reject appellants’ claim that the Virginia appor-
tionment is sustainable as involving an attempt to bal-
ance urban and rural power in the legislature. Not only
does this explanation lack legal merit, but it also fails to
conform to the facts. Some Virginia urban areas, such
as Richmond, by comparison with Arlington, Fairfax and
Norfolk, appear to be quite adequately represented in
the General Assembly. And, for the reasons stated in
Reynolds,12 in rejecting the so-called federal analogy, and
in
Gray v. Sanders, 372 U. S. 368, 378, appellants’ reli-
ance on an asserted analogy to the deviations from popu-
lation in the Federal Electoral College is misplaced. The
fact that the maximum variances in the populations of
various state legislative districts are less than the extreme
deviations from a population basis in the composition of
the Federal Electoral College fails to provide a con-
stitutionally cognizable basis for sustaining a state ap-
portionment scheme under the Equal Protection Clause.
We find it unnecessary and inappropriate to discuss
questions relating to remedies at the present time.13
cable statutory provisions to mean that residence for military per-
sonnel is determined in the same manner as for all other citizens.
Military personnel and members of their families who have been resi-
dents of Virginia for a year, residents of a county, city or town for
six months, and residents of a precinct for 30 days are entitled to
vote. Military personnel are not included in the categories of persons
disabled from voting. Va. Code Ann., 1950 (Repl. Vol. 1964) § 24-18.
p. 693Since the next election of Virginia legislators will not
occur until 1965, ample time remains for the Virginia
Legislature to enact a constitutionally valid reapportion-
ment scheme for purposes of that election. After the
District Court has provided the Virginia Legislature with
an adequate opportunity to enact a valid plan, it can
then proceed, should it become necessary, to grant relief
under equitable principles to insure that no further elec-
tions are held under an unconstitutional scheme. Since
the District Court stated that it was retaining jurisdic-
tion and that plaintiffs could seek further appropriate
relief, the court below presumably intends to take further
action should the Virginia Legislature fail to act promptly
in remedying the constitutional defects in the State’s leg-
islative apportionment plan. We therefore affirm the
judgment of the District Court on the merits of this liti-
gation, and remand the case for further proceedings con-
sistent with the views stated here and in our opinion in
Reynolds v. Sims.
It is so ordered.
Mr . Justic e Clark concurs in the affirmance for the
reasons stated in his concurring opinion in Reynolds v.
Sims, ante, p. 587, decided this date.
[For dissenting opinion of Mr . Justice Harlan , see
ante, p. 589.]
Mr . Justic e Stew art .
In this case, the District- Court recognized that “pop-
ulation is not . . . the sole or definitive measure of
districts when taken by the Equal Protection Clause.”
213 F. Supp., at 584. In reaching its decision the court
made clear that it did not “intend to say that there can-
not be wide differences of population in districts if a sound
reason can be advanced for the discrepancies.” Id., at
p. 694585. The District Court, however, could find “no ra-
tional basis for the disfavoring of Arlington, Fairfax and
Norfolk.” Ibid. In my opinion the appellants have
failed to show that the trial court erred in reaching this
conclusion. Accordingly, in keeping with the view ex-
pressed in my dissenting opinion in Lucas v. Forty-
Fourth General Assembly of Colorado, post, p. 744, I
would affirm the District Court’s judgment holding that
to the extent a state legislative apportionment plan is con-
clusively shown to have no rational basis, such a plan
violates the Equal Protection Clause.
Statutes and regulations cited