U.S. Supreme Court Reynolds v. Sims, 377
U.S. 533 (1964) Reynolds v. Sims No. 23 Argued November 13,
1963 Decided June 15, 1964 377
U.S. 533 ast|>* 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 Page 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. Pp. 377 U. S.
554 -555.

															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. Pp. 377 U. S.
556 -557.

															3. The Equal Protection Clause requires substantially equal
legislative representation for all citizens in a State regardless
of where they reside. Pp. 377 U. S.
56 l-568.

															(a) Legislators represent people, not areas. P. 377 U. S.
562 .

															(b) Weighting votes differently according to where citizens
happen to reside is discriminatory. Pp. 377 U. S.
563 -568.

															4. The seats in both houses of a bicameral legislature must,
under the Equal Protection Clause, be apportioned substantially on
a population basis. Pp. 377 U.S.
568 -576.

															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. Pp. 377 U.S. 568 -571.

															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. Pp. 377 U.S. 571 -577.

															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 Page 377 U. S. 535 flexibility may be constitutionally permissible for state
legislative apportionment than for congressional districting. Pp. 377 U.S. 577 -581.

															(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. Pp. 377 U.S. 578 -579.

															(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. P. 377 U.S. 579 .

															(c) Considerations of history, economic or other group
interests, or area alone do not justify deviations from the equal
population principle. Pp. 377 U.S.
579 -580.

															(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. Pp. 377 U.S. 580 -581.

															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. P. 377 U.S. 582 .

															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. Pp. 377
U.S. 583 -584.

															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. P. 377 U.S.
584 .

															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. P. 377 U.S.
585 .

															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 Page 377 U. S. 536 to give the reapportioned legislature an opportunity to act
effectively. Pp. 377 U.S.
586 -587. 208 F.
Supp. 431 , affirmed and remanded for further proceedings.

															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 Page 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. [ Footnote 1 ] 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.
[ Footnote 2 ] 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 Page 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 Page 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 Page 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.
[ Footnote 3 ]

															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 Page 377 U. S. 541 to population decennially, [ Footnote 4 ] that court had nevertheless indicated that it
would not interfere with matters of legislative reapportionment.
[ Footnote 5 ]

															Plaintiffs requested that a three-judge District Court be
convened. [ Footnote 6 ] 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 Page 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. [ Footnote 7 ] Continuing, the Court
stated Page 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 [ Footnote 8 ] -- 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." [ Footnote 9 ] It provided for a House of Representatives
consisting of 106 members, apportioned by giving Page 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.
[ Footnote 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."
[ Footnote 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 Page 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 Page 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. [ Footnote 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, [ Footnote 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. [ Footnote 14 ]

															The Court then considered both the proposed constitutional
amendment and the Crawford-Webb Act to ascertain Page 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. [ Footnote 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 Page 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. [ Footnote 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,"
[ Footnote 17 ] but the
Alabama Supreme Court had previously indicated that that
requirement could probably be altered only by constitutional
convention. [ Footnote 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 Page 377 U. S. 549 standards of apportionment." [ Footnote 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." [ Footnote 20 ]
Under this plan, about 37% of the State's total Page 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." [ Footnote 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. [ Footnote 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 Page 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. [ Footnote 23 ] " Page 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 Page 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, [ Footnote 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. [ Footnote
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, [ Footnote 26 ] or as a result of a
constitutional convention convened Page 377 U. S. 554 after approval by the people of a convention call initiated by a
majority of both houses of the Alabama Legislature. [ Footnote 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. Page 377 U. S. 555 at 238 U. S. 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 , 313 U. S. 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 313 U. S. 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. [ Footnote 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.
[ Footnote 29 ] Page 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.
[ Footnote 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. [ Footnote 31 ] " Page 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. [ Footnote 32 ]"

															Subsequent to Baker, we remanded several cases to the
courts below for reconsideration in light of that decision.
[ Footnote 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, Page 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. [ Footnote 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. [ Footnote
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. [ Footnote 36 ] Page 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. [ Footnote 37 ]"

															We found further, in Wesberry, that "our Constitution's
plain objective" was that "of making equal representation Page 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. [ Footnote 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 Page 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 , 246 U. S. 227 ,
"[t]he right to vote is personal. . . ." [ Footnote 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 316 U. S. 536 , 316 U. S. 541 .
Undoubtedly, the right of suffrage is a fundamental matter Page 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 118 U. S.
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 Page 377 U. S. 563 state legislative districting schemes which give the same number
of representatives to unequal numbers of constituents is identical.
[ Footnote 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 , 307 U. S. 275 ; Gomillion v. Lightfoot, 364 U. S. 339 , 364 U. S. 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 Page 377 U. S. 564 more in one district than in another would . . . run counter to
our fundamental ideas of democratic government. . . . [ Footnote 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 Page 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 Page 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. [ Footnote 42 ] Page 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. [ Footnote 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. [ Footnote 44 ] Page 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. [ Footnote 45 ] Although Page 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 Page 377 U. S. 570 of seats in the Alabama Legislature for over 60 years. [ Footnote 46 ] Legislative inaction,
coupled with the unavailability of any political or Judicial
remedy, [ Footnote 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.
[ Footnote 48 ] Page 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,
[ Footnote 49 ] Page 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. [ Footnote 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 Page 377 U. S. 573 amendment. [ Footnote 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. [ Footnote 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. [ Footnote 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. [ Footnote
54 ] Page 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.
[ Footnote 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 Page 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.
[ Footnote 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 , 207 U. S. 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 Page 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 Page 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.
[ Footnote 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 Page 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. 83 U. S. 16
Wall. 36, 83 U. S. 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 Page 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 [ Footnote 58 ] or floterial districts.
[ Footnote 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. [ Footnote 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, [ Footnote 61 ] nor economic or other
sorts of Page 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 Page 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. [ Footnote 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. [ Footnote 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. Page 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.
[ Footnote 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. Page 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, [ Footnote 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 Page 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. Page 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. [ Footnote 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."
[ Footnote 67 ] Page 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, [ Footnote 68 ] was an appropriate
and Page 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. * 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.

															[ Footnote 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. [ Footnote 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.

															[ Footnote 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).

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 6 ]

															Under 28 U.S.C. §§ 2281 and 2284.

															[ Footnote 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.

															[ Footnote 8 ] See 369 U.S. at 369
U.S. 260 (CLARK, J., concurring).

															[ Footnote 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.

															[ Footnote 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).

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 15 ]

															208 F. Supp. at 437.

															[ Footnote 16 ] Id. at 438

															[ Footnote 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.

															[ Footnote 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).

															[ Footnote 19 ] See the later discussion, infra at 377 U.S. 568 -569, 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.

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 23 ]

															208 F. Supp. at 439.

															[ Footnote 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.

															[ Footnote 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. 377 U. S.
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.

															[ Footnote 26 ]

															Ala.Const., Art. XVIII, § 284.

															[ Footnote 27 ]

															Ala.Const., Art. XVIII, § 286.

															[ Footnote 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.

															[ Footnote 29 ]

															As stated by MR. JUSTICE DOUGLAS, dissenting in South v.
Peters, 339 U. S. 276 , 339 U. S.
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."

															[ Footnote 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).

															[ Footnote 31 ]

															369 U.S. at 369 U. S.
198 .

															[ Footnote 32 ] Id. at 369 U. S.
226 .

															[ Footnote 33 ] Scholle v. Hare, 369 U. S. 429 (Michigan); WMCA, Inc., v. Simon, 370 U.
S. 190 (New York).

															[ Footnote 34 ]

															372 U.S. at 372 U. S.
379 -380.

															[ Footnote 35 ] Id. at 372 U. S.
381 .

															[ Footnote 36 ] Id. at 372 U. S. 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 372 U. S.
378 .

															[ Footnote 37 ]

															376 U.S. at 376 U. S. 14 .

															[ Footnote 38 ] Id. at 376 U. S.
17 -18.

															[ Footnote 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 339 U. S. 280 ,
and are "important political rights of the people," MacDougall
v. Green, 335 U. S. 281 , 335 U. S. 288 .
(DOUGLAS, J., dissenting.)

															[ Footnote 40 ]

															As stated by MR. JUSTICE BLACK, dissenting, in Colegrove v.
Green, 328 U. S. 549 , 328 U. S.
569 -571:

															"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."

															[ Footnote 41 ]

															376 U.S. at 376 U. S. 8 . See also id. at 376 U. S. 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 335 U. S. 288 , 335 U. S.
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."

															[ Footnote 42 ]

															364 U.S.at 364 U. S.
347 [ Footnote 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.

															[ Footnote 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 369 U.S. 302 -307. (Frankfurter, J.,
dissenting.)

															[ Footnote 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.

															[ Footnote 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).

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 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).

															[ Footnote 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 377 U. S.
547 -548.

															[ Footnote 52 ]

															Report of Advisory Commission on Intergovernmental Relations,
Apportionment of State Legislatures 10-11, 35, 69 (1962).

															[ Footnote 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.

															[ Footnote 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."

															[ Footnote 55 ] See the discussion in Wesberry v. Sanders, 376
U.S. at 376 U. S. 14 .

															[ Footnote 56 ]

															372 U.S. at 372 U. S.
378 .

															[ Footnote 57 ]

															As stated by the Court in Bain Peanut Co. v. Pinson, 282 U. S. 499 , 282 U. S. 501 ,
"We must remember that the machinery of government would not work
if it were not allowed a little play in its joints."

															[ Footnote 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. 377 U. S.
731 -732, decided also this date.

															[ Footnote 59 ] See the discussion of the concept of floterial
districts in Davis v. Mann, post, pp. 377 U. S.
686 -687, n. 2, decided also this date.

															[ Footnote 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.

															[ Footnote 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 376 U. S. 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.

															[ Footnote 62 ] See McKay, Political Thickets and Crazy Quilts:
Reapportionment and Equal Protection, 61 Mich.L.Rev. 645, 699-699
(1963).

															[ Footnote 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.

															[ Footnote 64 ] See 369 U.S. at 369 U. S.
217 -232, discussing the nonjusticiability of
malapportionment claims asserted under the Guaranty Clause.

															[ Footnote 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.

															[ Footnote 66 ] Cf. Baker v. Carr, 369 U. S. 186 , 369 U. S. 198 . See also 369 U.S. at 369
U.S. 250 -251 (DOUGLAS, J., concurring), and passages from Baker quoted in this opinion, supra, at 377 U. S. 556 , 377 U. S. 557 ,
and infra. [ Footnote 67 ]

															369 U.S. at 369 U.S.
250 .

															[ Footnote 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 377 U.S.
568 -569.

															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 , 372 U. S. 381 (1963), i.e., "one person, one vote," modified by the
"nearly as is practicable" admonition of Wesberry v.
Sanders, 376 U. S. 1 , 376 U. S. 8 (1964).* Whether "nearly as is Page 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 , 369 U.S. 253 -258
(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. 377 U. S. 741 , decided this date.

															* 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.

															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. 377 U. S. 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 Page 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.

															MR. JUSTICE HARLAN, dissenting.*

															In these cases, the Court holds that seats in the legislatures
of six States [ Footnote 2/1 ] 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.
[ Footnote 2/2 ] 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,
[ Footnote 2/3 ] I must register my
protest. Page 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 , 369 U.S. 266 , 369 U.S. 301 -323) -- 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. 377 U. S. 533 ) and
more particularly at pages 377 U. S. 561 -568 thereof, is remarkable (as, indeed, is
that found in the separate opinions of my Brothers STEWART and
CLARK, ante, pp. 377 U.S.
588 , 377 U.S. 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 Page 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), [ Footnote
2/4 ] 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 Page 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 369 U.S. 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. [ Footnote 2/5 ]
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. [ Footnote 2/6 ] Page 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 372 U. S. 376 ,
and the concurring opinion of STEWART, J., joined by CLARK, J., id. at 372 U. S.
381 -382.

															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 376 U. S. 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 Page 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, [ Footnote 2/7 ] which reported it to the Congress. It was
discussed as a unit in Congress, and proposed as a unit to the
States, [ Footnote 2/8 ] 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. [ Footnote
2/9 ] 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. Page 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, [ Footnote 2/10 ] 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 Page 377 U. S. 596 shall bear to the whole number of male citizens not less than
twenty-one years of age. [ Footnote
2/11 ]"

															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. [ Footnote 2/12 ]"

															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. [ Footnote 2/13 ]

															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 Page 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. [ Footnote 2/14 ]"

															He turned next to the second section, which he said he
considered "the most important in the article." [ Footnote 2/15 ] Its effect, he said, was to fix
"the basis of representation in Congress." [ Footnote 2/16 ] 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. [ Footnote 2/17 ] " Page 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." [ Footnote 2/18 ]

															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, [ Footnote
2/19 ] 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. [ Footnote 2/20 ]"

															(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 Page 377 U. S. 599 despotic government, and thereby deny suffrage to the people.
[ Footnote 2/21 ]"

															(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. [ Footnote 2/22 ]"

															(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, [ Footnote 2/23 ]
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 377
U.S. 533 appa|>Appendix A hereto are some of those
statements. The resolution was adopted by the House without change
on May 10. [ Footnote 2/24 ] Page 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 ]. [ Footnote
2/25 ]"

															(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 Page 377 U. S. 601 at all." [ Footnote 2/26 ] 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. [ Footnote
2/27 ]"

															(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 Page 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 377
U.S. 533 appb|>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. [ Footnote 2/28 ] As changed, it passed in the House
on June 13. [ Footnote 2/29 ]

															(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. [ Footnote 2/30 ] 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.
[ Footnote 2/31 ] Page 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. [ Footnote 2/32 ] 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. [ Footnote 2/33 ] In the House, each county
was entitled to one representative, which left 39 seats to be
apportioned according to population. [ Footnote 2/34 ] Since there were 12 counties besides the
two already mentioned which had populations over 30,000, [ Footnote 2/35 ] it is evident that there
were serious disproportions in the House also. In Page 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. [ Footnote 2/36 ] This left 69 seats to be
distributed among counties the populations of which ranged from
15,420 to 942,292. [ Footnote
2/37 ] With seven more counties having populations over 100,000
and 13 others having populations over 50,000, [ Footnote 2/38 ] 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. [ Footnote 2/39 ] 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. [ Footnote 2/40 ]

															(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.
[ Footnote 2/41 ] The Constitution
of each was scrutinized in Congress. [ Footnote 2/42 ] Debates over readmission Page 377 U. S. 605 were extensive. [ Footnote
2/43 ] 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 Page 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. [ Footnote 2/44 ]"

															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.
[ Footnote 2/45 ]"

															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. [ Footnote 2/46 ] 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. [ Footnote 2/47 ] 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. [ Footnote 2/48 ] 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 Page 377 U. S. 607 42,486, elected one Senator. [ Footnote 2/49 ] In Florida, each of the 39 counties was
entitled to elect one Representative; no county was entitled to
more than four. [ Footnote 2/50 ]
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. [ Footnote
2/51 ]

															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 Page 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. [ Footnote 2/52 ] 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.
[ Footnote 2/53 ] Georgia, in 1877,
continued to favor the smaller counties. [ Footnote 2/54 ] Louisiana, in 1879, guaranteed each
parish at least one representative in the House. [ Footnote 2/55 ] 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 Page 377 U. S. 609 the spread of population. [ Footnote 2/56 ] Missouri's Constitution of 1875 gave
each county one representative and otherwise favored less populous
areas. [ Footnote 2/57 ] Montana's
original Constitution of 1889 apportioned the State Senate by
counties. [ Footnote 2/58 ] 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; [ Footnote 2/59 ] the
same was true of New Hampshire's Constitution of 1902. [ Footnote 2/60 ]

															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. [ Footnote 2/61 ] In addition, each county except Hamilton
was guaranteed a seat in the Assembly. [ Footnote 2/62 ] The North Carolina Constitution of 1876
gave each county at least one representative and fixed a maximum
number of representatives for the whole House. [ Footnote 2/63 ] 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 Page 377 U. S. 610 representatives. [ Footnote
2/64 ] Pennsylvania, in 1873, continued to guarantee each county
one representative in the House. [ Footnote 2/65 ] The same was true of South Carolina'
Constitution of 1895, which provided also that each county should
elect one and only one Senator. [ Footnote 2/66 ] Utah's original Constitution of 1895
assured each county of one representative in the House. [ Footnote 2/67 ] Wyoming, when it entered
the Union in 1889, guaranteed each county at least one Senator and
one representative. [ Footnote
2/68 ] 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. 377 U. S. 633 .
[ Footnote 2/69 ] Since Page 377 U. S. 611 Tennessee, which was the subject of Baker v. Carr, and
Virginia, scrutinized and disapproved today in No. 69, post, p. 377 U. S. 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 Page 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 88 U. S.
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? [ Footnote 2/70 ] 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 Page 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. [ Footnote 2/71 ] 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 Page 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 369 U.S. 235 -236. 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. [ Footnote
2/72 ] * * * * 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 Page 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 Page 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. 377 U.S.
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, pp. 377 U. S.
543 -551. Both of these measures had been adopted only
nine days before, [ Footnote 2/73 ]
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, p. 377 U. S. 552 .
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. 377 U.S. 586 , and approves the District
Court's avowed intention of taking "some further action" unless the
State Legislature acts by 1966, ante, p. 377 U.S. 587 .

															In the Maryland case (No. 29, post, p. 377 U. S. 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. [ Footnote
2/74 ] Thereafter, the Page 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 377 U. S. 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 377 U. S.
676 .

															In the Virginia case (No. 69, post, p. 377 U. S. 678 ),
the State Legislature in 1962 complied with the state
constitutional requirement of regular reapportionment. [ Footnote 2/75 ] Two days later, a
complaint was filed in the District Court. [ Footnote 2/76 ] Eight months later, the legislative
reapportionment was Page 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. [ Footnote 2/77 ] Only a stay granted by a member of
this Court slowed the process; [ Footnote 2/78 ] 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. 377 U. S.
693 .

															In Delaware (No. 307, post, p. 377 U. S. 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 Page 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. [ Footnote 2/79 ]
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. [ Footnote 2/80 ] This Court now approves all these Page 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. 377 U. S. 710 .
[ Footnote 2/81 ]

															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, p. 377 U.S. 566 . By thus refusing to
recognize the bearing which a potential for Page 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, p. 377 U.S. 578 . 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 Page 377 U. S. 622 solutions, with varying political consequences, than
reapportionment broadside. [ Footnote
2/82 ]

															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, p. 377 U.S.
578 . 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. 377 U.S. 578 -579, 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; [ Footnote
2/83 ]

															(2) "economic or other sorts of group interests"; [ Footnote 2/84 ]

															(3) area; [ Footnote 2/85 ]

															(4) geographical considerations; [ Footnote 2/86 ]

															(5) a desire "to insure effective representation for sparsely
settled areas"; [ Footnote
2/87 ] Page 377 U. S. 623 (6) "availability of access of citizens to their
representatives"; [ Footnote
2/88 ]

															(7) theories of bicameralism (except those approved by the
Court); [ Footnote 2/89 ]

															(8) occupation; [ Footnote
2/90 ]

															(9) "an attempt to balance urban and rural power." [ Footnote 2/91 ]

															(10) the preference of a majority of voters in the state.
[ Footnote 2/92 ]

															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. . . ." [ Footnote
2/93 ]

															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. 377 U. S. 662 ;
that "citizens, not history or economic interests, cast votes," ante, p. 377 U.S.
580 ; that "people, not land or trees or pastures, vote," ibid. [ Footnote 2/94 ]
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 Page 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 376 U. S. 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 Page 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.

															* [This opinion applies also to No . 20, WMCA, Inc. et al.
v. Lomenzo, Secretary of State of New York, et al., post, p. 377 U. S. 633 ; No.
29, Maryland Committee for Fair Representation et al. v. Tawes,
Governor, et al., post, p. 377 U. S. 656 ; No.
69, Davis, Secretary, State Board of Elections, et al. v. Mann
et al., post, p. 377 U. S. 678 ; No.
307, Roman, Clerk, et al. v. Sincock et al., post, p. 377 U. S. 695 , and
No. 508, Lucas et al. v. Forty-Fourth General Assembly of
Colorado et al., post, p. 377 U. S.
713 .]

															[ Footnote 2/1 ]

															Alabama, Colorado, Delaware, Maryland, New York, Virginia

															[ Footnote 2/2 ]

															In the Virginia case, Davis v. Mann, post, p. 377 U. S. 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. 377 U. S. 556 ,
note 30. See infra, pp. 377 U.S. 610 -611.

															[ Footnote 2/3 ] See Baker v. Carr, 369 U. S. 186 , 369 U.S. 330 , and the
dissenting opinion of Frankfurter, J., in which I joined, id. at 369 U.S.
266 ; Gray v. Sanders, 372 U.
S. 368 , 372 U. S. 382 ; Wesberry v. Sanders, 376 U. S. 1 , 376 U. S. 20 .

															[ Footnote 2/4 ]

															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, 48 U. S. 42 -44; Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U. S. 74 , 281 U. S. 79 -80; Highland Farms Dairy, Inc., v. Agnew, 300 U.
S. 608 , 300 U. S. 612 .
In Baker v. Carr, supra, at 369 U. S. 227 , the
Court stated that reliance on the Republican Form of Government
Clause "would be futile."

															[ Footnote 2/5 ]

															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 369 U. S.
226 .

															Except perhaps for the "crazy quilt" doctrine of my Brother
CLARK, 369 U.S. at 369 U.S.
251 , nothing is added to this by any of the concurring
opinions, id. at 369 U.S.
241 , 369 U.S.
265 .

															[ Footnote 2/6 ]

															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.

															[ Footnote 2/7 ] See the Journal of the Committee, reprinted in
Kendrick, The Journal of the Joint Committee of Fifteen on
Reconstruction (1914), 83-117.

															[ Footnote 2/8 ] See the debates in Congress, Cong.Globe, 39th Cong.,
1st Sess., 2459-3149, passim (1866) (hereafter Globe).

															[ Footnote 2/9 ]

															Globe 3040.

															[ Footnote 2/10 ]

															Globe 2265, 2286.

															[ Footnote 2/11 ]

															As reported in the House. Globe 2286. For prior versions of the
Amendment in the Reconstruction Committee, see Kendrick, op. cit. supra, 377
U.S. 533 fn2/7|>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. [ Footnote 2/12 ]

															Globe 2459

															[ Footnote 2/13 ] 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.

															[ Footnote 2/14 ]

															Globe 2459

															[ Footnote 2/15 ] Ibid. [ Footnote 2/16 ] Ibid. [ Footnote 2/17 ] Ibid. [ Footnote 2/18 ]

															Globe 2460.

															[ Footnote 2/19 ]

															Kendrick, op. cit. supra, note 377
U.S. 533 fn2/7|>7, 87, 106; Flack, op. cit. supra, note 11, 60-68, 71.

															[ Footnote 2/20 ]

															Globe 2542.

															[ Footnote 2/21 ] 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.

															[ Footnote 2/22 ] Ibid. [ Footnote 2/23 ]

															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. [ Footnote 2/24 ]

															Globe 2545

															[ Footnote 2/25 ]

															Globe 2766.

															[ Footnote 2/26 ] Ibid. [ Footnote 2/27 ] Ibid. [ Footnote 2/28 ]

															Globe 3042.

															[ Footnote 2/29 ]

															Globe 3149

															[ Footnote 2/30 ]

															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).

															[ Footnote 2/31 ]

															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.

															[ Footnote 2/32 ]

															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.

															[ Footnote 2/33 ]

															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.

															[ Footnote 2/34 ]

															N.J.Const., 1844, Art. IV. III, cl. 1. Census 49.

															[ Footnote 2/35 ] Ibid. [ Footnote 2/36 ]

															N.Y.Const., 1846, Art. III, §§ 2, 5. Census 50-51.

															[ Footnote 2/37 ] Ibid. [ Footnote 2/38 ] Ibid. [ Footnote 2/39 ]

															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.

															[ Footnote 2/40 ]

															Census 67.

															[ Footnote 2/41 ]

															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.

															[ Footnote 2/42 ]

															Discussing the bill which eventuated in the Act of June 25,
1868, see 377
U.S. 533 fn2/41|>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 p. 377 U.S. 606 .

															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 , 363 U. S.
124 -127.

															[ Footnote 2/43 ] 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).

															[ Footnote 2/44 ]

															Cong.Globe, 40th Cong., 2d Sess., 3090-3091 (1868).

															[ Footnote 2/45 ] Id. at 3092.

															[ Footnote 2/46 ]

															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.

															[ Footnote 2/47 ]

															N.C.Const., 1868, Art. II, § 6. There were 90 counties. Census
52-53.

															[ Footnote 2/48 ] Ibid. [ Footnote 2/49 ]

															S.C.Const., 1868, Art. II, § 8; Census 60.

															[ Footnote 2/50 ]

															Fla.Const., 1868, Art. XIV.

															[ Footnote 2/51 ]

															Census 18-19.

															[ Footnote 2/52 ]

															Ala.Const., 1875, Art. IX, §§ 2, 3; Ala.Const., 1901, Art. IX,
§§ 198, 199.

															[ Footnote 2/53 ]

															Fla.Const., 1885, Art. VII, § 3.

															[ Footnote 2/54 ]

															La.Const., 1877, Art. III, § III.

															[ Footnote 2/55 ]

															La.Const., 1879, Art. 16.

															[ Footnote 2/56 ]

															Miss.Const., 1890, Art. 13, § 256.

															[ Footnote 2/57 ]

															Mo.Const., 1875, Art. IV, § 2.

															[ Footnote 2/58 ]

															Mont.Const., 1889, Art. V, § 4, Art. VI, § 4.

															[ Footnote 2/59 ]

															N.H.Const., 1792, Part Second, §§ IX-XI, XXVI, as amended.

															[ Footnote 2/60 ]

															N.H Const., 1902, Part Second, Arts. 9, 10, 25.

															[ Footnote 2/61 ]

															N.Y.Const., 1894, Art. III, § 4.

															[ Footnote 2/62 ]

															N.Y.Const., 1894, Art. III, § 5.

															[ Footnote 2/63 ]

															N.C.Const., 1876, Art. II, § 5.

															[ Footnote 2/64 ]

															Okla.Const., 1907, Art. V, § 10.

															[ Footnote 2/65 ]

															Pa.Const., 1873, Art. II, § 17.

															[ Footnote 2/66 ]

															S.C.Const., 1895, Art. III, §§ 4, 6.

															[ Footnote 2/67 ]

															Utah Const., 1895, Art. IX, § 4.

															[ Footnote 2/68 ]

															Wyo.Const., 1889, Art. III, § 3.

															[ Footnote 2/69 ]

															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.

															[ Footnote 2/70 ] Compare the Court's statement in Guinn v. United
States, 238 U. S. 347 , 238 U. S.
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."

															[ Footnote 2/71 ]

															The quoted phrases are taken from the Jurisdictional Statement,
pp.13, 19.

															[ Footnote 2/72 ]

															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 364 U. S.
349 .

															[ Footnote 2/73 ]

															The measures were adopted on July 12, 1962. The District Court
handed down its opinion on July 21, 1962.

															[ Footnote 2/74 ]

															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.

															[ Footnote 2/75 ]

															The Virginia Constitution, Art. IV, § 43, requires that a
reapportionment be made every 10 years.

															[ Footnote 2/76 ]

															The 1962 reapportionment acts were approved on Apr. 7, 1962. The
complaint was filed on Apr. 9, 1962.

															[ Footnote 2/77 ]

															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.

															[ Footnote 2/78 ]

															On Dec. 15, 1962, THE CHIEF JUSTICE granted a stay pending final
disposition of the case in this Court.

															[ Footnote 2/79 ]

															The Delaware Constitution, Art. XVI, § 1, requires that
amendments be approved by the necessary two-thirds vote in two
successive General Assemblies.

															[ Footnote 2/80 ]

															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. 377 U. S. 711 ,
the lid has presumably been slammed shut again.

															[ Footnote 2/81 ]

															In New York and Colorado, this pattern of conduct has thus far
been avoided. In the New York case (No. 20, post, p. 377 U. S. 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. 377 U. S. 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.

															[ Footnote 2/82 ]

															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.

															[ Footnote 2/83 ] Ante, p. 377 U.S.
579 .

															[ Footnote 2/84 ] Ante, pp. 377 U.S.
579 -580.

															[ Footnote 2/85 ] Ante, p. 580

															[ Footnote 2/86 ] Ibid. [ Footnote 2/87 ] Ibid. [ Footnote 2/88 ] Ibid. [ Footnote 2/89 ] Ante, pp. 377 U.S.
576 -577

															[ Footnote 2/90 ] Davis v. Mann, post, p. 377 U. S.
691 .

															[ Footnote 2/91 ] Id. at 377 U. S.
692 .

															[ Footnote 2/92 ] Lucas v. Forty-Fourth General Assembly, post, p. 377 U. S.
736 .

															[ Footnote 2/93 ] Ante, p. 377 U.S.
581 .

															[ Footnote 2/94 ]

															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, p. 377 U.S. 580 .

															| 377
U.S. 533 appa| 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.* Page 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 Page 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). Page 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 Page 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).

															| 377
U.S. 533 appb| 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 Page 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 Page 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 Page 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).

															*All page references are to Cong.Globe, 39th Cong., 1st Sess.
(1866).