Majority — Warren C.J.
p. 713LUCAS ET AL. V. FORTY-FOURTH GENERALASSEMBLY OF COLORADO et al .
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO.
No. 508. Argued March 31-April 1, 1964.—
Decided June 15, 1964.
Appellants, voters in the Denver metropolitan area, seeking declara-
tory and injunctive relief, sued various officials having duties in
connection with state elections challenging the apportionment of
seats in both houses of the Colorado General Assembly. A three-
judge Federal District Court deferred a hearing until after the
1962 general election, at which two proposals for amending the
state constitutional provisions relating to legislative apportionment
were to be voted on by the Colorado electorate. Under the plan
which was adopted the House of Representatives was presumably
to be apportioned on the basis of population but the existing
apportionment of the Senate, based on a combination of population
and other factors (geography, compactness and contiguity, accessi-
bility, natural boundaries, and conformity to historical divisions)
was substantially maintained. The rejected proposal would have
based apportionment of both houses largely on the basis of popu-
lation. Under the adopted plan, counties with only about one-
third of the State’s total population would elect a majority of the
Senate; the maximum population-variance ratio would be about
3.6-to-l; and the chief metropolitan areas, with over two-thirds of
the State’s population, could elect only a bare majority of the Sen-
ate. Following the general election the parties amended their
pleadings so that a challenge to the newly adopted apportionment
scheme was solely involved. The District Court, stressing approval
by the electorate, held that the recently adopted plan met the
requirements of the Equal Protection Clause of the Fourteenth
Amendment and dismissed the suit. Held:
1. Both houses of a bicameral state legislature must be appor-
tioned substantially on a population basis. Reynolds v. Sims,
ante, p. 533, followed. P. 734.
2. Though this Court need not pass upon the apportionment
of the House, which is not challenged here, the apportionment of
p. 714the Senate under the newly adopted scheme, which is not severable
from the apportionment of the House, departs from population-
based representation too substantially to be permissible under the
Equal Protection Clause. P. 735.
3. A political remedy, such as the initiative and referendum, may
justify an equity court in deferring action temporarily on an appor-
tionment plan to allow recourse to such procedure; but such a
remedy has no constitutional significance if the plan does not meet
equal protection requirements. Pp. 736-737.
4. The disparities from population-based representation in the
allocation of Senate seats to populous areas cannot be justified as
rational on the ground that geographical, historical, and other
factors were taken into account. P. 738.
5. The “federal analogy” relied upon with regard to the Senate
apportionment plan is without factual or legal merit. P. 738.
6. It is not appropriate for this Court to express a view on the
question of remedies, since the District Court, acting under equi-
table principles, must now determine whether the imminence of
1964 elections requires utilization of the newly adopted apportion-
ment plan for purposes of those elections or whether appellants’
right to cast adequately weighted votes for state legislators in
those elections can practicably be effectuated. P. 739.
219 F. Supp. 922, reversed and remanded.
George Louis Creamer and Charles Ginsberg argued the
cause and filed a brief for appellants.
Anthony F. Zarlengo, Special Assistant Attorney Gen-
eral of Colorado, argued the cause for the Forty-Fourth
General Assembly of Colorado et al., appellees. With
him on the brief was Duke W. Dunbar, Attorney General
of Colorado. Stephen H. Hart argued the cause for
Johnson et al., appellees. With him on the brief were
James Lawrence White, William E. Murane, Charles S.
Vigil and Richard S. Kitchen, Sr.
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 Assistant Attorney
I
p. 715General Marshall, Bruce J. Terris, Harold H. Greene and
David Rubin.
Mr . Chief Justic e Warren delivered the opinion of
the Court.
Involved in this case is an appeal from a decision of
the Federal District Court for the District of Colorado
upholding the validity, under the Equal Protection Clause
of
the Fourteenth Amendment to the Federal Constitu-
tion, of the apportionment of seats in the Colorado Legis-
lature pursuant to the provisions of a constitutional
amendment approved by the Colorado electorate in 1962.
Appellants, voters, taxpayers and residents of counties
in the Denver metropolitan area, filed two separate ac-
tions, consolidated for trial and disposition, on behalf of
themselves and all others similarly situated, in March
and July 1962, challenging the constitutionality of the
apportionment of seats in both houses of the Colorado
General Assembly. Defendants below, sued in their rep-
resentative capacities, included various officials charged
with duties in connection with state elections. Plaintiffs
below asserted that Art. V, §§ 45, 46, and 47, of the Colo-
rado Constitution, and the statutes 1 implementing those
constitutional provisions, result in gross inequalities and
disparities with respect to their voting rights. They
alleged that “one of the inalienable rights of citizen-
ship ... is equality of franchise and vote, and that the
concept of equal protection of the laws requires that every
citizen be equally represented in the legislature of his
State.” Plaintiffs sought declaratory and injunctive re-
lief, and also requested the Court to order a constitution-
p. 716ally valid apportionment plan into effect for purposes of
the 1962 election of Colorado legislators. Proponents of
the current apportionment scheme, which was then to be
voted upon in a November 1962 referendum as proposed
Amendment No. 7 to the Colorado Constitution, were per-
mitted to intervene. A three-judge court was promptly
convened.
On August 10, 1962, the District Court announced its
initial decision.2 Lisco v. McNichols, 208 F. Supp. 471.
After holding that it had jurisdiction, that the issues pre-
sented were justiciable, and that grounds for abstention
were lacking,3 the court below stated that the population
2 The District Court wisely refrained from acting at all until a
case pending in the Colorado Supreme Court was decided without that
court’s passing on the federal constitutional questions relating to Colo-
rado’s scheme of legislative apportionment which were raised in that
suit. In re Legislative Reapportionment, 150 Colo. 380, 374 P. 2d 66
(1962). After accepting jurisdiction, the Colorado Supreme Court,
over a vigorous dissent, ignored the federal constitutional issues and
instead discussed only the matter of when the Colorado Legislature
was required, pursuant to the State Constitution, to reapportion
seats in the General Assembly. The Court concluded that a reap-
portionment measure enacted during the 1963 session of the Colorado
Legislature, on the basis of 1960 census figures, would, if neither of
the proposed constitutional amendments relating to legislative appor-
tionment was approved by the voters in November 1962, be in suffi-
cient compliance with the constitutional requirement of periodic
legislative reapportionment. See also 208 F. Supp., at 474, dis-
cussing the Colorado Supreme Court’s decision in that case.
p. 717disparities among various legislative districts under the
existing apportionment “are of sufficient magnitude to
make out a prima facie case of invidious discrimina-
tion . . . .” However, because of the imminence of the
primary and general elections, and since two constitu-
tional amendments, proposed through the initiative pro-
cedure and prescribing rather different schemes for legis-
lative apportionment, would be voted upon in the im-
pending election, the District Court continued the cases
without further action until after the November 1962
election. Colorado legislators were thus elected in 1962
pursuant to the provisions of the existing apportionment
scheme.
At the November 1962 general election, the Colorado
electorate adopted proposed Amendment No. 7 by a vote
of 305,700 to 172,725, and defeated proposed Amend-
ment No. 8 by a vote of 311,749 to 149,822. Amend-
ment No. 8, rejected by a majority of the voters, pre-
scribed an apportionment plan pursuant to which seats
in both houses of the Colorado Legislature would pur-
portedly be apportioned on a population basis.4 Amend-
has repeatedly refused to perform the mandate imposed by the Colo-
rado Constitution to apportion the legislature. The likelihood that
the unapportioned General Assembly will ever apportion itself now
appears remote. The Supreme Court of Colorado, while retaining
jurisdiction of the subject matter of the controversy presented to it,
has postponed further consideration of the cause until June, 1963.
Under these circumstances, we must conclude that the parties do not,
at least at present, have an adequate, speedy and complete remedy
apart from that asserted in the case at bar and thus grounds for
abstention are at this time lacking.” 208 F. Supp., at 476. See
also Davis v. Mann, ante, pp. 690-691, decided also this date, where
we discussed the question of abstention by a federal court in a state
legislative apportionment controversy.
p. 718ment No. 7, on the other hand, provided for the appor-
tionment of the House of Representatives on the basis
of population, but essentially maintained the existing
apportionment in the Senate, which was based on a com-
bination of population and various other factors.
After the 1962 election the parties amended their
pleadings so that the cases involved solely a challenge to
the apportionment scheme established in the newly
adopted Amendment No. 7. Plaintiffs below requested
a declaration that Amendment No. 7 was unconstitu-
the duty of delineating, revising and adjusting senatorial and repre-
sentative districts. Its actions were to be reviewed by the Colorado
Supreme Court. The districting was to be on a strict population
ratio for both the Senate and the House with limited permissible
variations therefrom.” 219 F. Supp., at 925.
Additionally, under proposed Amendment No. 8, the commission
would determine a strict population ratio for both the Senate and the
House by dividing the State’s total population, as ascertained in each
decennial federal census, by the number of seats assigned to the
Senate and the House, respectively. No legislative district should
contain a population per senator or representative of 33%% more
or less than the strict population ratio, except certain mountainous
senatorial districts of more than 5,500 square miles in area, but no
senatorial district was to contain a population of less than 50% of
the strict population ratio. Senatorial districts should consist of one
county or two or more contiguous counties, but no county should
be divided in the formation of a senatorial district. Representative
districts should consist of one county or two or more contiguous
counties. Any county apportioned two or more representatives could
be divided into representative subdistricts, but only after a majority
of the voters in the county had approved, in a general election, the
exact method of subdivision and the specific apportionment of rep-
resentatives among the subdistricts and the county at large. A pro-
posal to divide a county into subdistricts could be placed on the ballot '
only by initiative petition in accordance with state law, and only at
the general elections in 1966 and 1974, and at the general elections
held each 10 years thereafter. Amendment No. 8, like Amendment
No. 7, would have required implementing legislation and would not
have become effective, if adopted, until the 1964 elections.
p. 719tional under
the Fourteenth Amendment since resulting
in substantial disparities from population-based repre-
sentation in the Senate, and asked for a decree reappor-
tioning both houses of the Colorado Legislature on a pop-
ulation basis. After an extended trial, at which a variety
of statistical and testimonial evidence regarding legisla-
tive apportionment in Colorado, past and present, was
introduced, the District Court, on July 16, 1963, an-
nounced its decision on the merits. Lisco v. Love,
219
F. Supp. 922. Splitting 2-to-l, the court below con-
cluded that the apportionment scheme prescribed by
Amendment No. 7 comported with the requirements of
the Equal Protection Clause, and thus dismissed the con-
solidated actions. In sustaining the validity of the sena-
torial apportionment provided for in Amendment No. 7,
despite deviations from population-based representation,
the District Court stated that
the Fourteenth Amend-
ment does not require “equality of population within
representation districts for each house of a bicameral
state legislature.” Finding that the disparities from a
population basis in the apportionment of Senate seats
were based upon rational considerations, the court below
stated that the senatorial apportionment under Amend-
ment No. 7 “recognizes population as a prime, but not
controlling, factor and gives effect to such important con-
siderations as geography, compactness and contiguity of
territory, accessibility, observance of natural boundaries,
[and] conformity to historical divisions such as county
lines and prior representation districts . ...” 5 Stress-
ing also that the apportionment plan had been recently
adopted by popular vote in a statewide referendum, the
Court stated:
“[Plaintiffs’] argument that the apportionment of
the Senate by Amendment No. 7 is arbitrary, in-
5 219 F. Supp., at 932.
729-256 0-65-50
p. 720vidiously discriminatory, and without any ration-
ality [has been answered by the] voters of Colo-
rado .... By adopting Amendment No. 7 and
by rejecting Amendment No. 8, which proposed
to apportion the legislature on a per capita basis, the
electorate has made its choice between the conflicting
principles.” 6
Concluding, the District Court stated:
“We believe that no constitutional question arises
as to the actual, substantive nature of apportionment
if the popular will has expressed itself. ... In
Colorado the liberal provisions for initiation of con-
6 Ibid. Continuing, the court below stated:
“The initiative gives the people of a state no power to adopt a
constitutional amendment which violates the Federal Constitution.
Amendment No. 7 is not valid just because the people voted for
it. . . . [But] the traditional and recognized criteria of equal pro-
tection . . . are arbitrariness, discrimination, and lack of rationality.
The actions of the electorate are material to the application of the
criteria. The contention that the voters have discriminated against
themselves appalls rather than convinces. Difficult as it may be at
times to understand mass behavior of human beings, a proper recog-
nition of the judicial function precludes a court from holding that
the free choice of the voters between two conflicting theories of appor-
tionment is irrational or the result arbitrary.
“The electorate of every county from which the plaintiffs come
preferred Amendment No. 7. In the circumstances it is difficult to
comprehend how the plaintiffs can sue to vindicate a public right.
At the most they present a political issue which they lost. On the
questions before us we shall not substitute any views which we may
have for the decision of the electorate. . . . [W]e decline to act
as a superelectorate to weigh the rationality of a method of legisla-
tive apportionment adopted by a decisive vote of the people.” Id.,
at 932-933.
And, earlier in its opinion on the merits, the District Court stated:
“With full operation of the one-man, one-vote principle, the Colorado
electorate by an overwhelming majority approved a constitutional
p. 721stitutional amendments permit the people to act—
and they have done so. If they become dissatisfied
with what they have done, a workable method of
change is available. The people are free, within the
framework of the Federal Constitution, to establish
the governmental forms which they desire and when
they have acted the courts should not enter the
political wars to determine the rationality of such
action.” 7
In dissenting, District Judge Doyle stated that he
regarded the senatorial apportionment under Amendment
No. 7 as irrational and invidiously discriminatory, and
that the constitutional amendment had not sufficiently
remedied’ the gross disparities previously found by the
District Court to exist in Colorado’s prior apportionment
scheme. Instead, he stated, the adopted plan freezes
senatorial apportionment and merely retains the former
system with certain minor changes. Equality of voting
power in both houses is constitutionally required, the dis-
sent stated, since there is no logical basis for distinguish-
ing between the two bodies of the Colorado Legislature.
In rejecting the applicability of the so-called federal
analogy, Judge Doyle relied on this Court’s decision in
Gray v. Sanders, 372 U. S. 368. He concluded that, al-
though absolute equality is a practical impossibility, legis-
lative districting based substantially on population is
constitutionally required, and that the disparities in the
amendment creating a Senate, the membership of which is not ap-
portioned on a strict population basis. By majority process the
voters have said that minority process in the Senate is what they
want. A rejection of their choice is a denial of the will of the ma-
jority. If the majority becomes dissatisfied with that which it has
created, it can make a change at an election in which each vote counts
the same as every other vote.” Id.. at 926-927.
II
p. 722apportionment of Senate seats under Amendment No. 7’s
provisions cannot be rationalized.8
Notices of appeal from the District Court’s decision
were timely filed, and we noted probable jurisdiction on
December 9, 1963. 375 U. S. 938.
When this litigation was commenced, apportionment of
seats in the Colorado General Assembly was based on
certain provisions of the State Constitution and statutory
provisions enacted to implement them. Article V, § 45,
of the Colorado Constitution provided that the legislature
8 Additionally, Judge Doyle correctly stated that “a properly ap-
portioned state legislative body must at least approximate by bona
fide attempt the creation of districts substantially related to popula-
tion.” 219 F. Supp., at 941. With respect to the relatively easy
availability of the initiative procedure in Colorado, the dissent per-
ceptively pointed out that "it is of little consolation to an individual
voter who is being deprived of his rights that he can start a popular
movement to change the Constitution. This possible remedy is not
merely questionable, it is for practical purposes impossible.” Id., at
942. Judge Doyle referred to Amendment No. 7’s provisions relating
to senatorial apportionment as “the product of a mechanical and
arbitrary freezing accomplished by adoption, with slight modification,
of the unlawful alignments which had existed in the previous statute.”
Id., at 943. Discussing the majority’s view that geographic and
economic considerations were relevant in explaining the disparities
from population-based senatorial representation, he discerningly
stated that geographic and area factors carry “little weight when
considered in the light of modern methods of electronic communica-
tion, modern highways, automobiles and airplanes,” and, with regard
to economic considerations, that “[e]conomic interests are remark-
ably well represented without special representation,” that “[i]t is
dangerous to build into a political system a favored position for a
segment of the population of the state,” that “[t]here exists no prac-
tical method of ridding ourselves of them,” and that, “long after the
institutions pass, the built-in advantage remains even though it is at
last only a vestige of the dead past.” Ibid.
p. 723“shall revise and adjust the apportionment for senators
and representatives . . . according to ratios to be fixed
by law,” at the sessions following the state enumeration
of inhabitants in 1885 and every 10 years thereafter, and
following each decennial federal census. Article V, § 46,
as amended in 1950, stated that “[t]he senate shall con-
sist of not more than thirty-five and the house of not more
than sixty-five members.” Article V, § 47, provided that :
“Senatorial and representative districts may be
altered from time to time, as public convenience may
require. When a senatorial or representative dis-
trict shall be composed of two or more counties, they
shall be contiguous, and the district as compact as
may be. No county shall be divided in the forma-
tion of a senatorial or representative district.”
Article V, § 3, provides that senators shall be elected for
four-year terms, staggered so that approximately one-
half of the members of the Senate are elected every two
years, and that all representatives shall be elected for
two-year terms.
Pursuant to these general constitutional provisions, the
Colorado General Assembly has periodically enacted
detailed statutory provisions establishing legislative dis-
tricts and prescribing the apportionment to such districts
of seats in both houses of the Colorado Legislature. Since
the adoption of the Colorado Constitution in 1876, the
General Assembly has been reapportioned or redistricted
in the following years: 1881, 1891, 1901, 1909, 1913, 1932,
1953, and, with the adoption of Amendment No. 7, in
1962.9 The 1932 reapportionment was an initiated
p. 724measure, adopted because the General Assembly had
neglected to perform its duty under the State Constitu-
tion. In 1933 the legislature attempted to thwart the
initiated measure by enacting its own legislative reap-
portionment statute, but the latter measure was held
unconstitutional by the Colorado Supreme Court.10
The 1953 apportionment scheme, implementing the ex-
isting state constitutional provisions and in effect immedi-
ately prior to the adoption of Amendment No. 7, was con-
tained in several statutory provisions which provided for
a 35-member Senate and a 65-member House of Repre-
sentatives. Section 63-1-2 of the Colorado Revised
Statutes established certain population “ratio” figures
for the apportionment of Senate and House seats among
the State’s 63 counties. One Senate seat was to be allo-
cated to each senatorial district for the first 19,000 popu-
lation, with one additional senator for each senatorial
district for each additional 50,000 persons or fraction over
48,000. One House seat was to be given to each repre-
sentative district for the first 8,000 population, with one
census. Under Amendment No. 7, sole reliance is placed on the
federal census, and there is no longer any requirement for the con-
ducting of a decennial state census.
In its initial opinion, the District Court stated that there had been
only a “modicum of apportionment, either real or purported,” as
well as “several abortive attempts,” since Colorado first achieved
statehood. However, in its later opinion on the merits, the court
below viewed the situation rather differently, and stated that “ [ap-
portionment of the Colorado legislature has not remained static.”
As indicated by the District Court, in addition to the reapportion-
ments which were effected, “[i]n 1954 the voters rejected a referred
apportionment measure and in 1956 rejected an initiated constitu-
tional amendment proposing the reapportionment of both chambers
of the legislature on a straight population basis.” 219 F. Supp.,
at 930.
p. 725additional representative for each House district for each
additional 25,000 persons or fraction over 22,400. Sec-
tions 63-1-3 and 63-1-6 established 25 senatorial dis-
tricts and 35 representative districts, respectively, and
allocated the 35 Senate seats and 65 House seats among
them according to the prescribed population ratios. No
counties were divided in the formation of senatorial or
representative districts, in compliance with the constitu-
tional proscription. Thus, senators and representatives
in those counties entitled to more than one seat in one or
both bodies were elected at large by all of the county’s
voters. The City and County of Denver was given eight
Senate seats and 17 House seats, and Pueblo County was
allocated two Senate seats and four House seats. Other
populous counties were also given more than one Senate
and House seat each. Certain counties were entitled to
separate representation in either or both of the houses,
and were given one seat each. Sparsely populated
counties were combined in multicounty districts.
Under the 1953 apportionment scheme, applying 1960
census figures, 29.8% of the State’s total population lived
in districts electing a majority of the members of the
Senate, and 32.1% resided in districts electing a majority
of the House members. Maximum population-variance
ratios of approximately 8-to-l existed between the most
populous and least populous districts in both the Senate
and the House. One senator represented a district con-
taining 127,520 persons, while another senator had only
17,481 people in his district. The smallest representa-
tive district had a population of only 7,867, while an-
other district was given only two House seats for a pop-
ulation of 127,520. In discussing the 1953 legislative
apportionment scheme, the District Court, in its initial
opinion, stated that “[f] actual data presented at the trial
reveals the existence of gross and glaring disparity in
voting strength as between the several representative and
p. 726senatorial districts,” and that “[t]he inevitable effect . . .
[of the existing apportionment provisions] has been to
develop severe disparities in voting strength with the
growth and shift of population.” 11
Amendment No. 7 provides for the establishment of a
General Assembly composed of 39 senators and 65 repre-
sentatives, with the State divided geographically into 39
senatorial and 65 representative districts, so that all seats
in both houses are apportioned among single-member
districts.11 12 Responsibility for creating House districts
“as nearly equal in population as may be” is given to the
legislature. Allocation of senators among the counties
follows the existing scheme of districting and apportion-
ment, except that one sparsely populated county is de-
tached from populous Arapahoe County and joined with
four others in forming a senatorial district, and one addi-
tional senator is apportioned to each of the counties of
Adams, Arapahoe, Boulder and Jefferson. Within coun-
ties given more than one Senate seat, senatorial districts
are to be established by the legislature “as nearly equal
in population as may be.” 13 Amendment No. 7 also pro-
11 208 F. Supp., at 474, 475.
p. 727vides for a revision of representative districts, and of
senatorial districts within counties given more than one
Senate seat, after each federal census, in order to main-
tain conformity with the prescribed requirements.* 14
Pursuant to this constitutional mandate, the Colorado
Legislature, in early 1963, enacted a statute establishing
65 representative districts and creating senatorial districts
in counties given more than one Senate seat.15 Under
the newly adopted House apportionment plan, districts in
which about 45.1% of the State’s total population reside
are represented by a majority of the members of that
body. The maximum population-variance ratio, be-
tween the most populous and least populous House
districts, is approximately 1.7-to-l. The court below
concluded that the House was apportioned as nearly on
a population basis as was practicable, consistent with
Amendment No. 7’s requirement that “[n]o part of one
county shall be added to another county or part of another
county” in the formation of a legislative district, and
directed its concern solely to the question of whether the
ber counties. The rejected amendment, on the other hand, made no
provision at all for districting within counties given more than one
Senate seat, and allowed subdistricting of House seats only upon
specific approval of such a plan by a county’s voters. Thus, Amend-
ment No. 8 would at least in part have perpetuated the extremely
objectionable feature of the existing apportionment scheme, under
which legislators in multimember counties were elected at large from
the county as a whole.
p. 728deviations from a population basis in the apportionment
of Senate seats were rationally justifiable.16
Senatorial apportionment, under Amendment No. 7,
involves little more than adding four new Senate seats
and distributing them to four populous counties in the
Denver area, and in substance perpetuates the existing
senatorial apportionment scheme.17 Counties contain-
ing only 33.2% of the State’s total population elect a ma-
jority of the 39-member Senate under the provisions of
Amendment No. 7. Las Animas County, with a 1960
population of only 19,983, is given one Senate seat, while
El Paso County, with 143,742 persons, is allotted only
two Senate seats. Thus, the maximum population-vari-
ance ratio, under the revised senatorial apportionment, is i
about 3.6-to-l.18 Denver and the three adjacent subur- I
16 As stated by the court below, “The Colorado legislature met in
January, 1963, and passed a statute, H. B. No. 65, implementing
Amendment No. 7. No question is raised concerning the implement- I
ing legislation.” 219 F. Supp., at 924-925. Again the District Court I
stated: “The cases now before the court do not present the issues I
as they existed prior to the apportionment made by Amendment No. I
7. . . . [T]he then-existing disparities in each chamber were severe, I
the defendants presented no evidence to sustain the rationality of I
the apportionment, and witnesses for the intervenors, while defending I
the apportionment of the Senate, recognized the malapportionment I
of the House. The change by Amendment No. 7 was such as to I
require a trial de novo and we are concerned with the facts as finally ]
presented.” Id., at 928. ]
p. 729ban counties contain about one-half of the State’s total
1960 population of 1,753,947, but are given only 14 out
of 39 senators. The Denver, Pueblo, and Colorado
Springs metropolitan areas, containing 1,191,832 persons,
about 68%, or over two-thirds of Colorado’s popula-
tion, elect only 20 of the State’s 39 senators, barely a
majority. The average population of Denver’s eight
senatorial districts, under Amendment No. 7, is 61,736,
while the five least populous districts contain less than
22,000 persons each. Divergences from population-based
representation in the Senate are growing continually
wider, since the underrepresented districts in the Denver,
Pueblo, and Colorado Springs metropolitan areas are rap-
idly gaining in population, while many of the overrepre-
sented rural districts have tended to decline in population
continuously in recent years.19
III
p. 730Several aspects of this case serve to distinguish it from
the other cases involving state legislative apportionment
also decided this date. Initially, one house of the Colo-
rado Legislature is at least arguably apportioned substan-
tially on a population basis under Amendment No. 7 and
the implementing statutory provisions. Under the ap-
portionment schemes challenged in the other cases, on the
other hand, clearly neither of the houses in any of the
state legislatures is apportioned sufficiently on a popu-
lation basis so as to be constitutionally sustainable.
Additionally, the Colorado scheme of legislative appor-
tionment here attacked is one adopted by a majority
vote of the Colorado electorate almost contempora-
neously with the District Court’s decision on the merits
in this litigation. Thus, the plan at issue did not result
from prolonged legislative inaction. However, the Colo-
rado General Assembly, in spite of the state constitu-
tional mandate for periodic reapportionment, has enacted
only one effective legislative apportionment measure in
the past 50 years.20
historical basis of legislative apportionment in Colorado. For a
short discussion of legislative apportionment in Colorado, including
the adoption of Amendment No. 7 and the instant litigation, see
Note, 35 U. of Colo. L. Rev. 431 (1963).
p. 731As appellees have correctly pointed out, a majority of
the voters in every county of the State voted in favor of
the apportionment scheme embodied in Amendment No.
7’s provisions, in preference to that contained in pro-
posed Amendment No. 8, which, subject to minor devia-
tions, would have based the apportionment of seats in
both houses on a population basis. However, the choice
presented to the Colorado electorate, in voting on these
two proposed constitutional amendments, was hardly as
clear-cut as the court below regarded it. One of the
most undesirable features of the existing apportionment
scheme was the requirement that, in counties given more
than one seat in either or both of the houses of the Gen-
eral Assembly, all legislators must be elected at large
from the county as a whole. Thus, under the existing
plan, each Denver voter was required to vote for eight
senators and 17 representatives. Ballots were long and
cumbersome, and an intelligent choice among candidates
for seats in the legislature was made quite difficult. No
identifiable constituencies within the populous counties
resulted, and the residents of those areas had no single
member of the Senate or House elected specifically to
represent them. Rather, each legislator elected from a
multimember county represented the county as a whole.* 21
Amendment No. 8, as distinguished from Amendment
No. 7, while purportedly basing the apportionment of
approving the initiated measure. The 1963 statutory provisions
were enacted by the General Assembly simply in order to comply
with Amendment No. 7’s mandate for legislative implementation.
p. 732seats in both houses on a population basis, would have per-
petuated, for all practical purposes, this debatable feature
of the existing scheme. Under Amendment No. 8, sena-
tors were to be elected at large in those counties given
more than one Senate seat, and no provision was made
for subdistricting within such counties for the purpose
of electing senators. Representatives were also to be
elected at large in multimember counties pursuant to the
provisions of Amendment No. 8, at least initially, al-
though subdistricting for the purpose of electing House
members was permitted if the voters of a multimember
county specifically approved a representative subdistrict-
ing plan for that county. Thus, neither of the proposed
plans was, in all probability, wholly acceptable to the
voters in the populous counties, and the assumption of
the court below that the Colorado voters made a definitive
choice between two contrasting alternatives and indicated
that “minority process in the Senate is what they want”
does not appear to be factually justifiable.
Finally, this case differs from the others decided this
date in that the initiative device provides a practicable
political remedy to obtain relief against alleged legis-
lative malapportionment in Colorado.22 An initiated
p. 733measure proposing a constitutional amendment or a stat-
utory enactment is entitled to be placed on the ballot if
the signatures of 8% of those voting for the Secretary of
State in the last election are obtained. No geographical
distribution of petition signers is required. Initiative
and referendum has been frequently utilized throughout
Colorado’s history.* 23 Additionally, Colorado courts have
traditionally not been hesitant about adjudicating con-
troversies relating to legislative apportionment.24 How-
Legislatures 57 (1962). In some States the initiative process is inef-
fective and cumbersome, while in others, such as Colorado, it is a
practicable and frequently utilized device.
In addition to the initiative device, Art. V, § 1, of the Colorado
Constitution provides that, upon the timely filing of a petition signed
by 5% of the State’s voters or at the instance of the legislature, the
Colorado electorate reserves the power of voting upon legislative
enactments in a statewide referendum at the next general election.
IV
p. 734ever, the Colorado Supreme Court, in its 1962 decision
discussed previously in this opinion,25 refused to consider
or pass upon the federal constitutional questions, but
instead held only that the Colorado General Assembly
was not required to enact a reapportionment statute until
the following legislative session.26
In Reynolds v. Sims, ante, p. 533, decided also this
date, we held that the Equal Protection Clause requires
that both houses of a bicameral state legislature must be
apportioned substantially on a population basis. Of
course, the court below assumed, and the parties appar-
ently conceded, that the Colorado House of Representa-
tives, under the statutory provisions enacted by the Colo-
rado Legislature in early 1963 pursuant to Amendment
No. 7’s dictate that the legislature should create 65 House
districts “as nearly equal in population as may be,” is
now apportioned sufficiently on a population basis to
comport with federal constitutional requisites. We need
not pass on this question, since the apportionment of
Senate seats, under Amendment No. 7, clearly involves
departures from population-based representation too
question is void because it violates section 45 of article 5 of the Con-
stitution, which requires the reapportionment to be made on the
basis of population, as disclosed by the census, and according to
ratios to be fixed by law.” Stating that “[i]t is clear that ratios, after
having been fixed under section 45, . . . cannot be changed until
after the next census,” the Colorado Supreme Court concluded that
“[t]he legislative act attempts to confer upon some districts a repre-
sentation that is greater, and upon others a representation that is
less, than they are entitled to under the Constitution.”
Id., at 428,
37 P. 2d, at 758.
p. 735extreme to be constitutionally permissible, and there is
no indication that the apportionment of the two houses
of the Colorado General Assembly, pursuant to the 1962
constitutional amendment, is severable.27 We therefore
conclude that the District Court erred in holding the leg-
islative apportionment plan embodied in Amendment
No. 7 to be constitutionally valid. Under neither
Amendment No. 7’s plan, nor, of course, the previous
statutory scheme, is the overall legislative representation
in the two houses of the Colorado Legislature sufficiently
grounded on population to be constitutionally sustainable
under the Equal Protection Clause.28
27 See Maryland Committee for Fair Representation v. Tawes,
ante, p. 673, decided also this date, where we discussed the need
for considering the apportionment of seats in both houses of a
bicameral state legislature in evaluating the constitutionality of a
state legislative apportionment scheme, regardless of what matters
were raised by the parties and decided by the court below. Consist-
ent with this approach, in determining whether a good faith effort to
establish districts substantially equal in population has been made,
a court must necessarily consider a State’s legislative apportionment
scheme as a whole. Only after an evaluation of an apportionment
plan in its totality can a court determine whether there has been
sufficient compliance with the requisites of the Equal Protection
Clause. Deviations from a strict population basis, so long as ration-
ally justifiable, may be utilized to balance a slight overrepresentation
of a particular area in one house with a minor underrepresentation of
that area in the other house. But, on the other hand, disparities from
population-based representation, though minor, may be cumulative
instead of offsetting where the same areas are disadvantaged in both
houses of a state legislature, and may therefore render the appor-
tionment scheme at least constitutionally suspect. Of course,
the court below can properly take into consideration the present
apportionment of seats in the House in determining what steps
must be taken in order to achieve a plan of legislative apportionment
in Colorado that sufficiently comports with federal constitutional
requirements.
p. 736Except as an interim remedial procedure justifying a
court in staying its hand temporarily, we find no signifi-
cance in the fact that a non judicial, political remedy may
be available for the effectuation of asserted rights to equal
representation in a state legislature. Courts sit to adju-
dicate controversies involving alleged denials of consti-
tutional rights. While a court sitting as a court of equity
might be justified in temporarily refraining from the issu-
ance of injunctive relief in an apportionment case in order
to allow for resort to an available political remedy, such
as initiative and referendum, individual constitutional
rights cannot be deprived, or denied judicial effectuation,
because of the existence of a non judicial remedy through
which relief against the alleged malapportionment, which
the individual voters seek, might be achieved. An indi-
vidual’s constitutionally protected right to cast an equally
weighted vote cannot be denied even by a vote of a
majority of a State’s electorate, if the apportionment
scheme adopted by the voters fails to measure up to the
requirements of the Equal Protection Clause. Mani-
festly, the fact that an apportionment plan is adopted in
a popular referendum is insufficient to sustain its con-
stitutionality or to induce a court of equity to refuse to
act. As stated by this Court in West Virginia State Bd.
of Educ. v. Barnette,
319 U. S. 624, 638, “One’s right to
life, liberty, and property . . . and other fundamental
rights may not be submitted to vote; they depend on the
outcome of no elections.” * 29 A citizen’s constitutional
rights can hardly be infringed simply because a majority
tection Clause requires that seats in both houses of a state legis-
lature must be apportioned substantially on a population basis in
order to comport with federal constitutional requisites.
p. 737of the people choose that it be.30 We hold that the fact
that a challenged legislative apportionment plan was ap-
proved by the electorate is without federal constitutional
significance, if the scheme adopted fails to satisfy the
basic requirements of the Equal Protection Clause, as
delineated in our opinion in Reynolds v. Sims. And we
conclude that the fact that a practicably available politi-
cal remedy, such as initiative and referendum, exists
under state law provides justification only for a court of
equity to stay its hand temporarily while recourse to such
a remedial device is attempted or while proposed initiated
measures relating to legislative apportionment are pend-
ing and will be submitted to the State’s voters at the next
election.
30 In refuting the majority’s reliance on the fact that Amendment
No. 7 had been adopted by a vote of the Colorado electorate, Judge
Doyle, in dissenting below, stated:
“The protection of constitutional rights is not to be approached
either pragmatically or expediently, and though the fact of enactment
of a constitutional provision by heavy vote of the electorate produces
pause and generates restraint we can not, true to our oath, uphold
such legislation in the face of palpable infringement of rights. Thus,
state racial legislation would unquestionably enjoy overwhelming
electorate approval in certain of our states, yet no one would argue
that this factor could compensate for manifest inequality. It is too
clear for argument that constitutional law is not a matter of majority
vote. Indeed, the entire philosophy of
the Fourteenth Amendment
teaches that it is personal rights which are to be protected against
the will of the majority. The rights which are here asserted are
the rights of the individual plaintiffs to have their votes counted
equally with those of other voters. . . . [T]o say that a majority
of the voters today indicate a desire to be governed by a minority, is
to avoid the issue which this court is asked to resolve. It is no
answer to say that the approval of the. polling place necessarily
evidences a rational plan. The plaintiffs have a right to expect that
the cause will be determined in relation to the standards of equal
protection. Utilization of other or different standards denies them
full measure of justice.” 219 F. Supp., at 944.
p. 738Because of the imminence of the November 1962 elec-
tion, and the fact that two initiated proposals relating to
legislative apportionment would be voted on by the
State’s electorate at that election, the District Court
properly stayed its hand and permitted the 1962 election
of legislators to be conducted pursuant to the existing
statutory scheme. But appellees’ argument, accepted by
the court below, that the apportionment of the Colorado
Senate, under Amendment No. 7, is rational because it
takes into account a variety of geographical, historical,
topographic and economic considerations fails to provide
an adequate justification for the substantial disparities
from population-based representation in the allocation of
Senate seats to the disfavored populous areas.31 And any
attempted reliance on the so-called federal analogy is
factually as well as constitutionally without merit.32
p. 739713 Appendix to Opinion of the Court.
Since the apportionment of seats in the Colorado Leg-
islature, under the provisions of Amendment No. 7, fails
to comport with the requirements of the Equal Protec-
tion Clause, the decision below must be reversed. Be-
yond what we said in our opinion in Reynolds,33 we ex-
press no view on questions relating to remedies at the
present time. On remand, the District Court must now
determine whether the imminence of the 1964 primary
and general elections requires that utilization of the
apportionment scheme contained in the constitutional
amendment be permitted, for purposes of those elections,
or whether the circumstances in Colorado are such that
appellants’ right to cast adequately weighted votes for
members of the State Legislature can practicably be
effectuated in 1964.. Accordingly, we reverse the deci-
sion of the court below 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.
APPENDIX TO OPINION OF THE COURT.
Amendment No. 7, approved by a vote of the Colorado
electorate in November 1962, appears in Colo. Laws 1963,
c. 312, p. 1045 et seq., and, in relevant part, provides as
follows :
“Sections 45, 46, and 47 of Article V of the Consti-
tution of the State of Colorado are hereby repealed
at 940-941. Additionally, the apportionment scheme embodied in
the provisions of Amendment No. 7 differs significantly from the plan
for allocating congressional representation among the States. Al-
though the Colorado House of Representatives is arguably appor-
tioned on a population basis, and therefore resembles the Federal
House, senatorial seats are not apportioned to counties or political
subdivisions in a manner that at all compares with the allocation of
two seats in the Federal Senate to each State.
p. 740Appendix to Opinion of the Court. 377 U. S.
and new Sections 45, 46, 47 and 48 of Article V are
adopted, to read as follows:
“Section 45. GENERAL ASSEMBLY. The gen-
eral assembly shall consist of 39 members of the
senate and 65 members of the house, one to be elected
from each senatorial and representative district.
Districts of the same house shall not overlap. All
districts shall be as compact as may be and shall con-
sist of contiguous whole general election precincts.
No part of one county shall be added to another
county or part of another county in forming a dis-
trict. When a district includes two or more counties
they shall be contiguous.
“Section 46. HOUSE OF REPRESENTA-
TIVES. The state shall be divided into 65 repre-
sentative districts which shall be as nearly equal in
population as may be.
“Section 47. SENATE. The state shall be di-
vided into 39 senatorial districts. The apportion-
ment of senators among the counties shall be the
same as now provided by 63-1-3 of Colorado Re-
vised Statutes 1953, which shall not be repealed or
amended other than in numbering districts, except
that the counties of Cheyenne, Elbert, Kiowa, Kit
Carson and Lincoln shall form one district, and one
additional senator is hereby apportioned to each of
the counties of Adams, Arapahoe, Boulder and Jef-
ferson. Within a county to which there is appor-
tioned more than one senator, senatorial districts
shall be as nearly equal in population as may be.
“Section 48. REVISION OF DISTRICTS. At
the regular session of the general assembly of 1963
and each regular session next following official pub-
lication of each Federal enumeration of the pop-
ulation of the state, the general assembly shall
immediately alter and amend the boundaries of all
Dissent — Clark J.
p. 741representative districts and of those senatorial dis-
tricts within any county to which there is apportioned
more than one senator to conform to the require-
ments of Sections 45, 46 and 47 of this Article V.
After 45 days from the beginning of each such regu-
lar session, no member of the general assembly shall
be entitled to or earn any compensation or receive
any payments on account of salary or expenses, and
the members of any general assembly shall be in-
eligible for election to succeed themselves in office,
until such revisions have been made. Until the
completion of the terms of the representatives elected
at the general election held in November of 1962
shall have expired, the apportionment of senators
and representatives and the senatorial and repre-
sentative districts of the general assembly shall be as
provided by law.”
[For dissenting opinion of Mr . Justice Harlan , see
ante, p. 589.]
Mr . Justi ce Clark , dissenting.
While I join my Brother Stewar t ’s opinion, I have
some additional observations with reference to this case.
The parties concede that the Colorado House of Rep-
resentatives is now apportioned “as nearly equal in popu-
lation as may be.” The Court does not disturb this
stipulation though it seems to accept it in niggardly
fashion. The fact that 45.1% of the State’s population
resides in the area which selects a majority of the House
indicates rather conclusively that the apportionment
comes within the test laid down in Reynolds v. Sims,
ante, p. 533, decided this date, viz.: “ ‘one person, one
vote,’ ” that is, “approximately equal” or “ ‘as nearly as
is practicable’ ” with only “some deviations . . . .” In-
deed, the Colorado House is within 4.9% of being perfect.
p. 742Cla rk , J., dissenting. 377 U. S.
Moreover, the fact that the apportionment follows politi-
cal subdivision lines to some extent is also a teaching of
Reynolds v. Sims, supra. But the Court strikes down
Colorado’s apportionment, which was adopted by the
majority vote of every political subdivision in the State,
because the Senate’s majority is elected by 33.2% of the
population, a much higher percentage than that which
elects a majority of the Senate of the United States.
I would refuse to interfere with this apportionment
for several reasons. First, Colorado enjoys the initiative
and referendum system which it often utilizes and which,
indeed, produced the present apportionment. As a result
of the action of the Legislature and the use of initiative
and referendum, the State Assembly has been reappor-
tioned eight times since 1881. This indicates the com-
plete awareness of the people of Colorado to apportion-
ment problems and their continuing efforts to solve them.
The courts should not interfere in such a situation. See
my concurring opinion in Baker v. Carr, 369 U. S. 186,
258-259 (1962). Next, as my Brother Stew art has
pointed out, there are rational and most persuasive rea-
sons for some deviations in the representation in the
Colorado Assembly. The State has mountainous areas
which divide it into four regions, some parts of which are
almost impenetrable. There are also some depressed
areas, diversified industry and varied climate, as well as
enormous recreational regions and difficulties in trans-
portation. These factors give rise to problems indigenous
to Colorado, which only its people can intelligently solve.
This they have done in the present apportionment.
Finally, I cannot agree to the arbitrary application of
the “one man, one vote” principle for both houses of a
State Legislature. In my view, if one house is fairly
apportioned by population (as is admitted here) then the
people should have some latitude in providing, on a
rational basis, for representation in the other house. The
p. 743Court seems to approve the federal arrangement of two
Senators from each State on the ground that it was a com-
promise reached by the framers of our Constitution and
is a part of the fabric of our national charter. But what
the Court overlooks is that Colorado, by an overwhelming
vote, has likewise written the organization of its legisla-
tive body into its Constitution,* and our dual federalism
requires that we give it recognition. After all, the Equal
Protection Clause is not an algebraic formula. Equal
protection does not rest on whether the practice assailed
“results in some inequality” but rather on whether “any
state of facts reasonably can be conceived that would
sustain it”; and one who attacks it must show “that it
does not rest upon any reasonable basis, but is essentially
arbitrary.” Mr. Justice Van Devanter in
Lindsley v.
Natural Carbonic Gas Co., 220 U. S. 61, 78-79 (1911).
Certainly Colorado’s arrangement is not arbitrary. On
the contrary, it rests on reasonable grounds which, as I
have pointed out, are peculiar to that State. It is argued
that the Colorado apportionment would lead only to
a legislative stalemate between the two houses, but
the experience of the Congress completely refutes this
argument. Now in its 176th year, the federal plan
has worked well. It is further said that in any event
Colorado’s apportionment would substitute compromise
for the legislative process. But most legislation is the
product of compromise between the various forces acting
for and against its enactment.
In striking down Colorado’s plan of apportionment, the
Court, I believe, is exceeding its powers under the Equal
Protection Clause; it is invading the valid functioning of
*The Court says that the choice presented to the electorate was
hardly “clear-cut.” The short answer to this is that if the voters
had desired other choices, they could have accomplished this easily
by filing initiative petitions, since in Colorado 8% of the voters can
force an election.
Dissent — Stewart J.
p. 744Stew art , J., dissenting. 377 U. S.
the procedures of the States, and thereby is committing a
grievous error which will do irreparable damage to our
federal-state relationship. I dissent.
Mr . Justice Stewart , whom Mr . Justice Clark joins,
dissenting.*
It is important to make clear at the outset what these
cases are not about. They have nothing to do with the
denial or impairment of any person’s right to vote.
Nobody’s right to vote has been denied. Nobody’s right
to vote has been restricted. Nobody has been deprived
of the right to have his vote counted. The voting right
cases which the Court cites are, therefore, completely
wide of the mark.1 Secondly, these cases have nothing
to do with the “weighting” or “diluting” of votes cast
within any electoral unit. The rule of Gray v. Sanders,
372 U. S. 368, is, therefore, completely without relevance
here.* 1 2 Thirdly, these cases are not concerned with the
election of members of the Congress of the United States,
governed by Article I of the Constitution. Consequently,
*[This opinion applies also to No. 20, WMCA, Inc., et al. v.
Lomenzo, Secretary of State of New York, et al, ante, p. 633.]
p. 745the Court’s decision in
Wesberry v. Sanders, 376 U. S. 1,
throws no light at all on the basic issue now before us.3
The question involved in these cases is quite a different
one. Simply stated, the question is to what degree, if
at all, the Equal Protection Clause of
the Fourteenth
Amendment limits each sovereign State’s freedom to
establish appropriate electoral constituencies from which
representatives to the State’s bicameral legislative as-
sembly are to be chosen. The Court’s answer is a blunt
one, and, I think, woefully wrong. The Equal Protec-
tion Clause, says the Court, “requires that the seats in
both houses of a bicameral state legislature must be
apportioned on a population basis.” 4
After searching carefully through the Court’s opinions
in these and their companion cases, I have been able to
find but two reasons offered in support of this rule.
First, says the Court, it is “established that the funda-
mental principle of representative government in this
country is one of equal representation for equal numbers
of people . ...” 5 With all respect, I think that this is
not correct, simply as a matter of fact. It has been unan-
swerably demonstrated before now that this “was not
the colonial system, it was not the system chosen for the
national government by the Constitution, it was not the
system exclusively or even predominantly practiced by
the States at the time of adoption of
the Fourteenth
Amendment, it is not predominantly practiced by the
p. 746Ste wa rt, J., dissenting. 377 U. S.
States today.” 6 Secondly, says the Court, unless legis-
lative districts are equal in population, voters in the more
populous districts will suffer a “debasement” amounting
to a constitutional injury. As the Court explains it, “To
the extent that a citizen’s right to vote is debased, he is
that much less a citizen.” 7 We are not told how or why
the vote of a person in a more populated legislative dis-
trict is “debased,” or how or why he is less a citizen, nor
is the proposition self-evident. I find it impossible to
understand how or why a voter in California, for instance,
either feels or is less a citizen than a voter in Nevada,
simply because, despite their population disparities, each
of those States is represented by two United States
Senators.8
To put the matter plainly, there is nothing in all the
history of this Court’s decisions which supports this con-
stitutional rule. The Court’s draconian pronouncement,
which makes unconstitutional the legislatures of most of
the 50 States, finds no support in the words of the Con-
stitution, in any prior decision of this Court, or in the
175-year political history of our Federal Union.9 With
p. 747all respect, I am convinced these decisions mark a long
step backward into that unhappy era when a majority of
the members of this Court were thought by many to have
convinced themselves and each other that the demands of
the Constitution were to be measured not by what it says,
reason. See, e. g., Sobel v. Adams, 208 F. Supp. 316, 214 F. Supp.
811; Thigpen v. Meyers, 211 F. Supp. 826; Sims v. Frink, 205 F.
Supp. 245, 208 F. Supp. 431; W. M. C. A., Inc., v. Simon, 208 F.
Supp. 368; Baker v. Carr, 206 F. Supp. 341; Mann v. Davis, 213 F.
Supp. 577; Toombs v. Fortson, 205 F. Supp. 248; Davis v. Synhorst,
217 F. Supp. 492; Nolan v. Rhodes, 218 F. Supp. 953; Moss v. Burk-
hart, 207 F. Supp. 885; Lisco v. Love, 219 F. Supp. 922; Wisconsin v.
Zimmerman, 209 F. Supp. 183; Marshall v. Hare, 227 F. Supp. 989;
Hearne v. Smylie, 225 F. Supp. 645; Lund v. Mathas, 145 So. 2d 871
(Fla.); Caesar v. Williams, 84 Idaho 254, 371 P. 2d 241; Maryland
Committee for Fair Representation v. Tawes, 228 Md. 412, 180 A. 2d
656, 182 A. 2d 877, 229 Md. 406, 184 A. 2d 715; Levitt v. Maynard,
104 N. H. 243, 182 A. 2d 897; Jackman v. Bodine, 78 N. J. Super.
414, 188 A. 2d 642; Sweeney v. Notte,----R. I.----- , 183 A. 2d 296;
Mikell v. Rousseau, 123 Vt. 139, 183 A. 2d 817.
The writings of scholars and commentators have reflected the same
view. See, e. g., De Grazia, Apportionment and Representative
Government; Neal, Baker v. Carr: Politics in Search of Law, 1962
Supreme Court Review 252; Dixon, Legislative Apportionment and
the Federal Constitution, 27 Law & Contemp. Prob. 329; Dixon,
Apportionment Standards and Judicial Power, 38 Notre Dame
Law. 367; Israel, On Charting a.Course Through the Mathematical
Quagmire: The Future of Baker v. Carr, 61 Mich. L. Rev. 107;
Israel, Nonpopulation Factors Relevant to an Acceptable Standard
of Apportionment, 38 Notre Dame Law. 499; Lucas, Legislative
Apportionment and Representative Government: The Meaning of
Baker v. Carr, 61 Mich. L. Rev. 711; Friedelbaum, Baker v. Carr:
The New Doctrine of Judicial Intervention and its Implications for
American Federalism, 29 U. of Chi. L. Rev. 673; Bickel, The Dura-
bility of Colegrove v. Green, 72 Yale L. J. 39; McCloskey, The Reap-
portionment Case, 76 Harv. L. Rev. 54; Freund, New Vistas in Con-
stitutional Law, 112 U. Pa. L. Rev. 631, 639; Comment, Baker v.
Carr and Legislative Apportionments: A Problem of Standards, 72
Yale L.
I
p. 748but by their own notions of wise political theory. The
rule announced today is at odds with long-established
principles of constitutional adjudication under the Equal
Protection Clause, and it stifles values of local individ-
uality and initiative vital to the character of the Federal
Union which it was the genius of our Constitution to
create.
What the Court has done is to convert a particular
political philosophy into a constitutional rule, binding
upon each of the 50 States, from Maine to Hawaii, from
Alaska to Texas, without regard and without respect for
the many individualized and differentiated characteristics
of each State, characteristics stemming from each State’s
distinct history, distinct geography, distinct distribution
of population, and distinct political heritage. My own
understanding of the various theories of representative
government is that no one theory has ever commanded
unanimous assent among political scientists, historians, or
others who have considered the problem.10 But even if
it were thought that the rule announced today by the
Court is, as a matter of political theory, the most desir-
able general rule which can be devised as a basis for the
make-up of the representative assembly of a typical
State, I could not join in the fabrication of a constitu-
tional mandate which imports and forever freezes one
theory of political thought into our Constitution, and
forever denies to every State any opportunity for enlight-
ened and progressive innovation in the design of its demo-
cratic institutions, so as to accommodate within a system
p. 749of representative government the interests and aspira-
tions of diverse groups of people, without subjecting any
group or class to absolute domination by a geographically
concentrated or highly organized majority.
Representative government is a process of accommo-
dating group interests through democratic institutional
arrangements. Its function is to channel the numerous
opinions, interests, and abilities of the people of a State
into the making of the State’s public policy. Appropriate
legislative apportionment, therefore, should ideally be
designed to insure effective representation in the State’s
legislature, in cooperation with other organs of political
power, of the various groups and interests making up the
electorate. In practice, of course, this ideal is approxi-
mated in the particular apportionment system of any
State by a realistic accommodation of the diverse and
often conflicting political forces operating within the
State.
I do not pretend to any specialized knowledge of the
myriad of individual characteristics of the several States,
beyond the records in the cases before us today. But I
do know enough to be aware that a system of legislative
apportionment which might be best for South Dakota,
might be unwise for Hawaii with its many islands, or
Michigan with its Northern Peninsula. I do know
enough to realize that Montana with its vast distances is
not Rhode Island with its heavy concentrations of peo-
ple. I do know enough to be aware of the great varia-
tions among the several States in their historic manner of
distributing legislative power—of the Governors’ Coun-
cils in New England, of the broad powers of initiative and
referendum retained in some States by the people, of the
legislative power which some States give to their Gov-
ernors, by the right of veto or otherwise, of the widely
autonomous home rule which many States give to their
p. 750cities.11 The Court today declines to give any recogni-
tion to these considerations and countless others, tangible
and intangible, in holding unconstitutional the particular
systems of legislative apportionment which these States
have chosen. Instead, the Court says that the require-
ments of the Equal Protection Clause can be met in any
State only by the uncritical, simplistic, and heavy-handed
application of sixth-grade arithmetic.
But legislators do not represent faceless numbers.
They represent people, or, more accurately, a majority of
the voters in their districts—people with identifiable
needs and interests which require legislative representa-
tion, and which can often be related to the geographical
areas in which these people live. The very fact of geo-
graphic districting, the constitutional validity of which
the Court does not question, carries with it an acceptance
of the idea of legislative representation of regional needs
and interests. Yet if geographical residence is irrelevant,
as the Court suggests, and the goal is solely that of
equally “weighted” votes, I do not understand why the
Court’s constitutional rule does not require the abolition
of districts and the holding of all elections at large.11 12
II
p. 751The fact is, of course, that population factors must
often to some degree be subordinated in devising a legis-
lative apportionment plan which is to achieve the impor-
tant goal of ensuring a fair, effective, and balanced repre-
sentation of the regional, social, and economic interests
within a State. And the further fact is that throughout
our history the apportionments of State Legislatures have
reflected the strongly felt American tradition that the pub-
lic interest is composed of many diverse interests, and
that in the long run it can better be expressed by a med-
ley of component voices than by the majority’s mono-
lithic command. What constitutes a rational plan rea-
sonably designed to achieve this objective will vary from
State to State, since each State is unique, in terms of
topography, geography, demography, history, hetero-
geneity and concentration of population, variety of social
and economic interests, and in the operation and inter-
relation of its political institutions. But so long as a
State’s apportionment plan reasonably achieves, in the
light of the State’s own characteristics, effective and bal-
anced representation of all substantial interests, without
sacrificing the principle of effective majority rule, that
plan cannot be considered irrational.
This brings me to what I consider to be the proper con-
stitutional standards to be applied in these cases. Quite
simply, I think the cases should be decided by application
of accepted principles of constitutional adjudication under
the Equal Protection Clause. A recent expression by the
Court of these principles will serve as a generalized
compendium :
“[T]he
Fourteenth Amendment permits the States
a wide scope of discretion in enacting laws which
affect some groups of citizens differently than others.
The constitutional safeguard is offended only if the
729-256 0-65-52
p. 752classification rests on grounds wholly irrelevant to
the achievement of the State’s objective. State
legislatures are presumed to have acted within their
constitutional power despite the fact that, in prac-
tice, their laws result in some inequality. A statu-
tory discrimination will not be set aside if any state
of facts reasonably may be conceived to justify it.”
McGowan v. Maryland, 366 U. S. 420, 425-426.
These principles reflect an understanding respect for the
unique values inherent in the Federal Union of States
established by our Constitution. They reflect, too, a wise
perception of this Court’s role in that constitutional sys-
tem. The point was never better made than by Mr. Jus-
tice Brandeis, dissenting in New State Ice Co. v. Lieb-
mann, 285 U. S. 262, 280. The final paragraph of that
classic dissent is worth repeating here:
“To stay experimentation in things social and
economic is a grave responsibility. Denial of the
right to experiment may be fraught with serious con-
sequences to the Nation. It is one of the happy inci-
dents of the federal system that a single courageous
State may, if its citizens choose, serve as a labora-
tory ; and try novel social and economic experiments
without risk to the rest of the country. This Court
has the power to prevent an experiment. We may
strike down the statute which embodies it on the
ground that, in our opinion, the measure is arbi-
trary, capricious or unreasonable. . . . But in the
exercise of this high power, we must be ever on our
guard, lest we erect our prejudices into legal prin-
ciples. If we would guide by the light of reason,
we must let our minds be bold.” 285 U. S., at 311.
That cases such as the ones now before us were to be
decided under these accepted Equal Protection Clause
p. 753standards was the clear import of what was said on this
score in
Baker v. Carr, 369 U. S. 186, 226:
“Nor need the appellants, in order to succeed in this
action, ask the Court to enter upon policy determi-
nations for which judicially manageable standards
are lacking. Judicial standards under the Equal
Protection Clause are well developed and familiar,
and it has been open to courts since the enactment of
the Fourteenth Amendment to determine, if on the
particular facts they must, that a discrimination re-
flects no policy, but simply arbitrary and capricious
action.”
It is to be remembered that the Court in Baker v. Carr
did not question what had been said only a few years
earlier in
MacDougall v. Green, 335 U. S. 281, 284:
“It would be strange indeed, and doctrinaire, for this
Court, applying such broad constitutional concepts
as due process and equal protection of the laws, to
deny a State the power to assure a proper diffusion
of political initiative as between its thinly populated
counties and those having concentrated masses, in
view of the fact that the latter have practical oppor-
tunities for exerting their political weight at the
polls not available to the former. The Constitu-
tion—a practical instrument of government—makes
no such demands on the States.”
Moving from the general to the specific, I think that
the Equal Protection Clause demands but two basic
attributes of any plan of state legislative apportionment.
First, it demands that, in the light of the State’s own
characteristics and needs, the plan must be a rational one.
Secondly, it demands that the plan must be such as not to
permit the systematic frustration of the will of a majority
III
p. 754of the electorate of the State.13 I think it is apparent
that any plan of legislative apportionment which could
be shown to reflect no policy, but simply arbitrary and
capricious action or inaction, and that any plan which
could be shown systematically to prevent ultimate effec-
tive majority rule, would be invalid under accepted Equal
Protection Clause standards. But, beyond this, I think
there is nothing in the Federal Constitution to prevent a
State from choosing any electoral legislative structure
it thinks best suited to the interests, temper, and customs
of its people. In the light of these standards, I turn
to the Colorado and New York plans of legislative
apportionment.
Colo rad o.
The Colorado plan creates a General Assembly com-
posed of a Senate of 39 members and a House of 65 mem-
bers. The State is divided into 65 equal population rep-
resentative districts, with one representative to be elected
from each district, and 39 senatorial districts, 14 of which
include more than one county. In the Colorado House,
the majority unquestionably rules supreme, with the pop-
ulation factor untempered by other considerations. In
p. 755the Senate rural minorities do not have effective control,
and therefore do not have even a veto power over the will
of the urban majorities. It is true that, as a matter of
theoretical arithmetic, a minority of 36% of the voters
could elect a majority of the Senate, but this percentage
has no real meaning in terms of the legislative process.14
Under the Colorado plan, no possible combination of
Colorado senators from rural districts, even assuming
arguendo that they would vote as a bloc, could control
the Senate. To arrive at the 36% figure, one must in-
clude with the rural districts a substantial number of
urban districts, districts with substantially dissimilar
interests. There is absolutely no reason to assume that
this theoretical majority would ever vote together on any
issue so as to thwart the wishes of the majority of the
voters of Colorado. Indeed, when we eschew the world
of numbers, and look to the real world of effective repre-
sentation, the simple fact of the matter is that Colorado’s
three metropolitan areas, Denver, Pueblo, and Colorado
Springs, elect a majority of the Senate.
The State of Colorado is not an economically or geo-
graphically homogeneous unit. The Continental Divide
crosses the State in a meandering line from north to south,
and Colorado’s 104,247 square miles of area are almost
p. 756equally divided between high plains in the east and
rugged mountains in the west. The State’s population is
highly concentrated in the urbanized eastern edge of the
foothills, while farther to the east lies that agricultural
area of Colorado which is a part of the Great Plains. The
area lying to the west of the Continental Divide is largely
mountainous, with two-thirds of the population living in
communities of less than 2,500 inhabitants or on farms.
Livestock raising, mining and tourism are the dominant
occupations. This area is further subdivided by a series
of mountain ranges containing some of the highest peaks
in the United States, isolating communities and making
transportation from point to point difficult, and in some
places during the winter months almost impossible. The
fourth distinct region of the State is the South Central
region, in which is located the most economically de-
pressed area in the State. A scarcity of water makes a
state-wide water policy a necessity, with each region
affected differently by the problem.
The District Court found that the people living in each
of these four regions have interests unifying themselves
and differentiating them from those in other regions.
Given these underlying facts, certainly it was not irra-
tional to conclude that effective representation of the in-
terests of the residents of each of these regions was
unlikely to be achieved if the rule of equal population dis-
tricts were mechanically imposed; that planned depar-
tures from a strict per capita standard of representation
were a desirable way of assuring some representation of
distinct localities whose needs and problems might have
passed unnoticed if districts had been drawn solely on a
per capita basis; a desirable way of assuring that districts
should be small enough in area, in a mountainous State
like Colorado, where accessibility is affected by configura-
tion as well as compactness of districts, to enable each
p. 757senator to have firsthand knowledge of his entire district
and to maintain close contact with his constituents; and
a desirable way of avoiding the drawing of district lines
which would submerge the needs and wishes of a portion
of the electorate by grouping them in districts with larger
numbers of voters with wholly different interests.
It is clear from the record that if per capita representa-
tion were the rule in both houses of the Colorado Legis-
lature, counties having small populations would have to
be merged with larger counties having totally dissimilar
interests. Their representatives would not only be un-
familiar with the problems of the smaller county, but the
interests of the smaller counties might well be totally
submerged by the interests of the larger counties with
which they are joined. Since representatives represent-
ing conflicting interests might well pay greater attention
to the views of the majority, the minority interest could
be denied any effective representation at all. Its votes
would not be merely “diluted,” an injury which the Court
considers of constitutional dimensions, but rendered
totally nugatory.
The findings of the District Court speak for themselves:
“The heterogeneous characteristics of Colorado
justify geographic districting for the election of the
members of one chamber of the legislature. In no
other way may representation be afforded to insular
minorities. Without such districting the metropoli-
tan areas could theoretically, and no doubt practi-
cally, dominate both chambers of the legislature.
“. . . The realities of topographic conditions with
their resulting effect on population may not be ig-
nored. For an example, if [the rule of equal popu-
lation districts] was to be. accepted, Colorado would
have one senator for approximately every 45,000
persons. Two contiguous Western Region senatorial
p. 758districts, Nos. 29 and 37, have a combined population
of 51,675 persons inhabiting an area of 20,514 square
miles. The division of this area into two districts
does not offend any constitutional provisions.
Rather, it is a wise recognition of the practicalities
of life. . . .
“We are convinced that the apportionment of the
Senate by Amendment No. 7 recognizes population
as a prime, but not controlling, factor and gives effect
to such important considerations as geography, com-
pactness and contiguity of territory, accessibility,
observance of natural boundaries, conformity to his-
torical divisions such as county lines and prior repre-
sentation districts, and ‘a proper diffusion of political
initiative as between a state’s thinly populated
counties and those having concentrated masses.’ ”
219 F. Supp., at 932.
From 1954 until the adoption of Amendment 7 in 1962,
the issue of apportionment had been the subject of intense
public debate. The present apportionment was proposed
and supported by many of Colorado’s leading citizens.
The factual data underlying the apportionment were pre-
pared by the wholly independent Denver Research Insti-
tute of the University of Denver. Finally, the appor-
tionment was adopted by a popular referendum in which
not only a 2-1 majority of all the voters in Colorado, but
a majority in each county, including those urban coun-
ties allegedly discriminated against, voted for the present
plan in preference to an alternative proposal providing for
equal representation per capita in both legislative houses.
As the District Court said:
“The contention that the voters have discriminated
against themselves appalls rather than convinces.
Difficult as it may be at times to understand mass
behavior of human beings, a proper recognition of
IV
p. 759the judicial function precludes a court from holding
that the free choice of the voters between two con-
flicting theories of apportionment is irrational or the
result arbitrary.” Ibid.
The present apportionment, adopted overwhelmingly
by the people in a 1962 popular referendum as a state
constitutional amendment, is entirely rational, and the
amendment by its terms provides for keeping the appor-
tionment current.15 Thus the majority has consciously
chosen to protect the minority’s interests, and under the
liberal initiative provisions of the Colorado Constitution,
it retains the power to reverse its decision to do so.
Therefore, there can be no question of frustration of the
basic principle of majority rule.
New York .
. . Constitutional statecraft often involves a degree
of protection for minorities which limits the principle of
majority rule. Perfect numerical equality in voting
rights would be achieved if an entire State legislature
were elected at large but the danger is too great that the
remote and less populated sections would be neglected
or that, in the event of a conflict between two parts of
the State, the more populous region would elect the en-
tire legislature and in its councils the minority would
never be heard.
“Due recognition of geographic and other minority
interests is also a comprehensible reason for reducing the
weight of votes in great cities. If seventy percent of a
State’s population lived in a single city and the re-
p. 760mainder was scattered over wide country areas and small
towns, it might be reasonable to give the city voters
somewhat smaller representation than that to which they
would be entitled by a strictly numerical apportionment
in order to reduce the danger of total neglect of the
needs and wishes of rural areas.”
The above two paragraphs are from the brief which the
United States filed in Baker v. Carr, 369 U. S. 186.16 It
would be difficult to find words more aptly to describe the
State of New York, or more clearly to justify the system
of legislative apportionment which that State has chosen.
Legislative apportionment in New York follows a
formula which is written into the New York Constitution
and which has been a part of its fundamental law since
1894. The apportionment is not a crazy quilt; it is
rational, it is applied systematically, and it is kept rea-
sonably current. The formula reflects a policy which
accords major emphasis to population, some emphasis to
region and community, and a reasonable limitation upon
massive overcentralization of power. In order to effectu-
ate this policy, the apportionment formula provides that
each county shall have at least one representative in the
Assembly, that the smaller counties shall have somewhat
greater representation in the legislature than representa-
tion based solely on numbers would accord, and that some
limits be placed on the representation of the largest
p. 761counties in order to prevent one megalopolis from com-
pletely dominating the legislature.
New York is not unique in considering factors other
than population in its apportionment formula. Indeed,
the inclusion of such other considerations is more the rule
than the exception throughout the States. Two-thirds of
the States have given effect to factors other than popu-
lation in apportioning representation in both houses of
their legislatures, and over four-fifths of the States give
effect to nonpopulation factors in at least one house.17
The typical restrictions are those like New York’s afford-
ing minimal representation to certain political subdivi-
sions, or prohibiting districts composed of parts of two
or more counties, or requiring districts to be composed
of contiguous and compact territory, or fixing the mem-
bership of the legislative body. All of these factors tend
to place practical limitations on apportionment accord-
ing to population, even if the basic underlying system is
one of equal population districts for representation in
one or both houses of the legislature.
That these are rational policy considerations can be
seen from even a cursory examination of New York’s
political makeup. In New York many of the interests
which a citizen may wish to assert through the legislative
process are interests which touch on his relation to the
government of his county as well as to that of the State,
and consequently these interests are often peculiar to the
citizens of one county. As the District Court found,
counties have been an integral part of New York’s gov-
ernmental structure since early colonial times, and the
many functions performed by the counties today reflect
both the historic gravitation toward the county as the
central unit of political activity and the realistic fact that
p. 762the county is usually the most efficient and practical unit
for carrying out many governmental programs.18
A policy guaranteeing minimum representation to each
county is certainly rational, particularly in a State like
New York. It prevents less densely populated counties
from being merged into multicounty districts where they
would receive no effective representation at all. Further,
it may be only by individual county representation that
the needs and interests of all the areas of the State can be
brought to the attention of the legislative body. The
rationality of individual county representation becomes
18 The following excerpts from the brief of the Attorney General
of New York in this case are instructive:
“For example, state aid is administered by the counties in the follow-
ing areas: educational extension work (N. Y. Education Law §§ 1104,
1113), community colleges (N. Y. Education Law §§6301, 6302,
6304), assistance to physically handicapped children (N. Y. Educa-
tion Law §4403), social welfare such as medical and other aid for
the aged, the blind, dependent children, the disabled, and other needy
persons (N. Y. Social Welfare Law §§ 153, 154, 257, 409), public
health (N. Y. Public Health Law §§ 608, 620, 636, 650, 660), mental
health (N. Y. Mental Hygiene Law, Art. 8-A, § 191-a), probation
work (N. Y. Correction Law § 14-a), highway construction, im-
provement and maintenance (N. Y. Highway Law §§ 12, 112, 112-a,
279), conservation (N. Y. County Law §§219, 299-w, N. Y. Con-
servation Law §§205, 879), and civil defense preparations (State
Defense Emergency Act §§ 23-b, 25-a).
“County governments, are, of course, far more than instrumen-
talities for the administration of state aid. They have extensive
powers to adopt, amend or repeal local laws affecting the county
(N. Y. County Law §§301-309), and also play a vital part in the
enactment of state laws which affect only a particular county or
counties (See N. Y. Constitution, Art. IX, §§ 1, 2). The enactment in
1959 of a new County Charter Law (N. Y. County Law, Art. 6-A),
providing opportunity for the fundamental reorganization of county
governments by county residents, has given the counties an even
greater role to play in the social, economic and political life of modern
New York.” Brief for appellees Secretary of State and Attorney
General, No. 20, 1963 Term, pp. 42-43.
p. 763particularly apparent in States where legislative action
applicable only to one or more particular counties is the
permissible tradition.
Despite the rationality of according at least one repre-
sentative to each county, it is clear that such a system of
representation, coupled with a provision fixing the maxi-
mum number of members in the legislative body—a
necessity if the body is to remain small enough for man-
ageably effective action—has the result of creating some
population disparities among districts. But since the dis-
parity flows from the effectuation of a rational state pol-
icy, the mere existence of the disparity itself can hardly
be considered an invidious discrimination.
In addition to ensuring minimum representation to
each county, the New York apportionment formula, by
allocating somewhat greater representation to the smaller
counties while placing limitations on the representation
of the largest counties, is clearly designed to protect
against overcentralization of power. To understand
fully the practical importance of this consideration in
New York, one must look to its unique characteristics.
New York is one of the few States in which the central
cities can elect a majority of representatives to the legis-
lature. As the District Court found, the 10 most pop-
ulous counties in the State control both houses of the
legislature under the existing apportionment system.
Each of these counties is heavily urban; each is in a
metropolitan area. Together they contain 73.5% of the
citizen population, and are represented by 65.5% of the
seats in the Senate and 62% of the seats in the Assembly.
Moreover, the nine counties comprising one metropolitan
area—New York City, Nassau, Rockland, Suffolk and
Westchester—contain 63.2% of the total citizen popu-
lation and elect a clear majority of both houses of the
legislature under the existing system which the Court
today holds invalid. Obviously, therefore, the exist-
p. 764ing system of apportionment clearly guarantees effec-
tive majority representation and control in the State
Legislature.
But this is not the whole story. New York City, with
its seven million people and a budget larger than that of
the State, has, by virtue of its concentration of popula-
tion, homogeneity of interest, and political cohesiveness,
acquired an institutional power and political influence of
its own hardly measurable simply by counting the num-
ber of its representatives in the legislature. Elihu Root,
a delegate to the New York Constitutional Convention of
1894, which formulated the basic structure of the present
apportionment plan, made this very point at that time:
“The question is whether thirty separate centers of
38,606 each scattered over the country are to be com-
pared upon the basis of absolute numerical equality
with one center of thirty times 38,606 in one city,
with all the multiplications of power that comes from
representing a single interest, standing together on
all measures against a scattered and disunited repre-
sentation from the thirty widely separated single
centers of 38,606. Thirty men from one place owing
their allegiance to one political organization, repre-
senting the interest of one community, voting to-
gether, acting together solidly; why, they are worth
double the scattered elements of power coming from
hundreds of miles apart.” 3 Revised Record of the
New York State Constitutional Convention of 1894,
p. 1215.
Surely it is not irrational for the State of New York to
be justifiably concerned about balancing such a concen-
tration of political power, and certainly there is nothing
in our Federal Constitution which prevents a State from
reasonably translating such a concern into its apportion-
ment formula. See MacDougall v. Green, 335 U. S. 281.
p. 765The State of New York is large in area and diverse in
interests. The Hudson and Mohawk Valleys, the farm
communities along the southern belt, the many suburban
areas throughout the State, the upstate urban and indus-
trial centers, the Thousand Islands, the Finger Lakes, the
Berkshire Hills, the Adirondacks—the people of all these
and many other areas, with their aspirations and their
interests, just as surely belong to the State as does the
giant metropolis which is New York City. What the
State has done is to adopt a plan of legislative apportion-
ment which is designed in a rational way to ensure that
minority voices may be heard, but that the will of the
majority shall prevail.
V.
In the allocation of representation in their State Legis-
latures, Colorado and New York have adopted completely
rational plans which reflect an informed response to their
particularized characteristics and needs. The plans are
quite different, just as Colorado and New York are quite
different. But each State, while clearly ensuring that in
its legislative councils the will of the majority of the elec-
torate shall rule, has sought to provide that no identifi-
able minority shall be completely silenced or engulfed.
The Court today holds unconstitutional the considered
governmental choices of these two sovereign States. By
contrast, I believe that what each State has achieved
fully comports with the letter and the spirit of our con-
stitutional traditions.
I would affirm the judgments in both cases.
Cases cited
-
219 F. Supp. 922
219 F. Supp. 922
at 932-933
p. 714, p. 719, p. 720, p. 747
-
208 F. Supp. 471
208 F. Supp. 471
p. 716
-
Gray v. Sanders
372 U. S. 368
SCOTUS
1963-03-18
at 428
p. 721, p. 722, p. 734, p. 744
-
West Virginia State Board of Education v. Barnette
319 U. S. 624
SCOTUS
1943-06-14
p. 736
-
Baker v. Carr
369 U. S. 186
SCOTUS
1962-03-26
p. 742, p. 753, p. 760
-
Lindsley v. Natural Carbonic Gas Co.
220 U. S. 61
SCOTUS
1911-03-13
p. 743
-
Wesberry v. Sanders
376 U. S. 1
SCOTUS
1964-02-17
p. 745
-
208 F. Supp. 316
208 F. Supp. 316
p. 747
-
211 F. Supp. 826
211 F. Supp. 826
p. 747
-
205 F. Supp. 245
205 F. Supp. 245
p. 747
-
208 F. Supp. 368
208 F. Supp. 368
p. 747
-
206 F. Supp. 341
206 F. Supp. 341
p. 747
-
213 F. Supp. 577
213 F. Supp. 577
p. 747
-
205 F. Supp. 248
205 F. Supp. 248
p. 747
-
217 F. Supp. 492
217 F. Supp. 492
p. 747
-
218 F. Supp. 953
218 F. Supp. 953
p. 747
-
207 F. Supp. 885
207 F. Supp. 885
p. 747
-
209 F. Supp. 183
209 F. Supp. 183
p. 747
-
227 F. Supp. 989
227 F. Supp. 989
p. 747
-
225 F. Supp. 645
225 F. Supp. 645
p. 747
-
McGowan v. Maryland
366 U. S. 420
SCOTUS
1961-05-29
p. 752
-
New State Ice Co. v. Liebmann
285 U. S. 262
SCOTUS
1932-03-21
at 311
p. 752
-
MacDougall v. Green
335 U. S. 281
SCOTUS
1948-10-21
p. 753, p. 759, p. 764
Statutes and regulations cited