Majority — Warren C.J.
p. 695ROMAN, CLERK OF THE PEACE, et al . v .SINCOCK ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE.
No. 307. Argued December 9, 1963.—Decided June 15, 1964.
Appellees, voters in Delaware’s most populous county, on behalf of
themselves and others similarly situated, brought suit in the Fed-
eral District Court against officials having duties in connection
with state elections, contending that the apportionment of the
Delaware Legislature violated the Equal Protection Clause. Under
the legislative apportionment provisions of the 1897 Delaware
Constitution, in force when this litigation began, the State was
divided into 17 Senate and 35 House single-member districts for
electing state legislators. Both senatorial and representative dis-
tricts had varied greatly in population, resulting in a maximum
population-variance ratio of about 15-to-l for the Senate and
35-to-l for the House. Districts electing a majority in the Senate
and the House comprised only 22% and 18.5%, respectively, of
the State’s total 1960 population. A 1963 constitutional amend-
ment, adopted by the legislature while this litigation was pending,
increased the size of both houses, but left the maximum popula-
tion-variance ratio for the Senate about the same while reducing
the ratio for the House to about 12-to-l. Under the amendment
about two-thirds of the Senate would be elected from districts
containing only about 31% of the State’s population and a majority
of the House would represent districts where only 28% reside.
Although repeated attempts were made through the years to reap-
portion the legislature or call a constitutional convention for that
purpose, the Delaware Legislature failed to take any action until
the 1963 amendment. No initiative or referendum procedure exists
in the State. After the 1963 amendment, the District Court held
that gross and invidious discrimination in violation of the Equal
Protection Clause existed against appellees and others similarly
situated, both before and after the amendment, but, while retain-
ing jurisdiction, gave the legislature further time to adopt a valid
apportionment plan. However, it later enjoined the holding of
any elections under the existing scheme or amendment after the
p. 696Governor proclaimed a plan for House redistricting under the
1963 amendment. Appeals to this Court followed. Held:
1. The seats in both houses of a bicameral state legislature must
be apportioned substantially on a population basis. Reynolds v.
Sims, ante, p. 533, followed. P. 708.
2. Neither of the houses in the Delaware General Assembly was
so apportioned either before or after the 1963 amendment. P. 708.
3. Reliance upon the so-called “federal analogy” to justify devia-
tions from a population basis in apportionment of seats in the
Delaware Legislature is misplaced. Reynolds v. Sims, supra,
followed. Pp. 708-709.
4. The Delaware apportionment scheme cannot be upheld on
the basis that Congress had admitted various States into the Union
although the apportionment of seats in their legislatures was based
on factors other than population. P. 709.
5. Rigid mathematical standards for evaluating the constitu-
tional validity of a state legislative apportionment scheme under
the Equal Protection Clause are neither practicable nor desirable.
P. 710.
6. Applying general equitable principles, the District Court
must determine whether it would be advisable to allow the 1964
election of the Delaware legislators to be conducted under the pro-
visions of the 1963 amendment in the interest of avoiding possible
disruption of state election processes and permitting the Delaware
Legislature to adopt a constitutionally valid apportionment scheme,
or whether further delay in effecting appellees’ constitutional
rights is unjustified. Pp. 711-712.
215 F. Supp. 169, affirmed and remanded.
Frederick Bernays Wiener argued the cause for appel-
lants. With him on the briefs were David P. Buckson,
Attorney General of Delaware, E. Norman Veasey, Chief
Deputy Attorney General, Januar D. Bove, Jr., Frank
O’Donnell and N. Maxson Terry.
Vincent A. Theisen argued the cause and filed a brief
for appellees.
Solicitor General Cox, by special leave of Court, argued
the cause for the United States, as amicus curiae, urging
I
p. 697affirmance. With him on the brief were Bruce J. Terris
and Richard W. Schmude.
Mr . Chief Justic e Warren delivered the opinion of
the Court.
Presented for decision in this case is the constitutional
validity, under the Equal Protection Clause of the
Fourteenth Amendment to the Federal Constitution,
of the apportionment of seats in the Delaware General
Assembly.
Shortly after this Court’s decision in Baker v. Carr,
369 U. S. 186, plaintiffs below, residents, taxpayers and
qualified voters of New Castle County, Delaware, filed a
complaint in the United States District Court for the
District of Delaware, in their own behalf and on behalf
of all persons similarly situated, challenging the appor-
tionment of the Delaware Legislature. Defendants, sued
in their representative capacities, were various officials
charged with the performance of certain duties in con-
nection with state elections. The complaint alleged
deprivation of rights under the Equal Protection Clause
of the Fourteenth Amendment, and asserted that the Dis-
trict Court had jurisdiction under the Fourteenth Amend-
ment, 42 U. S. C. §§ 1983 and 1988, and 28 U. S. C.
§§ 1343 and 2201.
Plaintiffs below alleged that the apportionment of seats
in the Delaware Legislature resulted in an “invidious dis-
crimination as to the inhabitants of New Castle County
and the City of Wilmington,” operated to deny them the
right to cast votes for Delaware legislators “that are of
equal effect with that of every other citizen of the State
of Delaware,” and was arbitrary and capricious in failing
to provide a reasonable classification of those voting for
p. 698members of the Delaware General Assembly.1 Plaintiffs
also asserted that they were without any other adequate
remedy since the existing legislative apportionment was
frozen into the 1897 Delaware Constitution; that the
present legislature was dominated by legislators repre-
senting the two less populous counties; that it was, as a
practical matter, impossible to amend the State Constitu-
tion or convene a constitutional convention for the pur-
pose of reapportioning the General Assembly; and that
the Delaware Legislature had consistently failed to take,
appropriate action with respect to reapportionment.
Plaintiffs below sought a declaration that Art. II, § 2,
of the Delaware Constitution, which established the
apportionment of seats in both houses of the Dela-
ware Legislature, is unconstitutional, and an injunction
against defendants to prevent the holding of any further
elections under the existing apportionment scheme.
Plaintiffs also requested that the District Court either
reapportion the Delaware Legislature on a population
basis or, alternatively, direct that the November 1962
general election be conducted on an at-large basis. A
three-judge District Court was asked for by plaintiffs,
and was promptly convened.
On July 25, 1962, the District Court entered an order
staying the proceedings until August 7, 1962, in order to
permit the Delaware Legislature to take “some appro-
priate action.” 207 F. Supp. 205. The court noted that,
since publication of any proposed constitutional amend-
ment at least three months prior to the next general elec-
tion was required under Delaware law,1 2 it would serve no
useful purpose to grant a stay beyond August 7, 1962.
p. 699On July 30, 1962, the General Assembly approved a
proposed amendment to the legislative apportionment
provisions of the Delaware Constitution,3 based upon
recommendations of a bipartisan reapportionment com-
mittee appointed by the Delaware Governor Under
Delaware law this amendment could not, however, be-
come effective unless again approved during the next
succeeding session of the General Assembly.4
On August 7, 1962, the District Court entered an order
refusing to dismiss the suit, and stated that, while it had
no desire to substitute its judgment for the collective wis-
dom of the Delaware General Assembly in matters of
legislative apportionment, it had no alternative but to
proceed promptly in deciding the case. 210 F. Supp. 395.
Some of the defendants applied for a further stay of pro-
ceedings so that the General Assembly coming into office
in January 1963 would have an opportunity to approve
the proposed constitutional amendment. On August 8,
1962, plaintiffs applied for a preliminary injunction
against the conducting of the November 1962 general
election under the existing apportionment provisions.
Plaintiffs were thereafter permitted to amend their com-
plaint to request that the proposed constitutional amend-
ment also be declared unconstitutional and that the court
order a provisional reapportionment of the Delaware
Legislature.
On October 16, 1962, the District Court denied both
the applications for a preliminary injunction and for a
further stay. 210 F. Supp. 396. Denial of a preliminary
p. 700injunction effectively permitted the holding of the
November 1962 general election pursuant to the legisla-
tive apportionment provisions of the 1897 Delaware Con-
stitution. After extended pretrial proceedings, the court,
on November 27, 1962, entered a pretrial order in which
the parties agreed to the accuracy of a series of exhibits,
statistics and various statistical computations. In early
January 1963, the Delaware General Assembly, elected in
November 1962, approved the proposed constitutional
amendment by the requisite two-thirds vote. As a result,
the amendment to the legislative apportionment provi-
sions of Art. II, § 2, became effective on January 17,
1963, having been passed by two successive General
Assemblies.5 Trial before the District Court ensued,
with the expert testimony of various political scientists
being presented.
On April 17, 1963, the District Court, in an opinion by
Circuit Judge Biggs, held that Art. II, § 2, of the Dela-
ware Constitution, both before and after the 1963 amend-
ment, resulted in gross and invidious discrimination
against the plaintiffs and others similarly situated, in
violation of the Equal Protection Clause of the Four-
teenth Amendment. 215 F. Supp. 169. Stating that
“the fundamental issue presented for . . . adjudication is
whether or not the apportioning of members of the Gen-
eral Assembly of the State of Delaware offends the
electors of the State because of an alleged debasement of 1
their voting rights,” the court indicated that it would
pass upon the constitutional validity of both the provi-
sions of the 1897 Constitution and the provisions of the
1963 constitutional amendment. After considering in
detail the apportionment of legislative seats under the
provisions of the 1897 Delaware Constitution, the court
below concluded that “ [t]he uneven growth of the differ-
ent areas of the State created a condition because of which I
5 53 Del. Laws, c. 425 (1962); 54 Del. Laws, c. 1 (1963). I
p. 701the numbers of inhabitants in representative and sena-
torial districts differed not only on an intercounty basis
but also on an intracounty basis.” After discussing the
effect of the 1963 reapportionment amendment, the Dis-
trict Court turned to a consideration of plaintiffs’ claim
under the Federal Constitution. Stating that the rights
asserted by plaintiffs are “personal civil rights” of great
importance, the court below continued:
“. . . Section 2 of Article II of the Constitution of
Delaware as it existed prior to the 1963 Amendment
and as it exists today creates such an inequality in
voting power, resulting in invidious discrimination,
as to bring it within the proscription of the Four-
teenth Amendment of the Constitution of the United
States. . . . This is true as to the apportionment
of the Senate as well as to the apportionment of the
House of Representatives of the General Assembly
of Delaware. While mathematical exactitude in
apportionment cannot be expected, and indeed is not
possible in an absolute sense, disparities created by
Section 2 of Article II, as it was prior to the 1963
Amendment and as it is now, are of such a startling
nature as to demonstrate a debasement of franchise
of individual electors of this State which the Equal
Protection Clause of the Federal Constitution can-
not tolerate.” 6
After holding that the apportionment of at least one
house of a bicameral state legislature must be based sub-
stantially on population, the District Court rejected the
relevancy of the so-called federal analogy as a justifica-
tion for departures from a population-based apportion-
ment scheme in the other house of a state legislature.
Although finding no rational or reasonable basis for the
Delaware apportionment, either as it previously existed
6 215 F. Supp., at 184.
p. 702or as amended, the court nevertheless concluded that re-
apportionment was basically a legislative function, and
that a further opportunity should be given to the General
Assembly to reapportion itself properly in accordance
with the requirements of
the Fourteenth Amendment.
After attempting to delineate some guidelines for the
Delaware Legislature to follow in reapportioning, the
court below, with an eye toward the impending 1964 elec-
tions, gave the General Assembly until October 1, 1963,
to adopt a constitutionally valid plan.7 The District
Court entered a decree declaring Art. II, § 2, of the Dela-
ware Constitution to be unconstitutional, and retained
jurisdiction to order injunctive or other relief if it
became necessary to do so.
On May 6, 1963, the Supreme Court of Delaware
advised the Delaware Governor that, notwithstanding the
holding of the District Court, he should proceed accord-
ing to the provisions of the invalidated 1963 constitu-
II
p. 703tional amendment to proclaim a redistricting plan for
House of Representatives seats. The Delaware Supreme
Court’s opinion was predicated on the view that the Dis-
trict Court’s decision was not a final one, since it was
appealable and since no injunctive relief had been
granted. Acting on this advice, while making reference
to the District Court’s decision, the Governor, on May 17,
1963, proclaimed a plan providing for the redistricting of
certain House districts in accordance with the provisions
of the 1963 reapportionment amendment. Under these
circumstances, on May 20,1963, the District Court entered
an injunction against the holding of any elections for
General Assembly seats under Art. II, § 2, of the Dela-
ware Constitution, either as it had previously existed or
as amended, and again reserved jurisdiction to make such
further orders as it might deem necessary. The District
Court denied a motion to stay its injunction pending
appeal, but, on application by defendants below, Mr .
Just ice Brennan , on June 27, 1963, stayed the opera-
tion of the District Court’s injunction pending final dis-
position of the case by this Court. Notices of appeal
from the District Court’s final decree, and from its in-
junction and denial of the motion for a stay, were timely
filed by defendants. Pursuant to this Court’s Rule
15 (3), both appeals have been treated as a single case.
When appellees filed a motion to affirm, appellants
countered with a motion to advance. On October 21,
1963, we noted probable jurisdiction and granted
appellants’ motion to advance. 375 U. S. 877.
Under the provisions of the 1897 Delaware Constitu-
tion relating to legislative apportionment, in force when
this litigation was commenced, the State was geographi-
cally divided into 17 Senate and 35 House districts for
the purpose of electing members of the Delaware Legis-
729-256 0-65-49
p. 704lature. Delaware senators serve four-year terms, with
approximately half of the senators elected every two
years, and all representatives are elected for two-year
terms. Qualified voters in each Senate and House dis-
trict elect one senator and one representative, under the
1897 Constitution’s apportionment plan. Delaware is
comprised of only three counties, and only one sizable
metropolitan area—Wilmington. Under the 1897 ap-
portionment, five senatorial districts and 10 representa-
tive districts were allocated to Kent County, to Sussex
County, and to “rural” New Castle County (that part
of the county outside of the City of Wilmington), and
Wilmington was given two senatorial and five repre-
sentative districts. The number and boundaries of both
the senatorial and representative districts were specifi-
cally fixed and described in the constitutional provisions,
and no provision was made for their alteration. When
the constitutional provisions were adopted, the popula-
tion of the State of Delaware was approximately 180,000,
with about 32,000 living in Kent County, 38,000 residing
in Sussex County, and 105,000 living in New Castle
County (of whom about 70,000 lived in the City of
Wilmington). By 1960, the total population of Dela-
ware had increased to 446,292, of which 307,446 resided
in New Castle County, 95,827 in Wilmington and 211,619 I
in “rural” New Castle County. And, under the 1960
census figures, 65,651 lived in Kent County and 73,195
resided in Sussex County.
Under the 1897 apportionment scheme, as perpetuated 1
over 65 years later, Senate districts ranged in population
from 4,177 to 64,820, resulting in a maximum population- I
variance ratio, between the most populous and least pop- I
ulous Senate districts, of about 15-to-l. Senatorial dis- I
tricts in Kent and Sussex Counties were consistently much I
smaller in population than those in New Castle County, I
with the exception of one New Castle County district 1
p. 705which, with a population of only 4,177, was the smallest
senatorial district in the State.8 Only 22% of the State’s
total population resided in districts electing a majority
of the members of the 17-member Senate, applying 1960
census figures to the senatorial apportionment scheme
existing when this litigation was commenced.
Representative districts ranged in population, as of
1960, from 1,643 to 58,228, under Art. II, § 2, of the 1897
Delaware Constitution, resulting in a maximum popula-
tion-variance ratio, in the Delaware House, of about 35-
to-1. Again, the average population of House districts in
Kent and Sussex Counties was significantly smaller than
that of those in New Castle County, although several of
the “rural” New Castle County districts were among the
smallest in the State. Applying 1960 census figures to
the 1897 apportionment scheme, with respect to the Del-
aware House, the 18 most sparsely populated representa-
tive districts, containing only about 18.5% of the State’s
total 1960 population, elected a majority of the members
of the House of Representatives.9 Persons living in the
six most populous representative districts, 233,718, more
than one-half of the total state population, had only the
same voting power, under the 1897 Constitution’s scheme,
as those 16,552 persons living in the six least populous dis-
tricts, with respect to electing members of the Delaware
House.10 Serious disparities in the population of dis-
p. 706tricts, both House and Senate, within each county were
also presented in the district population figures considered
by the District Court.11
Evidence before the District Court showed that, despite
repeated attempts to reapportion the legislature or to
call a constitutional convention for that purpose, the Del-
aware Legislature had consistently failed to take any ac-
tion to change the existing apportionment of legislative
seats. No initiative and referendum procedure exists in
Delaware.11 12 Legislative apportionment has been tradi-
tionally provided for wholly by constitutional provisions
in Delaware, and a concurrence of two-thirds of both
houses of two consecutive state legislatures is required
in order to amend the State Constitution.13 The Del-
aware General Assembly may also, by a two-thirds vote,
submit to the State’s voters the question of whether to
hold a constitutional convention.14
Linder the 1963 amendment to Art. II, § 2, of the Del-
aware Constitution, the size of the Senate is increased
from 17 to 21 members, and the four added seats are
are less in number than those of the two districts having the heaviest
concentration of population; nonetheless, the former elect 18 repre-
sentatives in the House of Representatives, while the latter elect 2
representatives in the House of Representatives of the Delaware
General Assembly.” 215 F. Supp., at 176.
p. 707allotted equally to Kent and Sussex Counties, giving each
of the State’s three counties seven senators.15 The added
senators are to be elected at large from districts compris-
ing about one-half of the House districts in each of the
two counties. As a result of this change, each voter in
Kent and Sussex Counties is entitled to vote for two sena-
tors and one representative. With respect to the House
of Representatives, the amendment provides that each
existing representative district with a population in excess
of 15,000 persons is to be allotted an additional representa-
tive for each additional 15,000 persons or major fraction
thereof. The boundaries of the original 35 representative
districts are not affected, and districts receiving additional
representatives are to be divided, by a redistricting com-
mission headed by the Governor, so that each of the new
districts elects one representative.16 The net effect of
the 1963 amendment, as regards immediate changes in
House representation, is to allot 10 additional representa-
tives to various districts in New Castle County, increas-
ing the size of the House to 45 members. Representation
of Kent and Sussex Counties is to be unaffected. Under
the revised apportionment, the maximum population-
variance ratio is reduced to about 12-to-l with respect to
the House, but remains about 15-to-l in the Senate. A
majority of the members of the House would be elected,
under the 1963 amendment, from districts with only
about 28% of the State’s total population. And, since
III
p. 708the 1963 amendment added two Senate seats each for the
two smaller counties, the change in senatorial apportion-
ment would result in two-thirds of the Senate being
elected from districts where only about 31% of the State’s
population reside. About 21% of the State’s population
would be represented by a majority of the members of the
Delaware Senate, under the 1963 reapportionment.
The 1963 amendment also provided that, if a constitu-
tional convention were to be called, the number of dele-
gates and the method of their election were not to be af-
fected by the amended apportionment provisions, and, for
the purpose of any future constitutional convention, the
representative districts were to elect delegates on the basis
of the apportionment provided by Art. II, § 2, as it existed
prior to the amendment. Thus, the number of constitu-
tional convention delegates would continue to be 41, one
from each of the 35 representative districts provided for
under the 1897 scheme, with two elected at large from
each of the three counties.17
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 Delaware General Assembly,
either before or after the 1963 constitutional amendment,
was so apportioned. Thus, we hold that the District
Court correctly found the Delaware legislative apportion-
ment constitutionally invalid, and affirm the decisions
below.
For the reasons stated in our opinion in Reynolds,18
appellants’ reliance upon the so-called federal analogy to
p. 709justify the deviations from a population basis in the
apportionment of seats in the Delaware Legislature is
misplaced.19 And appellants’ argument that the Dela-
ware apportionment scheme should be upheld since Con-
gress has admitted various States into the Union although
the apportionment of seats in their legislatures was based
on factors other than population is also unconvincing.20
In giving the Delaware Legislature an opportunity to
adopt a constitutionally valid plan of legislative appor-
tionment, and in deferring decision until after the Novem-
ber 1962 general election, because of the imminence of
19 That the three Delaware counties may have possessed some
attributes of limited sovereignty prior to the inception of Delaware
as a State provides no basis for applying the federal analogy to leg-
islative apportionment in Delaware while holding it inapplicable in
other States. Whatever the role of counties in Delaware during the
colonial period, they never have had those aspects of sovereignty
which the States possessed when our federal system of government
was adopted. And it could hardly be contended that Delaware’s
counties retained any elements of sovereign power, when the State
was formed, that at all compare with those retained by the States
under our Federal Constitution. See 215 F. Supp., at 186, where
the District Court stated that “there never was much and there is
now no sovereignty in the Counties of Delaware . . . .”
Additionally, the Delaware legislative apportionment scheme here
challenged, even after the 1963 constitutional amendment, fails to
resemble the plan of representation in the Federal Congress in several
significant respects: the Delaware House of Representatives is plainly
not apportioned in accordance with population, and senators in Del-
aware are not chosen as representatives of counties. Although, under
the 1963 amendment, each county is given an equal number of sen-
ators, the 21 senators are chosen one each from the 21 senatorial
districts, seven per county, established solely for the purpose of their
election. Each Delaware senator represents his district and not the
county in which the district is located. Members of the Federal
Senate are of course elected from a State at large, and represent the
entire State.
p. 710that election and the disruptive effect which its decision
might have had, the District Court acted in a wise and
temperate manner. And the court below did not err in
granting injunctive relief after it had become apparent
that, despite its decree holding that the 1963 constitu-
tional amendment reapportioning seats in the Delaware
Legislature failed to comply with federal constitutional
requirements, no further reapportionment by the Dela-
ware General Assembly was probable.
Our affirmance of the decision below is not meant to
indicate approval of the District Court’s attempt to state
in mathematical language the constitutionally permis-
sible bounds of discretion in deviating from apportion-
ment according to population.21 In our view the prob-
lem does not lend itself to any such uniform formula, and
it is neither practicable nor desirable to establish rigid
mathematical standards for evaluating the constitutional
validity of a state legislative apportionment scheme
under the Equal Protection Clause. Rather, the proper
judicial approach is to ascertain whether, under the par-
ticular circumstances existing in the individual State
whose legislative apportionment is at issue, there has
been a faithful adherence to a plan of population-based
representation, with such minor deviations only as may
occur in recognizing certain factors that are free from any
taint of arbitrariness or discrimination.
Apart from what we said in Reynolds, we express no
view on questions relating to remedies at the present
time.22 Regardless of the requirements of the Delaware
p. 711Constitution 23 and the fact that legislative apportionment
has traditionally been considered a constitutional matter
in Delaware, the delay inherent in following the state
constitutional prescription for approval of constitutional
amendments by two successive General Assemblies can-
not be allowed to result in an impermissible depriva-
tion of appellees’ right to an adequate voice in the
election of legislators to represent them. Acting under
general equitable principles, the court below must now de-
termine whether it would be advisable, so as to avoid a
possible disruption of state election processes and permit
additional time for the Delaware Legislature to adopt a
23 Particularly Art. XVI, § 1, which requires the approval by suc-
cessive state legislatures before a proposed constitutional amendment
can be adopted.
In its initial opinion, incident to its order granting a limited stay,
the District Court suggested that the Delaware Legislature might
desire to amend the State Constitution so as to make legislative
apportionment a statutory instead of a constitutional matter, in order
to obviate the delay inherently involved in complying with the re-
quirement of the Delaware Constitution that constitutional amend-
ments must be approved by two successive General Assemblies before
becoming effective. 207 F. Supp., at 206-207. In this manner, the
District Court suggested, if the Delaware Legislature’s attempt at
reapportionment should be found deficient under the Federal Con-
stitution, the General Assembly elected in November 1962 would be
free, under state law, to proceed expeditiously with the enactment
of a revised statutory reapportionment plan consonant with the re-
quirements of the Equal Protection Clause. Unfortunately, the Del-
aware Legislature failed to act on the Court’s suggestion, and instead
proposed the constitutional amendment hereinbefore discussed, which
was approved by two consecutive state legislatures in late 1962 and
in early 1963. However, in its opinion on the merits, the District
Court intimated that, with the Delaware constitutional provisions
relating to legislative apportionment declared invalid, the Delaware
Legislature could “then proceed to pass an apportionment statute
meeting the requirements of
the Fourteenth Amendment . . . .” 215
F. Supp., at 191.
p. 712constitutionally valid apportionment scheme, to allow the
1964 election of Delaware legislators to be conducted pur-
suant to the provisions of the 1963 constitutional amend-
ment, or whether those factors are insufficient to justify
any further delay in the effectuation of appellees’ con-
stitutional rights. We therefore affirm the decisions of
the District Court here appealed from, and remand the
case for further proceedings consistent with the views
stated here and in our opinion in Reynolds v. Sims.
It is so ordered.
Mr . Justice 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 . Justi ce Harlan , see
ante, p. 589.]
Mr . Justice Stew art .
In this case the appellees showed that the apportion-
ment of seats among the districts represented in the
Delaware House of Representatives and within the
counties represented in the Delaware Senate, apparently
reflects “no policy, but simply arbitrary and capricious
action.” The appellants have failed to dispel this show-
ing by suggesting any possible rational explanation for
these aspects of Delaware’s system of legislative appor-
tionment. Accordingly, for the reasons stated in my dis-
senting opinion in Lucas v. Forty-Fourth General As-
sembly of Colorado, post, p. 744, I would affirm the judg-
ment of the District Court insofar as it holds that
Delaware’s system of apportionment violates the Equal
Protection Clause.
Statutes and regulations cited