Reynolds v. Sims

No. 23

Argued November 13, 1963

Decided June 15, 1964 *

377 U.S. 533

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

Syllabus



Charging that malapportionment of the Alabama Legislature deprived them

and others similarly situated of rights under the Equal Protection

Clause of the Fourteenth Amendment and the Alabama Constitution, voters

in several Alabama counties brought suit against various officials

having state election duties. Complainants sought a declaration that the

existing state legislative apportionment provisions were

unconstitutional; an injunction against future elections pending

reapportionment in accordance with the State Constitution; or, absent

such reapportionment, a mandatory injunction requiring holding the 1962

election for legislators at large over the entire State.  The complaint

alleged serious discrimination against voters in counties whose

populations had grown proportionately far more than others since the

1900 census which, despite Alabama's constitutional requirements for

legislative representation based on population and for decennial

reapportionment, formed the basis for the existing legislative

apportionment.  Pursuant to the 1901 constitution, the legislature

consisted of 106 representatives and 35 senators for the State's 67

counties and senatorial districts; each county was entitled to at least

one representative; each senate district could have only one member, and

no county could be divided between two senate districts.  A three-judge

Federal District Court declined ordering the May, 1962, primary election

to be held at large, stating that it should not act before the

legislature had further opportunity to take corrective measures before

the general election.  Finding after a hearing that neither of two

apportionment plans which the legislature thereafter adopted, to become

effective in 1966, would cure the gross inequality and invidious

discrimination of the existing representation, which all parties

generally conceded violated the Equal Protection Clause, and that the

complainants' votes were unconstitutionally debased under all of the

three plans at issue, the District Court ordered temporary

reapportionment for the 1962 general [377 U.S. 534] election by

combining features of the two plans adopted by the legislature, and

enjoined officials from holding future elections under any of the

invalid plans.  The officials appealed, claiming that the District Court

erred in holding unconstitutional the existing and proposed

reapportionment plans and that a federal court lacks power affirmatively

to reapportion a legislature; two groups of complainants also appealed,

one claiming error in the District Court's failure to reapportion the

Senate according to population, the other claiming error in its failure

to reapportion both houses on a population basis.



Held:



1. The right of suffrage is denied by debasement or dilution of a

citizen's vote in a state or federal election.



2. Under the Equal Protection Clause, a claim of debasement of the right

to vote through malapportionment presents a justiciable controversy, and

the Equal Protection Clause provides manageable standards for lower

courts to determine the constitutionality of a state legislative

apportionment scheme.  Baker v. Carr, 369 U.S. 186, followed.



3. The Equal Protection Clause requires substantially equal legislative

representation for all citizens in a State regardless of where they

reside.  Pp. 56l-568.



(a) Legislators represent people, not areas.



(b) Weighting votes differently according to where citizens happen to

reside is discriminatory.



4. The seats in both houses of a bicameral legislature must, under the

Equal Protection Clause, be apportioned substantially on a population

basis.



5. The District Court correctly held that the existing Alabama

apportionment scheme and both of the proposed plans are constitutionally

invalid, since neither legislative house is or would thereunder be

apportioned on a population basis.



6. The superficial resemblance between one of the Alabama apportionment

plans and the legislative representation scheme of the Federal Congress

affords no proper basis for sustaining that plan, since the historical

circumstances which gave rise to the congressional system of

representation, arising out of compromise among sovereign States, are

unique and without relevance to the allocation of seats in state

legislatures.



7. The federal constitutional requirement that both houses of a state

legislature must be apportioned on a population basis means that, as

nearly as practicable, districts be of equal population, though

mechanical exactness is not required.  Somewhat more [377 U.S. 535]

flexibility may be constitutionally permissible for state legislative

apportionment than for congressional districting.



(a) A state legislative apportionment scheme may properly give

representation to various political subdivisions and provide for compact

districts of contiguous territory if substantial equality among

districts is maintained.



(b) Some deviations from a strict equal population principle are

constitutionally permissible in the two houses of a bicameral state

legislature, where incident to the effectuation of a rational state

policy, so long as the basic standard of equality of population among

districts is not significantly departed from.



(c) Considerations of history, economic or other group interests, or

area alone do not justify deviations from the equal population

principle.



(d) Insuring some voice to political subdivisions in at least one

legislative body may, within reason, warrant some deviations from

population-based representation in state legislatures.



8. In admitting States into the Union, Congress does not purport to pass

on all constitutional questions concerning the character of state

governmental organization, such as whether a state legislature's

apportionment departs from the equal population principle; in any case,

congressional approval could not validate an unconstitutional state

legislative apportionment.



9. States, consistently with the Equal Protection Clause, can properly

provide for periodic revision of reapportionment schemes, though

revision less frequent than decennial would be constitutionally suspect.



10. Courts should attempt to accommodate the relief ordered to the

apportionment provisions of state constitutions as far as possible,

provided that such provisions harmonize with the Equal Protection

Clause.



11. A court, in awarding or withholding immediate relief, should

consider the proximity of a forthcoming election and the mechanics and

complexities of election laws, and should rely on general equitable

principles.



12. The District Court properly exercised its judicial power in this

case by ordering reapportionment of both houses of the Alabama

Legislature for purposes of 1962 elections as a temporary measure by

using the best parts of the two proposed plans, each of which it had

found, as a whole, invalid, and in retaining jurisdiction while

deferring a hearing on the issuance of a final injunction [377 U.S. 536]

to give the reapportioned legislature an opportunity to act effectively.



208 F.Supp. 431, affirmed and remanded for further proceedings. WARREN,

J., lead opinion



MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.



Involved in these cases are an appeal and two cross-appeals from a

decision of the Federal District Court for the Middle District of

Alabama holding invalid, under [377 U.S. 537] the Equal Protection

Clause of the Federal Constitution, the existing and two legislatively

proposed plans for the apportionment of seats in the two houses of the

Alabama Legislature, and ordering into effect a temporary

reapportionment plan comprised of parts of the proposed but judicially

disapproved measures. I



On August 26, 1961, the original plaintiffs (appellees in No. 23),

residents, taxpayers and voters of Jefferson County, Alabama, filed a

complaint in the United States District Court for the Middle District of

Alabama, in their own behalf and on behalf of all similarly situated

Alabama voters, challenging the apportionment of the Alabama

Legislature.  Defendants below (appellants in No. 23), sued in their

representative capacities, were various state and political party

officials charged with the performance of certain duties in connection

with state elections.  The complaint alleged a deprivation of rights

under the Alabama Constitution and under the Equal Protection Clause of

the Fourteenth Amendment, and asserted that the District Court had

jurisdiction under provisions of the Civil Rights Act, 42 U.S.C.  1983,

1988, as well as under 28 U.S.C.  1343(3).



The complaint stated that the Alabama Legislature was composed of a

Senate of 35 members and a House of Representatives of 106 members.  It

set out relevant portions of the 1901 Alabama Constitution, which

prescribe the number of members of the two bodies of the [377 U.S. 538]

State Legislature and the method of apportioning the seats among the

State's 67 counties, and provide as follows:



Art. IV, Sec. 50.



The legislature shall consist of not more than thirty-five senators, and

not more than one hundred and five members of the house of

representatives, to be apportioned among the several districts and

counties, as prescribed in this Constitution; provided that, in addition

to the above number of representatives, each new county hereafter

created shall be entitled to one representative.



Art. IX, Sec.197.



The whole number of senators shall be not less than one-fourth or more

than one-third of the whole number of representatives.



Art. IX, Sec.198.



The house of representatives shall consist of not more than one hundred

and five members, unless new counties shall be created, in which event

each new county shall be entitled to one representative.  The members of

the house of representatives shall be apportioned by the legislature

among the several counties of the state, according to the number of

inhabitants in them, respectively, as ascertained by the decennial

census of the United States, which apportionment, when made, shall not

be subject to alteration until the next session of the legislature after

the next decennial census of the United States shall have been taken.



Art. IX, Sec.199.



It shall be the duty of the legislature at its first session after the

taking of the decennial census of the United States in the year nineteen

hundred and ten, and after each subsequent decennial census, to fix by

law the number of representatives and apportion them among the several

counties of the state, according to the number of inhabitants in them,

respectively; provided, that [377 U.S. 539] each county shall be

entitled to at least one representative.



Art. IX, Sec. 200.



It shall be the duty of the legislature at its first session after

taking of the decennial census of the United States in the year nineteen

hundred and ten, and after each subsequent decennial census, to fix by

law the number of senators, and to divide the state into as many

senatorial districts as there are senators, which districts shall be as

nearly equal to each other in the number of inhabitants as may be, and

each shall be entitled to one senator, and no more, and such districts,

when formed, shall not be changed until the next apportioning session of

the legislature, after the next decennial census of the United States

shall have been taken; provided, that counties created after the next

preceding apportioning session of the legislature may be attached to

senatorial districts.  No county shall be divided between two districts,

and no district shall be made up of two or more counties not contiguous

to each other.



Art. XVIII, Sec. 284.



. . .  Representation in the legislature shall be based upon population,

and such basis of representation shall not be changed by constitutional

amendments.



The maximum size of the Alabama House was increased from 105 to 106 with

the creation of a new county in 1903, pursuant to the constitutional

provision which states that, in addition to the prescribed 105 House

seats, each county thereafter created shall be entitled to one

representative.  Article IX,  202 and 203, of the Alabama Constitution

established precisely the boundaries of the State's senatorial and

representative districts until the enactment of a new reapportionment

plan by the legislature.  These 1901 constitutional provisions,

specifically describing the composition of the senatorial [377 U.S. 540]

districts and detailing the number of House seats allocated to each

county, were periodically enacted as statutory measures by the Alabama

Legislature, as modified only by the creation of an additional county in

1903, and provided the plan of legislative apportionment existing at the

time this litigation was commenced.



Plaintiffs below alleged that the last apportionment of the Alabama

Legislature was based on the 1900 federal census, despite the

requirement of the State Constitution that the legislature be

reapportioned decennially.  They asserted that, since the population

growth in the State from 1900 to 1960 had been uneven, Jefferson and

other counties were now victims of serious discrimination with respect

to the allocation of legislative representation.  As a result of the

failure of the legislature to reapportion itself, plaintiffs asserted,

they were denied "equal suffrage in free and equal elections . . . and

the equal protection of the laws," in violation of the Alabama

Constitution and the Fourteenth Amendment to the Federal Constitution. 

The complaint asserted that plaintiffs had no other adequate remedy, and

that they had exhausted all forms of relief other than that available

through the federal courts.  They alleged that the Alabama Legislature

had established a pattern of prolonged inaction from 1911 to the present

which "clearly demonstrates that no reapportionment . . . shall be

effected"; that representation at any future constitutional convention

would be established by the legislature, making it unlikely that the

membership of any such convention would be fairly representative, and

that, while the Alabama Supreme Court had found that the legislature had

not complied with the State Constitution in failing to reapportion

according [377 U.S. 541] to population decennially, that court had

nevertheless indicated that it would not interfere with matters of

legislative reapportionment.



Plaintiffs requested that a three-judge District Court be convened. 

With respect to relief, they sought a declaration that the existing

constitutional and statutory provisions, establishing the present

apportionment of seats in the Alabama Legislature, were unconstitutional

under the Alabama and Federal Constitutions, and an injunction against

the holding of future elections for legislators until the legislature

reapportioned itself in accordance with the State Constitution.  They

further requested the issuance of a mandatory injunction, effective

until such time as the legislature properly reapportioned, requiring the

conducting of the 1962 election for legislators at large over the entire

State, and any other relief which "may seem just, equitable and proper."



A three-judge District Court was convened, and three groups of voters,

taxpayers and residents of Jefferson, Mobile, and Etowah Counties were

permitted to intervene [377 U.S. 542] in the action as

intervenor-plaintiffs.  Two of the groups are cross-appellants in Nos.

27 and 41.  With minor exceptions, all of the intervenors adopted the

allegations of and sought the same relief as the original plaintiffs.



On March 29, 1962, just three days after this Court had decided Baker v.

Carr, 369 U.S. 186, plaintiffs moved for a preliminary injunction

requiring defendants to conduct at large the May, 1962, Democratic

primary election and the November, 1962, general election for members of

the Alabama Legislature.  The District Court set the motion for hearing

in an order stating its tentative views that an injunction was not

required before the May, 1962, primary election to protect plaintiffs'

constitutional rights, and that the Court should take no action which

was not "absolutely essential" for the protection of the asserted

constitutional rights before the Alabama Legislature had had a "further

reasonable but prompt opportunity to comply with its duty" under the

Alabama Constitution.



On April 14, 1962, the District Court, after reiterating the views

expressed in its earlier order, reset the case for hearing on July 16,

noting that the importance of the case, together with the necessity for

effective action within a limited period of time, required an early

announcement of its views.  205 F.Supp. 245.  Relying on our decision in

Baker v. Carr, the Court found jurisdiction, justiciability and

standing.  It stated that it was taking judicial notice of the facts

that there had been population changes in Alabama's counties since 1901,

that the present representation in the State Legislature was not on a

population basis, and that the legislature had never reapportioned its

membership as required by the Alabama Constitution.  Continuing, the

Court stated [377 U.S. 543] that, if the legislature complied with the

Alabama constitutional provision requiring legislative representation to

be based on population, there could be no objection on federal

constitutional grounds to such an apportionment.  The Court further

indicated that, if the legislature failed to act, or if its actions did

not meet constitutional standards, it would be under a "clear duty" to

take some action on the matter prior to the November, 1962, general

election.  The District Court stated that its "present thinking" was to

follow an approach suggested by MR. JUSTICE CLARK in his concurring

opinion in Baker v. Carr -- awarding seats released by the consolidation

or revamping of existing districts to counties suffering "the most

egregious discrimination," thereby releasing the strangle hold on the

legislature sufficiently so as to permit the newly elected body to enact

a constitutionally valid and permanent reapportionment plan, and

allowing eventual dismissal of the case.  Subsequently, plaintiffs were

permitted to amend their complaint by adding a further prayer for

relief, which asked the District Court to reapportion the Alabama

Legislature provisionally so that the rural strangle hold would be

relaxed enough to permit it to reapportion itself.



On July 12, 1962, an extraordinary session of the Alabama Legislature

adopted two reapportionment plans to take effect for the 1966 elections.

 One was a proposed constitutional amendment, referred to as the

"67-Senator Amendment."   It provided for a House of Representatives

consisting of 106 members, apportioned by giving [377 U.S. 544] one seat

to each of Alabama's 67 counties and distributing the others according

to population by the "equal proportions" method.{10}  Using this

formula, the constitutional amendment specified the number of

representatives allotted to each county until a new apportionment could

be made on the basis of the 1970 census.  The Senate was to be composed

of 67 members, one from each county.  The legislation provided that the

proposed amendment should be submitted to the voters for ratification at

the November 1962 general election.



The other reapportionment plan was embodied in a statutory measure

adopted by the legislature and signed into law by the Alabama Governor,

and was referred to as the "Crawford-Webb Act."{11}  It was enacted as

standby legislation, to take effect in 1966 if the proposed

constitutional amendment should fail of passage by a majority of the

State's voters, or should the federal courts refuse to accept the

proposed amendment (though not rejected by the voters) as effective

action in compliance with the requirements of the Fourteenth Amendment. 

The act provided for a Senate consisting of 35 members, representing 35

senatorial districts established along county lines, and altered only a

few of the former districts.  In apportioning the 106 seats in the

Alabama House of Representatives, the statutory measure gave each county

one seat, and apportioned the remaining 39 on a rough population basis,

under a formula requiring increasingly more population for a county to

be accorded [377 U.S. 545] additional seats.  The Crawford-Webb Act also

provided that it would be effective "until the legislature is

reapportioned according to law," but provided no standards for such a

reapportionment.  Future apportionments would presumably be based on the

existing provisions of the Alabama Constitution which the statute,

unlike the proposed constitutional amendment, would not affect.



The evidence adduced at trial before the three-judge panel consisted

primarily of figures showing the population of each Alabama county and

senatorial district according to the 1960 census, and the number of

representatives allocated to each county under each of the three plans

at issue in the litigation -- the existing apportionment (under the 1901

constitutional provisions and the current statutory measures

substantially reenacting the same plan), the proposed 67-Senator

constitutional amendment, and the Crawford-Webb Act.  Under all three

plans, each senatorial district would be represented by only one

senator.



On July 21, 1962, the District Court held that the inequality of the

existing representation in the Alabama Legislature violated the Equal

Protection Clause of the Fourteenth Amendment, a finding which the Court

noted had been "generally conceded" by the parties to the litigation,

since population growth and shifts had converted the 1901 scheme, as

perpetuated some 60 years later, into an invidiously discriminatory plan

completely lacking in rationality.  208 F.Supp. 431.  Under the existing

provisions, applying 1960 census figures, only 25.1% of the State's

total population resided in districts represented by a majority of the

members of the Senate, and only 25.7% lived in counties which could

elect a majority of the members of the House of Representatives. 

Population variance ratios of up to about 41-to-1 existed in the Senate,

and up to about 16-to-1 in the House.  Bullock County, with a population

of only 13,462, and Henry County, with a population of only 15,286, each

were allocated two seats [377 U.S. 546] in the Alabama House, whereas

Mobile County, with a population of 314,301, was given only three seats,

and Jefferson County, with 634,864 people, had only seven

representatives.{12}  With respect to senatorial apportionment, since

the pertinent Alabama constitutional provisions had been consistently

construed as prohibiting the giving of more than one Senate seat to any

one county,{13} Jefferson County, with over 600,000 people, was given

only one senator, as was Lowndes County, with a 1960 population of only

15,417, and Wilcox County, with only 18,739 people.{14}



The Court then considered both the proposed constitutional amendment and

the Crawford-Webb Act to ascertain [377 U.S. 547] whether the

legislature had taken effective action to remedy the unconstitutional

aspects of the existing apportionment.  In initially summarizing the

result which it had reached, the Court stated:



This Court has reached the conclusion that neither the "67-Senator

Amendment" nor the "Crawford-Webb Act" meets the necessary

constitutional requirements.  We find that each of the legislative acts,

when considered as a whole, is so obviously discriminatory, arbitrary

and irrational that it becomes unnecessary to pursue a detailed

development of each of the relevant factors of the [federal

constitutional] test.{15} The Court stated that the apportionment of one

senator to each county, under the proposed constitutional amendment,

would "make the discrimination in the Senate even more invidious than at

present."  Under the 67-Senator Amendment, as pointed out by the court

below, [t]he present control of the Senate by members representing 25.1%

of the people of Alabama would be reduced to control by members

representing 19.4% of the people of the State, the 34 smallest counties,

with a total population of less than that of Jefferson County, would

have a majority of the senatorial seats, and senators elected by only

about 14% of the State's population could prevent the submission to the

electorate of any future proposals to amend the State Constitution

(since a vote of two-fifths of the members of one house can defeat a

proposal to amend the Alabama Constitution).  Noting that the "only

conceivable rationalization" of the senatorial apportionment scheme is

that it was based on equal representation of political subdivisions

within the State, and is thus analogous to the Federal Senate, the

District Court rejected the analogy on the ground that Alabama [377 U.S.

548] counties are merely involuntary political units of the State

created by statute to aid in the administration of state government.  In

finding the so-called federal analogy irrelevant, the District Court

stated: The analogy cannot survive the most superficial examination into

the history of the requirement of the Federal Constitution and the

diametrically opposing history of the requirement of the Alabama

Constitution that representation shall be based on population.  Nor can

it survive a comparison of the different political natures of states and

counties.{16} The Court also noted that the senatorial apportionment

proposal "may not have complied with the State Constitution," since not

only is it explicitly provided that the population basis of legislative

representation "shall not be changed by constitutional amendments,"{17}

but the Alabama Supreme Court had previously indicated that that

requirement could probably be altered only by constitutional

convention.{18}  The Court concluded, however, that the apportionment of

seats in the Alabama House, under the proposed constitutional amendment,

was "based upon reason, with a rational regard for known and accepted

[377 U.S. 549] standards of apportionment."{19}  Under the proposed

apportionment of representatives, each of the 67 counties was given one

seat, and the remaining 39 were allocated on a population basis.  About

43% of the State's total population would live in counties which could

elect a majority in that body.  And, under the provisions of the

67-Senator Amendment, while the maximum population variance ratio was

increased to about 59-to-1 in the Senate, it was significantly reduced

to about 4.7-to-1 in the House of Representatives.  Jefferson County was

given 17 House seats, an addition of 10, and Mobile County was allotted

eight, an increase of five.  The increased representation of the urban

counties was achieved primarily by limiting the State's 55 least

populous counties to one House seat each, and the net effect was to take

19 seats away from rural counties and allocate them to the more populous

counties.  Even so, serious disparities from a population-based standard

remained.  Montgomery County, with 169,210 people, was given only four

seats, while Coosa County, with a population of only 10,726, and

Cleburne County, with only 10,911, were each allocated one

representative.



Turning next to the provisions of the Crawford-Webb Act, the District

Court found that its apportionment of the 106 seats in the Alabama House

of Representatives, by allocating one seat to each county and

distributing the remaining 39 to the more populous counties in

diminishing ratio to their populations, was "totally unacceptable."{20} 

Under this plan, about 37% of the State's total [377 U.S. 550]

population would reside in counties electing a majority of the members

of the Alabama House, with a maximum population variance ratio of about

5-to-1.  Each representative from Jefferson and Mobile Counties would

represent over 52,000 persons, while representatives from eight rural

counties would each represent less than 20,000 people.  The Court

regarded the senatorial apportionment provided in the Crawford-Webb Act

as "a step in the right direction, but an extremely short step," and but

a "slight improvement over the present system of representation."{21} 

The net effect of combining a few of the less populous counties into

two-county districts and splitting up several of the larger districts

into smaller ones would be merely to increase the minority which would

be represented by a majority of the members of the Senate from 25.1% to

only 27.6% of the State's population.{22}  The Court pointed out that,

under the Crawford-Webb Act, the vote of a person in the senatorial

district consisting of Bibb and Perry Counties would be worth 20 times

that of a citizen in Jefferson County, and that the vote of a citizen in

the six smallest districts would be worth 15 or more times that of a

Jefferson County voter.  The Court concluded that the Crawford-Webb [377

U.S. 551] Act was "totally unacceptable" as a "piece of permanent

legislation" which, under the Alabama Constitution, would have remained

in effect without alteration at least until after the next decennial

census.



Under the detailed requirements of the various constitutional provisions

relating to the apportionment of seats in the Alabama Senate and House

of Representatives, the Court found, the membership of neither house can

be apportioned solely on a population basis, despite the provision in

Art. XVIII,  284, which states that "[r]epresentation in the legislature

shall be based upon population."  In dealing with the conflicting and

somewhat paradoxical requirements (under which the number of seats in

the House is limited to 106 but each of the 67 counties is required to

be given at least one representative, and the size of the Senate is

limited to 35 but it is required to have at least one-fourth of the

members of the House, although no county can be given more than one

senator), the District Court stated its view that "the controlling or

dominant provision of the Alabama Constitution on the subject of

representation in the Legislature" is the previously referred to

language of  284.  The Court stated that the detailed requirements of

Art. IX,   197-200, make it obvious that in neither the House nor the

Senate can representation be based strictly and entirely upon

population. . . .  The result may well be that representation according

to population to some extent must be required in both Houses if

invidious discrimination in the legislative systems as a whole is to be

avoided.  Indeed, . . . it is the policy and theme of the Alabama

Constitution to require representation according to population in both

Houses as nearly as may be, while still complying with more detailed

provisions.{23} [377 U.S. 552]



The District Court then directed its concern to the providing of an

effective remedy.  It indicated that it was adopting and ordering into

effect for the November, 1962, election a provisional and temporary

reapportionment plan composed of the provisions relating to the House of

Representatives contained in the 67-Senator Amendment and the provisions

of the Crawford-Webb Act relating to the Senate.  The Court noted,

however, that [t]he proposed reapportionment of the Senate in the

"Crawford-Webb Act," unacceptable as a piece of permanent legislation,

may not even break the stranglehold. Stating that it was retaining

jurisdiction and deferring any hearing on plaintiffs' motion for a

permanent injunction until the Legislature, as provisionally

reapportioned . . . , has an opportunity to provide for a true

reapportionment of both Houses of the Alabama Legislature, the Court

emphasized that its "moderate" action was designed to break the

stranglehold by the smaller counties on the Alabama Legislature, and

would not suffice as a permanent reapportionment.  On July 25, 1962, the

Court entered its decree in accordance with its previously stated

determinations, concluding that plaintiffs . . . are denied . . . equal

protection . . . by virtue of the debasement of their votes since the

Legislature of the State of Alabama has failed and continues to fail to

reapportion itself as required by law. It enjoined the defendant state

officials from holding any future elections under any of the

apportionment plans that it had found invalid, and stated that the 1962

election of Alabama legislators could validly be conducted only under

the apportionment scheme specified in the Court's order.



After the District Court's decision, new primary elections were held

pursuant to legislation enacted in 1962 at the same special session as

the proposed constitutional amendment and the Crawford-Webb Act, to be

effective [377 U.S. 553] in the event the Court itself ordered a

particular reapportionment plan into immediate effect.  The November,

1962, general election was likewise conducted on the basis of the

District Court's ordered apportionment of legislative seats, as MR.

JUSTICE BLACK refused to stay the District Court's order.  Consequently,

the present Alabama Legislature is apportioned in accordance with the

temporary plan prescribed by the District Court's decree.  All members

of both houses of the Alabama Legislature serve four-year terms, so that

the next regularly scheduled election of legislators will not be held

until 1966.  The 1963 regular session of the Alabama Legislature

produced no legislation relating to legislative apportionment,{24} and

the legislature, which meets biennially, will not hold another regular

session until 1965.



No effective political remedy to obtain relief against the alleged

malapportionment of the Alabama Legislature appears to have been

available.{25}  No initiative procedure exists under Alabama law. 

Amendment of the State Constitution can be achieved only after a

proposal is adopted by three-fifths of the members of both houses of the

legislature and is approved by a majority of the people,{26} or as a

result of a constitutional convention convened [377 U.S. 554] after

approval by the people of a convention call initiated by a majority of

both houses of the Alabama Legislature.{27}  Notices of appeal to this

Court from the District Court's decision were timely filed by defendants

below (appellants in No. 23) and by two groups of intervenor-plaintiffs

(cross appellants in Nos. 27 and 41).  Appellants in No. 23 contend that

the District Court erred in holding the existing and the two proposed

plans for the apportionment of seats in the Alabama Legislature

unconstitutional, and that a federal court lacks the power to

affirmatively reapportion seats in a state legislature. 

Cross-appellants in No. 27 assert that the court below erred in failing

to compel reapportionment of the Alabama Senate on a population basis,

as allegedly required by the Alabama Constitution and the Equal

Protection Clause of the Federal Constitution.  Cross-appellants in No.

41 contend that the District Court should have required and ordered into

effect the apportionment of seats in both houses of the Alabama

Legislature on a population basis.  We noted probable jurisdiction on

June 10, 1963.  374 U.S. 802. II



Undeniably, the Constitution of the United States protects the right of

all qualified citizens to vote, in state as well as in federal,

elections.  A consistent line of decisions by this Court in cases

involving attempts to deny or restrict the right of suffrage has made

this indelibly clear.  It has been repeatedly recognized that all

qualified voters have a constitutionally protected right to vote, Ex

parte Yarbrough, 110 U.S. 651, and to have their votes counted, United

States v. Mosley, 238 U.S. 383.  In Mosley, the Court stated that it is

"as equally unquestionable that the right to have one's vote counted is

as open to protection . . . as the right to put a ballot in a box."  238

U.S. [377 U.S. 555] at 386. T he right to vote can neither be denied

outright, Guinn v. United States, 238 U.S. 347, Lane v. Wilson, 307 U.S.

268, nor destroyed by alteration of ballots, see United States v.

Classic, 313 U.S. 299, 315, nor diluted by ballot box stuffing, Ex parte

Siebold, 100 U.S. 371, United States v. Saylor, 322 U.S. 385.  As the

Court stated in Classic, Obviously included within the right to choose,

secured by the Constitution, is the right of qualified voters within a

state to cast their ballots and have them counted. . . . 313 U.S. at

315.  Racially based gerrymandering, Gomillion v. Lightfoot, 364 U.S.

339, and the conducting of white primaries, Nixon v. Herndon, 273 U.S.

536, Nixon v. Condon, 286 U.S. 73, Smith v. Allwright, 321 U.S. 649,

Terry v. Adams, 345 U.S. 461, both of which result in denying to some

citizens their right to vote, have been held to be constitutionally

impermissible.  And history has seen a continuing expansion of the scope

of the right of suffrage in this country.{28}  The right to vote freely

for the candidate of one's choice is of the essence of a democratic

society, and any restrictions on that right strike at the heart of

representative government.  And the right of suffrage can be denied by a

debasement or dilution of the weight of a citizen's vote just as

effectively as by wholly prohibiting the free exercise of the

franchise.{29} [377 U.S. 556]



In Baker v. Carr, 369 U.S. 186, we held that a claim asserted under the

Equal Protection Clause challenging the constitutionality of a State's

apportionment of seats in its legislature, on the ground that the right

to vote of certain citizens was effectively impaired, since debased and

diluted, in effect presented a justiciable controversy subject to

adjudication by federal courts.  The spate of similar cases filed and

decided by lower courts since our decision in Baker amply shows that the

problem of state legislative malapportionment is one that is perceived

to exist in a large number of the States.{30}  In Baker, a suit

involving an attack on the apportionment of seats in the Tennessee

Legislature, we remanded to the District Court, which had dismissed the

action, for consideration on the merits.  We intimated no view as to the

proper constitutional standards for evaluating the validity of a state

legislative apportionment scheme.  Nor did we give any consideration to

the question of appropriate remedies.  Rather, we simply stated: Beyond

noting that we have no cause at this stage to doubt the District Court

will be able to fashion relief if violations of constitutional rights

are found, it is improper now to consider what remedy would be most

appropriate if appellants prevail at the trial.{31} [377 U.S. 557] We

indicated in Baker, however, that the Equal Protection Clause provides

discoverable and manageable standards for use by lower courts in

determining the constitutionality of a state legislative apportionment

scheme, and we stated: Nor need the appellants, in order to succeed in

this action, ask the Court to enter upon policy determinations 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

reflects no policy, but simply arbitrary and capricious action.{32}

Subsequent to Baker, we remanded several cases to the courts below for

reconsideration in light of that decision.{33}



In Gray v. Sanders, 372 U.S. 368, we held that the Georgia county unit

system, applicable in statewide primary elections, was unconstitutional,

since it resulted in a dilution of the weight of the votes of certain

Georgia voters merely because of where they resided.  After indicating

that the Fifteenth and Nineteenth Amendments prohibit a State from

overweighting or diluting votes on the basis of race or sex, we stated:

How, then, can one person be given twice or ten times the voting power

of another person in a statewide election merely because he lives in a

rural area or because he lives in the smallest rural county?  Once the

geographical unit for which a representative is to be chosen is

designated, all who participate in the election are to have an equal

vote -- whatever their race, whatever their sex, whatever their

occupation, [377 U.S. 558] whatever their income and wherever their home

may be in that geographical unit.  This is required by the Equal

Protection Clause of the Fourteenth Amendment.  The concept of "we the

people" under the Constitution visualizes no preferred class of voters,

but equality among those who meet the basic qualifications.  The idea

that every voter is equal to every other voter in his State, when he

casts his ballot in favor of one of several competing candidates,

underlies many of our decisions.{34} Continuing, we stated that there is

no indication in the Constitution that homesite or occupation affords a

permissible basis for distinguishing between qualified voters within the

State. And, finally, we concluded: The conception of political equality

from the Declaration of Independence, to Lincoln's Gettysburg Address,

to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only

one thing -- one person, one vote.{35}



We stated in Gray, however, that that case, unlike Baker v. Carr, . . .

does not involve a question of the degree to which the Equal Protection

Clause of the Fourteenth Amendment limits the authority of a State

Legislature in designing the geographical districts from which

representatives are chosen either for the State Legislature or for the

Federal House of Representatives. . . .  Nor does it present the

question, inherent in the bicameral form of our Federal Government,

whether a State may have one house chosen without regard to

population.{36}  [377 U.S. 559] Of course, in these cases, we are faced

with the problem not presented in Gray -- that of determining the basic

standards and stating the applicable guidelines for implementing our

decision in Baker v. Carr.



In Wesberry v. Sanders, 376 U.S. 1, decided earlier this Term, we held

that attacks on the constitutionality of congressional districting plans

enacted by state legislatures do not present nonjusticiable questions,

and should not be dismissed generally for "want of equity."  We

determined that the constitutional test for the validity of

congressional districting schemes was one of substantial equality of

population among the various districts established by a state

legislature for the election of members of the Federal House of

Representatives.



In that case, we decided that an apportionment of congressional seats

which "contracts the value of some votes and expands that of others" is

unconstitutional, since the Federal Constitution intends that, when

qualified voters elect members of Congress, each vote be given as much

weight as any other vote. . . . We concluded that the constitutional

prescription for election of members of the House of Representatives "by

the People," construed in its historical context, "means that, as nearly

as is practicable, one man's vote in a congressional election is to be

worth as much as another's."  We further stated:



It would defeat the principle solemnly embodied in the Great Compromise

-- equal representation in the House for equal numbers of people -- for

us to hold that, within the States, legislatures may draw the lines of

congressional districts in such a way as to give some voters a greater

voice in choosing a Congressman than others.{37} We found further, in

Wesberry, that "our Constitution's plain objective" was that "of making

equal representation [377 U.S. 560] for equal numbers of people the

fundamental goal. . . ."  We concluded by stating: No right is more

precious in a free country than that of having a voice in the election

of those who make the laws under which, as good citizens, we must live. 

Other rights, even the most basic, are illusory if the right to vote is

undermined.  Our Constitution leaves no room for classification of

people in a way that unnecessarily abridges this right.{38}



Gray and Wesberry are, of course, not dispositive of or directly

controlling on our decision in these cases involving state legislative

apportionment controversies.  Admittedly, those decisions, in which we

held that, in statewide and in congressional elections, one person's

vote must be counted equally with those of all other voters in a State,

were based on different constitutional considerations, and were

addressed to rather distinct problems.  But neither are they wholly

inapposite.  Gray, though not determinative here, since involving the

weighting of votes in statewide elections, established the basic

principle of equality among voters within a State, and held that voters

cannot be classified, constitutionally, on the basis of where they live,

at least with respect to voting in statewide elections.  And our

decision in Wesberry was, of course, grounded on that language of the

Constitution which prescribes that members of the Federal House of

Representatives are to be chosen "by the People," while attacks on state

legislative apportionment schemes, such as that involved in the instant

cases, are principally based on the Equal Protection Clause of the

Fourteenth Amendment.  Nevertheless, Wesberry clearly established that

the fundamental principle of representative government in this country

is one of equal [377 U.S. 561] representation for equal numbers of

people, without regard to race, sex, economic status, or place of

residence within a State.  Our problem, then, is to ascertain, in the

instant cases, whether there are any constitutionally cognizable

principles which would justify departures from the basic standard of

equality among voters in the apportionment of seats in state

legislatures. III



A predominant consideration in determining whether a State's legislative

apportionment scheme constitutes an invidious discrimination violative

of rights asserted under the Equal Protection Clause is that the rights

allegedly impaired are individual and personal in nature.  As stated by

the Court in United States v. Bathgate, 246 U.S. 220, 227, "[t]he right

to vote is personal. . . ."{39}  While the result of a court decision in

a state legislative apportionment controversy may be to require the

restructuring of the geographical distribution of seats in a state

legislature, the judicial focus must be concentrated upon ascertaining

whether there has been any discrimination against certain of the State's

citizens which constitutes an impermissible impairment of their

constitutionally protected right to vote.  Like Skinner v. Oklahoma, 316

U.S. 535, such a case "touches a sensitive and important area of human

rights," and "involves one of the basic civil rights of man," presenting

questions of alleged "invidious discriminations . . . against groups or

types of individuals in violation of the constitutional guaranty of just

and equal laws."  316 U.S. at 536, 541.  Undoubtedly, the right of

suffrage is a fundamental matter [377 U.S. 562] in a free and democratic

society.  Especially since the right to exercise the franchise in a free

and unimpaired manner is preservative of other basic civil and political

rights, any alleged infringement of the right of citizens to vote must

be carefully and meticulously scrutinized.  Almost a century ago, in

Yick Wo v. Hopkins, 118 U.S. 356, the Court referred to "the political

franchise of voting" as "a fundamental political right, because

preservative of all rights."  118 U.S. at 370.



Legislators represent people, not trees or acres.  Legislators are

elected by voters, not farms or cities or economic interests.  As long

as ours is a representative form of government, and our legislatures are

those instruments of government elected directly by and directly

representative of the people, the right to elect legislators in a free

and unimpaired fashion is a bedrock of our political system.  It could

hardly be gainsaid that a constitutional claim had been asserted by an

allegation that certain otherwise qualified voters had been entirely

prohibited from voting for members of their state legislature.  And, if

a State should provide that the votes of citizens in one part of the

State should be given two times, or five times, or 10 times the weight

of votes of citizens in another part of the State, it could hardly be

contended that the right to vote of those residing in the disfavored

areas had not been effectively diluted.  It would appear extraordinary

to suggest that a State could be constitutionally permitted to enact a

law providing that certain of the State's voters could vote two, five,

or 10 times for their legislative representatives, while voters living

elsewhere could vote only once.  And it is inconceivable that a state

law to the effect that, in counting votes for legislators, the votes of

citizens in one part of the State would be multiplied by two, five, or

10, while the votes of persons in another area would be counted only at

face value, could be constitutionally sustainable.  Of course, the

effect of [377 U.S. 563] state legislative districting schemes which

give the same number of representatives to unequal numbers of

constituents is identical.{40}  Overweighting and overvaluation of the

votes of those living here has the certain effect of dilution and

undervaluation of the votes of those living there.  The resulting

discrimination against those individual voters living in disfavored

areas is easily demonstrable mathematically.  Their right to vote is

simply not the same right to vote as that of those living in a favored

part of the State.  Two, five, or 10 of them must vote before the effect

of their voting is equivalent to that of their favored neighbor. 

Weighting the votes of citizens differently, by any method or means,

merely because of where they happen to reside, hardly seems justifiable.

 One must be ever aware that the Constitution forbids "sophisticated, as

well as simple-minded, modes of discrimination."  Lane v. Wilson, 307

U.S. 268, 275; Gomillion v. Lightfoot, 364 U.S. 339, 342.  As we stated

in Wesberry v. Sanders, supra: We do not believe that the Framers of the

Constitution intended to permit the same vote-diluting discrimination to

be accomplished through the device of districts containing widely varied

numbers of inhabitants.  To say that a vote is worth [377 U.S. 564] more

in one district than in another would . . . run counter to our

fundamental ideas of democratic government. . . .{41}



State legislatures are, historically, the fountainhead of representative

government in this country.  A number of them have their roots in

colonial times, and substantially antedate the creation of our Nation

and our Federal Government.  In fact, the first formal stirrings of

American political independence are to be found, in large part, in the

views and actions of several of the colonial legislative bodies.  With

the birth of our National Government, and the adoption and ratification

of the Federal [377 U.S. 565] Constitution, state legislatures retained

a most important place in our Nation's governmental structure.  But

representative government is, in essence, self-government through the

medium of elected representatives of the people, and each and every

citizen has an inalienable right to full and effective participation in

the political processes of his State's legislative bodies.  Most

citizens can achieve this participation only as qualified voters through

the election of legislators to represent them.  Full and effective

participation by all citizens in state government requires, therefore,

that each citizen have an equally effective voice in the election of

members of his state legislature.  Modern and viable state government

needs, and the Constitution demands, no less.



Logically, in a society ostensibly grounded on representative

government, it would seem reasonable that a majority of the people of a

State could elect a majority of that State's legislators.  To conclude

differently, and to sanction minority control of state legislative

bodies, would appear to deny majority rights in a way that far surpasses

any possible denial of minority rights that might otherwise be thought

to result.  Since legislatures are responsible for enacting laws by

which all citizens are to be governed, they should be bodies which are

collectively responsive to the popular will.  And the concept of equal

protection has been traditionally viewed as requiring the uniform

treatment of persons standing in the same relation to the governmental

action questioned or challenged.  With respect to the allocation of

legislative representation, all voters, as citizens of a State, stand in

the same relation regardless of where they live.  Any suggested criteria

for the differentiation of citizens are insufficient to justify any

discrimination, as to the weight of their votes, unless relevant to the

permissible purposes of legislative apportionment.  Since the achieving

of fair and effective representation for all citizens [377 U.S. 566] is

concededly the basic aim of legislative apportionment, we conclude that

the Equal Protection Clause guarantees the opportunity for equal

participation by all voters in the election of state legislators. 

Diluting the weight of votes because of place of residence impairs basic

constitutional rights under the Fourteenth Amendment just as much as

invidious discriminations based upon factors such as race, Brown v.

Board of Education, 347 U.S. 483, or economic status, Griffin v.

Illinois, 351 U.S. 12, Douglas v. California, 372 U.S. 353.  Our

constitutional system amply provides for the protection of minorities by

means other than giving them majority control of state legislatures. 

And the democratic ideals of equality and majority rule, which have

served this Nation so well in the past, are hardly of any less

significance for the present and the future.



We are told that the matter of apportioning representation in a state

legislature is a complex and many-faceted one.  We are advised that

States can rationally consider factors other than population in

apportioning legislative representation.  We are admonished not to

restrict the power of the States to impose differing views as to

political philosophy on their citizens.  We are cautioned about the

dangers of entering into political thickets and mathematical quagmires. 

Our answer is this:  a denial of constitutionally protected rights

demands judicial protection; our oath and our office require no less of

us.  As stated in Gomillion v. Lightfoot, supra:



When a State exercises power wholly within the domain of state interest,

it is insulated from federal judicial review.  But such insulation is

not carried over when state power is used as an instrument for

circumventing a federally protected right.{42}  [377 U.S. 567] To the

extent that a citizen's right to vote is debased, he is that much less a

citizen.  The fact that an individual lives here or there is not a

legitimate reason for overweighting or diluting the efficacy of his

vote.  The complexions of societies and civilizations change, often with

amazing rapidity.  A nation once primarily rural in character becomes

predominantly urban.{43}  Representation schemes once fair and equitable

become archaic and outdated.  But the basic principle of representative

government remains, and must remain, unchanged -- the weight of a

citizen's vote cannot be made to depend on where he lives.  Population

is, of necessity, the starting point for consideration and the

controlling criterion for judgment in legislative apportionment

controversies.{44}  [377 U.S. 568] A citizen, a qualified voter, is no

more nor no less so because he lives in the city or on the farm.  This

is the clear and strong command of our Constitution's Equal Protection

Clause.  This is an essential part of the concept of a government of

laws, and not men.  This is at the heart of Lincoln's vision of

"government of the people, by the people, [and] for the people."  The

Equal Protection Clause demands no less than substantially equal state

legislative representation for all citizens, of all places as well as of

all races. IV



We hold that, as a basic constitutional standard, the Equal Protection

Clause requires that the seats in both houses of a bicameral state

legislature must be apportioned on a population basis.  Simply stated,

an individual's right to vote for state legislators is

unconstitutionally impaired when its weight is in a substantial fashion

diluted when compared with votes of citizens living in other parts of

the State.  Since under neither the existing apportionment provisions

nor either of the proposed plans was either of the houses of the Alabama

Legislature apportioned on a population basis, the District Court

correctly held that all three of these schemes were constitutionally

invalid.  Furthermore, the existing apportionment, and also, to a lesser

extent, the apportionment under the Crawford-Webb Act, presented little

more than crazy quilts, completely lacking in rationality, and could be

found invalid on that basis alone.{45}  Although [377 U.S. 569] the

District Court presumably found the apportionment of the Alabama House

of Representatives under the 67-Senator Amendment to be acceptable, we

conclude that the deviations from a strict population basis are too

egregious to permit us to find that that body, under this proposed plan,

was apportioned sufficiently on a population basis so as to permit the

arrangement to be constitutionally sustained.  Although about 43% of the

State's total population would be required to comprise districts which

could elect a majority in that body, only 39 of the 106 House seats were

actually to be distributed on a population basis, as each of Alabama's

67 counties was given at least one representative, and population

variance ratios of close to 5-to-1 would have existed.  While

mathematical nicety is not a constitutional requisite, one could hardly

conclude that the Alabama House, under the proposed constitutional

amendment, had been apportioned sufficiently on a population basis to be

sustainable under the requirements of the Equal Protection Clause.  And

none of the other apportionments of seats in either of the bodies of the

Alabama Legislature, under the three plans considered by the District

Court, came nearly as close to approaching the required constitutional

standard as did that of the House of Representatives under the

67-Senator Amendment.



Legislative apportionment in Alabama is signally illustrative and

symptomatic of the seriousness of this problem in a number of the

States.  At the time this litigation was commenced, there had been no

reapportionment [377 U.S. 570] of seats in the Alabama Legislature for

over 60 years.{46}  Legislative inaction, coupled with the

unavailability of any political or Judicial remedy,{47} had resulted,

with the passage of years, in the perpetuated scheme becoming little

more than an irrational anachronism.  Consistent failure by the Alabama

Legislature to comply with state constitutional requirements as to the

frequency of reapportionment and the bases of legislative representation

resulted in a minority strangle hold on the State Legislature. 

Inequality of representation in one house added to the inequality in the

other.  With the crazy-quilt existing apportionment virtually conceded

to be invalid, the Alabama Legislature offered two proposed plans for

consideration by the District Court, neither of which was to be

effective until 1966 and neither of which provided for the apportionment

of even one of the two houses on a population basis.  We find that the

court below did not err in holding that neither of these proposed

reapportionment schemes, considered as a whole, "meets the necessary

constitutional requirements."  And we conclude that the District Court

acted properly in considering these two proposed plans, although neither

was to become effective until the 1966 election and the proposed

constitutional amendment was scheduled to be submitted to the State's

voters in November 1962.{48}  [377 U.S. 571] Consideration by the court

below of the two proposed plans was clearly necessary in determining

whether the Alabama Legislature had acted effectively to correct the

admittedly existing malapportionment, and in ascertaining what sort of

judicial relief, if any, should be afforded. V



Since neither of the houses of the Alabama Legislature, under any of the

three plans considered by the District Court, was apportioned on a

population basis, we would be justified in proceeding no further. 

However, one of the proposed plans, that contained in the so-called

67-Senator Amendment, at least superficially resembles the scheme of

legislative representation followed in the Federal Congress.  Under this

plan, each of Alabama's 67 counties is allotted one senator, and no

counties are given more than one Senate seat.  Arguably, this is

analogous to the allocation of two Senate seats, in the Federal

Congress, to each of the 50 States, regardless of population.  Seats in

the Alabama House, under the proposed constitutional amendment, are

distributed by giving each of the 67 counties at least one, with the

remaining 39 seats being allotted among the more populous counties on a

population basis.  This scheme, at least at first glance, appears to

resemble that prescribed for the Federal House of Representatives, where

the 435 seats are distributed among the States on a population basis,

although each State, regardless of its population, is given at least one

Congressman.  Thus, although there are substantial differences in

underlying rationale and result,{49} [377 U.S. 572] the 67-Senator

Amendment, as proposed by the Alabama Legislature, at least arguably

presents for consideration a scheme analogous to that used for

apportioning seats in Congress.



Much has been written since our decision in Baker v. Carr about the

applicability of the so-called federal analogy to state legislative

apportionment arrangements.{50}  After considering the matter, the court

below concluded that no conceivable analogy could be drawn between the

federal scheme and the apportionment of seats in the Alabama Legislature

under the proposed constitutional [377 U.S. 573] amendment.{51}  We

agree with the District Court, and find the federal analogy inapposite

and irrelevant to state legislative districting schemes.  Attempted

reliance on the federal analogy appears often to be little more than an

after-the-fact rationalization offered in defense of maladjusted state

apportionment arrangements.  The original constitutions of 36 of our

States provided that representation in both houses of the state

legislatures would be based completely, or predominantly, on

population.{52}  And the Founding Fathers clearly had no intention of

establishing a pattern or model for the apportionment of seats in state

legislatures when the system of representation in the Federal Congress

was adopted.{53}  Demonstrative of this is the fact that the Northwest

Ordinance, adopted in the same year, 1787, as the Federal Constitution,

provided for the apportionment of seats in territorial legislatures

solely on the basis of population.{54} [377 U.S. 574]



The system of representation in the two Houses of the Federal Congress

is one ingrained in our Constitution, as part of the law of the land. 

It is one conceived out of compromise and concession indispensable to

the establishment of our federal republic.{55}  Arising from unique

historical circumstances, it is based on the consideration that, in

establishing our type of federalism a group of formerly independent

States bound themselves together under one national government. 

Admittedly, the original 13 States surrendered some of their sovereignty

in agreeing to join together "to form a more perfect Union."  But at the

heart of our constitutional system remains the concept of separate and

distinct governmental entities which have delegated some, but not all,

of their formerly held powers to the single national government.  The

fact that almost three-fourths of our present States were never, in

fact, independently sovereign does not detract from our view that the

so-called federal analogy is inapplicable as a sustaining precedent for

state legislative apportionments.  The developing history and growth of

our republic cannot cloud the fact that, at the time of the inception of

the system of representation in the Federal Congress, a compromise

between the larger and smaller States on this matter averted a deadlock

in the Constitutional Convention which had threatened to abort the birth

of our Nation.  In rejecting an asserted analogy to the federal

electoral college in Gray v. Sanders, supra, we stated:



We think the analogies to the electoral college, to districting and

redistricting and to other phases of the problems of representation in

state or federal legislatures or conventions, are inapposite.  The

inclusion of the electoral college in the Constitution, as the result of

specific historical concerns, validated the collegiate principle despite

its inherent numerical inequality, but implied nothing about the use of

[377 U.S. 575] an analogous system by a State in a statewide election. 

No such specific accommodation of the latter was ever undertaken, and

therefore no validation of its numerical inequality ensued.{56}



Political subdivisions of States -- counties, cities, or whatever --

never were and never have been considered as sovereign entities. 

Rather, they have been traditionally regarded as subordinate

governmental instrumentalities created by the State to assist in the

carrying out of state governmental functions.  As stated by the Court in

Hunter v. City of Pittsburgh, 207 U.S. 161, 178, these governmental

units are "created as convenient agencies for exercising such of the

governmental powers of the State as may be entrusted to them," and the

number, nature and duration of the powers conferred upon [them] . . .

and the territory over which they shall be exercised rests in the

absolute discretion of the State. The relationship of the States to the

Federal Government could hardly be less analogous.



Thus, we conclude that the plan contained in the 67-Senator Amendment

for apportioning seats in the Alabama Legislature cannot be sustained by

recourse to the so-called federal analogy.  Nor can any other

inequitable state legislative apportionment scheme be justified on such

an asserted basis.  This does not necessarily mean that such a plan is

irrational, or involves something other than a "republican form of

government."  We conclude simply that such a plan is impermissible for

the States under the Equal Protection Clause, since perforce resulting,

in virtually every case, in submergence of the equal population

principle in at least one house of a state legislature.



Since we find the so-called federal analogy inapposite to a

consideration of the constitutional validity of state [377 U.S. 576]

legislative apportionment schemes, we necessarily hold that the Equal

Protection Clause requires both houses of a state legislature to be

apportioned on a population basis.  The right of a citizen to equal

representation and to have his vote weighted equally with those of all

other citizens in the election of members of one house of a bicameral

state legislature would amount to little if States could effectively

submerge the equal population principle in the apportionment of seats in

the other house.  If such a scheme were permissible, an individual

citizen's ability to exercise an effective voice in the only instrument

of state government directly representative of the people might be

almost as effectively thwarted as if neither house were apportioned on a

population basis.  Deadlock between the two bodies might result in

compromise and concession on some issues.  But, in all too many cases,

the more probable result would be frustration of the majority will

through minority veto in the house not apportioned on a population

basis, stemming directly from the failure to accord adequate overall

legislative representation to all of the State's citizens on a

nondiscriminatory basis.  In summary, we can perceive no constitutional

difference, with respect to the geographical distribution of state

legislative representation, between the two houses of a bicameral state

legislature.



We do not believe that the concept of bicameralism is rendered

anachronistic and meaningless when the predominant basis of

representation in the two state legislative bodies is required to be the

same population.  A prime reason for bicameralism, modernly considered,

is to insure mature and deliberate consideration of, and to prevent

precipitate action on, proposed legislative measures.  Simply because

the controlling criterion for apportioning representation is required to

be the same in both houses does not mean that there will be no

differences in the composition and complexion of the two bodies. 

Different [377 U.S. 577] constituencies can be represented in the two

houses.  One body could be composed of single member districts, while

the other could have at least some multi-member districts.  The length

of terms of the legislators in the separate bodies could differ.  The

numerical size of the two bodies could be made to differ, even

significantly, and the geographical size of districts from which

legislators are elected could also be made to differ.  And apportionment

in one house could be arranged so as to balance off minor inequities in

the representation of certain areas in the other house.  In summary,

these and other factors could be, and are presently in many States,

utilized to engender differing complexions and collective attitudes in

the two bodies of a state legislature, although both are apportioned

substantially on a population basis. VI



By holding that, as a federal constitutional requisite, both houses of a

state legislature must be apportioned on a population basis, we mean

that the Equal Protection Clause requires that a State make an honest

and good faith effort to construct districts, in both houses of its

legislature, as nearly of equal population as is practicable.  We

realize that it is a practical impossibility to arrange legislative

districts so that each one has an identical number of residents, or

citizens, or voters.  Mathematical exactness or precision is hardly a

workable constitutional requirement.{57}



In Wesberry v. Sanders, supra, the Court stated that congressional

representation must be based on population as nearly as is practicable. 

In implementing the basic constitutional principle of representative

government as enunciated by the Court in Wesberry -- equality of

population [377 U.S. 578] among districts -- some distinctions may well

be made between congressional and state legislative representation. 

Since, almost invariably, there is a significantly larger number of

seats in state legislative bodies to be distributed within a State than

congressional seats, it may be feasible to use political subdivision

lines to a greater extent in establishing state legislative districts

than in congressional districting while still affording adequate

representation to all parts of the State.  To do so would be

constitutionally valid so long as the resulting apportionment was one

based substantially on population and the equal population principle was

not diluted in any significant way.  Somewhat more flexibility may

therefore be constitutionally permissible with respect to state

legislative apportionment than in congressional districting.  Lower

courts can and assuredly will work out more concrete and specific

standards for evaluating state legislative apportionment schemes in the

context of actual litigation.  For the present, we deem it expedient not

to attempt to spell out any precise constitutional tests.  What is

marginally permissible in one State may be unsatisfactory in another,

depending on the particular circumstances of the case.  Developing a

body of doctrine on a case-by-case basis appears to us to provide the

most satisfactory means of arriving at detailed constitutional

requirements in the area of state legislative apportionment.  Cf.

Slaughter-House Cases, 16 Wall. 36, 78-79.  Thus, we proceed to state

here only a few rather general considerations which appear to us to be

relevant.



A State may legitimately desire to maintain the integrity of various

political subdivisions, insofar as possible, and provide for compact

districts of contiguous territory in designing a legislative

apportionment scheme.  Valid considerations may underlie such aims. 

Indiscriminate districting, without any regard for political subdivision

or [377 U.S. 579] natural or historical boundary lines, may be little

more than an open invitation to partisan gerrymandering.  Single-member

districts may be the rule in one State, while another State might desire

to achieve some flexibility by creating multi-member{58} or floterial

districts.{59}  Whatever the means of accomplishment, the overriding

objective must be substantial equality of population among the various

districts, so that the vote of any citizen is approximately equal in

weight to that of any other citizen in the State.



History indicates, however, that many States have deviated, to a greater

or lesser degree, from the equal population principle in the

apportionment of seats in at least one house of their legislatures.{60} 

So long as the divergences from a strict population standard are based

on legitimate considerations incident to the effectuation of a rational

state policy, some deviations from the equal population principle are

constitutionally permissible with respect to the apportionment of seats

in either or both of the two houses of a bicameral state legislature. 

But neither history alone,{61} nor economic or other sorts of [377 U.S.

580] group interests, are permissible factors in attempting to justify

disparities from population-based representation.  Citizens, not history

or economic interests, cast votes.  Considerations of area alone provide

an insufficient justification for deviations from the equal population

principle.  Again, people, not land or trees or pastures, vote.  Modern

developments and improvements in transportation and communications make

rather hollow, in the mid-1960's, most claims that deviations from

population-based representation can validly be based solely on

geographical considerations.  Arguments for allowing such deviations in

order to insure effective representation for sparsely settled areas and

to prevent legislative districts from becoming so large that the

availability of access of citizens to their representatives is impaired

are today, for the most part, unconvincing.



A consideration that appears to be of more substance in justifying some

deviations from population-based representation in state legislatures is

that of insuring some voice to political subdivisions, as political

subdivisions.  Several factors make more than insubstantial claims that

a State can rationally consider according political subdivisions some

independent representation in at least one body of the state

legislature, as long as the basic standard of equality of population

among districts is maintained.  Local governmental entities are

frequently charged with various responsibilities incident to the

operation of state government.  In many States, much of the

legislature's activity involves the enactment of so-called local [377

U.S. 581] legislation, directed only to the concerns of particular

political subdivisions.  And a State may legitimately desire to

construct districts along political subdivision lines to deter the

possibilities of gerrymandering.  However, permitting deviations from

population-based representation does not mean that each local

governmental unit or political subdivision can be given separate

representation, regardless of population.  Carried too far, a scheme of

giving at least one seat in one house to each political subdivision (for

example, to each county) could easily result, in many States, in a total

subversion of the equal population principle in that legislative

body.{62}  This would be especially true in a State where the number of

counties is large, and many of them are sparsely populated, and the

number of seats in the legislative body being apportioned does not

significantly exceed the number of counties.{63}  Such a result, we

conclude, would be constitutionally impermissible.  And careful judicial

scrutiny must, of course, be given, in evaluating state apportionment

schemes, to the character, as well as the degree, of deviations from a

strict population basis.  But if, even as a result of a clearly rational

state policy of according some legislative representation to political

subdivisions, population is submerged as the controlling consideration

in the apportionment of seats in the particular legislative body, then

the right of all of the State's citizens to cast an effective and

adequately weighted vote would be unconstitutionally impaired. [377 U.S.

582] VII



One of the arguments frequently offered as a basis for upholding a

State's legislative apportionment arrangement, despite substantial

disparities from a population basis in either or both houses, is

grounded on congressional approval, incident to admitting States into

the Union, of state apportionment plans containing deviations from the

equal population principle.  Proponents of this argument contend that

congressional approval of such schemes, despite their disparities from

population-based representation, indicates that such arrangements are

plainly sufficient as establishing a "republican form of government." 

As we stated in Baker v. Carr, some questions raised under the Guaranty

Clause are nonjusticiable, where "political" in nature and where there

is a clear absence of judicially manageable standards.{64} 

Nevertheless, it is not inconsistent with this view to hold that,

despite congressional approval of state legislative apportionment plans

at the time of admission into the Union, even though deviating from the

equal population principle here enunciated, the Equal Protection Clause

can, and does, require more.  And an apportionment scheme in which both

houses are based on population can hardly be considered as failing to

satisfy the Guaranty Clause requirement.  Congress presumably does not

assume, in admitting States into the Union, to pass on all

constitutional questions relating to the character of state governmental

organization.  In any event, congressional approval, however well

considered, could hardly validate an unconstitutional state legislative

apportionment.  Congress simply lacks the constitutional power to

insulate States from attack with respect to alleged deprivations of

individual constitutional rights. [377 U.S. 583] VIII



That the Equal Protection Clause requires that both houses of a state

legislature be apportioned on a population basis does not mean that

States cannot adopt some reasonable plan for periodic revision of their

apportionment schemes.  Decennial reapportionment appears to be a

rational approach to readjustment of legislative representation in order

to take into account population shifts and growth.  Reallocation of

legislative seats every 10 years coincides with the prescribed practice

in 41 of the States,{65} often honored more in the breach than the

observance, however.  Illustratively, the Alabama Constitution requires

decennial reapportionment, yet the last reapportionment of the Alabama

Legislature, when this suit was brought, was in 1901.  Limitations on

the frequency of reapportionment are justified by the need for stability

and continuity in the organization of the legislative system, although

undoubtedly reapportioning no more frequently than every 10 years leads

to some imbalance in the population of districts toward the end of the

decennial period, and also to the development of resistance to change on

the part of some incumbent legislators.  In substance, we do not regard

the Equal Protection Clause as requiring daily, monthly, annual or

biennial reapportionment, so long as a State has a reasonably conceived

plan for periodic readjustment of legislative representation.  While we

do not intend to indicate that decennial reapportionment is a

constitutional requisite, compliance with such an approach would clearly

meet the minimal [377 U.S. 584] requirements for maintaining a

reasonably current scheme of legislative representation.  And we do not

mean to intimate that more frequent reapportionment would not be

constitutionally permissible or practicably desirable.  But if

reapportionment were accomplished with less frequency, it would

assuredly be constitutionally suspect. IX



Although general provisions of the Alabama Constitution provide that the

apportionment of seats in both houses of the Alabama Legislature should

be on a population basis, other more detailed provisions clearly make

compliance with both sets of requirements impossible.  With respect to

the operation of the Equal Protection Clause, it makes no difference

whether a State's apportionment scheme is embodied in its constitution

or in statutory provisions.  In those States where the alleged

malapportionment has resulted from noncompliance with state

constitutional provisions which, if complied with, would result in an

apportionment valid under the Equal Protection Clause, the judicial task

of providing effective relief would appear to be rather simple.  We

agree with the view of the District Court that state constitutional

provisions should be deemed violative of the Federal Constitution only

when validly asserted constitutional rights could not otherwise be

protected and effectuated.  Clearly, courts should attempt to

accommodate the relief ordered to the apportionment provisions of state

constitutions insofar as is possible.  But it is also quite clear that a

state legislative apportionment scheme is no less violative of the

Federal Constitution when it is based on state constitutional provisions

which have been consistently complied with than when resulting from a

noncompliance with state constitutional requirements.  When there is an

unavoidable conflict between the Federal and a State Constitution, the

Supremacy Clause, of course, controls. [377 U.S. 585] X



We do not consider here the difficult question of the proper remedial

devices which federal courts should utilize in state legislative

apportionment cases.{66}  Remedial techniques in this new and developing

area of the law will probably often differ with the circumstances of the

challenged apportionment and a variety of local conditions.  It is

enough to say now that, once a State's legislative apportionment scheme

has been found to be unconstitutional, it would be the unusual case in

which a court would be justified in not taking appropriate action to

insure that no further elections are conducted under the invalid plan. 

However, under certain circumstances, such as where an impending

election is imminent and a State's election machinery is already in

progress, equitable considerations might justify a court in withholding

the granting of immediately effective relief in a legislative

apportionment case even though the existing apportionment scheme was

found invalid.  In awarding or withholding immediate relief, a court is

entitled to, and should, consider the proximity of a forthcoming

election and the mechanics and complexities of state election laws, and

should act and rely upon general equitable principles.  With respect to

the timing of relief, a court can reasonably endeavor to avoid a

disruption of the election process which might result from requiring

precipitate changes that could make unreasonable or embarrassing demands

on a State in adjusting to the requirements of the court's decree.  As

stated by MR. JUSTICE DOUGLAS, concurring in Baker v. Carr, "any relief

accorded can be fashioned in the light of well known principles of

equity."{67} [377 U.S. 586]



We feel that the District Court in this case acted in a most proper and

commendable manner.  It initially acted wisely in declining to stay the

impending primary election in Alabama, and properly refrained from

acting further until the Alabama Legislature had been given an

opportunity to remedy the admitted discrepancies in the State's

legislative apportionment scheme, while initially stating some of its

views to provide guidelines for legislative action.  And it correctly

recognized that legislative reapportionment is primarily a matter for

legislative consideration and determination, and that judicial relief

becomes appropriate only when a legislature fails to reapportion

according to federal constitutional requisites in a timely fashion after

having had an adequate opportunity to do so.  Additionally, the court

below acted with proper judicial restraint, after the Alabama

Legislature had failed to act effectively in remedying the

constitutional deficiencies in the State's legislative apportionment

scheme, in ordering its own temporary reapportionment plan into effect,

at a time sufficiently early to permit the holding of elections pursuant

to that plan without great difficulty, and in prescribing a plan

admittedly provisional in purpose so as not to usurp the primary

responsibility for reapportionment which rests with the legislature.



We find, therefore, that the action taken by the District Court in this

case, in ordering into effect a reapportionment of both houses of the

Alabama Legislature for purposes of the 1962 primary and general

elections, by using the best parts of the two proposed plans which it

had found, as a whole, to be invalid,{68} was an appropriate and [377

U.S. 587] well considered exercise of judicial power.  Admittedly, the

lower court's ordered plan was intended only as a temporary and

provisional measure, and the  District Court correctly indicated that

the plan was invalid as a permanent apportionment.  In retaining

jurisdiction while deferring a hearing on the issuance of a final

injunction in order to give the provisionally reapportioned legislature

an opportunity to act effectively, the court below proceeded in a proper

fashion.  Since the District Court evinced its realization that its

ordered reapportionment could not be sustained as the basis for

conducting the 1966 election of Alabama legislators, and avowedly

intends to take some further action should the reapportioned Alabama

Legislature fail to enact a constitutionally valid, permanent

apportionment scheme in the interim, we affirm the judgment below and

remand the cases for further proceedings consistent with the views

stated in this opinion.



It is so ordered. CLARK, J., concurring



MR. JUSTICE CLARK, concurring in the affirmance.



The Court goes much beyond the necessities of this case in laying down a

new "equal population" principle for state legislative apportionment. 

This principle seems to be an offshoot of Gray v. Sanders, 372 U.S. 368,

381 (1963), i.e., "one person, one vote," modified by the "nearly as is

practicable" admonition of Wesberry v. Sanders, 376 U.S. 1, 8 (1964).* 

Whether "nearly as is [377 U.S. 588] practicable" means "one person, one

vote" qualified by "approximately equal" or "some deviations" or by the

impossibility of "mathematical nicety" is not clear from the majority's

use of these vague and meaningless phrases.  But whatever the standard,

the Court applies it to each house of the State Legislature.



It seems to me that all that the Court need say in this case is that

each plan considered by the trial court is "a crazy quilt," clearly

revealing invidious discrimination in each house of the Legislature and

therefore violative of the Equal Protection Clause.  See my concurring

opinion in Baker v. Carr, 369 U.S. 186, (1962).



I therefore do not reach the question of the so-called "federal

analogy."  But, in my view, if one house of the State Legislature meets

the population standard, representation in the other house might include

some departure from it so as to take into account, on a rational basis,

other factors in order to afford some representation to the various

elements of the State.   See my dissenting opinion in Lucas v.

Forty-Fourth General Assembly of Colorado, post, p. 741, decided this

date. STEWART, J., statement



MR. JUSTICE STEWART.



All of the parties have agreed with the District Court's finding that

legislative inaction for some 60 years, in the face of growth and shifts

in population, has converted Alabama's legislative apportionment plan

enacted in 1901 into one completely lacking in rationality. 

Accordingly, for the reasons stated in my dissenting opinion in Lucas v.

Forty-Fourth General Assembly of Colorado, post, p. 744, I would affirm

the judgment of the District Court holding that this apportionment

violated the Equal Protection Clause.



I also agree with the Court that it was proper for the District Court,

in framing a remedy, to adhere as closely [377 U.S. 589] as practicable

to the apportionments approved by the representatives of the people of

Alabama, and to afford the State of Alabama full opportunity, consistent

with the requirements of the Federal Constitution, to devise its own

system of legislative apportionment. HARLAN, J., dissenting



MR. JUSTICE HARLAN, dissenting.*



In these cases, the Court holds that seats in the legislatures of six

States are apportioned in ways that violate the Federal Constitution. 

Under the Court's ruling, it is bound to follow that the legislatures in

all but a few of the other 44 States will meet the same fate.  These

decisions, with Wesberry v. Sanders, 376 U.S. 1, involving congressional

districting by the States, and Gray v. Sanders, 372 U.S. 368, relating

to elections for statewide office, have the effect of placing basic

aspects of state political systems under the pervasive overlordship of

the federal judiciary.  Once again, I must register my protest. [377

U.S. 590] PRELIMINARY STATEMENT



Today's holding is that the Equal Protection Clause of the Fourteenth

Amendment requires every State to structure its legislature so that all

the members of each house represent substantially the same number of

people; other factors may be given play only to the extent that they do

not significantly encroach on this basic "population" principle. 

Whatever may be thought of this holding as a piece of political ideology

-- and even on that score, the political history and practices of this

country from its earliest beginnings leave wide room for debate (see the

dissenting opinion of Frankfurter, J., in Baker v. Carr, 369 U.S. 186,

266,  -- I think it demonstrable that the Fourteenth Amendment does not

impose this political tenet on the States or authorize this Court to do

so.



The Court's constitutional discussion, found in its opinion in the

Alabama cases (Nos. 23, 27, 41, ante, p. 533) and more particularly at

pages thereof, is remarkable (as, indeed, is that found in the separate

opinions of my Brothers STEWART and CLARK, ante, pp. 588, 587) for its

failure to address itself at all to the Fourteenth Amendment as a whole

or to the legislative history of the Amendment pertinent to the matter

at hand.  Stripped of aphorisms, the Court's argument boils down to the

assertion that appellees' right to vote has been invidiously "debased"

or "diluted" by systems of apportionment which entitle them to vote for

fewer legislators than other voters, an assertion which is tied to the

Equal Protection Clause only by the constitutionally frail tautology

that "equal" means "equal."



Had the Court paused to probe more deeply into the matter, it would have

found that the Equal Protection Clause was never intended to inhibit the

States in choosing [377 U.S. 591] any democratic method they pleased for

the apportionment of their legislatures.  This is shown by the language

of the Fourteenth Amendment taken as a whole, by the understanding of

those who proposed and ratified it, and by the political practices of

the States at the time the Amendment was adopted.  It is confirmed by

numerous state and congressional actions since the adoption of the

Fourteenth Amendment, and by the common understanding of the Amendment

as evidenced by subsequent constitutional amendments and decisions of

this Court before Baker v. Carr, supra, made an abrupt break with the

past in 1962.



The failure of the Court to consider any of these matters cannot be

excused or explained by any concept of "developing" constitutionalism. 

It is meaningless to speak of constitutional "development" when both the

language and history of the controlling provisions of the Constitution

are wholly ignored.  Since it can, I think, be shown beyond doubt that

state legislative apportionments, as such, are wholly free of

constitutional limitations, save such as may be imposed by the

Republican Form of Government Clause (Const., Art. IV,  4), the Court's

action now bringing them within the purview of the Fourteenth Amendment

amounts to nothing less than an exercise of the amending power by this

Court.



So far as the Federal Constitution is concerned, the complaints in these

cases should all have been dismissed below for failure to state a cause

of action, because what [377 U.S. 592] has been alleged or proved shows

no violation of any constitutional right.



Before proceeding to my argument, it should be observed that nothing

done in Baker v. Carr, supra, or in the two cases that followed in its

wake, Gray v. Sanders and Wesberry v. Sanders, supra, from which the

Court quotes at some length, forecloses the conclusion which I reach.



Baker decided only that claims such as those made here are within the

competence of the federal courts to adjudicate.  Although the Court

stated as its conclusion that the allegations of a denial of equal

protection presented "a justiciable constitutional cause of action," 369

U.S. at 237, it is evident from the Court's opinion that it was

concerned all but exclusively with justiciability, and gave no serious

attention to the question whether the Equal Protection Clause touches

state legislative apportionments.  Neither the opinion of the Court nor

any of the concurring opinions considered the relevant text of the

Fourteenth Amendment or any of the historical materials bearing on that

question.  None of the materials was briefed or otherwise brought to the

Court's attention. [377 U.S. 593]



In the Gray case, the Court expressly laid aside the applicability to

state legislative apportionments of the "one person, one vote" theory

there found to require the striking down of the Georgia county unit

system.  See 372 U.S. at 376, and the concurring opinion of STEWART, J.,

joined by CLARK, J., id. at



In Wesberry, involving congressional districting, the decision rested on

Art. I,  2, of the Constitution.  The Court expressly did not reach the

arguments put forward concerning the Equal Protection Clause.  See 376

U.S. at 8, note 10.



Thus, it seems abundantly clear that the Court is entirely free to deal

with the cases presently before it in light of materials now called to

its attention for the first time.  To these I now turn. I A. The

Language of the Fourteenth Amendment



The Court relies exclusively on that portion of  1 of the Fourteenth

Amendment which provides that no State shall "deny to any person within

its Jurisdiction the equal protection of the laws," and disregards

entirely the significance of  2, which reads:



Representatives shall be apportioned among the several States according

to their respective numbers, counting the whole number of persons in

each State, excluding Indians not taxed.  But when the right to vote at

any election for the choice of electors for President and Vice President

of the United States, Representatives in Congress, the Executive and

Judicial officers of a State, or the members of the Legislature thereof,

is denied to any of the male inhabitants of such State, being twenty-one

years of age, and citizens of the United States, or in any way abridged,

except for participation in rebellion, or [377 U.S. 594] other crime,

the basis of representation therein shall be reduced in the proportion

which the number of such male citizens shall bear to the whole number of

male citizens twenty-one years of age in such State. (Emphasis added.)



The Amendment is a single text. It was introduced and discussed as such

in the Reconstruction Committee, which reported it to the Congress.  It

was discussed as a unit in Congress, and proposed as a unit to the

States, which ratified it as a unit.  A proposal to split up the

Amendment and submit each section to the States as a separate amendment

was rejected by the Senate.  Whatever one might take to be the

application to these cases of the Equal Protection Clause if it stood

alone, I am unable to understand the Court's utter disregard of the

second section, which expressly recognizes the States' power to deny "or

in any way" abridge the right of their inhabitants to vote for "the

members of the [State] Legislature," and its express provision of a

remedy for such denial or abridgment.  The comprehensive scope of the

second section and its particular reference to the state legislatures

preclude the suggestion that the first section was intended to have the

result reached by the Court today.  If indeed the words of the

Fourteenth Amendment speak for themselves, as the majority's disregard

of history seems to imply, they speak as clearly as may be against the

construction which the majority puts on them.  But we are not limited to

the language of the Amendment itself. [377 U.S. 595] B. Proposal and

Ratification of the Amendment



The history of the adoption of the Fourteenth Amendment provides

conclusive evidence that neither those who proposed nor those who

ratified the Amendment believed that the Equal Protection Clause limited

the power of the States to apportion their legislatures as they saw fit.

 Moreover, the history demonstrates that the intention to leave this

power undisturbed was deliberate, and was widely believed to be

essential to the adoption of the Amendment.



(i) Proposal of the amendment in Congress. -- A resolution proposing

what became the Fourteenth Amendment was reported to both houses of

Congress by the Reconstruction Committee of Fifteen on April 30,

1866,{10}  The first two sections of the proposed amendment read:



SEC. 1.  No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.



SEC. 2.  Representatives shall be apportioned among the several States

which may be included within this Union, according to their respective

numbers, counting the whole number of persons in each State, excluding

Indians not taxed.  But whenever, in any State, the elective franchise

shall be denied to any portion of its male citizens not less than

twenty-one years of age, or in any way abridged except for participation

in rebellion or other crime, the basis of representation in such State

shall be reduced in the proportion which the number of such male

citizens [377 U.S. 596] shall bear to the whole number of male citizens

not less than twenty-one years of age.{11}



In the House, Thaddeus Stevens introduced debate on the resolution on

May 8.  In his opening remarks, Stevens explained why he supported the

resolution although it fell "far short" of his wishes: I believe it is

all that can be obtained in the present state of public opinion.  Not

only Congress, but the several States, are to be consulted.  Upon a

careful survey of the whole ground, we did not believe that nineteen of

the loyal States could be induced to ratify any proposition more

stringent than this.{12} In explanation of this belief, he asked the

House to remember that three months since, and more, the committee

reported and the House adopted a proposed amendment fixing the basis of

representation in such way as would surely have secured the

enfranchisement of every citizen at no distant period, but that proposal

had been rejected by the Senate.{13}



He then explained the impact of the first section of the proposed

Amendment, particularly the Equal Protection Clause. This amendment . .

. allows Congress to correct the unjust legislation of the States so far

that the [377 U.S. 597] law which operates upon one man shall operate

equally upon all.  Whatever law punishes a white man for a crime shall

punish the black man precisely in the same way and to the same degree. 

Whatever law protects the white man shall afford "equal" protection to

the black man.  Whatever means of redress is afforded to one shall be

afforded to all.  Whatever law allows the white man to testify in court

shall allow the man of color to do the same.  These are great advantages

over their present codes.  Now, different degrees of punishment are

inflicted not on account of the magnitude of the crime, but according to

the color of the skin.  Now color disqualifies a man from testifying in

courts, or being tried in the same way as white men.  I need not

enumerate these partial and oppressive laws.  Unless the Constitution

should restrain them, those States will all, I fear, keep up this

discrimination and crush to death the hated freedmen.{14} He turned next

to the second section, which he said he considered "the most important

in the article."{15}  Its effect, he said, was to fix "the basis of

representation in Congress."{16} In unmistakable terms, he recognized

the power of a State to withhold the right to vote: If any State shall

exclude any of her adult male citizens from the elective franchise, or

abridge that right, she shall forfeit her right to representation in the

same proportion.  The effect of this provision will be either to compel

the States to grant universal suffrage or so to shear them of their

power as to keep them forever in a hopeless minority in the national

Government, both legislative and executive.{17} [377 U.S. 598] Closing

his discussion of the second section, he noted his dislike for the fact

that it allowed "the States to discriminate [with respect to the right

to vote] among the same class, and receive proportionate credit in

representation."{18}



Toward the end of the debate three days later, Mr. Bingham, the author

of the first section in the Reconstruction Committee and its leading

proponent,{19} concluded his discussion of it with the following:



Allow me, Mr. Speaker, in passing, to say that this amendment takes from

no State any right that ever pertained to it.  No State ever had the

right, under the forms of law or otherwise, to deny to any freeman the

equal protection of the laws or to abridge the privileges or immunities

of any citizen of the Republic, although many of them have assumed and

exercised the power, and that without remedy.  The amendment does not

give, as the second section shows, the power to Congress of regulating

suffrage in the several States.{20} (Emphasis added.)  He immediately

continued:



The second section excludes the conclusion that, by the first section,

suffrage is subjected to congressional law, save, indeed, with this

exception, that, as the right in the people of each State to a

republican government and to choose their Representatives in Congress is

of the guarantees of the Constitution, by this amendment, a remedy might

be given directly for a case supposed by Madison, where treason might

change a State government from a republican to a [377 U.S. 599] despotic

government, and thereby deny suffrage to the people.{21} (Emphasis

added.)  He stated at another point in his remarks: To be sure, we all

agree, and the great body of the people of this country agree, and the

committee thus far in reporting measures of reconstruction agree, that

the exercise of the elective franchise, though it be one of the

privileges of a citizen of the Republic, is exclusively under the

control of the States.{22} (Emphasis added.)



In the three days of debate which separate the opening and closing

remarks, both made by members of the Reconstruction Committee, every

speaker on the resolution, with a single doubtful exception,{23} assumed

without question that, as Mr. Bingham said, supra, "the second section

excludes the conclusion that, by the first section, suffrage is

subjected to congressional law."  The assumption was neither inadvertent

nor silent.  Much of the debate concerned the change in the basis of

representation effected by the second section, and the speakers stated

repeatedly, in express terms or by unmistakable implication, that the

States retained the power to regulate suffrage within their borders. 

Attached as Appendix A hereto are some of those statements.  The

resolution was adopted by the House without change on May 10.{24} [377

U.S. 600]



Debate in the Senate began on May 23, and followed the same pattern. 

Speaking for the Senate Chairman of the Reconstruction Committee, who

was ill, Senator Howard, also a member of the Committee, explained the

meaning of the Equal Protection Clause as follows:



The last two clauses of the first section of the amendment disable a

State from depriving not merely a citizen of the United States, but any

person, whoever he may be, of life, liberty, or property without due

process of law, or from denying to him the equal protection of the laws

of the State.  This abolishes all class legislation in the States, and

does away with the injustice of subjecting one caste of persons to a

code not applicable to another.  It prohibits the hanging of a black man

for a crime for which the white man is not to be hanged.  It protects

the black man in his fundamental rights as a citizen with the same

shield which it throws over the white man.  Is it not time, Mr.

President, that we extend to the black man, I had almost called it the

poor privilege of the equal protection of the law? . . .



But, sir, the first section of the proposed amendment does not give to

either of these classes the right of voting.  The right of suffrage is

not, in law, one of the privileges or immunities thus secured by the

Constitution.  It is merely the creature of law.  It has always been

regarded in this country as the result of positive local law, not

regarded as one of those fundamental rights lying at the basis of all

society and without which a people cannot exist except as slaves,

subject to a depostism [sic].{25} (Emphasis added.)



Discussing the second section, he expressed his regret that it did "not

recognize the authority of the United States over the question of

suffrage in the several States [377 U.S. 601] at all."{26} He justified

the limited purpose of the Amendment in this regard as follows: But,

sir, it is not the question here what will we do; it is not the question

what you, or I, or half a dozen other members of the Senate may prefer

in respect to colored suffrage; it is not entirely the question what

measure we can pass through the two Houses; but the question really is,

what will the Legislatures of the various States to whom these

amendments are to be submitted do in the premises; what is it likely

will meet the general approbation of the people who are to elect the

Legislatures, three fourths of whom must ratify our propositions before

they have the force of constitutional provisions? *    *    *    *



The committee were of opinion that the States are not yet prepared to

sanction so fundamental a change as would be the concession of the right

of suffrage to the colored race.  We may as well state it plainly and

fairly, so that there shall be no misunderstanding on the subject.  It

was our opinion that three-fourths of the States of this Union could not

be induced to vote to grant the right of suffrage, even in any degree or

under any restriction, to the colored race. . . .



The second section leaves the right to regulate the elective franchise

still with the States, .and does not meddle with that right.{27}

(Emphasis added.)



There was not in the Senate, as there had been in the House, a closing

speech in explanation of the Amendment.  But because the Senate

considered, and finally adopted, several changes in the first and second

sections, even more attention was given to the problem of voting rights

there than had been given in the House.  In the [377 U.S. 602] Senate,

it was fully understood by everyone that neither the first nor the

second section interfered with the right of the States to regulate the

elective franchise.  Attached as Appendix B hereto are representative

statements from the debates to that effect.  After having changed the

proposed amendment to the form in which it was adopted, the Senate

passed the resolution on June 8, 1866.{28}  As changed, it passed in the

House on June 13.{29}



(ii) Ratification by the "loyal" States. -- Reports of the debates in

the state legislatures on the ratification of the Fourteenth Amendment

are not generally available.{30}  There is, however, compelling indirect

evidence.  Of the 23 loyal States which ratified the Amendment before

1870, five had constitutional provisions for apportionment of at least

one house of their respective legislatures which wholly disregarded the

spread of population.{31}  [377 U.S. 603] Ten more had constitutional

provisions which gave primary emphasis to population, but which applied

also other principles, such as partial ratios and recognition of

political subdivisions, which were intended to favor sparsely settled

areas.{32}  Can it be seriously contended that the legislatures of these

States, almost two-thirds of those concerned, would have ratified an

amendment which might render their own States' constitutions

unconstitutional?



Nor were these state constitutional provisions merely theoretical.  In

New Jersey, for example, Cape May County, with a population of 8,349,

and Ocean County, with a population of 13,628, each elected one State

Senator, as did Essex and Hudson Counties, with populations of 143,839

and 129,067, respectively.{33}  In the House, each county was entitled

to one representative, which left 39 seats to be apportioned according

to population.{34}  Since there were 12 counties besides the two already

mentioned which had populations over 30,000,{35} it is evident that

there were serious disproportions in the House also.  In [377 U.S. 604]

New York, each of the 60 counties except Hamilton County was entitled to

one of the 128 seats in the Assembly.{36}  This left 69 seats to be

distributed among counties the populations of which ranged from 15,420

to 942,292.{37}  With seven more counties having populations over

100,000 and 13 others having populations over 50,000,{38} the

disproportion in the Assembly was necessarily large.  In Vermont, after

each county had been allocated one Senator, there were 16 seats

remaining to be distributed among the larger counties.{39}  The smallest

county had a population of 4,082; the largest had a population of

40,651, and there were 10 other counties with populations over

20,000.{40}



(iii) Ratification by the "reconstructed" States. -- Each of the 10

"reconstructed" States was required to ratify the Fourteenth Amendment

before it was readmitted to the Union.{41}  The Constitution of each was

scrutinized in Congress.{42}  Debates over readmission [377 U.S. 605]

were extensive.{43}  In at least one instance, the problem of state

legislative apportionment was expressly called to the attention of

Congress.  Objecting to the inclusion of Florida in the Act of June 25,

1868, Mr. Farnsworth stated on the floor of the House: I might refer to

the apportionment of representatives.  By this constitution,

representatives in the Legislature of Florida are apportioned in such a

manner as to give to the sparsely populated portions of the State the

control of the Legislature.  The sparsely populated parts of the State

are those where there are very few negroes, the parts inhabited by the

white rebels, the men who, coming in from Georgia, Alabama, and other

States, control the fortunes of their several counties.  By this

constitution, every county in that State is entitled to a

representative.  There are in that State counties that have not thirty

registered voters; yet, under this constitution, every one of those

counties is entitled [377 U.S. 606] to a representative in the

Legislature, while the populous counties are entitled to only one

representative each, with an additional representative for every

thousand inhabitants.{44} The response of Mr. Butler is particularly

illuminating:



All these arguments, all these statements, all the provisions of this

constitution have been submitted to the Judiciary Committee of the

Senate, and they have found the constitution republican and proper. 

This constitution has been submitted to the Senate, and they have found

it republican and proper.  It has been submitted to your own Committee

on Reconstruction, and they have found it republican and proper, and

have reported it to this House.{45}



The Constitutions of six of the 10 States contained provisions departing

substantially from the method of apportionment now held to be required

by the Amendment.{46}  And, as in the North, the departures were as

real, in fact, as in theory.  In North Carolina, 90 of the 120

representatives were apportioned among the counties without regard to

population, leaving 30 seats to be distributed by numbers.{47}  Since

there were seven counties with populations under 5,000 and 26 counties

with populations over 15,000, the disproportions must have been

widespread and substantial.{48}  In South Carolina, Charleston, with a

population of 88,863, elected two Senators; each of the other counties,

with populations ranging from 10,269 to [377 U.S. 607] 42,486, elected

one Senator.{49}  In Florida, each of the 39 counties was entitled to

elect one Representative; no county was entitled to more than four.{50} 

These principles applied to Dade County, with a population of 85, and to

Alachua County and Leon County, with populations of 17,328 and 15,236,

respectively.{51}



It is incredible that Congress would have exacted ratification of the

Fourteenth Amendment as the price of readmission, would have studied the

State Constitutions for compliance with the Amendment, and would then

have disregarded violations of it.



The facts recited above show beyond any possible doubt:



(1) that Congress, with full awareness of and attention to the

possibility that the States would not afford full equality in voting

rights to all their citizens, nevertheless deliberately chose not to

interfere with the States' plenary power in this regard when it proposed

the Fourteenth Amendment;



(2) that Congress did not include in the Fourteenth Amendment

restrictions on the States' power to control voting rights because it

believed that, if such restrictions were included, the Amendment would

not be adopted; and



(3) that at least a substantial majority, if not all, of the States

which ratified the Fourteenth Amendment did not consider that, in so

doing, they were accepting limitations on their freedom, never before

questioned, to regulate voting rights as they chose.



Even if one were to accept the majority's belief that it is proper

entirely to disregard the unmistakable implications [377 U.S. 608] of

the second section of the Amendment in construing the first section, one

is confounded by its disregard of all this history.  There is here none

of the difficulty which may attend the application of basic principles

to situations not contemplated or understood when the principles were

framed.  The problems which concern the Court now were problems when the

Amendment was adopted.  By the deliberate choice of those responsible

for the Amendment, it left those problems untouched. C. After 1868



The years following 1868, far from indicating a developing awareness of

the applicability of the Fourteenth Amendment to problems of

apportionment, demonstrate precisely the reverse:  that the States

retained and exercised the power independently to apportion their

legislatures.  In its Constitutions of 1875 and 1901, Alabama carried

forward earlier provisions guaranteeing each county at least one

representative and fixing an upper limit to the number of seats in the

House.{52}  Florida's Constitution of 1885 continued the guarantee of

one representative for each county and reduced the maximum number of

representatives per county from four to three.{53}  Georgia, in 1877,

continued to favor the smaller counties.{54}  Louisiana, in 1879,

guaranteed each parish at least one representative in the House.{55}  In

1890, Mississippi guaranteed each county one representative, established

a maximum number of representatives, and provided that specified groups

of counties should each have approximately one-third of the seats in the

House, whatever [377 U.S. 609] the spread of population.{56}  Missouri's

Constitution of 1875 gave each county one representative and otherwise

favored less populous areas.{57}  Montana's original Constitution of

1889 apportioned the State Senate by counties.{58}  In 1877, New

Hampshire amended its Constitution's provisions for apportionment, but

continued to favor sparsely settled areas in the House and to apportion

seats in the Senate according to direct taxes paid;{59} the same was

true of New Hampshire's Constitution of 1902.{60}



In 1894, New York adopted a Constitution the peculiar apportionment

provisions of which were obviously intended to prevent representation

according to population:  no county was allowed to have more than

one-third of all the Senators, no two counties which were adjoining or

"separated only by public waters" could have more than one-half of all

the Senators, and whenever any county became entitled to more than three

Senators, the total number of Senators was increased, thus preserving to

the small counties their original number of seats.{61}  In addition,

each county except Hamilton was guaranteed a seat in the Assembly.{62} 

The North Carolina Constitution of 1876 gave each county at least one

representative and fixed a maximum number of representatives for the

whole House.{63}  Oklahoma's Constitution at the time of its admission

to the Union (1907) favored small counties by the use of partial ratios

and a maximum number of seats in the House; in addition, no county was

permitted to "take part" in the election of more than seven [377 U.S.

610] representatives.{64}  Pennsylvania, in 1873, continued to guarantee

each county one representative in the House.{65}  The same was true of

South Carolina' Constitution of 1895, which provided also that each

county should elect one and only one Senator.{66}  Utah's original

Constitution of 1895 assured each county of one representative in the

House.{67}  Wyoming, when it entered the Union in 1889, guaranteed each

county at least one Senator and one representative.{68} D. Today



Since the Court now invalidates the legislative apportionments in six

States, and has so far upheld the apportionment in none, it is scarcely

necessary to comment on the situation in the States today, which is, of

course, as fully contrary to the Court's decision as is the record of

every prior period in this Nation's history.  As of 1961, the

Constitutions of all but 11 States, roughly 20% of the total, recognized

bases of apportionment other than geographic spread of population, and

to some extent favored sparsely populated areas by a variety of devices,

ranging from straight area representation or guaranteed minimum area

representation to complicated schemes of the kind exemplified by the

provisions of New York's Constitution of 1894, still in effect until

struck down by the Court today in No. 20, post, p. 633.{69}  Since [377

U.S. 611] Tennessee, which was the subject of Baker v. Carr, and

Virginia, scrutinized and disapproved today in No. 69, post, p. 678, are

among the 11 States whose own Constitutions are sound from the

standpoint of the Federal Constitution as construed today, it is evident

that the actual practice of the States is even more uniformly than their

theory opposed to the Court's view of what is constitutionally

permissible. E. Other Factors



In this summary of what the majority ignores, note should be taken of

the Fifteenth and Nineteenth Amendments.  The former prohibited the

States from denying or abridging the right to vote "on account of race,

color, or previous condition of servitude."  The latter, certified as

part of the Constitution in 1920, added sex to the prohibited

classifications.  In Minor v. Happersett, 21 Wall. 162, this Court

considered the claim that the right of women to vote was protected by

the Privileges and Immunities Clause of the Fourteenth Amendment.  The

Court's discussion there of the significance of the Fifteenth Amendment

is fully applicable here with respect to the Nineteenth Amendment as

well.



And still again, after the adoption of the fourteenth amendment, it was

deemed necessary to adopt a fifteenth, as follows:



The right of citizens of the United States to vote shall not be denied

or abridged by the United States, or by any State, on account of race,

color, or previous condition of servitude. The fourteenth amendment had

already provided that no State should make or enforce any law which

should abridge the privileges or immunities of citizens of the United

States.  If suffrage was one of these privileges or immunities, why

amend the Constitution to prevent its being denied on account of race,

&c.?  Nothing is more evident than that the greater must [377 U.S. 612]

include the less, and if all were already protected, why go through with

the form of amending the Constitution to protect a part? Id. at 175.



In the present case, we can go still further.  If constitutional

amendment was the only means by which all men and, later, women, could

be guaranteed the right to vote at all, even for federal officers, how

can it be that the far less obvious right to a particular kind of

apportionment of state legislatures -- a right to which is opposed a far

more plausible conflicting interest of the State than the interest which

opposes the general right to vote -- can be conferred by judicial

construction of the Fourteenth Amendment?{70}  Yet, unless one takes the

highly implausible view that the Fourteenth Amendment controls methods

of apportionment but leaves the right to vote itself unprotected, the

conclusion is inescapable that the Court has, for purposes of these

cases, relegated the Fifteenth and Nineteenth Amendments to the same

limbo of constitutional anachronisms to which the second section of the

Fourteenth Amendment has been assigned.



Mention should be made finally of the decisions of this Court which are

disregarded or, more accurately, silently overruled today.  Minor v.

Happersett, supra, in which the Court held that the Fourteenth Amendment

did not [377 U.S. 613] confer the right to vote on anyone, has already

been noted.  Other cases are more directly in point.  In Colegrove v.

Barrett, 330 U.S. 804, this Court dismissed "for want of a substantial

federal question" an appeal from the dismissal of a complaint alleging

that the Illinois legislative apportionment resulted in "gross

inequality in voting power" and "gross and arbitrary and atrocious

discrimination in voting" which denied the plaintiffs equal protection

of the laws.{71}  In Remmey v. Smith, 102 F.Supp. 708 (D.C.E.D.Pa.), a

three-judge District Court dismissed a complaint alleging that the

apportionment of the Pennsylvania Legislature deprived the plaintiffs of

"constitutional rights guaranteed to them by the Fourteenth Amendment." 

Id. at 709.  The District Court stated that it was aware that the

plaintiffs' allegations were "notoriously true" and that the practical

disenfranchisement of qualified electors in certain of the election

districts in Philadelphia County is a matter of common knowledge. Id. at

710.  This Court dismissed the appeal "for the want of a substantial

federal question."  342 U.S. 916.



In Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40, the Supreme Court of

Tennessee dismissed an action for a declaratory judgment that the

Tennessee Apportionment Act of 1901 was unconstitutional.  The complaint

alleged that a minority of approximately 37% of the voting population of

the State now elects and controls 20 of the 33 members of the Senate;

that a minority of 40% of the voting population of the State now

controls 63 of the 99 members of the House of Representatives. Id. at

276, 292 S.W.2d at 42.  Without dissent, this Court granted the motion

to dismiss the appeal.  352 U.S. 920.  In Radford v. Gary, 145 F.Supp.

541 (D.C.W.D.Okla.), a three-judge District Court was [377 U.S. 614]

convened to consider the complaint of the plaintiff to the effect that

the existing apportionment statutes of the State of Oklahoma violate the

plain mandate of the Oklahoma Constitution and operate to deprive him of

the equal protection of the laws guaranteed by the Fourteenth Amendment

to the Constitution of the United States. Id. at 542.  The plaintiff

alleged that he was a resident and voter in the most populous county of

the State, which had about 15% of the total population of the State but

only about 2% of the seats in the State Senate and less than 4% of the

seats in the House.  The complaint recited the unwillingness or

inability of the branches of the state government to provide relief, and

alleged that there was no state remedy available.  The District Court

granted a motion to dismiss.  This Court affirmed without dissent.  352

U.S. 991.



Each of these recent cases is distinguished on some ground or other in

Baker v. Carr.  See 369 U.S. at   Their summary dispositions prevent

consideration whether these after-the-fact distinctions are real or

imaginary.  The fact remains, however, that, between 1947 and 1957, four

cases raising issues precisely the same as those decided today were

presented to the Court.  Three were dismissed because the issues

presented were thought insubstantial, and, in the fourth, the lower

court's dismissal was affirmed.{72} *    *    *    *



I have tried to make the catalogue complete, yet to keep it within the

manageable limits of a judicial opinion.  In my judgment, today's

decisions are refuted by [377 U.S. 615] the language of the Amendment

which they construe and by the inference fairly to be drawn from

subsequently enacted Amendments.  They are unequivocally refuted by

history and by consistent theory and practice from the time of the

adoption of the Fourteenth Amendment until today. II



The Court's elaboration of its new "constitutional" doctrine indicates

how far -- and how unwisely -- it has strayed from the appropriate

bounds of its authority.  The consequence of today's decision is that,

in all but the handful of States which may already satisfy the new

requirements, the local District Court or, it may be, the state courts,

are given blanket authority and the constitutional duty to supervise

apportionment of the State Legislatures.  It is difficult to imagine a

more intolerable and inappropriate interference by the judiciary with

the independent legislatures of the States.



In the Alabama cases (Nos. 23, 27, 41), the District Court held invalid

not only existing provisions of the State Constitution -- which this

Court lightly dismisses with a wave of the Supremacy Clause and the

remark [377 U.S. 616] that "it makes no difference whether a State's

apportionment scheme is embodied in its constitution or in statutory

provisions," ante p. 581, but also a proposed amendment to the Alabama

Constitution which had never been submitted to the voters of Alabama for

ratification, and "standby" legislation which was not to become

effective unless the amendment was rejected (or declared

unconstitutional), and in no event before 1966.  Sims v. Frink, 208

F.Supp. 431.  See ante,   Both of these measures had been adopted only

nine days before,{73} at an Extraordinary Session of the Alabama

Legislature, convened pursuant to what was very nearly a directive of

the District Court, see Sims v. Frink, 205 F.Supp. 245, 248.  The

District Court formulated its own plan for the apportionment of the

Alabama Legislature by picking and choosing among the provisions of the

legislative measures.  208 F.Supp. at 441-442.  See ante,   Beyond that,

the court warned the legislature that there would be still further

judicial reapportionment unless the legislature, like it or not,

undertook the task for itself.  208 F.Supp. at 442.  This Court now

states that the District Court acted in "a most proper and commendable

manner," ante, p. 586, and approves the District Court's avowed

intention of taking "some further action" unless the State Legislature

acts by 1966, ante,



In the Maryland case (No. 29, post, p. 656), the State Legislature was

called into Special Session and enacted a temporary reapportionment of

the House of Delegates, under pressure from the state courts.{74} 

Thereafter, the [377 U.S. 617] Maryland Court of Appeals held that the

Maryland Senate was constitutionally apportioned.  Maryland Committee

for Fair Representation v. Tawes, 229 Md. 406, 184 A.2d 715.  This Court

now holds that neither branch of the State Legislature meets

constitutional requirements.  Post, p. 674.  The Court presumes that,

since the Maryland constitutional provisions relating to legislative

apportionment [are] hereby held unconstitutional, the Maryland

Legislature . . . has the inherent power to enact at least temporary

reapportionment legislation pending adoption of state constitutional

provisions which satisfy the Federal Constitution, id. at 675.  On this

premise, the Court concludes that the Maryland courts need not "feel

obliged to take further affirmative action" now, but that under no

circumstances should the 1966 election of members of the Maryland

Legislature be permitted to be conducted pursuant to the existing or any

other unconstitutional plan. Id. at 676.



In the Virginia case (No. 69, post, p. 678), the State Legislature in

1962 complied with the state constitutional requirement of regular

reapportionment.{75}  Two days later, a complaint was filed in the

District Court.{76}  Eight months later, the legislative reapportionment

was [377 U.S. 618] declared unconstitutional.  Mann v. Davis, 213

F.Supp. 577.  The District Court gave the State Legislature two months

within which to reapportion itself in special session, under penalty of

being reapportioned by the court.{77}  Only a stay granted by a member

of this Court slowed the process;{78} it is plain that no stay will be

forthcoming in the future.  The Virginia Legislature is to be given "an

adequate opportunity to enact a valid plan," but if it fails "to act

promptly in remedying the constitutional defects in the State's

legislative apportionment plan," the District Court is to "take further

action."  Post, p. 693.



In Delaware (No. 307, post, p. 695), the District Court entered an order

on July 25, 1962, which stayed proceedings until August 7, 1962, "in the

hope and expectation" that the General Assembly would take "some

appropriate action" in the intervening 13 days.  Sincock v. Terry, 207

F.Supp. 205, 207.  By way of prodding, presumably, the court noted that,

if no legislative action were taken and the court sustained the

plaintiffs' claim, the present General Assembly and any subsequent

General Assembly, the members of which were elected pursuant to Section

2 of Article 2 [the challenged provisions of the Delaware Constitution],

might be held not to be a de jure legislature, and its legislative acts

might be held invalid and unconstitutional. Id. at 205-206.  Five days

later, on July 30, 1962, the General Assembly approved a proposed

amendment to the State Constitution.  On August 7, 1962, the District

Court entered an order denying the [377 U.S. 619] defendants' motion to

dismiss.  The court said that it did not wish to substitute its judgment

"for the collective wisdom of the General Assembly of Delaware," but

that, "in the light of all the circumstances," it had to proceed

promptly.  210 F.Supp. 395, 396.  On October 16, 1962, the court

declined to enjoin the conduct of elections in November.  210 F.Supp.

396.  The court went on to express its regret that the General Assembly

had not adopted the court's suggestion, see 207 F.Supp. at 206-207, that

the Delaware Constitution be amended to make apportionment a statutory,

rather than a constitutional, matter, so as to facilitate further

changes in apportionment which might be required.  210 F.Supp. at 401. 

In January, 1963, the General Assembly again approved the proposed

amendment of the apportionment provisions of the Delaware Constitution,

which thereby became effective on January 17, 1963.{79}  Three months

later, on April 17, 1963, the District Court reached "the reluctant

conclusion" that Art. II,  2, of the Delaware Constitution was

unconstitutional, with or without the 1963 amendment.  Sincock v. Duffy,

215 F.Supp. 169, 189.  Observing that "the State of Delaware, the

General Assembly, and this court all seem to be trapped in a kind of box

of time," id. at 191, the court gave the General Assembly until October

1, 1963, to adopt acceptable provisions for apportionment.  On May 20,

1963, the District Court enjoined the defendants from conducting any

elections, including the general election scheduled for November, 1964,

pursuant to the old or the new constitutional provisions.{80}  This

Court now approves all these [377 U.S. 620] proceedings, noting

particularly that, in allowing the 1962 elections to go forward, "the

District Court acted in a wise and temperate manner."  Post, p. 710.{81}



Records such as these in the cases decided today are sure to be

duplicated in most of the other States if they have not been already. 

They present a jarring picture of courts threatening to take action in

an area which they have no business entering, inevitably on the basis of

political judgments which they are incompetent to make.  They show

legislatures of the States meeting in haste and deliberating and

deciding in haste to avoid the threat of judicial interference.  So far

as I can tell, the Court's only response to this unseemly state of

affairs is ponderous insistence that "a denial of constitutionally

protected rights demands judicial protection," ante,   By thus refusing

to recognize the bearing which a potential for [377 U.S. 621] conflict

of this kind may have on the question whether the claimed rights are, in

fact, constitutionally entitled to judicial protection, the Court

assumes, rather than supports, its conclusion.



It should by now be obvious that these cases do not mark the end of

reapportionment problems in the courts.  Predictions once made that the

courts would never have to face the problem of actually working out an

apportionment have proved false.  This Court, however, continues to

avoid the consequences of its decisions, simply assuring us that the

lower courts "can and . . . will work out more concrete and specific

standards," ante,   Deeming it "expedient" not to spell out "precise

constitutional tests," the Court contents itself with stating "only a

few rather general considerations."  Ibid.



Generalities cannot obscure the cold truth that cases of this type are

not amenable to the development of judicial standards.  No set of

standards can guide a court which has to decide how many legislative

districts a State shall have, or what the shape of the districts shall

be, or where to draw a particular district line.  No judicially

manageable standard can determine whether a State should have single

member districts or multi-member districts or some combination of both. 

No such standard can control the balance between keeping up with

population shifts and having stable districts.  In all these respects,

the courts will be called upon to make particular decisions with respect

to which a principle of equally populated districts will be of no

assistance whatsoever.  Quite obviously, there are limitless

possibilities for districting consistent with such a principle.  Nor can

these problems be avoided by judicial reliance on legislative judgments

so far as possible.  Reshaping or combining one or two districts, or

modifying just a few district lines, is no less a matter of choosing

among many possible [377 U.S. 622] solutions, with varying political

consequences, than reapportionment broadside.{82}



The Court ignores all this, saying only that "what is marginally

permissible in one State may be unsatisfactory in another, depending on

the particular circumstances of the case," ante,   It is well to

remember that the product of today's decisions will not be readjustment

of a few districts in a few States which most glaringly depart from the

principle of equally populated districts.  It will be a redetermination,

extensive in many cases, of legislative districts in all but a few

States.



Although the Court -- necessarily, as I believe -- provides only

generalities in elaboration of its main thesis, its opinion nevertheless

fully demonstrates how far removed these problems are from fields of

judicial competence.  Recognizing that "indiscriminate districting" is

an invitation to "partisan gerrymandering," ante pp.  the Court

nevertheless excludes virtually every basis for the formation of

electoral districts other than "indiscriminate districting."  In one or

another of today's opinions, the Court declares it unconstitutional for

a State to give effective consideration to any of the following in

establishing legislative districts:



(1) history;{83}



(2) "economic or other sorts of group interests";{84}



(3) area;{85}



(4) geographical considerations;{86}



(5) a desire "to insure effective representation for sparsely settled

areas";{87} [377 U.S. 623]



(6) "availability of access of citizens to their representatives";{88}



(7) theories of bicameralism (except those approved by the Court);{89}



(8) occupation;{90}



(9) "an attempt to balance urban and rural power."{91}



(10) the preference of a majority of voters in the state.{92} So far as

presently appears, the only factor which a State may consider, apart

from numbers, is political subdivisions.  But even "a clearly rational

state policy" recognizing this factor is unconstitutional if "population

is submerged as the controlling consideration. . . ."{93}



I know of no principle of logic or practical or theoretical politics,

still less any constitutional principle, which establishes all or any of

these exclusions.  Certain it is that the Court's opinion does not

establish them.  So far as the Court says anything at all on this score,

it says only that "legislators represent people, not trees or acres,"

ante, p. 662; that "citizens, not history or economic interests, cast

votes," ante, p. 580; that "people, not land or trees or pastures,

vote," ibid.{94}  All this may be conceded.  But it is surely equally

obvious, and, in the context of elections, more meaningful, to note that

people are not ciphers, and that legislators can represent their

electors only by speaking [377 U.S. 624] for their interests --

economic, social, political -- many of which do reflect the place where

the electors live.  The Court does not establish, or indeed even attempt

to make a case for the proposition that conflicting interests within a

State can only be adjusted by disregarding them when voters are grouped

for purposes of representation. CONCLUSION



With these cases, the Court approaches the end of the third round set in

motion by the complaint filed in Baker v. Carr.  What is done today

deepens my conviction that judicial entry into this realm is profoundly

ill-advised and constitutionally impermissible.  As I have said before,

Wesberry v. Sanders, supra, at 48, I believe that the vitality of our

political system, on which, in the last analysis, all else depends, is

weakened by reliance on the judiciary for political reform; in time, a

complacent body politic may result.



These decisions also cut deeply into the fabric of our federalism.  What

must follow from them may eventually appear to be the product of state

legislatures.  Nevertheless, no thinking person can fail to recognize

that the aftermath of these cases, however desirable it may be thought

in itself, will have been achieved at the cost of a radical alteration

in the relationship between the States and the Federal Government, more

particularly the Federal Judiciary.  Only one who has an overbearing

impatience with the federal system and its political processes will

believe that that cost was not too high, or was inevitable.



Finally, these decisions give support to a current mistaken view of the

Constitution and the constitutional function of this Court.  This view,

in a nutshell, is that every major social ill in this country can find

its cure in some constitutional "principle," and that this Court should

"take the lead" in promoting reform when other branches of government

fail to act.  The Constitution is [377 U.S. 625] not a panacea for every

blot upon the public welfare, nor should this Court, ordained as a

judicial body, be thought of as a general haven for reform movements. 

The Constitution is an instrument of government, fundamental to which is

the premise that in a diffusion of governmental authority lies the

greatest promise that this Nation will realize liberty for all its

citizens.  This Court, limited in function in accordance with that

premise, does not serve its high purpose when it exceeds its authority,

even to satisfy justified impatience with the slow workings of the

political process.  For when, in the name of constitutional

interpretation, the Court adds something to the Constitution that was

deliberately excluded from it, the Court, in reality, substitutes its

view of what should be so for the amending process.



I dissent in each of these cases, believing that in none of them have

the plaintiffs stated a cause of action.  To the extent that Baker v.

Carr, expressly or by implication, went beyond a discussion of

jurisdictional doctrines independent of the substantive issues involved

here, it should be limited to what it, in fact, was:  an experiment in

venturesome constitutionalism.  I would reverse the judgments of the

District Courts in Nos. 23, 27, and 41 (Alabama), No. 69 (Virginia), and

No. 307 (Delaware), and remand with directions to dismiss the

complaints.  I would affirm the judgments of the District Courts in No.

20 (New York), and No. 508 (Colorado), and of the Court of Appeals of

Maryland in No. 29. APPENDIX A TO OPINION OF MR. JUSTICE HARLAN,

DISSENTING



Statements made in the House of Representatives during the debate on the

resolution proposing the Fourteenth Amendment.* [377 U.S. 626]



As the nearest approach to justice which we are likely to be able to

make, I approve of the second section that bases representation upon

voters. 2463 (Mr. Garfield).



Would it not be a most unprecedented thing that, when this [former

slave] population are not permitted where they reside to enter into the

basis of representation in their own State, we should receive it as an

element of representation here; that, when they will not count them in

apportioning their own legislative districts, we are to count them as

five-fifths (no longer as three-fifths, for that is out of the question)

as soon as you make a new apportionment? 2464-2465 (Mr. Thayer).



The second section of the amendment is ostensibly intended to remedy a

supposed inequality in the basis of representation.  The real object is

to reduce the number of southern representatives in Congress and in the

Electoral College, and also to operate as a standing inducement to negro

suffrage. 2467 (Mr. Boyer).



Shall the pardoned rebels of the South include in the basis of

representation four million people to whom they deny political rights,

and to no one of whom is allowed a vote in the selection of a

Representative? 2468 (Mr. Kelley).



I shall, Mr. Speaker, vote for this amendment not because I approve it. 

Could I have controlled the report of the committee of fifteen, it would

have proposed to give the right of suffrage to every loyal man in the

country. 2469 (Mr. Kelley).



But I will ask, why should not the representation of the States be

limited as the States themselves limit suffrage? . . .  If the negroes

of the South are [377 U.S. 627] not to be counted as a political element

in the government of the South in the States, why should they be counted

as a political element in the government of the country in the Union?

2498 (Mr. Broomall). It is now proposed to base representation upon

suffrage, upon the number of voters, instead of upon the aggregate

population in every State of the Union. 2502 (Mr. Raymond). We admit

equality of representation based upon the exercise of the elective

franchise by the people.  The proposition in the matter of suffrage

falls short of what I desire, but, so far as it goes, it tends to the

equalization of the inequality at present existing, and while I demand

and shall continue to demand the franchise for all loyal male citizens

of this country -- and I cannot but admit the possibility that

ultimately those eleven States may be restored to representative power

without the right of franchise being conferred upon the colored people

-- I should feel myself doubly humiliated and disgraced, and criminal

even, if I hesitated to do what I can for a proposition which equalizes

representation. 2508 (Mr. Boutwell). Now, conceding to each State the

right to regulate the right of suffrage, they ought not to have a

representation for male citizens not less than twenty-one years of age,

whether white or black, who are deprived of the exercise of suffrage. 

This amendment will settle the complication in regard to suffrage and

representation, leaving each State to regulate that for itself, so that

it will be for it to decide whether or not it shall have a

representation for all its male citizens not less than twenty-one years

of age. 2510 (Mr. Miller). [377 U.S. 628] Manifestly no State should

have its basis of national representation enlarged by reason of a

portion of citizens within its borders to which the elective franchise

is denied.  If political power shall be lost because of such denial, not

imposed because of participation in rebellion or other crime, it is to

be hoped that political interests may work in the line of justice, and

that the end will be the impartial enfranchisement of all citizens not

disqualified by crime.  Whether that end shall be attained or not, this

will be secured:  that the measure of political power of any State shall

be determined by that portion of its citizens which can speak and act at

the polls, and shall not be enlarged because of the residence within the

State of portions of its citizens denied the right of franchise.  So

much for the second section of the amendment.  It is not all that I wish

and would demand, but odious inequalities are removed by it and

representation will be equalized, and the political rights of all

citizens will under its operation be, as we believe, ultimately

recognized and admitted. 2511 (Mr. Eliot).



I have no doubt that the Government of the United States has full power

to extend the elective franchise to the colored population of the

insurgent States.  I mean authority; I said power.  I have no doubt that

the Government of the United States has authority to do this under the

Constitution, but I do not think they have the power.  The distinction I

make between authority and power is this:  we have, in the nature of our

Government, the right to do it; but the public opinion of the country is

such at this precise moment as to make it impossible we should do it. 

It was therefore most wise on the part of the committee on

reconstruction to waive this matter in deference to public opinion.  The

situation [377 U.S. 629] of opinion in these States compels us to look

to other means to protect the Government against the enemy. 2532 (Mr.

Banks). If you deny to any portion of the loyal citizens of your State

the right to vote for Representatives, you shall not assume to represent

them, and, as you have done for so long a time, misrepresent and oppress

them.  This is a step in the right direction, and although I should

prefer to see incorporated into the Constitution a guarantee of

universal suffrage, as we cannot get the required two-thirds for that, I

cordially support this proposition as the next best. 2539-2540 (Mr.

Farnsworth). APPENDIX B TO OPINION OF MR. JUSTICE HARLAN, DISSENTING.



Statements made in the Senate during the debate on the resolution

proposing the Fourteenth Amendment.* The second section of the

constitutional amendment proposed by the committee can be justified upon

no other theory than that the negroes ought to vote, and negro suffrage

must be vindicated before the people in sustaining that section, for it

does not exclude the non-voting population of the North, because it is

admitted that there is no wrong in excluding from suffrage aliens,

females, and minors. But we say, if the negro is excluded from suffrage

he shall also be excluded from the basis of representation. Why this

inequality? Why this injustice? For injustice it would be unless there

be some good reason for this discrimination against the South in

excluding her non-voting population from the basis [377 U.S. 630] of

representation.  The only defense that we can make to this apparent

injustice is that the South commits an outrage upon human rights when

she denies the ballot to the blacks, and we will not allow her to take

advantage of her own wrong, or profit by this outrage.  Does anyone

suppose it possible to avoid this plain issue before the people?  For if

they will sustain you in reducing the representation of the South

because she does not allow the negro to vote, they will do so because

they think it is wrong to disfranchise him. 2800 (Senator Stewart). It

[the second section of the proposed amendment] relieves him [the Negro]

from misrepresentation in Congress by denying him any representation

whatever. 2801 (Senator Stewart): But I will again venture the opinion

that it [the second section] means as if it read thus:  no State shall

be allowed a representation on a colored population unless the right of

voting is given to the negroes -- presenting to the States the

alternative of loss of representation or the enfranchisement of the

negroes, and their political equality. 2939 (Senator Hendricks). I

should be much better satisfied if the right of suffrage had been given

at once to the more intelligent of them [the Negroes] and such as had

served in our Army.  But it is believed by wiser ones than myself that

this amendment will very soon produce some grant of suffrage to them,

and that the craving for political power will ere long give them

universal suffrage. . . .  Believing that this amendment probably goes

as far in favor of suffrage to the negro as is practicable to accomplish

now, and hoping it may in [377 U.S. 631] the end accomplish all I desire

in this respect, I shall vote for its adoption, although I should be

glad to go further. 2963-2964 (Senator Poland). What is to be the

operation of this amendment?  Just this:  your whip is held over

Pennsylvania, and you say to her that she must either allow her negroes

to vote or have one member of Congress less. 2987 (Senator Cowan). Now,

sir, in all the States -- certainly in mine, and no doubt in all --

there are local as contradistinguished from State elections.  There are

city elections, county elections, and district or borough elections, and

those city and county and district elections are held under some law of

the State in which the city or county or district or borough may be, and

in those elections, according to the laws of the States, certain

qualifications are prescribed, residence within the limits of the

locality and a property qualification in some.  Now, is it proposed to

say that, if every man in a State is not at liberty to vote at a city or

a country or a borough election that is to affect the basis of

representation? 2991 (Senator Johnson).



Again, Mr. President, the measure upon the table, like the first

proposition submitted to the Senate from the committee of fifteen,

concedes to the States . . . not only the right, but the exclusive

right, to regulate the franchise. . . .  It says that each of the

southern States, and, of course, each other State in the Union, has a

right to regulate for itself the franchise, and that consequently, as

far as the Government of the United States is concerned, if the black

man is not permitted the right to the franchise, it will be a wrong (if

a wrong) which the Government [377 U.S. 632] of the United States will

be impotent to redress. 3027 (Senator Johnson).



The amendment fixes representation upon numbers, precisely as the

Constitution now does, but when a State denies or abridges the elective

franchise to any of its male inhabitants who are citizens of the United

States and not less than twenty-one years of age, except for

participation in rebellion or other crime, then such State will lose its

representation in Congress in the proportion which the male citizen so

excluded bears to the whole number of male citizens not less than

twenty-one years of age in the State. 3033 (Senator Henderson).

Footnotes WARREN, J., lead opinion (Footnotes)



* Together with No. 27, Vann et al. v. Baggett, Secretary of State of

Alabama, et al., and No. 41, McConnell et al. v. Bagett, Secretary of

State of Alabama, et al., also on appeal from the same court.



1. Sims v. Frink, 208 F.Supp. 431 (D.C.M.D.Ala.1962).  All decisions of

the District Court in this litigation are reported sub nom. Sims v.

Frink.



2. Included among the defendants were the Secretary of State and the

Attorney General of Alabama, the Chairmen and Secretaries of the Alabama

State Democratic Executive Committee and the State Republican Executive

Committee, and three Judges of Probate of three counties, as

representatives of all the probate judges of Alabama.



3. Provisions virtually identical to those contained in Art. IX,  202

and 203, were enacted into the Alabama Codes of 1907 and 1923, and were

most recently reenacted as statutory provisions in  1 and 2 of Tit. 32

of the 1940 Alabama Code (as recompiled in 1958).



4. See Opinion of the Justices, 263 Ala. 158, 164, 81 So.2d 881, 887

(1955), and Opinion of the Justices, 254 Ala. 185, 187, 47 So.2d 714,

717 (1950), referred to by the District Court in its preliminary

opinion.  205 F.Supp. 245, 247.



5. See Ex parte Rice, 273 Ala. 712, 143 So.2d 848 (1962), where the

Alabama Supreme Court, on May 9, 1962, subsequent to the District

Court's preliminary order in the instant litigation as well as our

decision in Baker v. Carr, 369 U.S. 186, refused to review a denial of

injunctive relief sought against the conducting of the 1962 primary

election until after reapportionment of the Alabama Legislature, stating

that "this matter is a legislative function, and . . . the Court has no

jurisdiction. . . ."  And in Waid v. Pool, 255 Ala. 441, 51 So.2d 869

(1951), the Alabama Supreme Court, in a similar suit, had stated that

the lower court had properly refused to grant injunctive relief because

appellants . . . are seeking interference by the judicial department of

the state in respect to matters committed by the constitution to the

legislative department. 255 Ala., at 442, 51 So.2d at 870.



6. Under 28 U.S.C.  2281 and 2284.



7. During the over 60 years since the last substantial reapportionment

in Alabama, the State's population increased from 1,828,697 to

3,244,286.  Virtually all of the population gain occurred in urban

counties, and many of the rural counties incurred sizable losses in

population.



8. See 369 U.S. at 260 (CLARK, J., concurring).



9. Proposed Constitutional Amendment No. 1 of 1962, Alabama Senate Bill

No. 29, Act No. 93, Acts of Alabama, Special Session, 1962, p. 124.  The

text of the proposed amendment is set out as Appendix B to the lower

court's opinion.  208 F.Supp. at 443-444.



10. For a discussion of this method of apportionment, used in

distributing seats in the Federal House of Representatives among the

States, and other commonly used apportionment methods, see Schmeckebier,

The Method of Equal Proportions, 17 Law & Contemp.Prob. 302 (1952).



11. Alabama Reapportionment Act of 1962, Alabama House Bill No. 59, Act

No. 91, Acts of Alabama, Special Session, 1962, p. 121.  The text of the

act is reproduced as Appendix C to the lower court's opinion.  208

F.Supp. at 445-446.



12. A comprehensive chart showing the representation by counties in the

Alabama House of Representatives under the existing apportionment

provisions is set out as Appendix D to the lower court's opinion.  208

F.Supp. at 447-449.  This chart includes the number of House seats given

to each county, and the populations of the 67 Alabama counties under the

1900, 1950, and 1960 censuses.



13. Although cross appellants in No. 27 assert that the Alabama

Constitution forbids the division of a county, in forming senatorial

districts, only when one or both pieces will be joined with another

county to form a multi-county district, this view appears to be contrary

to the language of Art. IX,  200, of the Alabama Constitution and the

practice under it.  Cross-appellants contend that counties entitled by

population to two or more senators can be split into the appropriate

number of districts, and argue that, prior to the adoption of the 1901

provisions, the Alabama Constitution so provided, and there is no reason

to believe that the language of the present provision was intended to

effect any change.  However, the only apportionments under the 1901

Alabama Constitution -- the 1901 provisions and the Crawford-Webb Act --

gave no more than one seat to a county even though by population several

counties would have been entitled to additional senatorial

representation.



14. A chart showing the composition, by counties, of the 35 senatorial

districts provided for under the existing apportionment, and the

population of each according to the 1900, 1950, and 1960 censuses, is

reproduced as Appendix E to the lower court's opinion.  208 F.Supp. at

450.



15. 208 F.Supp. at 437.



16. Id. at 438



17. According to the District Court, in the interval between its

preliminary order and its decision on the merits, the Alabama

Legislature, despite adopting this constitutional amendment proposal,

refused to inquire of the Supreme Court of the State of Alabama whether

this provision in the Constitution of the State of Alabama could be

changed by constitutional amendment as the "67-Senator Amendment"

proposes. 208 F.Supp. at 437.



18. At least this is the reading of the District Court of two somewhat

conflicting decisions by the Alabama Supreme Court, resulting in a

"manifest uncertainty of the legality of the proposed constitutional

amendment, as measured by State standards. . . ."  208 F.Supp. at 438. 

Compare Opinion of the Justices, 254 Ala. 183, 184, 47 So.2d 713, 714

(1950), with Opinion of the Justices, 263 Ala. 158, 164, 81 So.2d 881,

887 (1955).



19. See the later discussion, infra at  and note 68, infra where we

reject the lower court's apparent conclusion that the apportionment of

the Alabama House, under the 67-Senator Amendment, comported with the

requirements of the Equal Protection Clause.



20. While no formula for the statute's apportionment of representatives

is expressly stated, one can be extrapolated.  Counties with less than

45,000 people are given one seat; those with 45,000 to 90,000 receive

two seats; counties with 90,000 to 150,000, three seats; those with

150,000 to 300,000, four seats; counties with 300,000 to 600,000, six

seats, and counties with over 600,000 are given 12 seats.



21. Appendix F to the lower court's opinion sets out a chart showing the

populations of the 35 senatorial districts provided for under the

Crawford-Webb Act and the composition, by counties, of the various

districts.  208 F.Supp. at 451.



22. Cross appellants in No. 27 assert that the Crawford-Webb Act was a

"minimum change measure" which merely redrew new senatorial district

lines around the nominees of the May, 1962, Democratic primary so as to

retain the seats of 34 of the 35 nominees, and resulted, in practical

effect, in the shift of only one Senate seat from an overrepresented

district to another underpopulated, newly created district.



23. 208 F.Supp. at 439.



24. Possibly this resulted from an understandable desire on the part of

the Alabama Legislature to await a final determination by this Court in

the instant litigation before proceeding to enact a permanent

apportionment plan.



25. However, a proposed constitutional amendment, which would have made

the Alabama House of Representatives somewhat more representative of

population but the Senate substantially less so, was rejected by the

people in a 1956 referendum, with the more populous counties accounting

for the defeat.



See the discussion in Lucas v. Forty-Fourth General Assembly of

Colorado, post, pp. 736-737, decided also this date, with respect to the

lack of federal constitutional significance of the presence or absence

of an available political remedy.



26. Ala.Const., Art. XVIII,  284.



27. Ala.Const., Art. XVIII,  286.



28. The Fifteenth, Seventeenth, Nineteenth, Twenty-third and

Twenty-fourth Amendments to the Federal Constitution all involve

expansions of the right of suffrage.  Also relevant in this regard is

the civil rights legislation enacted by Congress in 1957 and 1960.



29. As stated by MR. JUSTICE DOUGLAS, dissenting in South v. Peters, 339

U.S. 276, 279:



There is more to the right to vote than the right to mark a piece of

paper and drop it in a box or the right to pull a lever in a voting

booth.  The right to vote includes the right to have the ballot counted.

. . .  It also includes the right to have the vote counted at full value

without dilution or discount. . . .  That federally protected right

suffers substantial dilution . . . [where a] favored group has full

voting strength . . . [and] [t]he groups not in favor have their votes

discounted.



30. Litigation challenging the constitutionality of state legislative

apportionment schemes had been instituted in at least 34 States prior to

the end of 1962 -- within nine months of our decision in Baker v. Carr. 

See McKay, Political Thickets and Crazy Quilts:  Reapportionment and

Equal Protection, 61 Mich.L.Rev. 645, 706-710 (1963), which contains an

appendix summarizing reapportionment litigation through the end of 1962.

 See also David and Eisenberg, Devaluation of the Urban and Suburban

Vote (1961); Goldberg, The Statistics of Malapportionment, 72 Yale L.J.

90 (1962).



31. 369 U.S. at 198.



32. Id. at 226.



33. Scholle v. Hare, 369 U.S. 429 (Michigan); WMCA, Inc., v. Simon, 370

U.S. 190 (New York).



34. 372 U.S. at



35. Id. at 381.



36. Id. at 376.  Later in the opinion, we again stated: Nor does the

question here have anything to do with the composition of the state or

federal legislature.  And we intimate no opinion on the constitutional

phases of that problem beyond what we said in Baker v. Carr. . . . Id.

at 378.



37. 376 U.S. at 14.



38. Id. at 17-18.



39. As stated by MR. JUSTICE DOUGLAS, the rights sought to be vindicated

in a suit challenging an apportionment scheme are "personal and

individual," South v. Peters, 339 U.S. at 280, and are "important

political rights of the people," MacDougall v. Green, 335 U.S. 281, 288.

 (DOUGLAS, J., dissenting.)



40. As stated by MR. JUSTICE BLACK, dissenting, in Colegrove v. Green,

328 U.S. 549, No one would deny that the equal protection clause would .

. . prohibit a law that would expressly give certain citizens a

half-vote and others a full vote. . . .  [T]he constitutionally

guaranteed right to vote and the right to have one's vote counted

clearly imply the policy that state election systems, no matter what

their form, should be designed to give approximately equal weight to

each vote cast. . . .  [A] state legislature cannot deny eligible voters

the right to vote for Congressmen and the right to have their vote

counted.  It can no more destroy the effectiveness of their vote in part

and no more accomplish this in the name of "apportionment" than under

any other name.



41. 376 U.S. at 8.  See also id. at 17, quoting from James Wilson, a

delegate to the Constitutional Convention and later an Associate Justice

of this Court, who stated: [A]ll elections ought to be equal.  Elections

are equal when a given number of citizens in one part of the state

choose as many representatives as are chosen by the same number of

citizens in any other part of the state.  In this manner, the proportion

of the representatives and of the constituents will remain invariably

the same. 2 The Works of James Wilson (Andrews ed. 1896) 15.



And, as stated by MR. JUSTICE DOUGLAS, dissenting, in MacDougall v.

Green, 335 U.S. at 288, 290: [A] regulation . . . [which] discriminates

against the residents of the populous counties of the state in favor of

rural sections . . . lacks the equality to which the exercise of

political rights is entitled under the Fourteenth Amendment.



Free and honest elections are the very foundation of our republican form

of government. . . .  Discrimination against any group or class of

citizens in the exercise of these constitutionally protected rights of

citizenship deprives the electoral process of integrity. . . .



None would deny that a state law giving some citizens twice the vote of

other citizens in either the primary or general election would lack that

equality which the Fourteenth Amendment guarantees. . . .  The theme of

the Constitution is equality among citizens in the exercise of their

political rights.  The notion that one group can be granted greater

voting strength than another is hostile to our standards for popular

representative government.



42. 364 U.S.at 347



43. Although legislative apportionment controversies are generally

viewed as involving urban-rural conflicts, much evidence indicates that

presently it is the fast-growing suburban areas which are probably the

most seriously underrepresented in many of our state legislatures.  And,

while currently the thrust of state legislative malapportionment

results, in most States, in underrepresentation of urban and suburban

areas, in earlier times, cities were, in fact, overrepresented in a

number of States.  In the early 19th century, certain of the seaboard

cities in some of the Eastern and Southern States possessed and

struggled to retain legislative representation disproportionate to

population, and bitterly opposed according additional representation to

the growing inland areas.  Conceivably, in some future time, urban areas

might again be in a situation of attempting to acquire or retain

legislative representation in excess of that to which, on a population

basis, they are entitled.  Malapportionment can, and has historically,

run in various directions.  However and whenever it does, it is

constitutionally impermissible under the Equal Protection Clause.



44. The British experience in eradicating "rotten boroughs" is

interesting and enlightening.  Parliamentary representation is now based

on districts of substantially equal population, and periodic

reapportionment is accomplished through independent Boundary

Commissions.  For a discussion of the experience and difficulties in

Great Britain in achieving fair legislative representation, see Edwards,

Theoretical and Comparative Aspects of Reapportionment and

Redistricting:  With Reference to Baker v. Carr, 15 Vand.L.Rev. 1265,

1275 (1962).  See also the discussion in Baker v. Carr, 369 U.S. at  

(Frankfurter, J., dissenting.)



45. Under the existing scheme, Marshall County, with a 1960 population

of 48,018, Baldwin County, with 49,088, and Houston County, with 50,718,

are each given only one seat in the Alabama House, while Bullock County,

with only 13,462, Henry County, with 15,286, and Lowndes County, with

15,417, are allotted two representatives each.  And in the Alabama

Senate, under the existing apportionment, a district comprising

Lauderdale and Limestone Counties had a 1960 population of 98,135, and

another composed of Lee and Russell Counties had 96,105.  Conversely,

Lowndes County, with only 15,417, and Wilcox County, with 18,739, are

nevertheless single-county senatorial districts given one Senate seat

each.



46. An interesting pre-Baker discussion of the problem of legislative

malapportionment in Alabama is provided in Comment, Alabama's

Unrepresentative Legislature, 14 Ala.L.Rev. 403 (1962).



47. See the cases cited and discussed in notes 4-5, supra, where the

Alabama Supreme Court refused even to consider the granting of relief in

suits challenging the validity of the apportionment of seats in the

Alabama Legislature, although it stated that the legislature had failed

to comply with the requirements of the State Constitution with respect

to legislative reapportionment.



48. However, since the District Court found the proposed constitutional

amendment prospectively invalid, it was never, in fact, voted upon by

the State's electorate.



49. Resemblances between the system of representation in the Federal

Congress and the apportionment scheme embodied in the 67-Senator

Amendment appear to be more superficial than actual.  Representation in

the Federal House of Representatives is apportioned by the Constitution

among the States in conformity with population.  While each State is

guaranteed at least one seat in the House, as a feature of our unique

federal system, only four States have less than 1/435 of the country's

total population, under the 1960 census.  Thus, only four seats in the

Federal House are distributed on a basis other than strict population. 

In Alabama, on the other hand, 40 of the 67 counties have less than

1/106 of the State's total population.  Thus, under the proposed

amendment, over 1/3 of the total number of seats in the Alabama House

would be distributed on a basis other than strict population.  States

with almost 50% of the Nation's total population are required in order

to elect a majority of the members of the Federal House, though unfair

districting within some of the States presently reduces to about 42% the

percentage of the country's population which reside in districts

electing individuals comprising a majority in the Federal House.  Cf.

Wesberry v. Sanders, supra, holding such congressional districting

unconstitutional.  Only about 43% of the population of Alabama would

live in districts which could elect a majority in the Alabama House

under the proposed constitutional amendment.  Thus, it could hardly be

argued that the proposed apportionment of the Alabama House was based on

population in a way comparable to the apportionment of seats in the

Federal House among the States.



50. For a thorough statement of the arguments against holding the

so-called federal analogy applicable to state legislative apportionment

matters, see, e.g., McKay, Reapportionment and the Federal Analogy

(National Municipal League pamphlet 1962); McKay, The Federal Analogy

and State Apportionment Standards, 38 Notre Dame Law. 487 (1963).  See

also Merrill, Blazes for a Trail Through the Thicket of Reapportionment,

16 Okla.L.Rev. 59, 67-70 (1963).



51. 208 F.Supp. at 438.  See the discussion of the District Court's

holding as to the applicability of the federal analogy earlier in this

opinion, supra at



52. Report of Advisory Commission on Intergovernmental Relations,

Apportionment of State Legislatures 10-11, 35, 69 (1962).



53. Thomas Jefferson repeatedly denounced the inequality of

representation provided for under the 1776 Virginia Constitution and

frequently proposed changing the State Constitution to provide that both

houses be apportioned on the basis of population.  In 1816, he wrote

that a government is republican in proportion as every member composing

it has his equal voice in the direction of its concerns . . . by

representatives chosen by himself. . . . Letter to Samuel Kercheval, 10

Writings of Thomas Jefferson (Ford ed. 1899) 38.  And a few years later,

in 1819, he stated: Equal representation is so fundamental a principle

in a true republic that no prejudice can justify its violation, because

the prejudices themselves cannot be justified. Letter to William King,

Jefferson Papers, Library of Congress, Vol. 216, p. 38616.



54. Article II,  14, of the Northwest Ordinance of 1787 stated quite

specifically: The inhabitants of the said territory shall always be

entitled to the benefits . . . of a proportionate representation of the

people in the Legislature.



55. See the discussion in Wesberry v. Sanders, 376 U.S. at 14.



56. 372 U.S. at 378.



57. As stated by the Court in Bain Peanut Co. v. Pinson, 282 U.S. 499,

501, "We must remember that the machinery of government would not work

if it were not allowed a little play in its joints."



58. But cf. the discussion of some of the practical problems inherent in

the use of multi-member districts in Lucas v. Forty-Fourth General

Assembly of Colorado, post, pp. 731-732, decided also this date.



59. See the discussion of the concept of floterial districts in Davis v.

Mann, post, pp. 686-687, n. 2, decided also this date.



60. For a discussion of the formal apportionment formulae prescribed for

the allocation of seats in state legislatures, see Dixon, Apportionment

Standards and Judicial Power, 38 Notre Dame Law. 367, 398-400 (1963). 

See also The Book of the States 1962-1963, 58-62.



61. In rejecting a suggestion that the representation of the newer

Western States in Congress should be limited so that it would never

exceed that of the original States, the Constitutional Convention

plainly indicated its view that history alone provided an unsatisfactory

basis for differentiations relating to legislative representation.  See

Wesberry v. Sanders, 376 U.S. at 14.  Instead, the Northwest Ordinance

of 1787, in explicitly providing for population-based representation of

those living in the Northwest Territory in their territorial

legislatures, clearly implied that, as early as the year of the birth of

our federal system, the proper basis of legislative representation was

regarded as being population.



62. See McKay, Political Thickets and Crazy Quilts:  Reapportionment and

Equal Protection, 61 Mich.L.Rev. 645, 699-699 (1963).



63. Determining the size of its legislative bodies is, of course, a

matter within the discretion of each individual State.  Nothing in this

opinion should be read as indicating that there are any federal

constitutional maximums or minimums on the size of state legislative

bodies.



64. See 369 U.S. at  discussing the nonjusticiability of

malapportionment claims asserted under the Guaranty Clause.



65. Report of Advisory Commission on Intergovernmental Relations,

Apportionment of State Legislatures 56 (1962).  Additionally, the

constitutions of seven other States either require or permit

reapportionment of legislative representation more frequently than every

10 years.  See also The Book of the States 1962-1963, 58-62.



66. Cf. Baker v. Carr, 369 U.S. 186, 198.  See also 369 U.S. at

(DOUGLAS, J., concurring), and passages from Baker quoted in this

opinion, supra, at 556, 557, and infra.



67. 369 U.S. at 250.



68. Although the District Court indicated that the apportionment of the

Alabama House under the 67-Senator Amendment was valid and acceptable,

we, of course, reject that determination, which we regard as merely

precatory and advisory, since the court below found the overall plan,

under the proposed constitutional amendment, to be unconstitutional. 

See 208 F.Supp. at 440-441.  See the discussion earlier in this opinion,

supra, at CLARK, J., concurring (Footnotes)



* Incidentally, neither of these cases, upon which the Court bases its

opinion, is apposite.  Gray involved the use of Georgia's county unit

rule in the election of United States Senators, and Wesberry was a

congressional apportionment case. HARLAN, J., dissenting (Footnotes)



* [This opinion applies also to No . 20, WMCA, Inc. et al. v. Lomenzo,

Secretary of State of New York, et al., post, p. 633; No. 29, Maryland

Committee for Fair Representation et al. v. Tawes, Governor, et al.,

post, p. 656; No. 69, Davis, Secretary, State Board of Elections, et al.

v. Mann et al., post, p. 678; No. 307, Roman, Clerk, et al. v. Sincock

et al., post, p. 695, and No. 508, Lucas et al. v. Forty-Fourth General

Assembly of Colorado et al., post, p. 713.]



1. Alabama, Colorado, Delaware, Maryland, New York, Virginia



2. In the Virginia case, Davis v. Mann, post, p. 678, the defendants

introduced an exhibit prepared by the staff of the Bureau of Public

Administration of the University of Virginia in which the Virginia

Legislature, now held to be unconstitutionally apportioned, was ranked

eighth among the 50 States in "representativeness," with population

taken as the basis of representation.  The Court notes that, before the

end of 1962, litigation attacking the apportionment of state

legislatures had been instituted in at least 34 States.  Ante, p. 556,

note 30.  See infra,



3. See Baker v. Carr, 369 U.S. 186, 330, and the dissenting opinion of

Frankfurter, J., in which I joined, id. at 266; Gray v. Sanders, 372

U.S. 368, 382; Wesberry v. Sanders, 376 U.S. 1, 20.



4. That clause, which manifestly has no bearing on the claims made in

these cases, see V Elliot's Debates on the Adoption of the Federal

Constitution (1845), 332-333, could not, in any event, be the foundation

for judicial relief.  Luther v. Borden, 7 How. 1, 42-44; Ohio ex rel.

Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 79-80; Highland

Farms Dairy, Inc., v. Agnew, 300 U.S. 608, 612.  In Baker v. Carr,

supra, at 227, the Court stated that reliance on the Republican Form of

Government Clause "would be futile."



5. It is fair to say that, beyond discussion of a large number of cases

having no relevance to this question, the Court's views on this subject

were fully stated in the compass of a single sentence: 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 reflects no policy, but simply arbitrary and

capricious action. 369 U.S. at 226.



Except perhaps for the "crazy quilt" doctrine of my Brother CLARK, 369

U.S. at 251, nothing is added to this by any of the concurring opinions,

id. at 241, 265.



6. The cryptic remands in Scholle v. Hare, 369 U.S. 429, and WMCA, Inc.

v. Simon, 370 U.S. 190, on the authority of Baker, had nothing to say on

the question now before the Court.



7. See the Journal of the Committee, reprinted in Kendrick, The Journal

of the Joint Committee of Fifteen on Reconstruction (1914), 83-117.



8. See the debates in Congress, Cong.Globe, 39th Cong., 1st Sess.,

2459-3149, passim (1866) (hereafter Globe).



9. Globe 3040.



10. Globe 2265, 2286.



11. As reported in the House. Globe 2286.  For prior versions of the

Amendment in the Reconstruction Committee, see Kendrick, op. cit. supra,

note 7, 83-117.  The work of the Reconstruction Committee is discussed

in Kendrick, supra, and Flack, The Adoption of the Fourteenth Amendment

(1908), 55-139, passim.



12. Globe 2459



13. Ibid.  Stevens was referring to a proposed amendment to the

Constitution which provided that whenever the elective franchise shall

be denied or abridged in any State on account of race or color, all

persons therein of such race or color shall be excluded from the basis

of representation. Globe 535.  It passed the House, id. at 538, but did

not muster the necessary two-thirds vote in the Senate, id. at 1289.



14. Globe 2459



15. Ibid.



16. Ibid.



17. Ibid.



18. Globe 2460.



19. Kendrick, op. cit. supra, note 7, 87, 106; Flack, op. cit. supra,

note 11, 60-68, 71.



20. Globe 2542.



21. Ibid.  It is evident from the context of the reference to a

republican government that Bingham did not regard limitations on the

right to vote or the denial of the vote to specified categories of

individuals as violating the guarantee of a republican form of

government.



22. Ibid.



23. Representative Rogers, who voted against the resolution, Globe 2545,

suggested that the right to vote might be covered by the Privileges and

Immunities Clause.  Globe 2538.  But immediately thereafter, he

discussed the possibility that the Southern States might "refuse to

allow the negroes to vote."  Ibid.



24. Globe 2545



25.  Globe 2766.



26. Ibid.



27. Ibid.



28. Globe 3042.



29. Globe 3149



30. Such evidence as there is, mostly committee reports and messages to

the legislatures from Governors of the States, is to the same effect as

the evidence from the debates in the Congress.  See Ark. House J. 288

(1866-1867); Fla.Sen. J. 8-10 (1866); Ind.House J. 47-48, 50-51 (1867);

Mass.Legis. Doc., House Doc. No. 149, 4-14, 16-17, 23, 24, 25-26 (1867);

Mo.Sen.J. 14 (1867); N.J.Sen.J. 7 (Extra Sess. 1866); N.C. Sen.J. 96-97,

98-99 (1866-1867); Tenn.House J. 12-15 (1865-1866); Tenn.Sen.J. 8 (Extra

Sess. 1866), Va.House J. & Doc., Doc. No. 1, 35 (1866-1867); Wis.Sen.J.

33, 101-103 (1867).  Contra:  S.C.House J. 34 (1866); Tex.Sen.J. 422

(1866 App.).



For an account of the proceedings in the state legislatures and

citations to the proceedings, see Fairman, "Does the Fourteenth

Amendment Incorporate the Bill of Rights?" 2 Stan.L.Rev. 5, 81-126

(1949).



31. Conn.Const., 1818, Art. Third,  3 (towns); N.H.Const., 1792, Part

Second,  XXVI (direct taxes paid); N.J.Const., 1844, Art. IV,  II, cl. 1

(counties); R.I.Const., 1842, Art. VI,  1 (towns and cities); Vt.Const.,

1793, c. II,  7 (towns).



In none of these States was the other House apportioned strictly

according to population.  Conn.Const., 1818, Amend. II; N.H.Const.,

1792, Part Second,  IX-XI; N.J.Const., 1844, Art. IV,  III, cl. 1;

R.I.Const., 1842, Art. V,  1; Vt.Const., 1793, Amend. 23.



32. Iowa Const., 1857, Art. III,  35; Kan.Const., 1859, Art. 2,  2, Art.

10,  1; Me.Const., 1819, Art. IV-Part First,  3; Mich.Const., 1850, Art.

IV,  3; Mo.Const., 1865, Art. IV,  2; N.Y.Const., 1846, Art. III,  5;

Ohio Const., 1851, Art. XI,  2-5; Pa.Const., 1838, Art. I,  4, 6, 7, as

amended; Tenn.Const., 1834, Art. II,  5; W.Va.Const., 1861-1863, Art.

IV,  9.



33. Ninth Census of the United States, Statistics of Population (1872)

(hereafter Census), 49.  The population figures, here and hereafter, are

for the year 1870, which presumably best reflect the figures for the

years 1866-1870.  Only the figures for 1860 were available at that time,

of course, and they would have been used by anyone interested in

population statistics.  See, e.g., Globe 3028 (remarks of Senator

Johnson).



The method of apportionment is contained in N.J.Const., 1844, Art. IV, 

II, cl. 1.



34. N.J.Const., 1844, Art. IV.  III, cl. 1.  Census 49.



35. Ibid.



36. N.Y.Const., 1846, Art. III,  2, 5.  Census 50-51.



37. Ibid.



38. Ibid.



39. There were 14 counties, Census 67, each of which was entitled to at

least one out of a total of 30 seats.  Vt.Const., 1793, Amend. 23.



40. Census 67.



41. Act of Mar. 2, 1867,  5, 14 Stat. 429.  See also Act of June 25,

1868, 15 Stat. 73, declaring that the States of North Carolina, South

Carolina, Louisiana, Georgia, Alabama, and Florida, would be admitted to

representation in Congress when their legislatures had ratified the

Fourteenth Amendment.  Other conditions were also imposed, including a

requirement that Georgia nullify certain provisions of its Constitution.

 Ibid.  Arkansas, which had already ratified the Fourteenth Amendment,

was readmitted by Act of June 22, 1868, 15 Stat. 72.  Virginia was

readmitted by Act of Jan. 26, 1870, 16 Stat. 62; Mississippi by Act of

Feb. 23, 1870, 16 Stat. 67, and Texas by Act of Mar. 30, 1870, 16 Stat.

80.  Georgia was not finally readmitted until later, by Act of July 15,

1870, 16 Stat. 363.



42. Discussing the bill which eventuated in the Act of June 25, 1868,

see note 41, supra, Thaddeus Stevens said:



Now, sir, what is the particular question we are considering?  Five or

six States have had submitted to them the question of forming

constitutions for their own government.  They have voluntarily formed

such constitutions, under the direction of the Government of the United

States. . . .  They have sent us their constitutions.  Those

constitutions have been printed and laid before us.  We have looked at

them; we have pronounced them republican in form, and all we propose to

require is that they shall remain so forever.  Subject to this

requirement, we are willing to admit them into the Union. Cong.Globe,

40th Cong., 2d Sess., 2465 (1868).  See also the remarks of Mr. Butler,

infra



he close attention given the various Constitutions is attested by the

Act of June 25, 1868, which conditioned Georgia's readmission on the

deletion of the first and third subdivisions of section seventeen of the

fifth article of the constitution of said State, except the proviso to

the first subdivision. . . . 15 Stat. 73.  The sections involved are

printed in Sen.Ex.Doc. No. 57, 40th Cong., 2d Sess., 14-15.



Compare United States v. Florida, 363 U.S. 121, 124-127.



43. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 2412-2413, 2858-2860,

2861-2871, 2895-2900, 2901-2904, 2927-2935, 2963-2970, 2998-3022,

3023-3029 (1868).



44. Cong.Globe, 40th Cong., 2d Sess., 3090-3091 (1868).



45. Id. at 3092.



46. Ala.Const., 1867, Art. VIII,  1; Fla.Const., 1868, Art. XIV;

Ga.Const., 1868, Art. III,  3,  1; La.Const., 1868, Tit. II, Art. 20;

N.C.Const., 1868, Art. II,  6; S.C.Const., 1868, Art. II,  6, 8.



47. N.C.Const., 1868, Art. II,  6.  There were 90 counties.  Census

52-53.



48. Ibid.



49. S.C.Const., 1868, Art. II,  8; Census 60.



50. Fla.Const., 1868, Art. XIV.



51. Census 18-19.



52. Ala.Const., 1875, Art. IX,  2, 3; Ala.Const., 1901, Art. IX,  198,

199.



53. Fla.Const., 1885, Art. VII,  3.



54. La.Const., 1877, Art. III,  III.



55. La.Const., 1879, Art. 16.



56. Miss.Const., 1890, Art. 13,  256.



57. Mo.Const., 1875, Art. IV,  2.



58. Mont.Const., 1889, Art. V,  4, Art. VI,  4.



59. N.H.Const., 1792, Part Second,  IX-XI, XXVI, as amended.



60. N.H Const., 1902, Part Second, Arts. 9, 10, 25.



61. N.Y.Const., 1894, Art. III,  4.



62. N.Y.Const., 1894, Art. III,  5.



63. N.C.Const., 1876, Art. II,  5.



64. Okla.Const., 1907, Art. V,  10.



65. Pa.Const., 1873, Art. II,  17.



66. S.C.Const., 1895, Art. III,  4, 6.



67. Utah Const., 1895, Art. IX,  4.



68. Wyo.Const., 1889, Art. III,  3.



69. A tabular presentation of constitutional provisions for

apportionment as of Nov. 1, 1961, appears in The Book of the States

1962-1963, 58-62.  Using this table, but disregarding some deviations

from a pure population base, the Advisory Commission on

Intergovernmental Relations states that there are 15 States in which the

legislatures are apportioned solely according to population.

Apportionment of State Legislatures (1962), 12.



70. Compare the Court's statement in Guinn v. United States, 238 U.S.

347, 362:



. . .  Beyond doubt, the [Fifteenth] Amendment does not take away from

the state governments in a general sense the power over suffrage which

has belonged to those governments from the beginning and without the

possession of which power the whole fabric upon which the division of

state and national authority under the Constitution and the organization

of both governments rest would be without support and both the authority

of the nation and the State would fall to the ground.  In fact, the very

command of the Amendment recognizes the possession of the general power

by the State, since the Amendment seeks to regulate its exercise as to

the particular subject with which it deals.



71. The quoted phrases are taken from the Jurisdictional Statement,

pp.13, 19.



72. In two early cases dealing with party primaries in Texas, the Court

indicated that the Equal Protection Clause did afford some protection of

the right to vote.  Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286

U.S. 73.  Before and after these cases, two cases dealing with the

qualifications for electors in Oklahoma had gone off on the Fifteenth

Amendment, Guinn v. United States, 238 U.S. 347; Lane v. Wilson, 307

U.S. 268.  The rationale of the Texas cases is almost certainly to be

explained by the Court's reluctance to decide that party primaries were

a part of the electoral process for purposes of the Fifteenth Amendment.

 See Newberry v. United States, 256 U.S. 232.  Once that question was

laid to rest in United States v. Classic, 313 U.S. 299, the Court

decided subsequent cases involving Texas party primaries on the basis of

the Fifteenth Amendment.  Smith v. Allwright, 321 U.S. 649; Terry v.

Adams, 345 U.S. 461.



The recent decision in Gomillion v. Lightfoot, 364 U.S. 339, that a

constitutional claim was stated by allegations that municipal lines had

been redrawn with the intention of depriving Negroes of the right to

vote in municipal elections was based on the Fifteenth Amendment.  Only

one Justice, in a concurring opinion, relied on the Equal Protection

Clause of the Fourteenth Amendment.  Id. at 349.



73. The measures were adopted on July 12, 1962.  The District Court

handed down its opinion on July 21, 1962.



74. In reversing an initial order of the Circuit Court for Anne Arundel

County dismissing the plaintiffs' complaint, the Maryland Court of

Appeals directed the lower court to hear evidence on and determine the

plaintiffs' constitutional claims, and, if it found provisions of the

Maryland Constitution to be invalid, to declare that the Legislature has

the power, if called into Special Session by the Governor and such

action be deemed appropriate by it, to enact a bill reapportioning its

membership for purposes of the November, 1962, election. Maryland

Committee for Fair Representation v. Tawes, 228 Md. 412, 438-439, 180

A.2d 656, 670.  On remand, the opinion of the Circuit Court included

such a declaration.  The opinion was filed on May 24, 1962.  The

Maryland Legislature, in Special Session, adopted the "emergency"

measures now declared unconstitutional seven days later, on May 31,

1962.



75. The Virginia Constitution, Art. IV,  43, requires that a

reapportionment be made every 10 years.



76. The 1962 reapportionment acts were approved on Apr. 7, 1962.  The

complaint was filed on Apr. 9, 1962.



77. The District Court handed down its opinion on Nov. 28, 1962, and

gave the Virginia General Assembly until Jan. 31, 1963, "to enact

appropriate reapportionment laws."  213 F.Supp. at 585-586.  The court

stated that, failing such action or an appeal to this Court, the

plaintiffs might apply to it "for such further orders as may be

required."  Id. at 586.



78. On Dec. 15, 1962, THE CHIEF JUSTICE granted a stay pending final

disposition of the case in this Court.



79. The Delaware Constitution, Art. XVI,  1, requires that amendments be

approved by the necessary two-thirds vote in two successive General

Assemblies.



80. The District Court thus nailed the lid on the "box of time" in which

everyone seemed to it "to be trapped."  The lid was temporarily opened a

crack on June 27, 1963, when MR. JUSTICE BRENNAN granted a stay of the

injunction until disposition of the case by this Court.  Since the Court

states that the delay inherent in following the state constitutional

prescription for approval of constitutional amendments by two successive

General Assemblies cannot be allowed to result in an impermissible

deprivation of appellees' right to an adequate voice in the election of

legislators to represent them, post, p. 711, the lid has presumably been

slammed shut again.



81. In New York and Colorado, this pattern of conduct has thus far been

avoided.  In the New York case (No. 20, post, p. 633), the District

Court twice dismissed the complaint, once without reaching the merits,

WMCA, Inc. v. Simon, 202 F.Supp. 741, and once, after this Court's

remand following Baker v. Carr, supra, 370 U.S. 190, on the merits, 208

F.Supp. 368.  In the Colorado case (No. 508, post, p. 713), the District

Court first declined to interfere with a forthcoming election at which

reapportionment measures were to be submitted to the voters, Lisco v.

McNichols, 208 F.Supp. 471, and, after the election, upheld the

apportionment provisions which had been adopted, 219 F.Supp. 922.



In view of the action which this Court now takes in both of these cases,

there is little doubt that the legislatures of these two States will now

be subjected to the same kind of pressures from the federal judiciary as

have the other States.



82. It is not mere fancy to suppose that, in order to avoid problems of

this sort, the Court may one day be tempted to hold that all state

legislators must be elected in statewide elections.



83. Ante,



84. Ante,



85. Ante, p. 580



86. Ibid.



87. Ibid.



88. Ibid.



89. Ante, pp.576-577



90. Davis v. Mann, post, p. 691.



91. Id. at 692.



92. Lucas v. Forty-Fourth General Assembly, post, p. 736.



93. Ante,



94. The Court does note that, in view of modern developments in

transportation and communication, it finds "unconvincing" arguments

based on a desire to insure representation of sparsely settled areas or

to avoid districts so large that voters' access to their representatives

is impaired.  Ante, HARLAN, J., dissenting (Footnotes)



*All page references are to Cong.Globe, 39th Cong., 1st Sess. (1866). 