U.S. Supreme Court Baker v. Carr, 369
U.S. 186 (1962) Baker v. Carr No. 6 Argued April 19-20,
1961 Set for reargument May 1,
1961 Reargued October 9,
1961 Decided March 26,
1962 369
U.S. 186 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF
TENNESSEE Syllabus Appellants are persons allegedly qualified to vote for members
of the General Assembly of Tennessee representing the counties in
which they reside. They brought suit in a Federal District Court in
Tennessee under 42 U.S.C. §§ 1983 and 1988, on behalf of themselves
and others similarly situated, to redress the alleged deprivation
of their federal constitutional rights by legislation classifying
voters with respect to representation in the General Assembly. They
alleged that, by means of a 1901 statute of Tennessee arbitrarily
and capriciously apportioning the seats in the General Assembly
among the State's 95 counties, and a failure to reapportion them
subsequently notwithstanding substantial growth and redistribution
of the State's population, they suffer a "debasement of their
votes," and were thereby denied the equal protection of the laws
guaranteed them by the Fourteenth Amendment. They sought, inter
alia, a declaratory judgment that the 1901 statute is
unconstitutional and an injunction restraining certain state
officers from conducting any further elections under it. The
District Court dismissed the complaint on the grounds that it
lacked jurisdiction of the subject matter and that no claim was
stated upon which relief could be granted. Held: 1. The District Court had jurisdiction of the subject matter of
the federal constitutional claim asserted in the complaint. Pp. 369 U. S.
198 -204.

															2. Appellants had standing to maintain this suit. Pp. 369 U. S.
204 -208.

															3. The complaint's allegations of a denial of equal protection
presented a justiciable constitutional cause of action upon which
appellants are entitled to a trial and a decision. Pp. 369 U. S.
208 -37. 179 F.
Supp. 824 , reversed and cause remanded Page 369 U. S. 187 MR. JUSTICE BRENNAN delivered the opinion of the Court.

															This civil action was brought under 42 U.S.C. §§ 1983 and 1988
to redress the alleged deprivation of federal constitutional
rights. The complaint, alleging that, by means of a 1901 statute of
Tennessee apportioning the members of the General Assembly among
the State's 95 counties, [ Footnote
1 ] "these plaintiffs and others similarly situated, Page 369 U. S. 188 are denied the equal protection of the laws accorded them by the
Fourteenth Amendment to the Constitution of the United States by
virtue of the debasement of their votes," was dismissed by a
three-judge court convened under 28 U.S.C. § 2281 in the Middle
District of Tennessee. [ Footnote
2 ] The court held that it lacked jurisdiction of the subject
matter and also that no claim was stated upon which relief could be
granted. 179 F.
Supp. 824 . We noted probable jurisdiction of the appeal. 364
U.S. 898. [ Footnote 3 ] We hold
that the dismissal was error, and remand the cause to the District
Court for trial and further proceedings consistent with this
opinion.

															The General Assembly of Tennessee consists of the Senate, with
33 members, and the House of Representatives, with 99 members. The
Tennessee Constitution provides in Art. II as follows:

															"Sec. 3. Legislative authority -- Term of office. -- The
Legislative authority of this State shall be vested in a General
Assembly, which shall consist of a Senate and House of
Representatives, both dependent on the people; who shall hold their
offices for two years from the day of the general election."

															"Sec. 4. Census. -- An enumeration of the qualified voters, and
an apportionment of the Representatives in the General Assembly,
shall be made in the year one thousand eight hundred and
seventy-one and within every subsequent term of ten years."

															"Sec. 5. Apportionment of representatives. -- The number of
Representatives shall, at the several Page 369 U. S. 189 periods of making the enumeration, be apportioned among the
several counties or districts, according to the number of qualified
voters in each, and shall not exceed seventy-five; until the
population of the State shall be one million and a half, and shall
never exceed ninety-nine; Provided, that any county having
two-thirds of the ratio shall be entitled to one member."

															"Sec. 6. Apportionment of senators. -- The number of Senators
shall, at the several periods of making the enumeration, be
apportioned among the several counties or districts according to
the number of qualified electors in each, and shall not exceed
one-third the number of representatives. In apportioning the
Senators among the different counties, the fraction that may be
lost by any county or counties in the apportionment of members to
the House of Representatives shall be made up to such county or
counties in the Senate, as near as may be practicable. When a
district is composed of two or more counties, they shall be
adjoining, and no county shall be divided in forming a
district."

															Thus, Tennessee's standard for allocating legislative
representation among her counties is the total number of qualified
voters resident in the respective counties, subject only to minor
qualifications. [ Footnote 4 ]
Decennial reapportionment Page 369 U. S. 190 in compliance with the constitutional scheme was effected by the
General Assembly each decade from 1871 to 1901. The 1871
apportionment [ Footnote 5 ] was
preceded by an 1870 statute requiring an enumeration. [ Footnote 6 ] The 1881 apportionment
involved three statutes, the first authorizing an enumeration, the
second enlarging the Senate from 25 to Page 369 U. S. 191 33 members and the House from 75 to 99 members, and the third
apportioning the membership of both Houses. [ Footnote 7 ] In 1891, there were both an
enumeration and an apportionment. [ Footnote 8 ] In 1901, the General Assembly abandoned
separate enumeration in favor of reliance upon the Federal Census,
and passed the Apportionment Act here in controversy. [ Footnote 9 ] In the more than 60 years
since that action, all proposals in both Houses of the General
Assembly for reapportionment have failed to pass. [ Footnote 10 ] Page 369 U. S. 192 Between 1901 and 1961, Tennessee has experienced substantial
growth and redistribution of her population. In 1901, the
population was 2,020,616, of whom 487,380 were eligible to vote.
[ Footnote 11 ] The 1960
Federal Census reports the State's population at 3,567,089, of whom
2,092,891 are eligible to vote. [ Footnote 12 ] The relative standings of the counties in
terms of qualified voters have changed significantly. It is
primarily the continued application of the 1901 Apportionment Act
to this shifted and enlarged voting population which gives rise to
the present controversy.

															Indeed, the complaint alleges that the 1901 statute, even as of
the time of its passage,

															"made no apportionment of Representatives and Senators in
accordance with the constitutional formula . . . , but instead
arbitrarily and capriciously apportioned representatives in the
Senate and House without reference . . . to any logical or
reasonable formula whatever. [ Footnote 13 ]"

															It is further alleged Page 369 U. S. 193 that, "because of the population changes since 1900, and the
failure of the Legislature to reapportion itself since 1901," the
1901 statute became "unconstitutional and obsolete." Appellants
also argue that, because of the composition of the legislature
effected by the 1901 Apportionment Act, redress in the form of a
state constitutional amendment to change the entire mechanism for
reapportioning, or any other change short of that, is difficult or
impossible. [ Footnote 14 ]
The complaint concludes that

															"these plaintiffs Page 369 U. S. 194 and others similarly situated, are denied the equal protection
of the laws accorded them by the Fourteenth Amendment to the
Constitution of the United States by virtue of the debasement of
their votes. [ Footnote
15 ]"

															They seek a Page 369 U. S. 195 declaration that the 1901 statute is unconstitutional and an
injunction restraining the appellees from acting to conduct any
further elections under it. They also pray that, unless and until
the General Assembly enacts a valid reapportionment, the District
Court should either decree a reapportionment by mathematical
application of the Tennessee constitutional formulae to the most
recent Federal Census figures, or direct the appellees to conduct
legislative elections, primary and general, at large. They also
pray for such other and further relief as may be appropriate. I THE DISTRICT COURT's OPINION AND ORDER OF DISMISSAL Because we deal with this case on appeal from an order of
dismissal granted on appellees' motions, precise identification Page 369 U. S. 196 of the issues presently confronting us demands clear exposition
of the grounds upon which the District Court rested in dismissing
the case. The dismissal order recited that the court sustained the
appellees' grounds "(1) that the Court lacks jurisdiction of the
subject matter, and (2) that the complaint fails to state a claim
upon which relief can be granted. . . ."

															In the setting of a case such as this, the recited grounds
embrace two possible reasons for dismissal: First: That the facts and injury alleged, the legal
bases invoked as creating the rights and duties relied upon, and
the relief sought, fail to come within that language of Article III
of the Constitution and of the jurisdictional statutes which define
those matters concerning which United States District Courts are
empowered to act; Second: That, although the matter is cognizable and
facts are alleged which establish infringement of appellants'
rights as a result of state legislative action departing from a
federal constitutional standard, the court will not proceed because
the matter is considered unsuited to judicial inquiry or
adjustment.

															We treat the first ground of dismissal as "lack of jurisdiction
of the subject matter." The second we consider to result in a
failure to state a justiciable cause of action.

															The District Court's dismissal order recited that it was issued
in conformity with the court's per curiam opinion. The opinion
reveals that the court rested its dismissal upon lack of subject
matter jurisdiction and lack of a justiciable cause of action
without attempting to distinguish between these grounds. After
noting that the plaintiffs challenged the existing legislative
apportionment in Tennessee under the Due Process and Equal
Protection Clauses, and summarizing the supporting allegations and
the relief requested, the court stated that

															"The action is presently before the Court upon the defendants'
motion to dismiss predicated upon three Page 369 U. S. 197 grounds: first, that the Court lacks jurisdiction of the subject
matter; second, that the complaints fail to state a claim upon
which relief can be granted, and third, that indispensable party
defendants are not before the Court."

															179 F. Supp. at 826.

															The court proceeded to explain its action as turning on the
case's presenting a "question of the distribution of political
strength for legislative purposes." For,

															"From a review of [numerous Supreme Court] . . . decisions,
there can be no doubt that the federal rule, as enunciated and
applied by the Supreme Court, is that the federal courts, whether
from a lack of jurisdiction or from the inappropriateness of the
subject matter for judicial consideration, will not intervene in
cases of this type to compel legislative reapportionment."

															179 F. Supp. at 826. The court went on to express doubts as to
the feasibility of the various possible remedies sought by the
plaintiffs. 179 F. Supp. at 827-828. Then it made clear that its
dismissal reflected a view not of doubt that violation of
constitutional rights was alleged, but of a court's impotence to
correct that violation:

															"With the plaintiffs' argument that the legislature of Tennessee
is guilty of a clear violation of the state constitution and of the
rights of the plaintiffs the Court entirely agrees. It also agrees
that the evil is a serious one which should be corrected without
further delay. But even so, the remedy in this situation clearly
does not lie with the courts. It has long been recognized and is
accepted doctrine that there are indeed some rights guaranteed by
the Constitution for the violation of which the courts cannot give
redress."

															179 F. Supp. at 828.

															In light of the District Court's treatment of the case, we hold
today only (a) that the court possessed jurisdiction of the subject
matter; (b) that a justiciable cause of Page 369 U. S. 198 action is stated upon which appellants would be entitled to
appropriate relief, and (c) because appellees raise the issue
before this Court, that the appellants have standing to challenge
the Tennessee apportionment statutes. [ Footnote 16 ] 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. II JURISDICTION OF THE SUBJECT MATTER The District Court was uncertain whether our cases withholding
federal judicial relief rested upon a lack of federal jurisdiction
or upon the inappropriateness of the subject matter for judicial
consideration -- what we have designated "nonjusticiability." The
distinction between the two grounds is significant. In the instance
of nonjusticiability, consideration of the cause is not wholly and
immediately foreclosed; rather, the Court's inquiry necessarily
proceeds to the point of deciding whether the duty asserted can be
judicially identified and its breach judicially determined, and
whether protection for the right asserted can be judicially molded.
In the instance of lack of jurisdiction, the cause either does not
"arise under" the Federal Constitution, laws or treaties (or fall
within one of the other enumerated categories of Art. III, § 2); or
is not a "case or controversy" within the meaning of that section;
or the cause is not one described by any jurisdictional statute.
Our conclusion, see pp. 369 U. S.
208 -237 infra, that this cause presents no
nonjusticiable "political question" settles the only possible doubt
that it is a case or controversy. Under the present heading of
"Jurisdiction Page 369 U. S. 199 of the Subject Matter," we hold only that the matter set forth
in the complaint does arise under the Constitution, and is within
28 U.S.C. § 1343.

															Article III, 2, of the Federal Constitution provides that

															"The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority. . . ."

															It is clear that the cause of action is one which "arises under"
the Federal Constitution. The complaint alleges that the 1901
statute effects an apportionment that deprives the appellants of
the equal protection of the laws in violation of the Fourteenth
Amendment. Dismissal of the complaint upon the ground of lack of
jurisdiction of the subject matter would, therefore, be justified
only if that claim were "so attenuated and unsubstantial as to be
absolutely devoid of merit," Newburyport Water Co. v.
Newburyport, 193 U. S. 561 , 193 U. S. 579 ,
or "frivolous," Bell v. Hood, 327 U.
S. 678 , 327 U. S. 683 .
[ Footnote 17 ] That the claim
is unsubstantial must be "very plain." Hart v. Keith Vaudeville
Exchange, 262 U. S. 271 , 262 U. S. 274 .
Since the District Court obviously and correctly did not deem the
asserted federal constitutional claim unsubstantial and frivolous,
it should not have dismissed the complaint for want of jurisdiction
of the subject matter. And, of course, no further consideration of
the merits of the claim is relevant to a determination of the
court's jurisdiction of the subject matter. We said in an earlier
voting case from Tennessee:

															"It is obvious . . . that the court, in dismissing for want of
jurisdiction, was controlled by what it deemed to be the want of
merit in the averments which were made in the complaint as to the
violation of the Federal right. But as the very nature of the
controversy was Federal, and, therefore, Page 369 U. S. 200 jurisdiction existed, whilst the opinion of the court as to the
want of merit in the cause of action might have furnished ground
for dismissing for that reason, it afforded no sufficient ground
for deciding that the action was not one arising under the
Constitution and laws of the United States." Swafford v. Templeton, 185 U.
S. 487 , 185 U. S.
493 .

															"For it is well settled that the failure to state a proper cause
of action calls for a judgment on the merits, and not for a
dismissal for want of jurisdiction." Bell v. Hood, 327 U. S. 678 , 327 U. S. 682 . See also Binderup v. Pathe Exchange, 263 U.
S. 291 , 263 U. S.
305 -308.

															Since the complaint plainly sets forth a case arising under the
Constitution, the subject matter is within the federal judicial
power defined in Art. III, § 2, and so within the power of Congress
to assign to the jurisdiction of the District Courts. Congress has
exercised that power in 28 U.S.C. § 1343(3):

															"The district courts shall have original jurisdiction of any
civil action authorized by law [ Footnote 18 ] to be commenced by any person . . . [t]o
redress the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States. . . .
[ Footnote 19 ] " Page 369 U. S. 201 An unbroken line of our precedents sustains the federal courts'
jurisdiction of the subject matter of federal constitutional claims
of this nature. The first cases involved the redistricting of
States for the purpose of electing Representatives to the Federal
Congress. When the Ohio Supreme Court sustained Ohio legislation
against an attack for repugnancy to Art. I, § 4, of the Federal
Constitution, we affirmed on the merits and expressly refused to
dismiss for want of jurisdiction "In view . . . of the subject
matter of the controversy and the Federal characteristics which
inhere in it. . . ." Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 , 241 U. S. 570 .
When the Minnesota Supreme Court affirmed the dismissal of a suit
to enjoin the Secretary of State of Minnesota from acting under
Minnesota redistricting legislation, we reviewed the constitutional
merits of the legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U. S. 355 . And see companion cases from the New York Court of Appeals
and the Missouri Supreme Court, Koenig v. Flynn, 285 U. S. 375 ; Carroll v. Becker, 285 U. S. 380 .
When a three-judge District Court, exercising jurisdiction under
the predecessor of 28 U.S.C. § 1343(3), permanently enjoined
officers of the State of Mississippi from conducting an election of
Representatives under a Mississippi redistricting act, we reviewed
the federal questions on the merits and reversed the District
Court. Wood v. Broom, 287 U. S. 1 , reversing 1 F. Supp.
134 . A similar decree of a District Court, exercising
jurisdiction under the same statute concerning a Kentucky
redistricting act was Page 369 U. S. 202 reviewed and the decree reversed. Mahan v. Hume, 287
U.S. 575, reversing 1 F. Supp.
142 . [ Footnote 20 ]

															The appellees refer to Colegrove v. Green, 328 U.
S. 549 , as authority that the District Court lacked
jurisdiction of the subject matter. Appellees misconceive the
holding of that case. The holding was precisely contrary to their
reading of it. Seven members of the Court participated in the
decision. Unlike many other cases in this field which have assumed
without discussion that there was jurisdiction, all three opinions
filed in Colegrove discussed the question. Two of the
opinions expressing the views of four of the Justices, a majority,
flatly held that there was jurisdiction of the subject matter. MR.
JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS and Mr. Justice
Murphy, stated: "It is my judgment that the District Court had
jurisdiction . . . ," citing the predecessor of 28 U.S.C. §
1343(3), and Bell v. Hood, supra. 328 U.S. at 328 U. S. 568 .
Mr. Justice Rutledge, writing separately, expressed agreement with
this conclusion. 328 U.S. at 328 U. S.
564 -565, n. 2. Indeed, it is even questionable that the
opinion of MR. JUSTICE FRANKFURTER, joined by Justices Reed and
Burton, doubted jurisdiction of the subject matter. Such doubt
would have been inconsistent with the professed willingness to turn
the decision on either the majority or concurring views in Wood
v. Broom, supra. 328 U.S. at 328 U. S.
551 .

															Several subsequent cases similar to Colegrove have been
decided by the Court in summary per curiam statements. None was
dismissed for want of jurisdiction of the subject matter. Cook
v. Fortson, 329 U. S. 675 ; Turman v. Page 369 U. S. 203 Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804;
[ Footnote 21 ] Tedesco v.
Board of Supervisors, 339 U.S. 940; Remmey v. Smith, 342 U.S. 916; Cox v. Peters, 342 U.S. 936; Anderson v.
Jordan, 343 U.S. 912; Kidd v. McCanless, 352 U.S.
920; Radford v. Gary, 352 U.S. 991; Hartsfield v.
Sloan, 357 U.S. 916; Matthews v. Handley, 361 U. S. 127 .
[ Footnote 22 ]

															Two cases decided with opinions after Colegrove likewise plainly imply that the subject matter of this suit is
within District Court jurisdiction. In MacDougall v.
Green, 335 U. S. 281 , the
District Court dismissed for want of jurisdiction, which had been
invoked under 28 U.S.C. § 1343(3), a suit to enjoin enforcement of
the requirement that nominees for statewide elections be supported
by a petition signed by a minimum number of persons from at least
50 of the State's 102 counties. This Court's disagreement with that
action is clear, since the Court affirmed the judgment after a
review of the merits and concluded that the particular claim there
was without merit. In South v. Peters, 339 U.
S. 276 , we affirmed the dismissal of an attack on the
Georgia "county unit" system but founded our action on a ground
that plainly would not have been reached if the lower court lacked
jurisdiction of the subject matter, which allegedly existed under
28 U.S.C. § 1343(3). The express words of our holding were that

															"Federal courts consistently refuse to exercise their equity
powers in cases posing Page 369 U. S. 204 political issues arising from a state's geographical
distribution of electoral strength among its political
subdivisions."

															339 U.S. at 339 U. S.
277 .

															We hold that the District Court has jurisdiction of the subject
matter of the federal constitutional claim asserted in the
complaint. III STANDING. A federal court cannot

															"pronounce any statute, either of a State or of the United
States, void, because irreconcilable with the Constitution, except
as it is called upon to adjudge the legal rights of litigants in
actual controversies." Liverpool Steamship Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 .
Have the appellants alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions?
This is the gist of the question of standing. It is, of course, a
question of federal law.

															The complaint was filed by residents of Davidson, Hamilton,
Knox, Montgomery, and Shelby Counties. Each is a person allegedly
qualified to vote for members of the General Assembly representing
his county. [ Footnote 23 ]
These appellants sued

															"on their own behalf and on behalf of all qualified voters of
their respective counties, and further, on behalf of all voters of
the State of Tennessee who Page 369 U. S. 205 are similarly situated. . . . [ Footnote 24 ]"

															The appellees are the Tennessee Secretary of State, Attorney
General, Coordinator of Elections, and members of the State Board
of Elections; the members of the State Board are sued in their own
right and also as representatives of the County Election
Commissioners whom they appoint. [ Footnote 25 ] Page 369 U. S. 206 We hold that the appellants do have standing to maintain this
suit. Our decisions plainly support this conclusion. Many of the
cases have assumed, rather than articulated, the premise in
deciding the merits of similar claims. [ Footnote 26 ] And Colegrove v. Green, supra, squarely held that voters who allege facts showing disadvantage to
themselves as individuals have standing to sue. [ Footnote 27 ] A number Page 369 U. S. 207 of cases decided after Colegrove recognized the
standing of the voters there involved to bring those actions.
[ Footnote 28 ]

															These appellants seek relief in order to protect or vindicate an
interest of their own, and of those similarly situated. Their
constitutional claim is, in substance, that the 1901 statute
constitutes arbitrary and capricious state action, offensive to the
Fourteenth Amendment in its irrational disregard of the standard of
apportionment prescribed by the State's Constitution or of any
standard, effecting a gross disproportion of representation to
voting population. The injury which appellants assert is that this
classification disfavors the voters in the counties in which they
reside, placing them in a position of constitutionally
unjustifiable inequality vis-a-vis voters Page 369 U. S. 208 in irrationally favored counties. A citizen's right to a vote
free of arbitrary impairment by state action has been judicially
recognized as a right secured by the Constitution when such
impairment resulted from dilution by a false tally, cf. United
States v. Classic, 313 U. S. 299 ; or
by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U.
S. 383 , or by a stuffing of the ballot box, cf. Ex
parte Siebold, 100 U. S. 371 ; United States v. Saylor, 322 U. S. 385 .

															It would not be necessary to decide whether appellants'
allegations of impairment of their votes by the 1901 apportionment
will ultimately entitle them to any relief in order to hold that
they have standing to seek it. If such impairment does produce a
legally cognizable injury, they are among those who have sustained
it. They are asserting "a plain, direct and adequate interest in
maintaining the effectiveness of their votes," Coleman v.
Miller, 307 U.S. at 307 U. S. 438 ,
not merely a claim of "the right, possessed by every citizen, to
require that the Government be administered according to law. . .
." Fairchild v. Hughes, 258 U. S. 126 , 258 U. S. 129 ; compare Leser v. Garnett, 258 U.
S. 130 . They are entitled to a hearing and to the
District Court's decision on their claims.

															"The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws,
whenever he receives an injury." Marbury v.
Madison , 1 Cranch 137, 5 U. S. 163 . IV JUSTICIABILITY In holding that the subject matter of this suit was not
justiciable, the District Court relied on Colegrove v. Green,
supra, and subsequent per curiam cases. [ Footnote 29 ] The Page 369 U. S. 209 court stated:

															"From a review of these decisions, there can be no doubt that
the federal rule . . . is that the federal courts . . . will not
intervene in cases of this type to compel legislative
reapportionment."

															179 F. Supp. at 826. We understand the District Court to have
read the cited cases as compelling the conclusion that, since the
appellants sought to have a legislative apportionment held
unconstitutional, their suit presented a "political question," and
was therefore nonjusticiable. We hold that this challenge to an
apportionment presents no nonjusticiable "political question." The
cited cases do not hold the contrary.

															Of course, the mere fact that the suit seeks protection of a
political right does not mean it presents a political question.
Such an objection "is little more than a play upon words." Nixon v. Herndon, 273 U. S. 536 , 273 U. S. 540 .
Rather, it is argued that apportionment cases, whatever the actual
wording of the complaint, can involve no federal constitutional
right except one resting on the guaranty of a republican form of
government, [ Footnote 30 ]
and that complaints based on that clause have been held to present
political questions which are nonjusticiable.

															We hold that the claim pleaded here neither rests upon nor
implicates the Guaranty Clause, and that its justiciability is
therefore not foreclosed by our decisions of cases involving that
clause. The District Court misinterpreted Colegrove v.
Green and other decisions of this Court on which it relied.
Appellants' claim that they are being denied equal protection is
justiciable, and if Page 369 U. S. 210 "discrimination is sufficiently shown, the right to relief under
the equal protection clause is not diminished by the fact that the
discrimination relates to political rights." Snowdell v. Hughes, 321 U. S. 1 , 321 U. S. 11 . To
show why we reject the argument based on the Guaranty Clause, we
must examine the authorities under it. But because there appears to
be some uncertainty as to why those cases did present political
questions, and specifically as to whether this apportionment case
is like those cases, we deem it necessary first to consider the
contours of the "political question" doctrine.

															Our discussion, even at the price of extending this opinion,
requires review of a number of political question cases, in order
to expose the attributes of the doctrine -- attributes which, in
various settings, diverge, combine, appear, and disappear in
seeming disorderliness. Since that review is undertaken solely to
demonstrate that neither singly nor collectively do these cases
support a conclusion that this apportionment case is
nonjusticiable, we, of course, do not explore their implications in
other contexts. That review reveals that, in the Guaranty Clause
cases and in the other "political question" cases, it is the
relationship between the judiciary and the coordinate branches of
the Federal Government, and not the federal judiciary's
relationship to the States, which gives rise to the "political
question." We have said that,

															"In determining whether a question falls within [the political
question] category, the appropriateness under our system of
government of attributing finality to the action of the political
departments and also the lack of satisfactory criteria for a
judicial determination are dominant considerations." Coleman v. Miller, 307 U. S. 433 , 307 U. S.
454 -455. The nonjusticiability of a political question
is primarily a function of the separation of powers. Much confusion
results from the capacity of the "political question" label to
obscure the need for Page 369 U. S. 211 case-by-case inquiry. Deciding whether a matter has in any
measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in
constitutional interpretation, and is a responsibility of this
Court as ultimate interpreter of the Constitution. To demonstrate
this requires no less than to analyze representative cases and to
infer from them the analytical threads that make up the political
question doctrine. We shall then show that none of those threads
catches this case. Foreign relations: there are sweeping statements to the
effect that all questions touching foreign relations are political
questions. [ Footnote 31 ] Not
only does resolution of such issues frequently turn on standards
that defy judicial application, or involve the exercise of a
discretion demonstrably committed to the executive or legislature,
[ Footnote 32 ] but many such
questions uniquely demand single-voiced statement of the
Government's views. [ Footnote
33 ] Yet it is error to suppose that every case or controversy
which touches foreign relations lies beyond judicial cognizance.
Our cases in this field seem invariably to show a discriminating
analysis of the particular question posed, in terms of the history
of its management by the political branches, of its susceptibility
to judicial handling in the light of its nature and posture in the
specific case, and of the possible consequences Page 369 U. S. 212 of judicial action. For example, though a court will not
ordinarily inquire whether a treaty has been terminated, since on
that question, "governmental action . . . must be regarded as of
controlling importance," if there has been no conclusive
"governmental action," then a court can construe a treaty, and may
find it provides the answer. Compare Terlinden v. Ames, 184 U. S. 270 , 184 U. S. 285 , with 21 U. S. New
Haven, 8 Wheat. 464, 21 U. S.
492 -495. [ Footnote
34 ] Though a court will not undertake to construe a treaty in a
manner inconsistent with a subsequent federal statute, no similar
hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson, 124 U.
S. 190 , with Kolovrat v. Oregon, 366 U.
S. 187 .

															While recognition of foreign governments so strongly defies
judicial treatment that, without executive recognition, a foreign
state has been called "a republic of whose existence we know
nothing," [ Footnote 35 ] and
the judiciary ordinarily follows the executive as to which nation
has sovereignty over disputed territory, [ Footnote 36 ] once sovereignty over an area is
politically determined and declared, courts may examine the
resulting status and decide independently whether a statute applies
to that area. [ Footnote 37 ]
Similarly, recognition of belligerency abroad is an executive
responsibility, but if the executive proclamations fall short of an
explicit answer, a court may construe them seeking, for example, to
determine whether the situation is such that statutes designed to
assure American neutrality have Page 369 U. S. 213 become operative. The Three Friends, 166 U. S.
1 , 166 U. S. 63 , 166 U. S. 66 .
Still again, though it is the executive that determines a person's
status as representative of a foreign government, Ex parte
Hitz, 111 U. S. 766 , the
executive's statements will be construed where necessary to
determine the court's jurisdiction, In re Baiz, 135 U. S. 403 .
Similar judicial action in the absence of a recognizedly
authoritative executive declaration occurs in cases involving the
immunity from seizure of vessels owned by friendly foreign
governments. Compare Ex parte Peru, 318 U.
S. 578 , with Mexico v. Hoffman, 324 U. S.
30 , 324 U. S.
34 -35. Dates of duration of hostilities: though it has been
stated broadly that "the power which declared the necessity is the
power to declare its cessation, and what the cessation requires," Commercial Trust Co. v. Miller, 262 U. S.
51 , 262 U. S. 57 ,
here too analysis reveals isolable reasons for the presence of
political questions, underlying this Court's refusal to review the
political departments' determination of when or whether a war has
ended. Dominant is the need for finality in the political
determination, for emergency's nature demands "[a] prompt and
unhesitating obedience," Martin v. Mott , 12 Wheat. 19, 25 U. S. 30 (calling up of militia). Moreover,

															"the cessation of hostilities does not necessarily end the war
power. It was stated in Hamilton v. Kentucky Distilleries &
W. Co., 251 U. S. 146 , 251 U. S.
161 , that the war power includes the power 'to remedy
the evils which have arisen from its rise and progress,' and
continues during that emergency. Stewart v.
Kahn , 11 Wall. 493, 78 U. S.
507 ." Fleming v. Mohawk Wrecking Co., 331 U.
S. 111 , 331 U. S. 116 .
But deference rests on reason, not habit. [ Footnote 38 ] The question in a particular case
may not seriously implicate considerations of finality -- e.g., a public program of importance Page 369 U. S. 214 (rent control), yet not central to the emergency effort.
[ Footnote 39 ] Further,
clearly definable criteria for decision may be available. In such
case, the political question barrier falls away:

															"[A] Court is not at liberty to shut its eyes to an obvious
mistake, when the validity of the law depends upon the truth of
what is declared. . . . [It can] inquire whether the exigency still
existed upon which the continued operation of the law
depended." Chastleton Corp. v. Sinclair, 264 U.
S. 543 , 264 U. S.
547 -548. [ Footnote
40 ] Compare Woods v. Miller Co., 333 U.
S. 138 . On the other hand, even in private litigation
which directly implicates no feature of separation of powers, lack
of judicially discoverable standards and the drive for evenhanded
application may impel reference to the political departments'
determination of dates of hostilities' beginning and ending. The Protector , 12 Wall. 700. Validity of enactments: in Coleman v. Miller,
supra, this Court held that the questions of how long a
proposed amendment to the Federal Constitution remained open to
ratification, and what effect a prior rejection had on a subsequent
ratification, were committed to congressional resolution and
involved criteria of decision that necessarily escaped the judicial
grasp. [ Footnote 41 ] Similar
considerations apply to the enacting process: "[t]he respect due to
coequal and independent departments," and the need for finality and
certainty about the status of a statute contribute to judicial
reluctance to inquire whether, as passed, it complied with all
requisite formalities. Field v. Clark, 143 U.
S. 649 , 143 U. S. 672 , 143 U. S.
676 -677; see Leser v. Garnett, 258 U.
S. 130 , 258 U. S. 137 .
But it is not true that courts will never delve Page 369 U. S. 215 into a legislature's records upon such a quest: if the enrolled
statute lacks an effective date, a court will not hesitate to seek
it in the legislative journals in order to preserve the enactment. Gardner v. The
Collector , 6 Wall. 499. The political question
doctrine, a tool for maintenance of governmental order, will not be
so applied as to promote only disorder. The status of Indian tribes: this Court's deference to
the political departments in determining whether Indians are
recognized as a tribe, while it reflects familiar attributes of
political questions, [ Footnote
42 ] United States v.
Holliday , 3 Wall. 407, 70 U. S. 419 ,
also has a unique element in that

															"the relation of the Indians to the United States is marked by
peculiar and cardinal distinctions which exist no where else. . . .
[The Indians are] domestic dependent nations . . . in a state of
pupilage. Their relation to the United States resembles that of a
ward to his guardian." The Cherokee Nation v.
Georgia , 5 Pet. 1, 30 U. S. 16 , 30 U. S. 17 .
[ Footnote 43 ] Yet here, too,
there is no blanket rule. While Page 369 U. S. 216 "'It is for [Congress] . . and not for the courts, to determine
when the true interests of the Indian require his release from
[the] condition of tutelage,' . . . it is not meant by this that
Congress may bring a community or body of people within the range
of this power by arbitrarily calling them an Indian tribe. . .
." United States v. Sandoval, 231 U. S.
28 , 231 U. S. 46 .
Able to discern what is "distinctly Indian," ibid., the
courts will strike down Page 369 U. S. 217 any heedless extension of that label. They will not stand
impotent before an obvious instance of a manifestly unauthorized
exercise of power.

															It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may describe
a political question, although each has one or more elements which
identify it as essentially a function of the separation of powers.
Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for non judicial discretion;
or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality
of embarrassment from multifarious pronouncements by various
departments on one question.

															Unless one of these formulations is inextricable from the case
at bar, there should be no dismissal for nonjusticiability on the
ground of a political question's presence. The doctrine of which we
treat is one of "political questions," not one of "political
cases." The courts cannot reject as "no law suit" a bona
fide controversy as to whether some action denominated
"political" exceeds constitutional authority. The cases we have
reviewed show the necessity for discriminating inquiry into the
precise facts and posture of the particular case, and the
impossibility of resolution by any semantic cataloguing.

															But it is argued that this case shares the characteristics of
decisions that constitute a category not yet considered, cases
concerning the Constitution's guaranty, in Art. IV, Page 369 U. S. 218 § 4, of a republican form of government. A conclusion as to
whether the case at bar does present a political question cannot be
confidently reached until we have considered those cases with
special care. We shall discover that Guaranty Clause claims involve
those elements which define a "political question," and, for that
reason and no other, they are nonjusticiable. In particular, we
shall discover that the nonjusticiability of such claims has
nothing to do with their touching upon matters of state
governmental organization. Republican form of government: Luther v.
Borden , 7 How. 1, though in form simply an action
for damages for trespass was, as Daniel Webster said in opening the
argument for the defense, "an unusual case." [ Footnote 44 ] The defendants, admitting an
otherwise tortious breaking and entering, sought to justify their
action on the ground that they were agents of the established
lawful government of Rhode Island, which State was then under
martial law to defend itself from active insurrection; that the
plaintiff was engaged in that insurrection, and that they entered
under orders to arrest the plaintiff. The case arose "out of the
unfortunate political differences which agitated the people of
Rhode Island in 1841 and 1842," 7 How. at 48 U. S. 34 , and
which had resulted in a situation wherein two groups laid competing
claims to recognition as the lawful government. [ Footnote 45 ] The plaintiff's right to Page 369 U. S. 219 recover depended upon which of the two groups was entitled to
such recognition; but the lower court's refusal to receive evidence
or hear argument on that issue, its charge to the jury that the
earlier established or "charter" government was lawful, and the
verdict for the defendants were affirmed upon appeal to this
Court.

															Chief Justice Taney's opinion for the Court reasoned as follows:
(1) If a court were to hold the defendants' acts unjustified
because the charter government had no legal existence during the
period in question, it would follow that all of that government's
actions -- laws enacted, taxes collected, salaries paid, accounts
settled, sentences passed -- were of no effect, and that "the
officers who carried their decisions into operation [were]
answerable as trespassers, if not in some cases as criminals."
[ Footnote 46 ] There was, of
course, no room for application of any doctrine of de
facto status to uphold prior acts of an officer not authorized de jure, for such would have defeated the plaintiff's very
action. A decision for the plaintiff would inevitably have produced
some significant measure of chaos, a consequence to be avoided if
it could be done without abnegation of the judicial duty to uphold
the Constitution.

															(2) No state court had recognized as a judicial responsibility
settlement of the issue of the locus of state governmental
authority. Indeed, the courts of Rhode Island had in several cases
held that "it rested with the political power to decide whether the
charter government had been displaced or not," and that that
department had acknowledged no change. Page 369 U. S. 220 (3) Since "[t]he question relates, altogether, to the
constitution and laws of [the] . . . State," the courts of the
United States had to follow the state courts' decisions unless
there was a federal constitutional ground for overturning them.
[ Footnote 47 ]

															(4) No provision of the Constitution could be or had been
invoked for this purpose except Art. IV, § 4, the Guaranty Clause.
Having already noted the absence of standards whereby the choice
between governments could be made by a court acting independently,
Chief Justice Taney now found further textual and practical reasons
for concluding that, if any department of the United States was
empowered by the Guaranty Clause to resolve the issue, it was not
the judiciary:

															"Under this article of the Constitution, it rests with Congress
to decide what government is the established one in a State. For,
as the United States guarantee to each State a republican
government, Congress must necessarily decide what government is
established in the State before it can determine whether it is
republican or not. And when the senators and representatives of a
State are admitted into the councils of the Union, the authority of
the government under which they are appointed, as well as its
republican character, is recognized by the proper constitutional
authority. And its decision is binding on every other department of
the government, and could not be questioned in a judicial tribunal.
It is true that the contest in this case did not last long enough
to bring the matter to this issue, and . . . Congress was not
called upon to decide the controversy. Yet the right to decide is
placed there, and not in the courts. " Page 369 U. S. 221 "So, too, as relates to the clause in the above-mentioned
article of the Constitution, providing for cases of domestic
violence. It rested with Congress, too, to determine upon the means
proper to be adopted to fulfill this guarantee. . . . [B]y the act
of February 28, 1795, [Congress] provided, that,"

															"in case of an insurrection in any State against the government
thereof, it shall be lawful for the President of the United States,
on application of the legislature of such State or of the executive
(when the legislature cannot be convened), to call forth such
number of the militia of any other State or States, as may be
applied for, as he may judge sufficient to suppress such
insurrection."

															"By this act, the power of deciding whether the exigency had
arisen upon which the government of the United States is bound to
interfere is given to the President. . . ."

															"After the President has acted and called out the militia, is a
Circuit Court of the United States authorized to inquire whether
his decision was right? . . . If the judicial power extends so far,
the guarantee contained in the Constitution of the United States is
a guarantee of anarchy, and not of order."

															"It is true that, in this case, the militia were not called out
by the President. But, upon the application of the governor under
the charter government, the President recognized him as the
executive power of the State and took measures to call out the
militia to support his authority if it should be found necessary
for the general government to interfere. . . . [C]ertainly no court
of the United States, with a knowledge of this decision, would have
been justified in recognizing the opposing party as the lawful
government. . . . Page 369 U. S. 222 In the case of foreign nations, the government acknowledged by
the President is always recognized in the courts of justice. . .
."

															7 How. at 48 U. S.
42 -44.

															Clearly, several factors were thought by the Court in Luther to make the question there "political": the
commitment to the other branches of the decision as to which is the
lawful state government; the unambiguous action by the President in
recognizing the charter government as the lawful authority; the
need for finality in the executive's decision, and the lack of
criteria by which a court could determine which form of government
was republican. [ Footnote
48 ] Page 369 U. S. 223 But the only significance that Luther could have for
our immediate purposes is in its holding that the Guaranty Clause
is not a repository of judicially manageable standards which a
court could utilize independently in order to identify a State's
lawful government. The Court has since refused to resort to the
Guaranty Clause -- which alone had been invoked for the purpose as
the source of a constitutional standard for invalidating state
action. See Taylor & Marshall v. Beckham (No. 1), 178 U. S. 548 (claim that Kentucky's resolution of contested gubernatorial
election deprived voters of republican government held
nonjusticiable); Pacific States Tel. Co. v. Oregon, 223 U. S. 118 (claim that initiative and referendum negated republican government
held nonjusticiable); Kiernan v. Portland, 223 U.
S. 151 (claim that municipal charter amendment per
municipal initiative and referendum negated republican government
held nonjusticiable); Page 369 U. S. 224 Marshall v. Dye, 231 U. S. 250 (claim that Indiana's constitutional amendment procedure negated
republican government held nonjusticiable); O'Neill v.
Leamer, 239 U. S. 244 (claim that delegation to court of power to form drainage districts
negated republican government held "futile"); Ohio ex rel.
Davis v. Hildebrant, 241 U. S. 565 (claim that invalidation of state reapportionment statute per
referendum negates republican government held nonjusticiable);
[ Footnote 49 ] Mountain
Timber Co. v. Washington, 243 U. S. 219 (claim that workmen's compensation violates republican government
held nonjusticiable); Ohio ex rel. Bryant v. Akron Metropolitan
Park District, 281 U. S. 74 (claim
that rule requiring invalidation of statute by all but one justice
of state court negated republican government held nonjusticiable); Highland Farms Dairy v. Agnew, 300 U.
S. 608 (claim that delegation to agency of power to
control milk prices violated republican government rejected).

															Just as the Court has consistently held that a challenge to
state action based on the Guaranty Clause presents no justiciable
question, so has it held, and for the same reasons, that challenges
to congressional action on the ground of inconsistency with that
clause present no justiciable question. In Georgia v.
Stanton , 6 Wall. 50, the State sought by an
original bill to enjoin execution of the Reconstruction Acts,
claiming that it already possessed "A republican State, in every
political, legal, constitutional, and juridical sense," and that
enforcement of the new Acts,

															"[i]nstead of keeping the guaranty against a forcible overthrow
of its government by foreign invaders or domestic insurgents, . . .
is destroying that very government by force. [ Footnote 50 ]"

															Congress had clearly refused to Page 369 U. S. 225 recognize the republican character of the government of the
suing State. [ Footnote 51 ]
It seemed to the Court that the only constitutional claim that
could be presented was under the Guaranty Clause, and Congress
having determined that the effects of the recent hostilities
required extraordinary measures to restore governments of a
republican form, this Court refused to interfere with Congress'
action at the behest of a claimant relying on that very guaranty.
[ Footnote 52 ]

															In only a few other cases has the Court considered Art. IV, § 4,
in relation to congressional action. It has refused to pass on a
claim relying on the Guaranty Clause to establish that Congress
lacked power to allow the States to employ the referendum in
passing on legislation redistricting for congressional seats. Ohio ex rel. Davis v. Hildebrant, supra. And it has
pointed out that Congress is not required to establish republican
government in the territories before they become States, and before
they have attained a sufficient population to warrant a Page 369 U. S. 226 popularly elected legislature. Downes v. Bidwell, 182 U. S. 244 , 182 U. S.
278 -279 (dictum). [ Footnote 53 ]

															We come, finally, to the ultimate inquiry whether our precedents
as to what constitutes a nonjusticiable "political question" bring
the case before us under the umbrella of that doctrine. A natural
beginning is to note whether any of the common characteristics
which we have been able to identify and label descriptively are
present. We find none: the question here is the consistency of
state action with the Federal Constitution. We have no question
decided, or to be decided, by a political branch of government
coequal with this Court. Nor do we risk embarrassment of our
government abroad, or grave disturbance at home [ Footnote 54 ] if we take issue with
Tennessee as to the constitutionality of her action here
challenged. 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.

															This case does, in one sense, involve the allocation of
political power within a State, and the appellants Page 369 U. S. 227 might conceivably have added a claim under the Guaranty Clause.
Of course, as we have seen, any reliance on that clause would be
futile. But because any reliance on the Guaranty Clause could not
have succeeded, it does not follow that appellants may not be heard
on the equal protection claim which, in fact, they tender. True, it
must be clear that the Fourteenth Amendment claim is not so
enmeshed with those political question elements which render
Guaranty Clause claims nonjusticiable as actually to present a
political question itself. But we have found that not to be the
case here.

															In this connection, special attention is due Pacific States
Tel. Co. v. Oregon, 223 U. S. 118 . In
that case, a corporation tax statute enacted by the initiative was
attacked ostensibly on three grounds: (1) due process; (2) equal
protection, and (3) the Guaranty Clause. But it was clear that the
first two grounds were invoked solely in aid of the contention that
the tax was invalid by reason of its passage:

															"The defendant company does not contend here that it could not
have been required to pay a license tax. It does not assert that it
was denied an opportunity to be heard as to the amount for which it
was taxed, or that there was anything inhering in the tax or
involved intrinsically in the law which violated any of its
constitutional rights. If such questions had been raised, they
would have been justiciable, and therefore would have required the
calling into operation of judicial power. Instead, however, of
doing any of these things, the attack on the statute here made is
of a wholly different character. Its essentially political nature
is at once made manifest by understanding that the assault which
the contention here advanced makes it [ sic ] not on the tax
as a tax, but on the State as a State. It is addressed to the Page 369 U. S. 228 framework and political character of the government by which the
statute levying the tax was passed. It is the government, the
political entity, which (reducing the case to its essence) is
called to the bar of this court not for the purpose of testing
judicially some exercise of power assailed, on the ground that its
exertion has injuriously affected the rights of an individual
because of repugnancy to some constitutional limitation, but to
demand of the State that it establish its right to exist as a
State, republican in form."

															223 U.S. at 223 U. S.
150 -151.

															The due process and equal protection claims were held
nonjusticiable in Pacific States not because they happened
to be joined with a Guaranty Clause claim, or because they sought
to place before the Court a subject matter which might conceivably
have been dealt with through the Guaranty Clause, but because the
Court believed that they were invoked merely in verbal aid of the
resolution of issues which, in its view, entailed political
questions. Pacific States may be compared with cases such
as Mountain Timber Co. v. Washington, 243 U.
S. 219 , wherein the Court refused to consider whether a
workmen's compensation act violated the Guaranty Clause but
considered at length, and rejected, due process and equal
protection arguments advanced against it, and O'Neill v.
Leamer, 239 U. S. 244 ,
wherein the Court refused to consider whether Nebraska's delegation
of power to form drainage districts violated the Guaranty Clause,
but went on to consider and reject the contention that the action
against which an injunction was sought was not a taking for a
public purpose.

															We conclude, then, that the nonjusticiability of claims resting
on the Guaranty Clause, which arises from their embodiment of
questions that were thought "political," can have no bearing upon
the justiciability of the equal protection claim presented in this
case. Finally, we Page 369 U. S. 229 emphasize that it is the involvement in Guaranty Clause claims
of the elements thought to define "political questions," and no
other feature, which could render them nonjusticiable.
Specifically, we have said that such claims are not held
nonjusticiable because they touch matters of state governmental
organization. Brief examination of a few cases demonstrates
this.

															When challenges to state action respecting matters of "the
administration of the affairs of the State and the officers through
whom they are conducted" [ Footnote 55 ] have rested on claims of constitutional
deprivation which are amenable to judicial correction, this Court
has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex rel. Thayer, 143 U.
S. 135 , we reversed the Nebraska Supreme Court's
decision that Nebraska's Governor was not a citizen of the United
States or of the State, and therefore could not continue in office.
In Kennard v. Louisiana ex rel. Morgan, 92 U. S.
480 , and Foster v. Kansas ex rel. Johnston, 112 U. S. 201 , we
considered whether persons had been removed from public office by
procedures consistent with the Fourteenth Amendment's due process
guaranty, and held on the merits that they had. And only last Term,
in Gomillion v. Lightfoot, 364 U.
S. 339 , we applied the Fifteenth Amendment to strike
down a redrafting of municipal boundaries which effected a
discriminatory impairment of voting rights, in the face of what a
majority of the Court of Appeals thought to be a sweeping
commitment to state legislatures of the power to draw and redraw
such boundaries. [ Footnote
56 ] Gomillion was brought by a Negro who had been a
resident of the City of Tuskegee, Alabama, until the municipal
boundaries were so recast by the State Legislature Page 369 U. S. 230 as to exclude practically all Negroes. The plaintiff claimed
deprivation of the right to vote in municipal elections. The
District Court's dismissal for want of jurisdiction and failure to
state a claim upon which relief could be granted was affirmed by
the Court of Appeals. This Court unanimously reversed. This Court's
answer to the argument that States enjoyed unrestricted control
over municipal boundaries was:

															"Legislative control of municipalities, no less than other state
power, lies within the scope of relevant limitations imposed by the
United States Constitution. . . . The opposite conclusion, urged
upon us by respondents, would sanction the achievement by a State
of any impairment of voting rights whatever so long as it was
cloaked in the garb of the realignment of political subdivisions.
'It is inconceivable that guaranties embedded in the Constitution
of the United States may thus be manipulated out of
existence.'"

															364 U.S. at 364 U. S.
344 -345.

															To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court
responded that Gomillion was lifted "out of the so-called political' arena and into the conventional sphere of
constitutional litigation" because here was discriminatory
treatment of a racial minority violating the Fifteenth
Amendment. "A statute which is alleged to have worked unconstitutional
deprivations of petitioners' rights is not immune to attack simply
because the mechanism employed by the legislature is a redefinition
of municipal boundaries. . . . While in form this is merely an act
redefining metes and bounds, if the allegations are established,
the inescapable human effect of this essay in geometry and
geography is to despoil colored citizens, and only colored
citizens, of Page 369 U. S. 231 their theretofore enjoyed voting rights. That was not Colegrove v. Green. "

															"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."

															364 U.S. at 364 U. S. 347 .
[ Footnote 57 ]

															We have not overlooked such cases as In re Sawyer, 124 U. S. 200 , and Walton v. House of Representatives, 265 U.
S. 487 , which held that federal equity power could not
be exercised to enjoin a state proceeding to remove a public
officer. But these decisions explicitly reflect only a traditional
limit upon equity jurisdiction, and not upon federal courts' power
to inquire into matters of state governmental organization. This is
clear not only from the opinions in those cases, but also from White v. Berry, 171 U. S. 366 ,
which, relying on Sawyer, withheld federal equity from
staying removal of a federal officer. Wilson v. North
Carolina, 169 U. S. 586 ,
simply dismissed an appeal from an unsuccessful suit to upset a
State's removal procedure, on the ground that the constitutional
claim presented -- that a jury trial was necessary if the removal
procedure was to comport with due process requirements -- was
frivolous. Finally, in Taylor and Marshall v. Beckham (No.
1), 178 U. S. 548 ,
where losing candidates attacked the constitutionality of
Kentucky's resolution of a contested gubernatorial election, the
Court refused to consider the merits of a claim posited upon Page 369 U. S. 232 the Guaranty Clause, holding it presented a political question,
but also held on the merits that the ousted candidates had suffered
no deprivation of property without due process of law. [ Footnote 58 ]

															Since, as has been established, the equal protection claim
tendered in this case does not require decision of any political
question, and since the presence of a matter affecting state
government does not render the case nonjusticiable, it seems
appropriate to examine again the reasoning by which the District
Court reached its conclusion that the case was nonjusticiable.

															We have already noted that the District Court's holding that the
subject matter of this complaint was nonjusticiable relied upon Colegrove v. Green, supra, and later cases. Some of those
concerned the choice of members of a state legislature, as in this
case; others, like Colegrove itself and earlier
precedents, Smiley v. Holm, 285 U.
S. 355 , Koenig v. Flynn, 285 U.
S. 375 , and Carroll v. Becker, 285 U.
S. 380 , concerned the choice of Representatives in the
Federal Congress. Smiley, Koenig and Carroll settled the issue in favor of justiciability of questions of
congressional redistricting. The Court followed these precedents in Colegrove, although over the dissent of three of the seven
Justices who participated in that decision. On the issue of
justiciability, all four Justices comprising a majority relied upon Smiley v. Holm, but, in two opinions, one for three
Justices, 328 U.S. at 328 U. S. 566 , 328 U. S. 568 ,
and a separate one by Mr. Justice Rutledge, 328 U.S. at 328 U. S. 564 .
The argument that congressional redistricting problems presented a
"political question" the resolution of which was confided to
Congress might have been rested upon Art. I, § 4, Art. I, § 5, Art.
I, § 2, and Amendment Page 369 U. S. 233 XIV, § 2. Mr. Justice Rutledge said:

															"But for the ruling in Smiley v. Holm, 285 U. S.
355 , I should have supposed that the provisions of the
Constitution, Art. I,§ 4, that 'The Times, Places and Manner of
holding Elections for . . . Representatives, shall be prescribed in
each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations . . .'; Art. I, § 2
[ but see Amendment XIV, § 2], vesting in Congress the duty
of apportionment of representatives among the several states
'according to their respective Numbers,' and Art. I, § 5, making
each House the sole judge of the qualifications of its own members,
would remove the issues in this case from justiciable cognizance.
But, in my judgment, the Smiley case rules squarely to the
contrary, save only in the matter of degree. . . . Assuming that
that decision is to stand, I think . . . that its effect is to rule
that this Court has power to afford relief in a case of this type
as against the objection that the issues are not justiciable."

															328 U.S. at 328 U. S.
564 -565. Accordingly, Mr. Justice Rutledge joined in the
conclusion that the case as justiciable, although he held that the
dismissal of the complaint should be affirmed. His view was
that

															"The shortness of the time remaining [before forthcoming
elections] makes it doubtful whether action could, or would, be
taken in time to secure for petitioners the effective relief they
seek. . . . I think, therefore, the case is one in which the Court
may properly, and should, decline to exercise its jurisdiction.
Accordingly, the judgment should be affirmed, and I join in that
disposition of the cause."

															328 U.S. at 328 U. S.
565 -566. [ Footnote
59 ] Page 369 U. S. 234 Article I, § § 2, 4, and 5, and Amendment XIV, § 2, relate only
to congressional elections, and obviously do not govern
apportionment of state legislatures. However, our decisions in
favor of justiciability even in light of those provisions plainly
afford no support for the District Court's conclusion that the
subject matter of this controversy presents a political question.
Indeed, the refusal to award relief in Colegrove resulted
only from the controlling view of a want of equity. Nor is anything
contrary to be found in those per curiams that came after Colegrove. This Court dismissed the appeals in Cook v.
Fortson and Turman v. Duckworth, 329 U.
S. 675 , as moot. MacDougall v. Green, 335 U. S. 281 ,
held only that, in that case, equity would not act to void the
State's requirement that there be at least a minimum of support for
nominees Page 369 U. S. 235 for statewide office, over at least a minimal area of the State.
Problems of timing were critical in Remmey v. Smith, 342
U.S. 916, dismissing for want bf a substantial federal question a
three-judge court's dismissal of the suit as prematurely brought, 102 F.
Supp. 708 , and in Hartsfield v. Sloan, 357 U.S. 916,
denying mandamus sought to compel the convening of a three-judge
court -- movants urged the Court to advance consideration of their
case,

															"[i]nasmuch as the mere lapse of time before this case can be
reached in the normal course of . . . business may defeat the
cause, and inasmuch as the time problem is due to the inherent
nature of the case. . . ." South v. Peters, 339 U. S. 276 ,
like Colegrove, appears to be a refusal to exercise
equity's powers; see the statement of the holding quoted, supra, p. 369 U. S. 203 .
And Cox v. Peters, 342 U.S. 936, dismissed for want of a
substantial federal question the appeal from the state court's
holding that their primary elections implicated no "state action." See 208 Ga. 498, 67 S.E.2d 579 . But compare Terry v. Adams, 345 U.
S. 461 . Tedesco v. Board of Supervisors, 339 U.S. 940,
indicates solely that no substantial federal question was raised by
a state court's refusal to upset the districting of city council
seats, especially as it was urged that there was a rational
justification for the challenged districting. See 43 So.
2d 514. Similarly, in Anderson v. Jordan, 343 U.S. 912, it
was certain only that the state court had refused to issue a
discretionary writ, original mandamus in the Supreme Court. That
had been denied without opinion, and, of course, it was urged here
that an adequate state ground barred this Court's review. And in Kidd v. McCanless, 200 Tenn. 273, 292
S.W.2d 40 , the Supreme Court of Tennessee held that it could
not invalidate the very statute at issue in the case at bar, but
its holding rested on its state law of remedies, i.e., the
state view of Page 369 U. S. 236 de facto officers, [ Footnote 60 ] and not on any view that the norm for
legislative apportionment in Tennessee is not numbers of qualified
voters resident in the several counties. Of course, this Court was
there precluded by the adequate state ground, and, in dismissing
the appeal, 352 U.S. 920, we cited Anderson, supra, as
well as Colegrove. Nor does the Tennessee court's decision
in that case bear upon this, for, just as in Smith v.
Holm, 220 Minn. 486, 19 N.W.2d 914, and Magraw v.
Donovan, 163 F.
Supp. 184 , 177 F.
Supp. 803 , a state court's inability to grant relief does not
bar a federal court's assuming jurisdiction to inquire into alleged
deprivation of federal constitutional rights. Problems of relief
also controlled in Radford v. Gary, 352 U.S. 991,
affirming the District Court's refusal to mandamus the Governor to
call a session of the legislature, to mandamus the legislature then
to apportion, and if they did not comply, to mandamus the State
Supreme Court to do so. And Matthews v. Handley, 361 U. S. 127 ,
affirmed a refusal to strike down the State's gross income tax
statute -- urged on the ground that the legislature was
malapportioned -- that had rested on the adequacy of available
state legal remedies for suits involving that tax, including
challenges to its constitutionality. Lastly, Colegrove v.
Barrett, 330 U.S. 804, in which Mr. Justice Rutledge concurred
in this Court's refusal to note the appeal from a dismissal for
want of equity, is sufficiently explained by his statement in Cook v. Fortson, supra: "The discretionary exercise or nonexercise of equitable or
declaratory judgment jurisdiction . . . in one case is not
precedent in another case Page 369 U. S. 237 where the facts differ."

															329 U.S. at 329 U. S. 678 ,
n. 8. (Citations omitted.)

															We conclude that the complaint's allegations of a denial of
equal protection present a justiciable constitutional cause of
action upon which appellants are entitled to a trial and a
decision. The right asserted is within the reach of judicial
protection under the Fourteenth Amendment.

															The judgment of the District Court is reversed, and the cause is
remanded for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE WHITAKER did not participate in the decision of this
case.

															[ Footnote 1 ]

															Public Acts of Tennessee, c. 122 (1901), now Tenn.Code Ann. §§
3-101 to 3-107. The full text of the 1901 Act as amended appears in
an Appendix to this opinion, post, p. 369 U.S. 237 [ Footnote 2 ]

															The three-judge court was convened pursuant to the order of a
single district judge, who, after he had reviewed certain decisions
of this Court and found them distinguishable in features "that may
ultimately prove to be significant," held that the complaint was
not so obviously without merit that he would be justified in
refusing to convene a three-judge court. 175 F.
Supp. 649 , 652.

															[ Footnote 3 ]

															We heard argument first at the 1960 Term and again at this Term,
when the case was set over for reargument. 366 U.S. 907.

															[ Footnote 4 ]

															A county having less than, but at least two-thirds of, the
population required to choose a Representative is allocated one
Representative. See also Tenn.Const., Art. II, § 6. A
common and much more substantial departure from the "number of
voters" or "total population" standard is the guaranty of at least
one seat to each county. See, e.g., Kansas Const., Art. 2,
§ 2; N.J.Const., Art. 4, § 3, � 1.

															While the Tennessee Constitution speaks of the number of
"qualified voters," the exhibits attached to the complaint use
figures based on the number of persons 21 years of age and over.
This basis seems to have been employed by the General Assembly in
apportioning legislative seats from the outset. The 1870 statute
providing for the first enumeration, Acts of 1870 (1st Sess.), c.
107, directed the courts of the several counties to select a
Commissioner to enumerate

															"all the male inhabitants of their respective counties, who are
twenty-one years of age and upward, who shall be resident citizens
of their counties on the first day of January, 1871. . . ."

															Reports compiled in the several counties on this basis were
submitted to the General Assembly by the Secretary of State and
were used in the first apportionment. Appendix to Tenn.S.J., 1871,
41-43. Yet such figures would not reflect the numbers of persons
qualified to exercise the franchise under the then-governing
qualifications: (a) citizenship; (b) residence in the State 12
months, and in the county 6 months; (c) payment of poll taxes for
the preceding year unless entitled to exemption. Acts of 1870 (2d
Sess.), c. 10. (These qualifications continued at least until after
1901. See Shan.Tenn.Code Ann., §§ 1167, 1220 (1896; supp.
1904).) Still, when the General Assembly directed the Secretary of
State to do all he could to obtain complete reports from the
counties, the Resolution spoke broadly of "the impossibility of . .
. [redistricting] without the census returns of the voting
population from each county. . . ." Tenn.S.J., 1871, 46 47, 96. The
figures also showed a correlation with Federal Census figures for
1870. The Census reported 259,016 male citizens 21 and upward in
Tennessee. Ninth Census of the United States, 1870, Statistics of
the Population 635 (1872). The Tennessee Secretary of State's
Report, with 15 counties not reported, gave a figure of 237,431.
Using the numbers of actual votes in the last gubernatorial
election for those 15 counties, the Secretary arrived at a total of
250,025. Appendix to Tenn.S.J., 1871, 41-43. This and subsequent
history indicate continued reference to Census figures, and
finally, in 1901, abandonment of a state enumeration in favor of
the use of Census figures. See notes 7 8 9 infra. See also Williams, Legislative Apportionment in Tennessee, 20 Tenn.L.Rev.
235, 236, n. 6. It would therefore appear that, unless there is a
contrary showing at the trial, appellants' current figures, taken
from the United States Census Reports, are apposite.

															[ Footnote 5 ]

															Acts of 1871 (1st Sess.), c. 146.

															[ Footnote 6 ]

															Act of 1870 (1st Sess.), c. 107.

															[ Footnote 7 ]

															The statute authorizing the enumeration was Acts of 1881 (1st
Sess.), c. 124. The enumeration commissioners in the counties were
allowed

															"access to the U.S. Census Reports of the enumeration of 1880,
on file in the offices of the County Court Clerks of the State, and
a reference to said reports by said commissioners shall be
legitimate as an auxiliary in the enumeration required. . ." Ibid., § 4.

															The United States Census reported 330,305 male citizens 21 and
upward in Tennessee. The Tenth Census of the United States, 1880,
Compendium 596 (1883). The Tennessee Secretary of State's Report
gave a figure of 343,817, Tenn.H.J. (1st Extra.Sess.), 1881, 12-14
(1882).

															The General Assembly was enlarged in accordance with the
constitutional mandate, since the State's population had passed
1,500,000. Acts of 1881 (1st Extra.Sess.), c. 5, and see,
id., S.J.Res. No. III; see also Tenth Census of the
United States, 1880, Statistics of the Population 77 (1881). The
statute apportioning the General Assembly was Acts of 1881 (1st
Extra.Sess.), c. 6.

															[ Footnote 8 ]

															Acts of 1891, c. 22; Acts of 1891 (Extra.Sess.), c. 10.
Reference to United States Census figures was allowed just as in
1881, see supra, n 7.
The United States Census reported 402,476 males 21 and over in
Tennessee. The Eleventh Census of the United States, 1890,
Population (Part I) 781 (1895). The Tennessee Secretary of State's
Report gave a figure of 399,575. 1 Tenn.S.J., 1891, 473 474.

															[ Footnote 9 ]

															Acts of 1901, S.J.Res. No. 35; Acts of 1901, c. 122. The Joint
Resolution said:

															"The Federal census of 1900 has been very recently taken, and,
by reference to said Federal census, an accurate enumeration of the
qualified voters of the respective counties of the State of
Tennessee can be ascertained, and thereby save the expense of an
actual enumeration. . . ."

															[ Footnote 10 ]

															For the history of legislative apportionment in Tennessee,
including attempts made since 1901, see Tenn.S.J., 1959,
909-930; and "A Documented Survey of Legislative Apportionment in
Tennessee, 1870-1957," which is attached as exhibit 2 to the
intervening complaint of Mayor West of Nashville, both prepared by
the Tennessee State Historian, Dr. Robert H. White. Examples of
preliminary steps are: in 1911, the Senate called upon the
Redistricting Committee to make an enumeration of qualified voters
and to use the Federal Census of 1910 as the basis. Acts of 1911,
S.J.Res. No. 60, p. 315. Similarly, in 1961, the Senate called for
appointment of a select committee to make an enumeration of
qualified voters. Acts of 1961, S.J.Res. No. 47. In 1955, the
Senate called for a study of reapportionment. Tenn.S.J., 1955, 224; but see id. at 1403. Similarly, in 1961, the House
directed the State Legislative Council to study methods of
reapportionment. Acts of 1961, H.J.Res. No. 65.

															[ Footnote 11 ]

															Twelfth Census of the United States, 1900, Population (Part 1)
39 (1901); (Part 2) 202 (1902).

															[ Footnote 12 ]

															United States Census of Population:1960, General Population
Characteristics -- Tennessee, Table 16 (1961).

															[ Footnote 13 ]

															In the words of one of the intervening complaints, the
apportionment was "wholly arbitrary, . . . and, indeed, based upon
no lawfully pertinent factor whatever."

															[ Footnote 14 ]

															The appellants claim that no General Assembly constituted
according to the 1901 Act will submit reapportionment proposals
either to the people or to a Constitutional Convention. There is no
provision for popular initiative in Tennessee. Amendments proposed
in the Senate or House must first be approved by a majority of all
members of each House and again by two-thirds of the members in the
General Assembly next chosen. The proposals are then submitted to
the people at the next general election in which a Governor is to
be chosen. Alternatively, the legislature may submit to the people
at any general election the question of calling a convention to
consider specified proposals. Such as are adopted at a convention
do not, however, become effective unless approved by a majority of
the qualified voters voting separately on each proposed change or
amendment at an election fixed by the convention. Conventions shall
not be held oftener than once in six years. Tenn.Const., Art. XI, §
3. Acts of 1951, C. 130, § 3, and Acts of 1957, G. 340, § 3,
provided that delegates to the 1953 and 1959 conventions were to be
chosen from the counties and floterial districts just as are
members of the State House of Representatives. The General
Assembly's call for a 1953 Constitutional Convention originally
contained a provision "relating to the appointment [ sic ]
of representatives and senators," but this was excised. Tenn.H.J.,
1951, 784. A Resolution introduced at the 1959 Constitutional
Convention and reported unfavorably by the Rules Committee of the
Convention was as follows:

															"By Mr. Chambliss (of Hamilton County), Resolution No. 12 --
Relative to Convention considering reapportionment, which is as
follows: "

															"WHEREAS, there is a rumor that this Limited Convention has been
called for the purpose of postponing for six years a Convention
that would make a decision as to reapportionment; and WHEREAS there
is pending in the United States Courts in Tennessee a suit under
which parties are seeking, through decree, to compel
reapportionment; and"

															"WHEREAS it is said that this Limited Convention, which was
called for limited consideration, is yet a Constitutional
Convention within the language of the Constitution as to
Constitutional Conventions, forbidding frequent Conventions in the
last sentence of Article Eleven, Section 3, second paragraph, more
often than each six years, to-wit: "

															"'No such Convention shall be held oftener than once in six
years.'"

															"NOW, THEREFORE, BE IT RESOLVED, That it is the consensus of
opinion of the members of this Convention that, since this is a
Limited Convention, as hereinbefore set forth, another Convention
could be had if it did not deal with the matters submitted to this
Limited Convention."

															"BE IT FURTHER RESOLVED That it is the consensus of opinion of
this Convention that a Convention should be called by the General
Assembly for the purpose of considering reapportionment in order
that a possibility of Court enforcement being forced on the
Sovereign State of Tennessee by the Courts of the National
Government may be avoided."

															"BE IT FURTHER RESOLVED That this Convention be adjourned for
two years to meet again at the same time set forth in the statute
providing for this Convention, and that it is the consensus of
opinion of this body that it is within the power of the next
General Assembly of Tennessee to broaden the powers of this
Convention and to authorize and empower this Convention to consider
a proper amendment to the Constitution that will provide, when
submitted to the electorate, a method of reapportionment."

															Tenn.Constitutional Convention of 1959, The Journal and Debates,
35, 278.

															[ Footnote 15 ]

															It is clear that appellants' federal constitutional claims rest
exclusively on alleged violation of the Fourteenth Amendment. Their
primary claim is that the 1901 statute violates the Equal
Protection Clause of that amendment. There are allegations invoking
the Due Process Clause, but, from the argument and the exhibits, it
appears that the Due Process Clause argument is directed at certain
tax statutes. Insofar as the claim involves the validity of those
statutes under the Due Process Clause, we find it unnecessary to
decide its merits. And if the allegations regarding the tax
statutes are designed as the framework for proofs as to the effects
of the allegedly discriminatory apportionment, we need not rely
upon them to support our holding that the complaint states a
federal constitutional claim of violation of the Equal Protection
Clause. Whether, when the issue to be decided is one of the
constitutional adequacy of this particular apportionment, taxation
arguments and exhibits as now presented add anything, or whether
they could add anything however presented, is for the District
Court in the first instance to decide.

															The complaint, in addition to the claims under the Federal
Constitution, also alleges rights, and the General Assembly's
duties, under the Tennessee Constitution. Since we hold that
appellants have -- if it develops at trial that the facts support
the allegations -- a cognizable federal constitutional cause of
action resting in no degree on rights guaranteed or putatively
guaranteed by the Tennessee Constitution, we do not consider, let
alone enforce, rights under a State Constitution which go further
than the protections of the Fourteenth Amendment. Lastly, we need
not assess the legal significance, in reaching our conclusion, of
the statements of the complaint that the apportionment effected
today under the 1901 Act is "contrary to the philosophy of
government in the United States and all Anglo-Saxon jurisprudence.
. . ."

															[ Footnote 16 ]

															We need not reach the question of indispensable parties, because
the District Court has not yet decided it.

															[ Footnote 17 ]

															The accuracy of calling even such dismissals "jurisdictional"
was questioned in Bell v. Hood. See 327 U.S. at 327 U. S.
683 .

															[ Footnote 18 ]

															42 U.S.C. § 1983 provides:

															"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."

															[ Footnote 19 ]

															This Court has frequently sustained District Court jurisdiction
under 28 U.S.C. § 1343(3) or its predecessors to entertain suits to
redress deprivations of rights secured against state infringement
by the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. Douglas v. Jeannette, 319 U.
S. 157 ; Stefanelli v. Minard, 342 U.
S. 117 ; cf. Nixon v. Herndon, 273 U.
S. 536 ; Nixon v. Condon, 286 U. S.
73 ; Snowden v. Hughes, 321 U. S.
1 ; Smith v. Allwright, 321 U.
S. 649 ; Monroe v. Pape, 365 U.
S. 167 ; Egan v. Aurora, 365 U.
S. 514 .

															[ Footnote 20 ]

															Since that case was not brought to the Court until after the
election had been held, the Court cited not only Wood v.
Broom, but also directed dismissal for mootness, citing Brownlow v. Schwartz, 261 U. S. 216 .

															[ Footnote 21 ] Compare Boeing Aircraft Co. v. King County, 330 U.S.
803 ("the appeal is dismissed for want of jurisdiction"). See
Coleman v. Miller, 307 U. S. 433 , 307 U. S.
440 .

															[ Footnote 22 ]

															Matthews did affirm a judgment that may be read as a dismissal
for want of jurisdiction, 179 F.
Supp. 470 . However, the motion to affirm also rested on the
ground of failure to state a claim upon which relief could be
granted. Cf. text following, on MacDougall v.
Green. And see text infra, p. 369 U.S. 236 .

															[ Footnote 23 ]

															The Mayor of Nashville suing "on behalf of himself and all
residents of the City of Nashville, Davidson County, . . ." and the
Cities of Chattanooga (Hamilton County) and Knoxville (Knox
County), each suing on behalf of its residents, were permitted to
intervene as parties plaintiff. Since they press the same claims as
do the initial plaintiffs, we find it unnecessary to decide whether
the intervenors would have standing to maintain this action in
their asserted representative capacities.

															[ Footnote 24 ]

															The complaint also contains an averment that the appellants sue
"on their own behalf and on behalf of all other voters in
the State of Tennessee." (Emphasis added.) This may be read to
assert a claim that voters in counties allegedly over-represented
in the General Assembly also have standing to complain. But it is
not necessary to decide that question in this case.

															[ Footnote 25 ]

															The duties of the respective appellees are alleged to be as
follows:

															"Defendant, Joe C. Carr, is the duly elected, qualified
and acting Secretary of State of the State of Tennessee, with his
office in Nashville in said State, and, as such, he is charged with
the duty of furnishing blanks, envelopes and information slips to
the County Election Commissioners, certifying the results of
elections and maintaining the records thereof, and he is further ex
officio charged, together with the Governor and the Attorney
General, with the duty of examining the election returns received
from the County Election Commissioners and declaring the election
results, by the applicable provisions of the Tennessee Code
Annotated, and by Chapter 164 of the Acts of 1949, inter alia."

															"Defendant, George F. McCanless, is the duly appointed
and acting Attorney General of the State of Tennessee, with his
office in Nashville in said State, and is charged with the duty of
advising the officers of the State upon the law, and is made by
Section 23-1107 of the Tennessee Code Annotated a necessary party
defendant in any declaratory judgment action where the
constitutionality of statutes of the State of Tennessee is
attacked, and he is ex officio charged, together with the Governor
and the Secretary of State, with the duty of declaring the election
results, under Section 2-140 of the Tennessee Code Annotated."

															"Defendant, Jerry McDonald, is the duly appointed
Coordinator of Elections in the State of Tennessee, with his office
in Nashville, Tennessee, and, as such official, is charged with the
duties set forth in the public law enacted by the 1959 General
Assembly of Tennessee creating said office."

															"Defendants, Dr. Sam Coward, James Alexander, and Hubert Brooks are the duly appointed and qualified members
constituting the State Board of Elections, and as such they are
charged with the duty of appointing the Election Commissioners for
all the counties of the State of Tennessee, the organization and
supervision of the biennial elections as provided by the Statutes
of Tennessee, Chapter 9 of Title 2 of the Tennessee Code Annotated,
Sections 2-901, et seq. "

															"That this action is brought against the aforenamed defendants
in their representative capacities, and that said Election
Commissioners are sued also as representatives of all of the County
Election Commissioners in the State of Tennessee, such persons
being so numerous as to make it impracticable to bring them all
before the court; that there is a common question of law involved,
namely, the constitutionality of Tennessee laws set forth in the
Tennessee Code Annotated, Section 3-101 through Section 3-109,
inclusive; that common relief is sought against all members of said
Election Commissions in their official capacities, it being the
duties of the aforesaid County Election Commissioners, within their
respective jurisdictions, to appoint the judges of elections, to
maintain the registry of qualified voters of said County, certify
the results of elections held in said County to the defendants
State Board of Elections and Secretary of State, and of preparing
ballots and taking other steps to prepare for and hold elections in
said Counties by virtue of Sections 2-1201 et seq. of Tennessee
Code Annotated, and Section 2-301 et seq. of Tennessee Code
Annotated, and Chapter 164 of the Acts of 1949, inter alia."

															The question whether the named defendants are sufficient parties
remains open for consideration on remand.

															[ Footnote 26 ] Smiley v. Holm, supra, at 285 U. S. 361 (" citizen, elector and taxpayer' of the State"); Koenig v.
Flynn, supra, at 285 U. S. 379 ("`citizens and voters' of the State"); Wood v. Broom,
supra, at 4 ("citizen of Mississippi, a qualified elector
under its laws, and also qualified to be a candidate for election
as representative in Congress"); cf. Carroll v. Becker,
supra, (candidate for office). [ Footnote 27 ]

															Mr. Justice Rutledge was of the view that any question of
standing was settled in Smiley v. Holm, supra; MR. JUSTICE
BLACK stated "that appellants had standing to sue, since the facts
alleged show that they have been injured as individuals." He relied
on Coleman v Miller, 307 U. S. 433 , 307 U. S. 438 , 307 U. S. 467 .
@See 328 U. S. 328 U.S. 564, 328 U. S.
568 .

															Commentators have suggested that the following statement in MR.
JUSTICE FRANKFURTER s opinion might imply a view that appellants
there had no standing:

															"This is not an action to recover for damage because of the
discriminatory exclusion of a plaintiff from rights enjoyed by
other citizens. The basis for the suit is not a private wrong, but
a wrong suffered by Illinois as a polity."

															328 U.S. at 328 U. S. 552 . See Jaffe, Standing to Secure Judicial Review: Public
Actions, 74 Harv.L.Rev. 1265, 1298 (1961); Lewis, Legislative
Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057,
1081-1083 (1958). But since the opinion goes on to consider the
merits, it seems that this statement was not intended to intimate
any view that the plaintiffs in that action lacked standing. Nor do
the cases cited immediately after the above quotation deal with
standing. See especially Lane v. Wilson, 307 U.
S. 268 , 307 U. S.
272 -273.

															[ Footnote 28 ] MacDougall v. Green, supra, at 335 U. S. 282 ("the Progressive Party,' its nominees for United States
Senator, Presidential Electors, and State offices, and several
Illinois voters"); South v. Peters, supra, at 339 U. S. 277 ("residents of the most populous county in the State"); Radford
v. Gary, 145 F.
Supp. 541 , 542 ("citizen of Oklahoma and resident and voter in
the most populous county"); Matthews v. Handley, supra, ("citizen of the State"); see also Hawke v. Smith (No. 1), 253 U. S. 221 ; Leser v. Garnett, 258 U. S. 130 ; Coleman v. Miller, 307 U. S. 433 , 307 U. S.
437 -446. [ Footnote 29 ] Cook v. Fortson, 329 U. S. 675 ; Turman v. Duckworth, ibid.; Colegrove v. Barrett, 330 U.S.
804; MacDougall v. Green, 335 U.
S. 281 ; South v. Peters, 339 U.
S. 276 ; Remmey v. Smith, 342 U.S. 916; Anderson v. Jordan, 343 U.S. 912; Kidd v.
McCanless, 352 U.S. 920; Radford v. Cary, 352 U.S.
991.

															[ Footnote 30 ]

															"The United States shall guarantee to every State in this Union
a Republican Form of Government, and shall protect each of them
against Invasion, and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against
domestic Violence."

															U.S.Const., Art. IV, 4.

															[ Footnote 31 ] E.g., "The conduct of the foreign relations of our Government is
committed by the Constitution to the Executive and Legislative --
'the political' -- Departments of the Government, and the propriety
of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision." Oetjen v. Central Leather Co., 246 U.
S. 297 , 246 U. S.
302 .

															[ Footnote 32 ] See Doe v. Braden , 16 How. 635, 57 U. S. 657 ; Taylor v. Morton, 23 Fed.Cas., No. 13,799 (C.C.D.Mass.)
(Mr. Justice Curtis), affirmed, 2 Black 481.

															[ Footnote 33 ] See Doe v. Braden , 16 How. 635, 57 U. S.
657 .

															[ Footnote 34 ] And see Clark v. Allen, 331 U.
S. 503 .

															[ Footnote 35 ] United States v.
Klintock , 5 Wheat. 144, 18 U. S. 149 , See also United States v.
Palmer , 3 Wheat. 610, 16 U. S.
634 -635.

															[ Footnote 36 ] Foster & Elam v.
Neilson , 2 Pet. 253, 27 U. S. 307 , and see 38 U. S. Suffolk
Insurance Co., 13 Pet. 415, 38 U. S.
420 .

															[ Footnote 37 ] Vermilya-Brown Co. v. Connell, 335 U.
S. 377 , 335 U. S. 380 ; De Lima v. Bidwell, 182 U. S. 1 , 182 U. S.
180 -200.

															[ Footnote 38 ] See, e.g., Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S.
426 .

															[ Footnote 39 ] Contrast Martin v. Mott, supra. [ Footnote 40 ] But cf. Dakota Central Tel. Co. v. South Dakota, 250 U. S. 163 , 250 U. S. 184 , 250 U. S.
187 .

															[ Footnote 41 ] Cf. Dillon v. Gloss, 256 U. S. 368 . See also United States v. Sprague, 282 U.
S. 716 , 282 U. S.
732 .

															[ Footnote 42 ] See also Fellows v.
Blacksmith , 19 How. 366, 60 U. S. 372 ; United States v. Old Settlers, 148 U.
S. 427 , 148 U. S. 466 , and compare 57 U. S. Braden, 16 How. 635, 57 U. S.
657 .

															[ Footnote 43 ]

															This case, so frequently cited for the broad proposition that
the status of an Indian tribe is a matter for the political
departments, is, in fact, a noteworthy example of the limited and
precise impact of a political question. The Cherokees brought an
original suit in this Court to enjoin Georgia's assertion of
jurisdiction over Cherokee territory and abolition of Cherokee
government and laws. Unquestionably the case lay at the vortex of
most fiery political embroilment. See 1 Warren, The
Supreme Court in United States History (Rev. ed.), 729-779. But in
spite of some broader language in separate opinions, all that the
Court held was that it possessed no original jurisdiction over the
suit, for the Cherokees could in no view be considered either a
State of this Union or a "foreign state." Chief Justice Marshall
treated the question as one of de novo interpretation of
words in the Constitution. The Chief Justice did say that "The acts
of our government plainly recognize the Cherokee nation as a state,
and the courts are bound by those acts," but here he referred to
their existence "as a state, as a distinct political society,
separated from others. . . ." From there he went to "A question of
much more difficulty. . . . Do the Cherokees constitute a foreign
state in the sense of the constitution?" Id. at 30 U. S. 16 . Thus,
while the Court referred to "the political" for the decision
whether the tribe was an entity, a separate polity, it held that
whether being an entity the tribe had such status as to be entitled
to sue originally was a judicially soluble issue: criteria were
discoverable in relevant phrases of the Constitution and in the
common understanding of the times. As to this issue, the Court was
not hampered by problems of the management of unusual evidence or
of possible interference with a congressional program. Moreover,
Chief Justice Marshall's dictum that "It savours too much of the
exercise of political power to be within the proper province of the
judicial department," id. at 30 U. S. 20 , was
not addressed to the issue of the Cherokees' status to sue, but
rather to the breadth of the claim asserted and the impropriety of
the relief sought. Compare 73 U. S. Stanton, 6 Wall. 50, 73 U. S. 77 . The
Chief Justice made clear that, if the issue of the Cherokees'
rights arose in a customary legal context, "a proper case with
proper parties," it would be justiciable. Thus, when the same
dispute produced a case properly brought, in which the right
asserted was one of protection under federal treaties and laws from
conflicting state law, and the relief sought was the voiding of a
conviction under that state law, the Court did void the conviction. Worcester v.
Georgia , 6 Pet. 515. There, the fact that the tribe
was a separate polity served as a datum contributing to the result,
and despite the consequences in a heated federal-state controversy
and the opposition of the other branches of the National
Government, the judicial power acted to reverse the State Supreme
Court. An example of similar isolation of a political question in
the decision of a case is Luther v.
Borden , 7 How. 1, see infra. [ Footnote 44 ]

															7 How. at 29. And see 11 The Writings and Speeches of
Daniel Webster 217 (1903).

															[ Footnote 45 ] See Mowry, The Dorr War (1901), and its exhaustive
bibliography. And for an account of circumstances surrounding the
decision here, see 2 Warren, The Supreme Court in United
States History (Rev. ed.), 185-195.

															Dorr himself, head of one of the two groups and held in a Rhode
Island jail under a conviction for treason, had earlier sought a
decision from the Supreme Court that his was the lawful government.
His application for original habeas corpus in the Supreme Court was
denied because the federal courts then lacked authority to issue
habeas for a prisoner held under a state court sentence. Ex parte Dorr , 3 How. 103.

															[ Footnote 46 ]

															7 How. at 48 U. S. 39 .

															[ Footnote 47 ] Id. at 48 U. S. 39 , 48 U. S. 40 .

															[ Footnote 48 ]

															Even though the Court wrote of unrestrained legislative and
executive authority under this Guaranty, thus making its
enforcement a political question, the Court plainly implied that
the political question barrier was no absolute:

															"Unquestionably a military government, established as the
permanent government of the State, would not be a republican
government, and it would be the duty of Congress to overthrow
it."

															7 How. at 48 U. S. 45 . Of
course, it does not necessarily follow that, if Congress did not
act, the Court would. For while the judiciary might be able to
decide the limits of the meaning of "republican form," and thus the
factor of lack of criteria might fall away, there would remain
other possible barriers to decision because of primary commitment
to another branch, which would have to be considered in the
particular fact setting presented.

															That was not the only occasion on which this Court indicated
that lack of criteria does not obliterate the Guaranty's extreme
limits:

															"The guaranty is of a republican form of government. No
particular government is designated as republican, neither is the
exact form to be guaranteed in any manner especially designated.
Here, as in other parts of the instrument, we are compelled to
resort elsewhere to ascertain what was intended."

															"The guaranty necessarily implies a duty on the part of the
States themselves to provide such a government. All the States had
governments when the Constitution was adopted. In all, the people
participated to some extent, through their representatives elected
in the manner specially provided. These governments the
Constitution did not change. They were accepted precisely as they
were, and it is, therefore, to be presumed that they were such as
it was the duty of the States to provide. Thus, we have
unmistakable evidence of what was republican in form within the
meaning of that term as employed in the Constitution." Minor v.
Happersett , 21 Wall. 162, 88 U. S.
175 -176. There, the question was whether a government
republican in form could deny the vote to women. In re Duncan, 139 U. S. 449 ,
upheld a murder conviction against a claim that the relevant codes
had been invalidly enacted. The Court there said:

															"By the Constitution, a republican form of government is
guaranteed to every State in the Union, and the distinguishing
feature of that form is the right of the people to choose their own
officers for governmental administration, and pass their own laws
in virtue of the legislative power reposed in representative
bodies, whose legitimate acts may be said to be those of the people
themselves; but, while the people are thus the source of political
power, their governments, National and State, have been limited by
written constitutions, and they have themselves thereby set bounds
to their own power, as against the sudden impulses of mere
majorities."

															139 U.S. at 139 U. S. 461 .
But the Court did not find any of these fundamental principles
violated.

															[ Footnote 49 ] But cf. Hawke v. Smith (No. 1), 253 U.
S. 221 ; National Prohibition Cases, 253 U. S. 350 .

															[ Footnote 50 ]

															6 Wall. at 65-66 [argument of counsel -- omitted].

															[ Footnote 51 ]

															The First Reconstruction Act opened:

															"Whereas no legal State governments . . . now exists
[ sic ] in the rebel States of . . . Georgia [and]
Mississippi . . . , and whereas it is necessary that peace and good
order should be enforced in said States until loyal and republican
State governments can be legally established . . ."

															14 Stat. 428. And see 15 Stat. 2, 14.

															[ Footnote 52 ]

															In Mississippi v.
Johnson , 4 Wall. 475, the State sought to enjoin
the President from executing the Acts, alleging that his role was
purely ministerial. The Court held that the duties were in no sense
ministerial, and that, although the State sought to compel
inaction, rather than action, the absolute lack of precedent for
any such distinction left the case one in which "general principles
. . . forbid judicial interference with the exercise of Executive
discretion." 4 Wall. at 71 U. S. 499 . See also Mississippi v. Stanton, 154 U.S. 554, and
see 2 Warren, The Supreme Court in United States History (Rev.
ed.), 463.

															For another instance of congressional action challenged as
transgressing the Guaranty Clause, See The Collector v.
Day , 11 Wall. 113, 78 U. S.
125 -126, overruled, Graves v. O'Keefe, 306 U. S. 466 .

															[ Footnote 53 ]

															On the other hand, the implication of the Guaranty Clause in a
case concerning congressional action does not always preclude
judicial action. It has been held that the clause gives Congress no
power to impose restrictions upon a State's admission which would
undercut the constitutional mandate that the States be on an equal
footing. Coyle v. Smith, 221 U. S. 559 . And
in Texas v.
White , 7 Wall. 700, although Congress had
determined that the State's government was not republican in form,
the State's standing to bring an original action in this Court was
sustained.

															[ Footnote 54 ] See infra, p. 369 U.S.
235 , considering Kidd v. McCanless, 352 U.S.
920.

															[ Footnote 55 ]

															Boyd v. Nebraska ex rel. Thayer, 143 U.
S. 135 , 143 U. S. 183 (Field, J., dissenting).

															[ Footnote 56 ] Gomillion v. Lightfoot, 270 F.2d 594, relying upon, inter alia, Hunter v. Pittsburgh, 207 U.
S. 161 .

															[ Footnote 57 ]

															The Court's opinion was joined by MR. JUSTICE DOUGLAS, noting
his adherence to the dissents in Colegrove and South
v. Peters, supra, and the judgment was concurred in by MR.
JUSTICE WHITTAKER, who wrote that the decision should rest on the
Equal Protection Clause, rather than on the Fifteenth Amendment,
since there had been not solely a denial of the vote (if there had
been that, at all), but also a "fencing out" of a racial group.

															[ Footnote 58 ]

															No holding to the contrary is to be found in Cave v.
Newell, 246 U.S. 650, dismissing a writ of error to the
Supreme Court of Missouri 272 Mo. 653, 199 S.W. 1014; or in Snowden v. Hughes, 321 U. S. 1 .

															[ Footnote 59 ]

															The ground of Mr. Justice Rutledge's vote to affirm is further
explained in his footnote 3, 328 U.S. at 328 U. S.
566 :

															""The power of a court of equity to act is a discretionary one.
. . . Where a federal court of equity is asked to interfere with
the enforcement of state laws, it should do so only to prevent
irreparable injury which is clear and imminent.'" American
Federation of Labor v. Watson, 327 U.
S. 582 , 327 U. S. 593 and cases cited." No constitutional questions, including the question whether
voters have a judicially enforceable constitutional right to vote
at elections of congressmen from districts of equal population,
were decided in Colegrove. Six of the participating
Justices reached the questions, but divided three to three on their
merits. Mr. Justice Rutledge believed that it was not necessary to
decide them. He said:

															"There is [an alternative to constitutional decision] in this
case. And I think the gravity of the constitutional questions
raised so great, together with the possibilities for collision
[with the political departments of the Government], that the
admonition [against avoidable constitutional decision] is
appropriate to be followed here. Other reasons support this view,
including the fact that, in my opinion, the basic ruling and less
important ones in Smiley v. Holm, supra, would otherwise
be brought into question."

															328 U.S. at 328 U. S.
564 -565. He also joined with his brethren who shared his
view that the issues were justiciable in considering that Wood
v. Broom, 287 U. S. 1 , decided
no constitutional questions, but

															"the Court disposed of the cause on the ground that the 1929
Reapportionment Act, 46 Stat. 21, did not carry forward the
requirements of the 1911 Act, 37 Stat. 13, and declined to decide
whether there was equity in the bill."

															328 U.S. at 328 U. S. 565 ; see also id. at 328 U. S. 573 .
We agree with this view of Wood v. Broom. [ Footnote 60 ] See also Buford v. State Board of Elections, 206 Tenn.
480, 334
S.W.2d 726 ; State ex rel. Sanborn v. Davidson County Board
of Election Comm'rs, No. 36,391 Tenn.Sup.Ct., Oct. 9, 1954
(unreported); 8 Vand.L.Rev. 501 (1955).

															| 369
U.S. 186 app| APPENDIX TO OPINION OF THE COURT The Tennessee Code Annotated provides for representation in the
General Assembly as follows:

															"3-101. Composition -- Counties electing one representative
each. -- The general assembly of the state of Tennessee shall
be composed of thirty-three (33) senators and ninety-nine (99)
representatives, to be apportioned among the qualified voters of
the state as follows: Until the next enumeration and apportionment
of voters each of the following counties shall elect one (1)
representative, to wit: Bedford, Blount, Cannon, Carroll, Chester,
Cocke Claiborne, Coffee, Crockett, DeKalb, Dickson, Dyer, Fayette,
Franklin, Giles, Greene, Hardeman, Hardin, Henry, Hickman, Hawkins,
Haywood, Jackson, Lake, Lauderdale, Lawrence, Lincoln, Marion,
Marshall, Maury, Monroe, Montgomery, Moore, McMinn, McNairy, Obion,
Overton, Putnam, Roane, Robertson, Rutherford, Sevier, Smith,
Stewart, Sullivan, Sumner, Tipton Warren, Washington, White,
Weakley, Williamson Page 369 U. S. 238 and Wilson. [Acts 1881 (E.S.), ch. 5, § 1; 1881 (E.S.), ch. 6, §
1; 1901, ch. 122, § 2; 1907, ch. 178, §§ 1, 2; 1915, ch. 145;
Shan., § 123; Acts 1919, ch. 147, § 1, 2; 1925 Private, ch. 472, §
1; Code 1932, § 140; Acts 1935, ch. 150, § 1; 1941, ch. 58, § 1;
1945, ch. 68, § 1; C. Supp. 1950, § 140.]"

															"3-102. Counties electing two representatives each. --
The following counties shall elect two (2) representatives each,
to-wit: Gibson and Madison. [Acts 1901, ch. 122, § 3; Shan., § 124;
mod.Code 1932, § 141.]"

															"3-103. Counties electing three representatives each. -- The following counties shall elect three (3) representatives
each, to-wit: Knox and Hamilton. [Acts 1901, ch. 122, § 4; Shan., §
125; Code 1932, § 142.]"

															"3-104. Davidson County. -- Davidson county shall elect
six (6) representatives. [Acts 1901, ch. 122, § 5; Shan., § 126;
Code 1932, § 143.]"

															"3-105. Shelby county. -- Shelby county shall elect
eight (8) representatives. Said county shall consist of eight (8)
representative districts, numbered one (1) through eight (8), each
district coextensive with the county, with one (1) representative
to be elected from each district. [Acts 1901, ch. 122, § 6; Shan.,
§ 126a1; Code 1932, § 144; Acts 1957, ch. 220, § 1; 1959, ch. 213,
§ 1.]"

															"3-106. Joint representatives. -- The following
counties jointly, shall elect one representative, as follows,
to-wit: "

															"First district -- Johnson and Carter."

															"Second district -- Sullivan and Hawkins."

															"Third district -- Washington, Greene and Unicoi."

															"Fourth district -- Jefferson and Hamblen."

															"Fifth district -- Hancock and Grainer."

															"Sixth district -- Scott, Campbell, and Union."

															"Seventh district -- Anderson and Morgan."

															"Eighth district -- Knox and Loudon. " Page 369 U. S. 239 "Ninth district -- Polk and Bradley."

															"Tenth district -- Meigs and Rhea."

															"Eleventh district Cumberland, Bledsoe, Saquatchie, Van Buren
and Grundy."

															"Twelfth district -- Fentress, Pickett, Overton, Clay and
Putnam."

															"Fourteenth district -- Sumner, Trousdale and Macon."

															"Fifteenth district -- Davidson and Wilson."

															"Seventeenth district -- Giles, Lewis, Maury and Wayne."

															"Eighteenth district -- Williamson, Cheatham and Robertson."

															"Nineteenth district -- Montgomery and Houston."

															"Twentieth district -- Humphreys and Perry."

															"Twenty-first district -- Benton and Decatur."

															"Twenty-second district -- Henry, Weakley and Carroll."

															"Twenty-third district -- Madison and Henderson."

															"Twenty-sixth district -- Tipton and Lauderdale. [Acts 1901, ch.
122, § 7; 1907, ch. 178, §§ 1, 2; 1915, ch. 145, §§ 1, 2; Shan., §
127; Acts 1919, ch. 147, § 1; 1925 Private, ch. 472, § 2; Code
1932, § 145; Acts 1933, ch. 167, 1; 1935, ch. 150, § 2; 1941, ch.
58, § 2; 1945, ch. 68, § 2; C. Supp. 1950, § 145; Acts 1957, ch.
220, § 2.]"

															"3-107. State senatorial districts. -- Until the next
enumeration and apportionment of voters, the following counties
shall comprise the senatorial districts, to-wit: "

															"First district -- Johnson, Carter, Unicoi, Greene, and
Washington."

															"Second district -- Sullivan and Hawkins."

															"Third district -- Hancock, Morgan, Grainer, Claiborne, Union,
Campbell, and Scott."

															"Fourth district -- Cocke, Hamblen, Jefferson, Sevier, and
Blount."

															"Fifth district -- Knox."

															"Sixth district -- Knox, Loudon, Anderson, and Roane Page 369 U. S. 240 "

															"Seventh district -- McMinn, Bradley, Monroe, and Polk."

															"Eighth district -- Hamilton."

															"Ninth district -- Rhea, Meigs, Bledsoe, Sequatchie, Van Buren,
White, and Cumberland."

															"Tenth district -- Fentress, Pickett, Clay, Overton, Putnam, and
Jackson."

															"Eleventh district -- Marion, Franklin, Grundy and Warren."

															"Twelfth district -- Rutherford, Cannon, and DeKalb."

															"Thirteenth district -- Wilson and Smith."

															"Fourteenth district -- Sumner, Trousdale and Macon."

															"Fifteenth district -- Montgomery and Robertson."

															"Sixteenth district -- Davidson."

															"Seventeenth district -- Davidson."

															"Eighteenth district -- Bedford, Coffee and Moore."

															"Nineteenth district -- Lincoln and Marshall."

															"Twentieth district -- Maury, Perry and Lewis."

															"Twenty-first district -- Hickman, Williamson and Cheatham."

															"Twenty-second district -- Giles, Lawrence and Wayne."

															"Twenty-third district -- Dickson, Humphreys, Houston and
Stewart."

															"Twenty-fourth district -- Henry and Carroll."

															"Twenty-fifth district -- Madison, Henderson and Chester."

															"Twenty-sixth district -- Hardeman, McNairy, Hardin, Decatur and
Benton."

															"Twenty-seventh district -- Gibson."

															"Twenty-eighth district -- Lake, Obion and Weakley."

															"Twenty-ninth district -- Dyer, Lauderdale and Crockett."

															"Thirtieth district -- Tipton and Shelby."

															"Thirty-first district -- Haywood and Fayette."

															"Thirty-second district -- Shelby Page 369 U. S. 241 "

															"Thirty-third district -- Shelby. [Acts 1901, ch. 122, § 1;
1907, ch. 3, § 1; Shan., § 128; Code 1932, § 146; Acts 1945, ch.
11, § 1; C. Supp. 1950, § 146.]"

															Today's apportionment statute is as enacted in 1901, with minor
changes. For example:

															(1) In 1957, Shelby County was raised from 7 1/2 to 8
representatives. Acts of 1957, C. 220. See also Acts of
1959, c. 213. The 1957 Act, § 2, abolished the Twenty-seventh Joint
Representative District, which had included Shelby and Fayette
Counties.

															(2) In 1907, Marion County was given a whole House seat instead
of sharing a joint seat with Franklin County. Acts of 1907, c. 178.
Acts of 1915, c. 145, repealed that change, restoring the status quo ante. And that reversal was itself reversed,
Acts of 1919, c. 147.

															(3) James County was in 1901 one of five counties in the Seventh
State Senate District and one of the three in the Ninth House
District. It appears that James County no longer exists, but we are
not advised when or how it was dissolved.

															(4) In 1945, Anderson and Roane Counties were shifted to the
Sixth State Senate District from the Seventh, and Monroe and Polk
Counties were shifted to the Seventh from the Sixth. Acts of 1945,
c. 11.

															MR. JUSTICE DOUGLAS, concurring.

															While I join the opinion of the Court and, like the Court, do
not reach the merits, a word of explanation is necessary. [ Footnote 2/1 ] I put to one side the
problems of "political" Page 369 U. S. 242 questions involving the distribution of power between this
Court, the Congress, and the Chief Executive. We have here a phase
of the recurring problem of the relation of the federal courts to
state agencies. More particularly, the question is the extent to
which a State may weight one person's vote more heavily than it
does another's.

															So far as voting rights are concerned, there are large gaps in
the Constitution. Yet the right to vote is inherent in the
republican form of government envisaged by Article IV, Section 4 of
the Constitution. The House -- and now the Senate -- are chosen by
the people. The time, manner, and place of elections of Senators
and Representatives are left to the States (Article I, Section 4,
Clause 1; Amendment XVII) subject to the regulatory power of
Congress. A "republican form" of government is guaranteed each
State by Article IV, Section 4, and each is likewise promised
protection against invasion. [ Footnote
2/2 ] Ibid. Page 369 U. S. 243 That the States may specify the qualifications for voters is
implicit in Article I, Section 2, Clause 1, which provides that the
House of Representatives shall be chosen by the Page 369 U. S. 244 people and that

															"the Electors (voters) in each State shall have the
Qualifications requisite for Electors (voters) of the most numerous
Branch of the State Legislature."

															The same provision, contained in the Seventeenth Amendment,
governs the election of Senators. Within limits, those
qualifications may be fixed by state law. See Lassiter v.
Northampton Election Board, 360 U. S. 45 , 360 U. S. 50 -51.
Yet, as stated in Ex parte Yarbrough, 110 U.
S. 651 , 110 U. S.
663 -664, those who vote for members of Congress do not
"owe their right to vote to the State law in any sense which makes
the exercise of the right to depend exclusively on the law of the
State." The power of Congress to prescribe the qualifications for
voters, and thus override state law, is not in issue here. It is,
however, clear that, by reason of the commands of the Constitution,
there are several qualifications that a State may not require.

															Race, color, or previous condition of servitude is an
impermissible standard by reason of the Fifteenth Amendment, and
that alone is sufficient to explain Gomillion v.
Lightfoot, 364 U. S. 339 . See Taper, Gomillion versus Lightfoot (1962),
pp.12-17.

															Sex is another impermissible standard by reason of the
Nineteenth Amendment.

															There is a third barrier to a State's freedom in prescribing
qualifications of voters, and that is the Equal Protection Clause
of the Fourteenth Amendment, the provision invoked here. And so the
question is, may a State weight the vote of one county or one
district more heavily than it weights the vote in another?

															The traditional test under the Equal Protection Clause has been
whether a State has made "an invidious discrimination," as it does
when it selects "a particular race or nationality for oppressive
treatment." See Skinner v. Oklahoma, 316 U.
S. 535 , 316 U. S. 541 .
Universal equality is not Page 369 U. S. 245 the test; there is room for weighting. As we stated in Williamson v. Lee Optical Co., 348 U.
S. 483 , 348 U. S. 489 ,
"The prohibition of the Equal Protection Clause goes no further
than the invidious discrimination."

															I agree with my Brother CLARK that, if the allegations in the
complaint can be sustained, a case for relief is established. We
are told that a single vote in Moore County, Tennessee, is worth 19
votes in Hamilton County, that one vote in Stewart or in Chester
County is worth nearly eight times a single vote in Shelby or Knox
County. The opportunity to prove that an "invidious discrimination"
exists should therefore be given the appellants.

															It is said that any decision in cases of this kind is beyond the
competence of courts. Some make the same point as regards the
problem of equal protection in cases involving racial segregation.
Yet the legality of claims and conduct is a traditional subject for
judicial determination. Adjudication is often perplexing and
complicated. An example of the extreme complexity of the task can
be seen in a decree apportioning water among the several States. Nebraska v. Wyoming, 325 U. S. 589 , 325 U. S. 665 . The
constitutional guide is often vague, as the decisions under the Due
Process and Commerce Clauses show. The problem under the Equal
Protection Clause is no more intricate. See Lewis,
Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev.
1057, 1083-1084.

															There are, of course, some questions beyond judicial competence.
Where the performance of a "duty" is left to the discretion and
good judgment of an executive officer, the judiciary will not
compel the exercise of his discretion one way or the other
( Kentucky v.
Dennison , 24 How. 66, 65 U. S. 109 ),
for to do so would be to take over the office. Cf. Federal
Communications Comm'n. v. Broadcasting Co., 309 U.
S. 134 , 309 U. S.
145 . Page 369 U. S. 246 Where the Constitution assigns a particular function wholly and
indivisibly [ Footnote 2/3 ] to
another department, the federal judiciary does not intervene. Oetjen v. Central Leather Co., 246 U.
S. 297 , 246 U. S. 302 .
None of those cases is relevant here. Page 369 U. S. 247 There is no doubt that the federal courts have jurisdiction of
controversies concerning voting rights. The Civil Rights Act gives
them authority to redress the deprivation "under color of any State
law" of any "right, privilege or immunity secured by the
Constitution of the United States or by any Act of Congress
providing for equal rights of citizens. . . ." 28 U.S.C. § 1343(3).
And 28 U.S.C. § 1343(4) gives the federal courts authority to award
damages or issue an injunction to redress the violation of "any Act
of Congress providing for the protection of civil rights, including
the right to vote. " (Italics added.) The element of state
action covers a wide range. For, as stated in United States v.
Classic, 313 U. S. 299 , 313 U. S.
326 :

															"Misuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law, is action taken 'under color of' state law." And see Monroe v. Pape, 365 U.
S. 167 .

															The right to vote in both federal and state elections was
protected by the judiciary long before that right received the
explicit protection it is now accorded by § 1343(4). Discrimination
against a voter on account of race has been penalized ( Ex parte
Yarbrough, 110 U. S. 651 ) or
struck down. Nixon v. Herndon, 273 U.
S. 536 ; Smith v. Allwright, 321 U.
S. 649 ; Terry v. Adams, 345 U.
S. 461 . Fraudulent acts that dilute the votes of
some Page 369 U. S. 248 have long been held to be within judicial cognizance. Ex
parte Siebold, 100 U. S. 371 . The
"right to have one's vote counted" whatever his race or nationality
or creed was held in United States v. Mosley, 238 U.
S. 383 , 238 U. S. 386 ,
to be "as open to protection by Congress as the right to put a
ballot in a box." See also United States v. Classic,
supra, 313 U. S.
324 -325; United States v. Saylor, 322 U.
S. 385 .

															Chief Justice Holt stated in Ashby v. White, 2 Ld.Raym.
938, 956 (a suit in which damages were awarded against election
officials for not accepting the plaintiff's vote, 3 Ld.Raym. 320)
that:

															"To allow this action will make publick officers more careful to
observe the constitution of cities and boroughs, and not to be so
partial as they commonly are in all elections, which is indeed a
great and growing mischief, and tends to the prejudice of the peace
of the nation."

															The same prophylactic effect will be produced here, as
entrenched political regimes make other relief as illusory in this
case as a petition to Parliament in Ashby v. White would
have been. [ Footnote 2/4 ] Page 369 U. S. 249 Intrusion of the Federal Government into the election machinery
of the States has taken numerous forms -- investigations
( Hannah v. Larche, 363 U. S. 420 );
criminal proceedings ( Ex parte Siebold, supra; Ex parte
Yarbrough, supra; United States v. Mosley, supra; United States v.
Classic, supra ); collection of penalties ( Smith v.
Allwright, supra ); suits for declaratory relief and for an
injunction ( Terry v. Adams, supra ); suits by the United
States under the Civil Rights Act to enjoin discriminatory
practices. United States v. Raines, 362 U. S.
17 .

															As stated by Judge McLaughlin in Dyer v. Kazuhisa
Abe, 138 F.
Supp. 220 , 236 (an apportionment case in Hawaii which was
reversed and dismissed as moot, 256 F.2d 728):

															"The whole thrust of today's legal climate is to end
unconstitutional discrimination. It is ludicrous to preclude
judicial relief when a mainspring of representative government is
impaired. Legislators have no immunity from the Constitution. The
legislatures of our land should be made as responsive to the
Constitution of the United States as are the citizens who elect the
legislators."

															With the exceptions of Colegrove v. Green, 328 U.
S. 549 ; MacDougall v. Green, 335 U.
S. 281 ; South v. Peters, 339 U.
S. 276 , and the decisions they spawned, the Court has
never thought that protection of voting rights Page 369 U. S. 250 was beyond judicial cognizance. Today's treatment of those cases
removes the only impediment to judicial cognizance of the claims
stated in the present complaint.

															The justiciability of the present claims being established, any
relief accorded can be fashioned in the light of well known
principles of equity. [ Footnote
2/5 ] Page 369 U. S. 251 [ Footnote 2/1 ]

															I feel strongly that many of the cases cited by the Court and
involving so-called "political" questions were wrongly decided.

															In joining the opinion, I do not approve those decisions, but
only construe the Court's opinion in this case as stating an
accurate historical account of what the prior cases have held.

															[ Footnote 2/2 ]

															The statements in Luther v.
Borden , 7 How. 1, 48 U. S. 42 , that
this guaranty is enforceable only by Congress or the Chief
Executive is not maintainable. Of course, the Chief Executive, not
the Court, determines how a State will be protected against
invasion. Of course, each House of Congress, not the Court, is "the
Judge of the Elections, Returns, and Qualifications of its own
Members." Article I, Section 5, Clause 1. But the abdication of all
judicial functions respecting voting rights (7 How. at 48 U. S. 41 ),
however justified by the peculiarities of the charter form of
government in Rhode Island at the time of Dorr's Rebellion, states
no general principle. It indeed is contrary to the cases discussed
in the body of this opinion -- the modern decisions of the Court
that give the full panoply of judicial protection to voting rights.
Today we would not say with Chief Justice Taney that it is no part
of the judicial function to protect the right to vote of those "to
whom it is denied by the written and established constitution and
laws of the State." Ibid. Moreover, the Court's refusal to examine the legality of the
regime of martial law which had been laid upon Rhode Island
( id. at 48 U. S. 45 -46) is
indefensible, as Mr. Justice Woodbury maintained in his dissent. Id. at 48 U. S. 59 et
seq. Today we would ask with him:

															". . . who could hold for a moment, when the writ of habeas
corpus cannot be suspended by the legislature itself, either in the
general government or most of the States, without an express
constitutional permission, that all other writs and laws could be
suspended, and martial law substituted for them over the whole
State or country, without any express constitutional license to
that effect, in any emergency?" Id. at 48 U. S. 67 .

															Justice Woodbury went on to say:

															"It would be alarming enough to sanction here an unlimited
power, exercised either by legislatures, or the executive, or
courts, when all our governments are themselves governments of
limitations and checks, and of fixed and known laws, and the people
a race above all others jealous of encroachments by those in power.
And it is far better that those persons should be without the
protection of the ordinary laws of the land who disregard them in
an emergency, and should look to a grateful country for indemnity
and pardon, than to allow, beforehand, the whole frame of
jurisprudence to be overturned, and every thing placed at the mercy
of the bayonet."

															"No tribunal or department in our system of governments ever can
be lawfully authorized to dispense with the laws, like some of the
tyrannical Stuarts, or to repeal, or abolish, or suspend the whole
body of them; or, in other words, appoint an unrestrained military
dictator at the head of armed men."

															"Whatever stretches of such power may be ventured on in great
crises, they cannot be upheld by the laws, as they prostrate the
laws and ride triumphant over and beyond them, however the Assembly
of Rhode Island, under the exigency, may have hastily supposed that
such a measure in this instance was constitutional. It is but a
branch of the omnipotence claimed by Parliament to pass bills of
attainder, belonging to the same dangerous and arbitrary family
with martial law." Id. at 48 U. S.
69 -70.

															What he wrote was later to become the tradition, as expressed by
Chief Justice Hughes in Sterling v. Constantin, 287 U. S. 378 , 287 U. S.
401 :

															"What are the allowable limits of military discretion, and
whether or not they have been overstepped in a particular case, are
judicial questions."

															[ Footnote 2/3 ]

															The category of the "political" question is, in my view,
narrower than the decided cases indicate.

															"Even the English courts have held that a resolution of one
House of Parliament does not change the law ( Stockdale v.
Hansard (1839), 9 A. & E. 1, and Bowles v. Bank of
England (No. 2) [1913] 1 Ch. 57), and these decisions imply
that the House of Commons, acting alone, does not constitute the
'Parliament' recognised by the English courts."

															103 Sol.Jour. 995, 996. The Court in Bowles v. Bank of
England, [1913] 1 Ch. 57, 84-85, stated:

															"By the statute 1 W. & M., usually known as the Bill of
Rights, it was finally settled that there could be no taxation in
this country except under authority of an Act of Parliament. The
Bill of Rights still remains unrepealed, and no practice or custom,
however prolonged, or however acquiesced in on the part of the
subject, can be relied on by the Crown as justifying any
infringement of its provisions. It follows that, with regard to the
powers of the Crown to levy taxation, no resolution, either of the
Committee for Ways and Means or of the House itself, has any legal
effect whatever. Such resolutions are necessitated by a
parliamentary procedure adopted with a view to the protection of
the subject against the hasty imposition of taxes, and it would be
strange to find them relied on as justifying the Crown in levying a
tax before such tax is actually imposed by Act of Parliament."

															In The Pocket Veto Case, 279 U.
S. 655 , the Court undertook a review of the veto
provisions of the Constitution and concluded that the measure in
litigation had not become a law. Cf. Coleman v. Miller, 307 U. S. 433 . Georgia v.
Stanton , 6 Wall. 50, involved the application of
the Reconstruction Acts to Georgia -- laws which destroyed by force
the internal regime of that State. Yet the Court refused to take
jurisdiction. That question was no more "political" than a host of
others we have entertained. See, e.g., Pennsylvania v. West
Virginia, 262 U. S. 553 ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.
S. 579 ; Alabama v. Texas, 347 U.
S. 272 .

															Today would this Court hold nonjusticiable or "political" a suit
to enjoin a Governor who, like Fidel Castro, takes everything into
his own hands and suspends all election laws? Georgia v. Stanton, supra, expresses a philosophy at
war with Ex parte
Milligan , 4 Wall. 2, and Duncan v.
Kahanamoku, 327 U. S. 304 . The
dominance of the civilian authority has been expressed from the
beginning. See Wise v.
Withers , 3 Cranch 331, 7
U. S. 337 ; Sterling v. Constantin, supra, 369
U.S. 186 fn2/2|>note 2.

															[ Footnote 2/4 ]

															We are told by the National Institute of Municipal Law Officers
in an amicus brief:

															"Regardless of the fact that, in the last two decades, the
United States has become a predominantly urban country where well
over two-thirds of the population now lives in cities or suburbs,
political representation in the majority of state legislatures is
50 or more years behind the times. Apportionments made when the
greater part of the population was located in rural communities are
still determining and undermining our elections."

															"As a consequence, the municipality of 1960 is forced to
function in a horse and buggy environment where there is little
political recognition of the heavy demands of an urban population.
These demands will become even greater by 1970, when some 150
million people will be living in urban areas."

															"The National Institute of Municipal Law Officers has for many
years recognized the widespread complaint that, by far the greatest
preponderance of state representatives and senators are from rural
areas which, in the main, fail to become vitally interested in the
increasing difficulties now facing urban administrators."

															"Since World War II, the explosion in city and suburban
population has created intense local problems in education,
transportation, and housing. Adequate handling of these problems
has not been possible to a large extent, due chiefly to the
political weakness of municipalities. This situation is directly
attributable to considerable underrepresentation of cities in the
legislatures of most states." Amicus brief, pp. 2-3.

															[ Footnote 2/5 ]

															The recent ruling by the Iowa Supreme Court that a legislature,
though elected under an unfair apportionment scheme, is nonetheless
a legislature empowered to act ( Cedar Rapids v. Cox, 252
Iowa 948, 964, 108 N.W.2d 253 ,
262-263; cf. Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d
40) is plainly correct.

															There need be no fear of a more disastrous collision between
federal and state agencies here than where a federal court enjoins
gerrymandering based on racial lines. See Gomillion v.
Lightfoot, supra. The District Court need not undertake a complete
reapportionment. It might possibly achieve the goal of substantial
equality merely by directing respondent to eliminate the egregious
injustices. Or its conclusion that reapportionment should be made
may, in itself, stimulate legislative action. That was the result
in Asbury Park Press v. Woolley, 33 N.J. 1, 161
A.2d 705 , where the state court ruled it had jurisdiction:

															"If, by reason of passage of time and changing conditions, the
reapportionment statute no longer serves its original purpose of
securing to the voter the full constitutional value of his
franchise, and the legislative branch fails to take appropriate
restorative action, the doors of the courts must be open to him.
The lawmaking body cannot, by inaction, alter the constitutional
system under which it has its own existence."

															33 N.J. at 14, 161 A.2d at 711. The court withheld its decision
on the merits in order that the legislature might have an
opportunity to consider adoption of a reapportionment act. For the
sequel see Application of Lamb, 67 N.J.Super. 39, 46-47, 169 A.2d 822 , 825-826.

															Reapportionment was also the result in Magraw v.
Donovan, 159 F.
Supp. 901 , where a federal three-judge District Court took
jurisdiction, saying, 163 F.
Supp. 184 , 187:

															"Here it is the unmistakable duty of the State Legislature to
reapportion itself periodically in accordance with recent
population changes. . . . Early in January, 1959, the 61st Session
of the Minnesota Legislature will convene, all of the members of
which will be newly elected on November 4th of this year. The facts
which have been presented to us will be available to them. It is
not to be presumed that the Legislature will refuse to take such
action as is necessary to comply with its duty under the State
Constitution. We defer decision on all the issues presented
(including that of the power of this Court to grant relief) in
order to afford the Legislature full opportunity to 'heed the
constitutional mandate to redistrict.'" See 177 F.
Supp. 803 , where the case was dismissed as moot, the State
Legislature having acted.

															MR. JUSTICE CLARK, concurring.

															One emerging from the rash of opinions with their accompanying
clashing of views may well find himself suffering a mental
blindness. The Court holds that the appellants have alleged a cause
of action. However, it refuses to award relief here -- although the
facts are undisputed -- and fails to give the District Court any
guidance whatever. One dissenting opinion, bursting with words that
go through so much and conclude with so little, contemns the
majority action as "a massive repudiation of the experience of our
whole past." Another describes the complaint as merely asserting
conclusory allegations that Tennessee's apportionment is
"incorrect," "arbitrary," "obsolete," and "unconstitutional." I
believe it can be shown that this case is distinguishable from
earlier cases dealing with the distribution of political power by a
State, that a patent violation of the Equal Protection Clause of
the United States Constitution has been shown, and that an
appropriate remedy may be formulated. I I take the law of the case from MacDougall v. Green, 335 U. S. 281 (1948), which involved an attack under the Equal Protection Clause
upon an Illinois election statute. The Court decided that case on
its merits without hindrance from the "political question"
doctrine. Although the statute under attack was upheld, it is
clear Page 369 U. S. 252 that the Court based its decision upon the determination that
the statute represented a rational state policy. It stated:

															"It would be strange indeed, and doctrinaire, for this Court,
applying such broad constitutional concepts as due process and
equal protection of the laws, to deny a State the power to assure a
proper diffusion of political initiative as between its thinly
populated counties and those having concentrated masses, in
view of the fact that the latter have practical opportunities for
exerting their political weight at the polls not available to the
former. " Id. at 335 U. S. 284 .
(Emphasis supplied.)

															The other cases upon which my Brethren dwell are all
distinguishable or inapposite. The widely heralded case of Colegrove v. Green, 328 U. S. 549 (1946), was one not only in which the Court was bobtailed, but in
which there was no majority opinion. Indeed, even the "political
question point" in MR. JUSTICE FRANKFURTER's opinion was no more
than an alternative ground. [ Footnote
3/1 ] Moreover, the appellants did not present an equal
protection argument. [ Footnote 3/2 ]
While it has served as a Mother Hubbard to most of the subsequent
cases, I feel it was in that respect ill-cast, and, for all of
these reasons, put it to one side. [ Footnote 3/3 ] Likewise, Page 369 U. S. 253 I do not consider the Guaranty Clause cases based on Art. I, 4,
of the Constitution, because it is not invoked here and it involves
different criteria, as the Court's opinion indicates. Cases resting
on various other considerations not present here, such as Radford v. Gary, 352 U.S. 991 (1957) (lack of equity); Kidd v. McCanless, 352 U.S. 920 (1956) (adequate state
grounds supporting the state judgment); Anderson v.
Jordan, 343 U.S. 912 (1952) (adequate state grounds); Remmey v. Smith, 342 U.S. 916 (1952) (failure to exhaust
state procedures), are, of course, not controlling. Finally, the
Georgia county unit system cases, such as South v. Peters, 339 U. S. 276 (1950), reflect the viewpoint of MacDougall, i.e., to
refrain from intervening where there is some rational policy behind
the State's system. [ Footnote
3/4 ] II The controlling facts cannot be disputed. It appears from the
record that 37% of the voters of Tennessee elect 20 of the 33
Senators, while 40% of the voters elect 63 of the 99 members of the
House. But this might not, on its face, be an "invidious
discrimination," Williamson v. Lee Optical of Oklahoma, 348 U. S. 483 , 348 U. S. 489 (1955), for a "statutory discrimination will not be set aside if
any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 426 (1961).

															It is true that the apportionment policy incorporated in
Tennessee's Constitution, i.e., statewide numerical
equality of representation with certain minor qualifications,
[ Footnote 3/5 ] is a rational one.
On a county-by-county comparison Page 369 U. S. 254 a districting plan based thereon naturally will have disparities
in representation due to the qualifications. But this, to my mind,
does not raise constitutional problems, for the overall policy is
reasonable. However, the root of the trouble is not in Tennessee's
Constitution, for admittedly its policy has not been followed. The
discrimination lies in the action of Tennessee's Assembly in
allocating legislative seats to counties or districts created by
it. Try as one may, Tennessee's apportionment just cannot be made
to fit the pattern cut by its Constitution. This was the finding of
the District Court. The policy of the Constitution referred to by
the dissenters, therefore, is of no relevance here. We must examine
what the Assembly has done. [ Footnote
3/6 ] The frequency and magnitude of the inequalities in the
present districting admit of no policy whatever. An examination of
Table I accompanying this opinion, post, p. 369 U.S. 262 , conclusively reveals that
the apportionment picture in Tennessee is a topsy-turvical of
gigantic proportions. This is not to say that some of the disparity
cannot be explained, but, when the entire table is examined --
comparing the voting strength of counties of like population as
well as contrasting that of the smaller with the larger counties --
it leaves but one conclusion, namely that Tennessee's apportionment
is a crazy quilt without rational basis. At the risk of being
accused of picking out a few of the horribles I shall allude to a
series of examples that are taken from Table I.

															As is admitted, there is a wide disparity of voting strength
between the large and small counties. Some Page 369 U. S. 255 samples are: Moore County has a total representation of two
[ Footnote 3/7 ] with a population
(2,340) of only one-eleventh of Rutherford County (25,316) with the
same representation; Decatur County (5,563) has the same
representation as Carter (23,303) though the latter has four times
the population; likewise, Loudon County (13,264), Houston (3,084),
and Anderson County (33,990) have the same representation, i.e., 1.25 each. But it is said that, in this illustration
all of the underrepresented counties contain municipalities of over
10,000 population, and they therefore should be included under the
"urban" classification, rationalizing this disparity as an attempt
to effect a rural-urban political balance. But in so doing, one is
caught up in the backlash of his own bull whip, for many counties
have municipalities with a population exceeding 10,000, yet the
same invidious discrimination is present. For example:

															County Population Representation

															Carter. . . . . . . . . . . . . . 23,303 1.10

															Maury . . . . . . . . . . . . . . 24,556 2.25

															Washington. . . . . . . . . . . . 36,967 1.93

															Madison . . . . . . . . . . . . . 37,245 3.50 Page 369 U. S. 256 Likewise, counties with no municipality of over 10,000 suffer a
similar discrimination:

															County Population Representation

															Grundy. . . . . . . . . . . . . . 6,540 O.95

															Chester . . . . . . . . . . . . . 6,391 2.00

															Cumberland. . . . . . . . . . . . 9,593 O.63

															Crockett. . . . . . . . . . . . . 9,676 2.00

															Loudon. . . . . . . . . . . . . . 13,264 1.25

															Fayette. . . . . . . . . . . . . . 13,577 2.50

															This could not be an effort to attain political balance between
rural and urban populations. Since discrimination is present among
counties of like population, the plan is neither consistent nor
rational. It discriminates horizontally creating gross disparities
between rural areas themselves as well as between urban areas
themselves, [ Footnote 3/8 ] still
maintaining the wide vertical disparity already pointed out between
rural and urban.

															It is also insisted that the representation formula used above
( see 369
U.S. 186 fn3/7|>n. 7) is "patently deficient" because "it
eliminates from consideration the relative voting power of the
counties that are joined together in a single election district."
This is a strange claim coming from those who rely on the
proposition that "the voice of every voter" need not have
"approximate equality." Indeed, representative government, as they
say, is not necessarily one of "bare numbers." The use of floterial
districts in our political system is not ordinarily based on the
theory that the floterial representative is splintered among the
counties of his district per relative population. His function is
to represent the whole district. However, I shall meet the charge
on its own ground and by use of its "adjusted Page 369 U. S. 257 total representation'" formula show that the present
apportionment is loco. For example, compare some "urban" areas of
like population, using the HARLAN formula: County Population Representation

															Washington. . . . . . . . . . . . 36,967 2.65

															Madison . . . . . . . . . . . . . 37,245 4.87

															Carter. . . . . . . . . . . . . . 23,303 1.48

															Greene. . . . . . . . . . . . . . 23,649 2.05

															Maury . . . . . . . . . . . . . . 24,556 3.81

															Coffee. . . . . . . . . . . . . . 13,406 2.32

															Hamblen . . . . . . . . . . . . . 14,090 1.07

															And now, using the same formula, compare some so-called "rural"
areas of like population:

															County Population Representation

															Moore . . . . . . . . . . . . . . 2,340 1.23

															Pickett . . . . . . . . . . . . . 2,565 .22

															Stewart . . . . . . . . . . . . . 5,238 1.60

															Cheatham. . . . . . . . . . . . . 5,263 .74

															Chester . . . . . . . . . . . . . 6,391 1.36

															Grundy. . . . . . . . . . . . . . 6,540 .69

															Smith . . . . . . . . . . . . . . 8,731 2.04

															Unicoi. . . . . . . . . . . . . . 8,787 .40

															And for counties with similar representation but with gross
differences in population, take:

															County Population Representation

															Sullivan. . . . . . . . . . . . . 55,712 4.07

															Maury . . . . . . . . . . . . . . 24,556 3.81

															Blount. . . . . . . . . . . . . . 30,353 2.12

															Coffee. . . . . . . . . . . . . . 13,406 2.32

															These cannot be "distorted effects," for here the same formula
proposed by the dissenters is used and the result is even "a
crazier" quilt. Page 369 U. S. 258 The truth is that -- although this case has been here for two
years and has had over six hours' argument (three times the
ordinary case) and has been most carefully considered over and over
again by us in Conference and individually -- no one, not even the
State nor the dissenters, has come up with any rational basis for
Tennessee's apportionment statute.

															No one -- except the dissenters advocating the HARLAN "adjusted total representation'" formula -- contends that mathematical
equality among voters is required by the Equal Protection Clause.
But certainly there must be some rational design to a State's
districting. The discrimination here does not fit any pattern -- as
I have said, it is but a crazy quilt. My Brother HARLAN contends
that other proposed apportionment plans contain disparities.
Instead of chasing those rabbits, he should first pause long enough
to meet appellants' proof of discrimination by showing that, in
fact, the present plan follows a rational policy. Not being able to
do this, he merely counters with such generalities as "classic
legislative judgment," no "significant discrepancy," and " de
minimis departures." I submit that even a casual glance at the
present apportionment picture shows these conclusions to be
entirely fanciful. If present representation has a policy at all,
it is to maintain the status quo of invidious
discrimination at any cost. Like the District Court, I conclude
that appellants have met the burden of showing "Tennessee is guilty
of a clear violation of the state constitution and of the [federal]
rights of the plaintiffs. . . ." III Although I find the Tennessee apportionment statute offends the
Equal Protection Clause, I would not consider intervention by this
Court into so delicate a field if there were any other relief
available to the people of Tennessee. But the majority of the
people of Tennessee have no Page 369 U. S. 259 "practical opportunities for exerting their political weight at
the polls" to correct the existing "invidious discrimination."
Tennessee has no initiative and referendum. I have searched
diligently for other "practical opportunities" present under the
law. I find none other than through the federal courts. The
majority of the voters have been caught up in a legislative strait
jacket. Tennessee has an "informed, civically militant electorate"
and "an aroused popular conscience," but it does not sear "the
conscience of the people's representatives." This is because the
legislative policy has riveted the present seats in the Assembly to
their respective constituencies, and by the votes of their
incumbents a reapportionment of any kind is prevented. The people
have been rebuffed at the hands of the Assembly; they have tried
the constitutional convention route, but since the call must
originate in the Assembly it, too, has been fruitless. They have
tried Tennessee courts with the same result, [ Footnote 3/9 ] and Governors have fought the tide only to
flounder. It is said that there is recourse in Congress, and
perhaps that may be, but, from a practical standpoint, this is
without substance. To date, Congress has never undertaken such a
task in any State. We therefore must conclude that the people of
Tennessee are stymied, and, without judicial intervention, will be
saddled with the present discrimination in the affairs of their
state government. IV Finally, we must consider if there are any appropriate modes of
effective judicial relief. The federal courts are, of course, not
forums for political debate, nor should they Page 369 U. S. 260 resolve themselves into state constitutional conventions or
legislative assemblies. Nor should their jurisdiction be exercised
in the hope that such a declaration as is made today may have the
direct effect of bringing on legislative action and relieving the
courts of the problem of fashioning relief. To my mind, this would
be nothing less than blackjacking the Assembly into reapportioning
the State. If judicial competence were lacking to fashion an
effective decree, I would dismiss this appeal. However, like the
Solicitor General of the United States, I see no such difficulty in
the position of this case. One plan might be to start with the
existing assembly districts, consolidate some of them, and award
the seats thus released to those counties suffering the most
egregious discrimination. Other possibilities are present, and
might be more effective. But the plan here suggested would at least
release the strangle hold now on the Assembly and permit it to
redistrict itself.

															In this regard, the appellants have proposed a plan based on the
rationale of statewide equal representation. Not believing that
numerical equality of representation throughout a State is
constitutionally required, I would not apply such a standard,
albeit a permissive one. Nevertheless, the dissenters attack it by
the application of the HARLAN "adjusted total representation'"
formula. The result is that some isolated inequalities are shown,
but this, in itself, does not make the proposed plan irrational, or
place it in the "crazy quilt" category. Such inequalities, as the
dissenters point out in attempting to support the present
apportionment as rational, are explainable. Moreover, there is no
requirement that any plan have mathematical exactness in its
application. Only where, as here, the total picture reveals
incommensurables of both magnitude and frequency can it be said
that there is present an invidious discrimination. Page 369 U. S.
261 In view of the detailed study that the Court has given this
problem, it is unfortunate that a decision is not reached on the
merits. The majority appears to hold, at least sub
silentio, that an invidious discrimination is present, but it
remands to the three-judge court for it to make what is certain to
be that formal determination. It is true that Tennessee has not
filed a formal answer. However, it has filed voluminous papers and
made extended arguments supporting its position. At no time has it
been able to contradict the appellants' factual claims; it has
offered no rational explanation for the present apportionment;
indeed, it has indicated that there are none known to it. As I have
emphasized, the case proceeded to the point before the three-judge
court that it was able to find an invidious discrimination
factually present, and the State has not contested that holding
here. In view of all this background, I doubt if anything more can
be offered or will be gained by the State on remand, other than
time. Nevertheless, not being able to muster a court to dispose of
the case on the merits, I concur in the opinion of the majority and
acquiesce in the decision to remand. However, in fairness, I do
think that Tennessee is entitled to have my idea of what it faces
on the record before us, and the trial court some light as to how
it might proceed.

															As John Rutledge (later Chief Justice) said 175 years ago in the
course of the Constitutional Convention, a chief function of the
Court is to secure the national rights. [ Footnote 3/10 ] Its decision today supports the
proposition for which our forebears fought and many died, namely
that, to be fully conformable to the principle of right, the form
of government must be representative. [ Footnote 3/11 ] That is the keystone upon which our
government was founded Page 369 U. S. 262 and lacking which no republic can survive. It is well for this
Court to practice self-restraint and discipline in constitutional
adjudication, but never in its history have those principles
received sanction where the national rights of so many have been so
clearly infringed for so long a time. National respect for the
courts is more enhanced through the forthright enforcement of those
rights, rather than by rendering them nugatory through the
interposition of subterfuges. In my view, the ultimate decision
today is in the greatest tradition of this Court. TABLE I bwm:

															Present to Proposed to

															Present total tal repre- tal represen-

															representation sentation tation (appel-

															using using J. lants' plan),

															1950 voting J. Clark's Harlan's using J. Har-

															County population formula formula lan's formula

															Van Buren. . . . . 2,039 .63 .23 .11

															Moore. . . . . . . 2,340 2.00 1.23 .18

															Pickett. . . . . . 2,565 .70 .22 .24

															Sequatchie. . . . 2,904 .63 .33 .19

															Meigs. . . . . . . 3,039 .93 .48 .17

															Houston. . . . . . 3,084 1.25 .46 .24

															Trousdale. . . . . 3,351 1.33 .43 .12

															Lewis. . . . . . . 3,413 1.25 .39 .25

															Perry. . . . . . . 3,711 1.50 .71 .40

															Bledsoe. . . . . . 4,198 .63 .49 .24

															Clay . . . . . . . 4,528 .70 .40 .42

															Union. . . . . . . 4,600 .76 .37 .45

															Hancock. . . . . . 4,710 .93 .62 .49

															Stewart. . . . . . 5,238 1.75 1.60 .41

															Cheatham . . . . . 5,263 1.33 .72 .20

															Cannon . . . . . . 5,341 2.00 1.43 .52

															Decatur. . . . . . 5,563 1.10 .79 .52

															Lake . . . . . . . 6,252 2.00 1.44 .41

															Chester. . . . . . 6,391 2.00 1.36 .19

															Grundy . . . . . . 6,540 .95 .69 .43

															Humphreys. . . . . 6,588 1.25 1.39 .72

															Johnson. . . . . . 6,649 1.10 .42 .43 Page 369 U. S. 263 Jackson. . . . . . 6,719 1.50 1.43 .63

															De Kalb. . . . . . 6,984 2.00 1.56 .68

															Benton . . . . . . 7,023 1.10 1.01 .66

															Fentress . . . . . 7,057 .70 .62 .64

															Grainer. . . . . . 7, 125 .93 .94 .65

															Wayne. . . . . . . 7, 176 1.25 .69 .76

															Polk . . . . . . . 7,330 1.25 .68 .73

															Hickman. . . . . . 7,598 2.00 1.85 .80

															Macon. . . . . . . 7,974 1.33 1.01 .61

															Morgan . . . . . . 8,308 .93 .59 .75

															Scott. . . . . . . 8,417 .76 .68 .62

															Smith. . . . . . . 8,731 2.50 2.04 .67

															Unicoi . . . . . . 8,787 .93 .40 .63

															Rhea . . . . . . . 8,937 .93 1.42 .21

															White. . . . . . . 9,244 1.43 1.69 .90

															Overton. . . . . . 9,474 1.70 1.83 .89

															Harding. . . . . . 9,577 1.60 1.61 .93

															Cumberland . . . . 9,593 .63 1.10 .87

															Crockett . . . . . 9,676 2.00 1.66 .63

															Henderson. . . . . 10,199 1.50 .78 .96

															Marion . . . . . . 10,998 1.75 1.73 .72

															Marshall . . . . . 11,288 2.50 2.28 .84

															Dickson. . . . . . 11,294 1.75 2.29 1.23

															Jefferson. . . . . 11,359 1.10 .87 1.03

															McNairy. . . . . . 11,601 1.60 1.74 1.13

															Cocke. . . . . . . 12,572 1.60 1.46 .89

															Sevier . . . . . . 12,793 1.60 1.47 .69

															Claiborne. . . . . 12,799 1.43 1.61 .34

															Monroe . . . . . . 12,884 1.75 1.68 1.30

															Loudon . . . . . . 13,264 1.25 .28 .52

															Warren . . . . . . 13,337 1.75 1.89 1.68

															Coffee . . . . . . 13,406 2.00 2.32 1.68

															Hardeman . . . . . 13,565 1.60 1.86 1.11

															Fayette. . . . . . 13,577 2.50 2.48 1.11

															Haywood. . . . . . 13,934 2.50 2.52 1.69

															Williamson . . . . 14,064 2.33 2.96 1.71 Page 369 U. S. 264 Hamblen. . . . . . 14,090 1.10 1.07 1.67

															Franklin . . . . . 14,297 1.75 1.95 1.73

															Lauderdale . . . . 14,413 2.50 2.45 1.73

															Bedford. . . . . . 14,732 2.00 1.45 1.74

															Lincoln. . . . . . 15,092 2.50 2.72 1.77

															Henry. . . . . . . 15,465 2.83 2.76 1.73

															Lawrence . . . . . 15,847 2.00 2.22 1.81

															Giles. . . . . . . 15,935 2.25 2.54 1.81

															Tipton . . . . . . 15,944 3.00 1.68 1.13

															Robertson. . . . . 16,456 2.83 2.62 1.85

															Wilson . . . . . . 16,459 3.00 3.03 1.21

															Carroll. . . . . . 16,472 2.83 2.88 1.82

															Hawkins. . . . . . 16,900 3.00 1.93 1.82

															Putnam . . . . . . 17,071 1.70 2.50 1.86

															Campbell . . . . . 17,477 .76 1.40 1.94

															Roane. . . . . . . 17,639 1.75 1.26 1.30

															Weakley. . . . . . 18,007 2.33 2.63 1.85

															Bradley. . . . . . 18,273 1.25 1.67 1.92

															McMinn . . . . . . 18,347 1.75 1.97 1.92

															Obion. . . . . . . 18,434 2.00 2.30 1.94

															Dyer . . . . . . . 20,062 2.00 2.36 2.32

															Sumner . . . . . . 20,143 2.33 3.56 2.54

															Carter . . . . . . 23,303 1.10 1.48 2.55

															Greene . . . . . . 23,649 1.93 2.05 2.68

															Maury. . . . . . . 24,556 2.25 3.81 2.85

															Rutherford . . . . 25,316 2.00 3.02 2.39

															Montgomery . . . . 26,284 3.00 3.73 3.06

															Gibson . . . . . . 29,832 5.00 5.00 2.86

															Blount . . . . . . 30,353 1.60 2.12 2.19

															Anderson . . . . . 33,990 1.25 1.30 3.62

															Washington . . . . 36,967 1.93 2.65 3.45

															Madison. . . . . . 37,245 3.50 4.87 3.69

															Sullivan . . . . . 55,712 3.00 4.07 5.57

															Hamilton . . . . . 131,971 6.00 6.00 15.09

															Knox . . . . . . . 140,559 7.25 8.96 15.21

															Davidson . . . . . 211,930 12.50 12.93 21.57

															Shelby . . . . . . 312,345 15.50 16.85 31.59 Page 369 U. S. 265 ewm:

															[ Footnote 3/1 ]

															The opinion stated at 551 that the Court "could also dispose of
this case on the authority of Wood v. Broom [ 287 U.S. 1 (1932)]." Wood v. Broom involved only the interpretation
of a congressional reapportionment Act.

															[ Footnote 3/2 ]

															Similarly, the Equal Protection Clause was not invoked in Tedesco v. Board of Supervisors, 339 U.S. 940 (1950).

															[ Footnote 3/3 ]

															I do not read the later case of Colegrove v. Barrett, 330 U.S. 804 (1947), as having rejected the equal protection
argument adopted here. That was merely a dismissal of an appeal
where the equal protection point was mentioned along with attacks
under three other constitutional provisions, two congressional
Acts, and three state constitutional provisions.

															[ Footnote 3/4 ]

															Georgia based its election system on a consistent combination of
political units and population, giving six unit votes to the eight
most populous counties, four unit votes to the 30 counties next in
population, and two unit votes to each of the remaining
counties.

															[ Footnote 3/5 ] See Part I of the Appendix to MR. JUSTICE HARLAN's
dissent, post, p. 369
U.S. 341 .

															[ Footnote 3/6 ]

															It is suggested that the districting is not unconstitutional
since it was established by a statute that was constitutional when
passed some 60 years ago. But many Assembly Sessions since that
time have deliberately refused to change the original act, and, in
any event, "[a] statute [constitutionally] valid when enacted may
become invalid by change in the conditions to which it is applied." Nashville, C. & St.L. R. Co. v. Walters, 294 U.
S. 405 , 294 U. S. 415 (1935).

															[ Footnote 3/7 ]

															"Total representation" indicates the combined representation in
the State Senate (33 members) and the State House of
Representatives (99 members) in the Assembly of Tennessee. Assuming
a county has one representative, it is credited in this calculation
with 1/99. Likewise, if the same county has one-third of a senate
seat, it is credited with another 1/99, and thus such a county, in
our calculation, would have a "total representation" of two; if a
county has one representative and one-sixth of a senate seat, it is
credited with 1.5/99, or 1.50. It is this last figure that I use
here in an effort to make the comparisons clear. The 1950, rather
than the 1960 census of voting population, is used to avoid the
charge that use of 1960 tabulations might not have allowed
sufficient time for the State to act. However, the 1960 picture is
even more irrational than the 1950 one.

															[ Footnote 3/8 ]

															Of course, this was not the case in the Georgia county unit
system, South v. Peters, supra, or the Illinois initiative
plan, MacDougall v. Green, supra, where recognized
political units having independent significance were given minimum
political weight.

															[ Footnote 3/9 ]

															It is interesting to note that state judges often rest their
decisions on the ground that this Court has precluded adjudication
of the federal claim. See, e.g., Scholle v. Secretary of
State, 360 Mich. 1, 104 N.W.2d
63 (1960).

															[ Footnote 3/10 ]

															1 Farrand, The Records of the Federal Convention of 1787,
124.

															[ Footnote 3/11 ]

															Kant, Perpetual Peace.

															MR. JUSTICE STEWART, concurring.

															The separate writings of my dissenting and concurring Brothers
stray so far from the subject of today's decision as to convey, I
think, a distressingly inaccurate impression of what the Court
decides. For that reason, I think it appropriate, in joining the
opinion of the Court, to emphasize in a few words what the opinion
does and does not say.

															The Court today decides three things, and no more:

															"(a) that the court possessed jurisdiction of the subject
matter; (b) that a justiciable cause of action is stated upon which
appellants would be entitled to appropriate relief, and (c). . .
that the appellants have standing to challenge the Tennessee
apportionment statutes." Ante, pp. 369 U. S.
197 -198.

															The complaint in this case asserts that Tennessee's system of
apportionment is utterly arbitrary -- without any possible
justification in rationality. The District Court did not reach the
merits of that claim, and this Court quite properly expresses no
view on the subject. Contrary to the suggestion of my Brother
HARLAN, the Court does not say or imply that "state legislatures
must be so structured as to reflect with approximate equality the
voice of every voter." Post, p. 369 U.S. 332 . The Court does not say or
imply that there is anything in the Federal Constitution

															"to prevent a State, acting not irrationally, from choosing any
electoral legislative structure it thinks best suited to the
interests, temper, and customs of its people." Post p. 369 U.S.
334 . And, contrary to the suggestion of my Brother DOUGLAS,
the Court most assuredly does not decide the question, "may a State
weight the vote of one county or one district more heavily than it
weights the vote in another?" Ante, p. 369 U.S. 244 .

															In MacDougall v. Green, 335 U.
S. 281 , the Court held that the Equal Protection Clause
does not

															"deny a State the power to assure a proper diffusion of
political initiative Page 369 U. S. 266 as between its thinly populated counties and those having
concentrated masses, in view of the fact that the latter have
practical opportunities for exerting their political weight at the
polls not available to the former."

															335 U.S. at 335 U. S. 284 .
In case after case arising under the Equal Protection Clause, the
Court has said what it said again only last Term -- that

															"the Fourteenth Amendment permits the States a wide scope of
discretion in enacting laws which affect some groups of citizens
differently than others." McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 425 .
In case after case arising under that Clause, we have also said
that "the burden of establishing the unconstitutionality of a
statute rests on him who assails it." Metropolitan Casualty
Ins. Co. v. Brownell, 294 U. S. 580 , 294 U. S.
584 .

															Today's decision does not turn its back on these settled
precedents. I repeat, the Court today decides only: (1) that the
District Court possessed jurisdiction of the subject matter; (2)
that the complaint presents a justiciable controversy; (3) that the
appellants have standing. My Brother CLARK has made a convincing prima facie showing that Tennessee's system of
apportionment is, in fact, utterly arbitrary -- without any
possible justification in rationality. My Brother HARLAN has, with
imagination and ingenuity, hypothesized possibly rational bases for
Tennessee's system. But the merits of this case are not before us
now. The defendants have not yet had an opportunity to be heard in
defense of the State's system of apportionment; indeed, they have
not yet even filed an answer to the complaint. As in other cases,
the proper place for the trial is in the trial court, not here.

															MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins,
dissenting.

															The Court today reverses a uniform course of decision
established by a dozen cases, including one by which the very claim
now sustained was unanimously rejected Page 369 U. S. 267 only five years ago. The impressive body of rulings thus cast
aside reflected the equally uniform course of our political history
regarding the relationship between population and legislative
representation -- a wholly different matter from denial of the
franchise to individuals because of race, color, religion or sex.
Such a massive repudiation of the experience of our whole past in
asserting destructively novel judicial power demands a detailed
analysis of the role of this Court in our constitutional scheme.
Disregard of inherent limits in the effective exercise of the
Court's "judicial Power" not only presages the futility of judicial
intervention in the essentially political conflict of forces by
which the relation between population and representation has time
out of mind been, and now is, determined. It may well impair the
Court's position as the ultimate organ of "the supreme Law of the
Land" in that vast range of legal problems, often strongly
entangled in popular feeling, on which this Court must pronounce.
The Court's authority -- possessed of neither the purse nor the
sword -- ultimately rests on sustained public confidence in its
moral sanction. Such feeling must be nourished by the Court's
complete detachment, in fact and in appearance, from political
entanglements and by abstention from injecting itself into the
clash of political forces in political settlements.

															A hypothetical claim resting on abstract assumptions is now for
the first time made the basis for affording illusory relief for a
particular evil even though it foreshadows deeper and more
pervasive difficulties in consequence. The claim is hypothetical,
and the assumptions are abstract, because the Court does not
vouchsafe the lower courts -- state and federal -- guidelines for
formulating specific, definite, wholly unprecedented remedies for
the inevitable litigations that today's umbrageous disposition is
bound to stimulate in connection with politically motivated
reapportionments in so many States. In Page 369 U. S. 268 such a setting, to promulgate jurisdiction in the abstract is
meaningless. It is as devoid of reality as "a brooding omnipresence
in the sky," for it conveys no intimation what relief, if any, a
District Court is capable of affording that would not invite
legislatures to play ducks and drakes with the judiciary. For this
Court to direct the District Court to enforce a claim to which the
Court has over the years consistently found itself required to deny
legal enforcement and, at the same time, to find it necessary to
withhold any guidance to the lower court how to enforce this
turnabout, new legal claim, manifests an odd -- indeed an esoteric
-- conception of judicial propriety. One of the Court's supporting
opinions, as elucidated by commentary, unwittingly affords a
disheartening preview of the mathematical quagmire (apart from
divers judicially inappropriate and elusive determinants) into
which this Court today catapults the lower courts of the country
without so much as adumbrating the basis for a legal calculus as a
means of extrication. Even assuming the indispensable intellectual
disinterestedness on the part of judges in such matters, they do
not have accepted legal standards or criteria or even reliable
analogies to draw upon for making judicial judgments. To charge
courts with the task of accommodating the incommensurable factors
of policy that underlie these mathematical puzzles is to attribute,
however flatteringly, omnicompetence to judges. The Framers of the
Constitution persistently rejected a proposal that embodied this
assumption, and Thomas Jefferson never entertained it.

															Recent legislation, creating a district appropriately described
as "an atrocity of ingenuity," is not unique. Considering the gross
inequality among legislative electoral units within almost every
State, the Court naturally shrinks from asserting that, in
districting, at least substantial equality is a constitutional
requirement enforceable Page 369 U. S. 269 by courts. * Room continues
to be allowed for weighting. This, of course, implies that
geography, economics, urban-rural conflict, and all the other
non-legal factors which have throughout our history entered into
political districting are to some extent not to be ruled out in the
undefined vista now opened up by review in the federal courts of
state reapportionments. To some extent -- aye, there's the rub. In
effect, today's decision empowers the courts of the country to
devise what should constitute the proper composition of the
legislatures of the fifty States. If state courts should for one
reason or another find themselves unable to discharge this task,
the duty of doing so is put on the federal courts or on this Court,
if State views do not satisfy this Court's notion of what is proper
districting.

															We were soothingly told at the bar of this Court that we need
not worry about the kind of remedy a court could effectively
fashion once the abstract constitutional right to have courts pass
on a statewide system of electoral districting is recognized as a
matter of judicial rhetoric, because legislatures would heed the
Court's admonition. This is not only a euphoric hope. It implies a
sorry Page 369 U. S. 270 confession of judicial impotence in place of a frank
acknowledgment that there is not under our Constitution a judicial
remedy for every political mischief, for every undesirable exercise
of legislative power. The Framers, carefully and with deliberate
forethought, refused so to enthrone the judiciary. In this
situation, as in others of like nature, appeal for relief does not
belong here. Appeal must be to an informed, civically militant
electorate. In a democratic society like ours, relief must come
through an aroused popular conscience that sears the conscience of
the people's representatives. In any event, there is nothing
judicially more unseemly nor more self-defeating than for this
Court to make in terrorem pronouncements, to indulge in
merely empty rhetoric, sounding a word of promise to the ear sure
to be disappointing to the hope.

															This is the latest in the series of cases in which the Equal
Protection and Due Process Clauses of the Fourteenth Amendment have
been invoked in federal courts as restrictions upon the power of
the States to allocate electoral weight among the voting
populations of their various geographical subdivisions. [ Footnote 4/1 ] The present action, which Page 369 U. S. 271 comes here on appeal from an order of a statutory three-judge
District Court dismissing amended complaints seeking declaratory
and injunctive relief, challenges the provisions of Tenn.Code Ann.,
1955, §§ 3-101 to 3-109, which apportion state representative and
senatorial seats among Tennessee's ninety-five counties.

															The original plaintiffs, citizens and qualified voters entitled
to vote for members of the Tennessee Legislature in the several
counties in which they respectively reside, bring this action in
their own behalf and "on behalf of all other voters in the State of
Tennessee," or, as they alternatively assert,

															"on behalf of all qualified voters of their respective counties,
and further, on behalf of all voters of the State of Tennessee who
are similarly situated."

															The cities of Knoxville and Chattanooga, and the Mayor of
Nashville -- on his own behalf as a qualified voter and, pursuant
to an authorizing resolution by the Nashville City Council, as a
representative of all the city's residents -- were permitted to
intervene as parties plaintiff. [ Footnote 4/2 ] The defendants are executive officials
charged with statutory duties in connection with state elections.
[ Footnote 4/3 ] Page 369 U. S. 272 The original plaintiffs' amended complaint avers, in substance,
the following. [ Footnote 4/4 ] The
Constitution of the State of Tennessee declares that "elections
shall be free and equal," provides that no qualifications other
than age, citizenship and specified residence requirements shall be
attached to the right of suffrage, and prohibits denying to any
person the suffrage to which he is entitled except upon conviction
of an infamous crime. Art. I, § 5; Art. IV, § 1. It requires an
enumeration of qualified voters within every term of ten years
after 1871 and an apportionment of representatives and senators
among the several counties or districts according to the number of
qualified voters in each [ Footnote
4/5 ] at the time of each decennial Page 369 U. S. 273 enumeration. Art. II, §§ 4, 5, 6. Notwithstanding these
provisions, the State Legislature has not reapportioned itself
since 1901. The Reapportionment Act of that year, Tenn.Acts 1901,
c. 122, now Tenn.Code Ann., 1955, §§ 3-101 to 3-109, [ Footnote 4/6 ] was unconstitutional when
enacted, because not preceded by the required enumeration of
qualified voters and because it allocated legislative seats
arbitrarily, unequally and discriminatorily, as measured by the
1900 federal census. Moreover, irrespective of the question of its
validity in 1901, it is asserted that the Act became
"unconstitutional and obsolete" in 1911 by virtue of the decennial
reapportionment requirement of the Tennessee Constitution.
Continuing a "purposeful and systematic plan to discriminate
against a geographical class of persons," recent Tennessee
Legislatures have failed, as did their predecessors, to enact
reapportionment legislation, although a number of bills providing
for reapportionment have been introduced. Because of population
shifts since 1901, the apportionment fixed by the Act of that year
and still in effect is not proportionate to population, denies to
the counties in which the plaintiffs Page 369 U. S. 274 live an additional number of representatives to which they are
entitled, and renders plaintiffs' votes "not as effective as the
votes of the voters residing in other senatorial and representative
districts. . . ." Plaintiffs

															"suffer a debasement of their votes by virtue of the incorrect,
arbitrary, obsolete and unconstitutional apportionment of the
General Assembly . . . ,"

															and the totality of the malapportionment's effect -- which
permits a minority of about thirty-seven percent of the voting
population of the State to control twenty of the thirty-three
members of Tennessee's Senate, and a minority of forty percent of
the voting population to control sixty-three of the ninety-nine
members of the House -- results in "a distortion of the
constitutional system" established by the Federal and State
Constitutions, prevents the General Assembly "from being a body
representative of the people of the State of Tennessee, . . ." and
is "contrary to the basic principle of representative government .
. . ," and "contrary to the philosophy of government in the United
States and all Anglo-Saxon jurisprudence. . . ."

															Exhibits appended to the complaint purport to demonstrate the
extent of the inequalities of which plaintiffs complain. Based upon
"approximate voting population," [ Footnote 4/7 ] these set forth figures showing that the
State Page 369 U. S. 275 Senator from Tennessee's most populous senatorial district
represents five and two-tenths times the number of voters
represented by the Senator from the least populous district, while
the corresponding ratio for most and least populous House districts
is more than eighteen to one. The General Assembly thus apportioned
has discriminated against the underrepresented counties and in
favor of the overrepresented counties in the collection and
distribution of various taxes and tax revenues, notably in the
distribution of school and highway improvement funds, [ Footnote 4/8 ] this discrimination being
"made possible and effective" by the Legislature's failure to
reapportion itself. Plaintiffs conclude that election of the State
Legislature pursuant to the apportionment fixed by the 1901 Act
violates the Tennessee Constitution and deprives them of due
process of law and of the equal protection of the laws guaranteed
by the Fourteenth Amendment. Their prayer below was for a
declaratory judgment striking down the Act, an injunction
restraining defendants from any acts necessary to the holding of
elections in the districts prescribed by Tenn.Code Ann., 1955, §§
3-101 to 3-109, until such time as the legislature is reapportioned
"according to the Page 369 U. S. 276 Constitution of the State of Tennessee," and an order directing
defendants to declare the next primary and general elections for
members of the Tennessee Legislature on an at-large basis -- the
thirty-three senatorial candidates and the ninety-nine
representative candidates receiving the highest number of votes to
be declared elected. [ Footnote
4/9 ]

															Motions to dismiss for want of jurisdiction of the subject
matter and for failure to state a claim were made and granted, 179 F.
Supp. 824 , the District Court relying upon this Court's series
of decisions beginning with Colegrove v. Green, 328 U. S. 549 , rehearing denied, 329 U.S. 825, motion for reargument
before the full bench denied, 329 U.S. 828. The original and
intervening plaintiffs bring the case here on appeal. 364 U.S. 898.
In this Court they have altered their request for relief,
suggesting a "step-by-step approach." The first step is a remand to
the District Court with directions to vacate the order dismissing
the complaint and to enter an order retaining jurisdiction,
providing "the necessary spur to legislative action. . . ." If this
proves insufficient, appellants will ask the "additional spur" of
an injunction prohibiting elections under the 1901 Act or a
declaration of the Act's unconstitutionality, or both. Finally, all
other means failing, the District Court is invited by the
plaintiffs, greatly daring, to order an election at large or
redistrict the State itself or through a master. The Solicitor
General of the United States, who has filed a brief amicus and argued in favor of reversal, asks the Court on this appeal to
hold only that the District Court has "jurisdiction," and may
properly exercise it to entertain the plaintiffs' claims on the
merits. This would leave to that court after remand the questions
of the challenged statute's Page 369 U. S. 277 constitutionality and of some undefined, unadumbrated relief in
the event a constitutional violation is found. After an argument at
the last Term, the case was set down for reargument, 366 U.S. 907,
and heard this Term. I In sustaining appellants' claim, based on the Fourteenth
Amendment, that the District Court may entertain this suit, this
Court's uniform course of decision over the years is overruled or
disregarded. Explicitly it begins with Colegrove v. Green,
supra, decided in 1946, but its roots run deep in the Court's
historic adjudicatory process. Colegrove held that a federal court should not
entertain an action for declaratory and injunctive relief to
adjudicate the constitutionality, under the Equal Protection Clause
and other federal constitutional and statutory provisions, of a
state statute establishing the respective districts for the State's
election of Representatives to the Congress. Two opinions were
written by the four Justices who composed the majority of the seven
sitting members of the Court. Both opinions joining in the result
in Colegrove v. Green agreed that considerations were
controlling which dictated denial of jurisdiction, though not in
the strict sense of want of power. While the two opinions show a
divergence of view regarding some of these considerations, there
are important points of concurrence. Both opinions demonstrate a
predominant concern, first, with avoiding federal judicial
involvement in matters traditionally left to legislative policy
making; second, with respect to the difficulty -- in view of the
nature of the problems of apportionment and its history in this
country -- of drawing on or devising judicial standards for
judgment, as opposed to legislative determinations, of the part
which mere numerical equality among voters should play as a
criterion for the allocation of Page 369 U. S. 278 political power; and, third, with problems of finding
appropriate modes of relief -- particularly, the problem of
resolving the essentially political issue of the relative merits of
at-large elections and elections held in districts of unequal
population.

															The broad applicability of these considerations -- summarized in
the loose shorthand phrase, "political question" -- in cases
involving a State's apportionment of voting power among its
numerous localities has led the Court, since 1946, to recognize
their controlling effect in a variety of situations. (In all these
cases, decision was by a full Court.) The "political question"
principle as applied in Colegrove has found wide
application commensurate with its function as "one of the rules
basic to the federal system and this Court's appropriate place
within that structure." Rescue Army v. Municipal Court, 331 U. S. 549 , 331 U. S. 570 .
In Colegrove v. Barrett, 330 U.S. 804, litigants brought
suit in a Federal District Court challenging as offensive to the
Equal Protection Clause Illinois' state legislative apportionment
laws. They pointed to state constitutional provisions requiring
decennial reapportionment and allocation of seats in proportion to
population, alleged a failure to reapportion for more than
forty-five years -- during which time extensive population shifts
had rendered the legislative districts grossly unequal -- and
sought declaratory and injunctive relief with respect to all
elections to be held thereafter. After the complaint was dismissed
by the District Court, this Court dismissed an appeal for want of a
substantial federal question. A similar District Court decision was
affirmed here in Radford v. Gary, 352 U.S. 991. And cf. Remmey v. Smith, 342 U.S. 916. In Tedesco v. Board
of Supervisors, 339 U.S. 940, the Court declined to hear, for
want of a substantial federal question, the claim that the division
of a municipality into voting districts of unequal population for
the selection for councilmen fell Page 369 U. S. 279 afoul of the Fourteenth Amendment, and in Cox v.
Peters, 342 U.S. 936, rehearing denied, 343 U.S. 921,
it found no substantial federal question raised by a state court's
dismissal of a claim for damages for "devaluation" of plaintiff's
vote by application of Georgia's county unit system in a primary
election for the Democratic gubernatorial candidate. The same
Georgia system was subsequently attacked in a complaint for
declaratory judgment and an injunction; the federal district judge
declined to take the requisite steps for the convening of a
statutory three-judge court, and this Court, in Hartsfield v.
Sloan, 357 U.S. 916, denied a motion for leave to file a
petition for a writ of mandamus to compel the district judge to
act. In MacDougall v. Green, 335 U.
S. 281 , 335 U. S. 283 ,
the Court noted that "[t]o assume that political power is a
function exclusively of numbers is to disregard the practicalities
of government," and, citing the Colegrove cases, declined
to find in "such broad constitutional concepts as due process and
equal protection of the laws," id. at 335 U. S. 284 ,
a warrant for federal judicial invalidation of an Illinois statute
requiring as a condition for the formation of a new political party
the securing of at least two hundred signatures from each of fifty
counties. And in South v. Peters, 339 U.
S. 276 , another suit attacking Georgia's county unit
law, it affirmed a District Court dismissal, saying:

															"Federal courts consistently refuse to exercise their equity
powers in cases posing political issues arising from a state's
geographical distribution of electoral strength among its political
subdivisions." Id. at 339 U. S.
277 .

															Of course, it is important to recognize particular, relevant
diversities among comprehensively similar situations. Appellants
seek to distinguish several of this Court's prior decisions on one
or another ground -- Colegrove v. Page 369 U. S. 280 Green on the ground that federal, not state,
legislative apportionment was involved; Remmey v. Smith on
the ground that state judicial remedies had not been tried; Radford v. Gary on the ground that Oklahoma has the
initiative, whereas Tennessee does not. It would only darken
counsel to discuss the relevance and significance of each of these
assertedly distinguishing factors here and in the context of this
entire line of cases. Suffice it that they do not serve to
distinguish Colegrove v. Barrett, supra, which is on all
fours with the present case, or to distinguish Kidd v.
McCanless, 352 U.S. 920, in which the full Court without
dissent, only five years ago, dismissed, on authority of Colegrove v. Green and Anderson v. Jordan, 343
U.S. 912, an appeal from the Supreme Court of Tennessee in which a
precisely similar attack was made upon the very statute now
challenged. If the weight and momentum of an unvarying course of
carefully considered decisions are to be respected, appellants'
claims are foreclosed not only by precedents governing the exact
facts of the present case, but are themselves supported by
authority the more persuasive in that it gives effect to the Colegrove principle in distinctly varying circumstances in
which state arrangements allocating relative degrees of political
influence among geographic groups of voters were challenged under
the Fourteenth Amendment. II The Colegrove doctrine, in the form in which repeated
decisions have settled it, was not an innovation. It represents
long judicial thought and experience. From its earliest opinions,
this Court has consistently recognized a class of controversies
which do not lend themselves to judicial standards and judicial
remedies. To classify the various instances as "political
questions" is, rather, a form Page 369 U. S. 281 of stating this conclusion than revealing of analysis. [ Footnote 4/10 ] Some of the cases so
labelled have no relevance here. But from others emerge unifying
considerations that are compelling.

															1. The cases concerning war or foreign affairs, for example, are
usually explained by the necessity of the country's speaking with
one voice in such matters. While this concern alone undoubtedly
accounts for many of the decisions, [ Footnote 4/11 ] others do not fit the pattern. It would
hardly embarrass the conduct of war were this Court to determine,
in connection with private transactions between litigants, the date
upon which war is to be deemed terminated. But the Court has
refused to do so. See, e.g., 79 U. S. 12
Wall. 700; Brown v.
Hiatts , 15 Wall. 177; Adger v.
Alston , 15 Wall. 555; Williams v. Bruffy, 96 U. S. 176 , 96 U. S.
192 -193. It does not suffice to explain such cases as Ludecke v. Watkins, 335 U. S. 160 --
deferring to political determination the question of the duration
of war for purposes of the Presidential power to deport alien
enemies -- that judicial intrusion would seriously Page 369 U. S. 282 impede the President's power effectively to protect the
country's interests in time of war. Of course, this is true; but
the precise issue presented is the duration of the time of war
which demands the power. Cf. 25 U. S. Mott, 12 Wheat.19; Lamar v. Browne, 92 U. S.
187 , 92 U. S. 193 ; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146 ; Kahn v. Anderson, 255 U. S. 1 . And
even for the purpose of determining the extent of congressional
regulatory power over the tribes and dependent communities of
Indians, it is ordinarily for Congress, not the Court, to determine
whether or not a particular Indian group retains the
characteristics constitutionally requisite to confer the power.
[ Footnote 4/12 ] E.g., 70 U. S. Holliday, 3 Wall. 407; Tiger v. Western Investment
Co., 221 U. S. 286 ; United States v. Sandoval, 231 U. S.
28 . A controlling factor in such cases is that, decision
respecting these kinds of complex matters of policy being
traditionally committed not to courts but to the political agencies
of government for determination by criteria of political
expediency, there exists no standard ascertainable by settled
judicial experience or process by reference to which a political
decision affecting the question at issue between the parties can be
judged. Where the question arises in the course of a litigation
involving primarily the adjudication of other issues between the
litigants, the Court accepts as a basis for adjudication the
political departments' decision of it. But where its determination
is the sole function to be served by the exercise of the judicial
power, the Court will not entertain the action. See Chicago
& Southern Air Lines, Inc., v. Waterman S.S.
Corp. , Page 369 U. S. 283 333 U. S. 103 . The
dominant consideration is "the lack of satisfactory criteria for a
judicial determination. . . ." Mr. Chief Justice Hughes, for the
Court, in Coleman v. Miller, 307 U.
S. 433 , 307 U. S.
454 -455. Compare 45 U. S. Rogers, 4 How. 567, 45 U. S. 572 , with 31 U. S. Georgia, 6 Pet. 515. [ Footnote
4/13 ]

															This may be, like so many questions of law, a matter of degree.
Questions have arisen under the Constitution to which adjudication
gives answer although the criteria for decision are less than
unwavering bright lines. Often, in these cases, illumination was
found in the federal structures established by, or the underlying
presuppositions of, the Constitution. With respect to such
questions, the Court has recognized that, concerning a particular
power of Congress put in issue, ". . . effective restraints on its
exercise must proceed from political, rather than from judicial
processes." Wickard v. Filburn, 317 U.
S. 111 , 317 U. S. 120 .
It is also true that, even regarding the duration of war and the
status of Indian tribes, referred to above as subjects ordinarily
committed exclusively to the nonjudicial branches, the Court has
suggested that some limitations exist upon the range within which
the decisions of those branches will be permitted to go unreviewed. See United States v. Sandoval, supra, at 231 U. S. 46 ; cf. Chastleton Corp. v. Sinclair, 264 U.
S. 543 . But this is merely to acknowledge that
particular circumstances may differ so greatly in degree as to
differ thereby in kind, and that, although within a certain range
of cases on a continuum, no standard of distinction can be found to
tell between them, other cases will fall above or below the range.
The doctrine of political questions, like any other, is not to Page 369 U. S. 284 be applied beyond the limits of its own logic, with all the
quiddities and abstract disharmonies it may manifest. See the disposition of contentions based on logically distorting views
of Colegrove v. Green and Hunter v. Pittsburgh, 207 U. S. 161 , in Gomillion v. Lightfoot, 364 U. S. 339 .

															2. The Court has been particularly unwilling to intervene in
matters concerning the structure and organization of the political
institutions of the States. The abstention from judicial entry into
such areas has been greater even than that which marks the Court's
ordinary approach to issues of state power challenged under broad
federal guarantees.

															"We should be very reluctant to decide that we had jurisdiction
in such a case, and thus in an action of this nature to supervise
and review the political administration of a state government by
its own officials and through its own courts. The jurisdiction of
this court would only exist in case there had been . . . such a
plain and substantial departure from the fundamental principles
upon which our government is based that it could with truth and
propriety be said that, if the judgment were suffered to remain,
the party aggrieved would be deprived of his life, liberty or
property in violation of the provisions of the Federal
Constitution." Wilson v. North Carolina, 169 U.
S. 586 , 169 U. S. 596 . See Taylor and Marshall v. Beckham (No. 1), 178 U.
S. 548 ; Walton v. House of Representatives, 265 U. S. 487 ; Snowden v. Hughes, 321 U. S. 1 . Cf.
In re Sawyer, 124 U. S. 200 , 124 U. S.
220 -221.

															Where, however, state law has made particular federal questions
determinative of relations within the structure of state
government, not in challenge of it, the Court has resolved such
narrow, legally defined questions in proper proceedings. See
Boyd v. Nebraska ex rel. Thayer, 143 U.
S. 135 . In such instances, there is no conflict between
state policy and the exercise of federal judicial Page 369 U. S. 285 power. This distinction explains the decisions in Smiley v.
Holm, 285 U. S. 355 ; Koenig v. Flynn, 285 U. S. 375 , and Carroll v. Becker, 285 U. S. 380 , in
which the Court released state constitutional provisions
prescribing local lawmaking procedures from misconceived
restriction of superior federal requirements. Adjudication of the
federal claim involved in those cases was not one demanding the
accommodation of conflicting interests for which no readily
accessible judicial standards could be found. See McPherson v.
Blacker, 146 U. S. 1 , in
which, in a case coming here on writ of error from the judgment of
a state court which had entertained it on the merits, the Court
treated as justiciable the claim that a State could not
constitutionally select its presidential electors by districts, but
held that Art. II, § 1, cl. 2, of the Constitution left the mode of
choosing electors in the absolute discretion of the States. Cf.
Pope v. Williams, 193 U. S. 621 ; Breedlove v. Suttles, 302 U. S. 277 . To
read with literalness the abstracted jurisdictional discussion in
the McPherson opinion reveals the danger of conceptions of
"justiciability" derived from talk, and not from the effective
decision in a case. In probing beneath the surface of cases in
which the Court has declined to interfere with the actions of
political organs of government, of decisive significance is
whether, in each situation, the ultimate decision has been to
intervene or not to intervene. Compare the reliance in South v. Peters, 339 U. S. 276 , on MacDougall v. Green, 335 U. S. 281 , and
the "jurisdictional" form of the opinion in Wilson v. North
Carolina, 169 U. S. 586 , 169 U. S. 596 , supra. 3. The cases involving Negro disfranchisement are no exception
to the principle of avoiding federal judicial intervention into
matters of state government in the absence of an explicit and clear
constitutional imperative. For here the controlling command of
Supreme Law is plain and unequivocal. An end of discrimination
against Page 369 U. S. 286 the Negro was the compelling motive of the Civil War Amendments.
The Fifteenth expresses this in terms, and it is no less true of
the Equal Protecting Clause of the Fourteenth. Slaughter-House
Cases , 16 Wall. 36, 83 U. S. 67 -72; Strauder v. West Virginia, 100 U.
S. 303 , 100 U. S.
306 -307; Nixon v. Herndon, 273 U.
S. 536 , 273 U. S. 541 .
Thus, the Court, in cases involving discrimination against the
Negro's right to vote, has recognized not only the action at law
for damages, [ Footnote 4/14 ] but,
in appropriate circumstances, the extraordinary remedy of
declaratory or injunctive relief. [ Footnote 4/15 ] Schnell v. Davis, 336 U.S. 933; Terry v. Adams, 345 U. S. 461 .
[ Footnote 4/16 ] Injunctions in
these cases, it should be noted, would not have restrained
statewide general elections. Compare Giles v. Harris, 189 U. S. 475 .

															4. The Court has refused to exercise its jurisdiction to pass on
"abstract questions of political power, of sovereignty, of
government." Massachusetts v. Mellon, 262 U.
S. 447 , 262 U. S. 485 . See Texas v. Interstate Commerce Commission, 258 U.
S. 158 , 258 U. S. 162 ; New Jersey v. Sargent, 269 U. S. 328 , 269 U. S. 337 .
The "political question" doctrine, in this aspect, reflects the
policies underlying the requirement of "standing": that the
litigant who would challenge official Page 369 U. S. 287 action must claim infringement of an interest particular and
personal to himself, as distinguished from a cause of
dissatisfaction with the general frame and functioning of
government -- a complaint that the political institutions are awry. See Stearns v. Wood, 236 U. S. 75 ; Fairchild v. Hughes, 258 U. S. 126 ; United Public Workers v. Mitchell, 330 U. S.
75 , 330 U.S.
89 -91. What renders cases of this kind nonjusticiable is not
necessarily the nature of the parties to them, for the Court has
resolved other issues between similar parties; [ Footnote 4/17 ] nor is it the nature of the legal
question involved, for the same type of question has been
adjudicated when presented in other forms of controversy. [ Footnote 4/18 ] The crux of the matter is
that courts are not fit instruments of decision where what is
essentially at stake is the composition of those large contests of
policy traditionally fought out in nonjudicial forums, by which
governments and the actions of governments are made and unmade. See Texas v.
White , 7 Wall. 700; White v.
Hart , 13 Wall. 646; Phillips v. Payne, 92 U. S. 130 ; Marsh v. Burroughs, 1 Woods 463, 471-472 (Bradley, Circuit
Justice); cf. Wilson v. Shaw, 204 U. S.
24 ; but see Coyle v. Smith, 221 U.
S. 559 . Thus, where the Cherokee Nation sought by an
original motion to restrain the State of Georgia from the
enforcement of laws which assimilated Cherokee territory to the
State's counties, abrogated Cherokee law, and abolished Cherokee
government, the Court held that such a claim was not judicially
cognizable. Cherokee Nation v.
Georgia , 5 Pet. 1. [ Footnote 4/19 ] And in Georgia Page 369 U. S. 288 v. Stanton, 6 Wall. 73
U. S. 50 , the Court dismissed for want of jurisdiction a
bill by the State of Georgia seeking to enjoin enforcement of the
Reconstruction Acts on the ground that the command by military
districts which they established extinguished existing state
government and replaced it with a form of government unauthorized
by the Constitution: [ Footnote
4/20 ]

															"That these matters, both as stated in the body of the bill and
in the prayers for relief, call for the judgment of the court upon
political questions, and upon rights not of persons or property,
but of a political character, will hardly be denied. For the rights
for the protection of which our authority is invoked are the rights
of sovereignty, of political jurisdiction, of government, of
corporate existence as a State, with all its constitutional powers
and privileges. No case of private rights or private property
infringed, or in danger of actual or threatened infringement, is
presented by the bill, in a judicial form, for the judgment of the
court." Id. at 73 U. S. 77 .
[ Footnote 4/21 ] Page 369 U. S. 289 5. The influence of these converging considerations -- the
caution not to undertake decision where standards meet for judicial
judgment are lacking, the reluctance to interfere with matters of
state government in the absence of an unquestionable and
effectively enforceable mandate, the unwillingness to make courts
arbiters of the broad issues of political organization historically
committed to other institutions and for whose adjustment the
judicial process is ill-adapted -- has been decisive of the settled
line of cases, reaching back more than a century, which holds that
Art. IV, § 4, of the Constitution, guaranteeing to the States "a
Republican Form of Government," [ Footnote 4/22 ] is not enforceable through the courts. E.g., O'Neill v. Leamer, 239 U. S. 244 ; Mountain Timber Co. v. Washington, 243 U.
S. 219 ; Cochran v. Board of Education, 281 U. S. 370 ; Highland Farms Dairy, Inc., v. Anew, 300 U.
S. 608 . [ Footnote
4/23 ] Claims resting on this specific Page 369 U. S. 290 guarantee of the Constitution have been held nonjusticiable
which challenged state distribution of powers between the
legislative and judicial branches, Ohio ex rel. Bryant v. Akron
Metropolitan Park District, 281 U. S. 74 , state
delegation of power to municipalities, Kiernan v. Portland,
Oregon, 223 U. S. 151 ,
state adoption of the referendum as a legislative institution, Ohio ex rel. Davis v. Hildebrant, 241 U.
S. 565 , 241 U. S. 569 ,
and state restriction upon the power of state constitutional
amendment, Marshall v. Dye, 231 U.
S. 250 , 231 U. S.
256 -257. The subject was fully considered in Pacific
States Telephone & Telegraph Co. v. Oregon, 223 U.
S. 118 , in which the Court dismissed for want of
jurisdiction a writ of error attacking a state license tax statute
enacted by the initiative, on the claim that this mode of
legislation was inconsistent with a Republican Form of Government
and violated the Equal Protection Clause and other federal
guarantees. After noting

															". . . the ruinous destruction of legislative authority in
matters purely political which would necessarily be occasioned by
giving sanction Page 369 U. S. 291 to the doctrine which underlies and would be necessarily
involved in sustaining the propositions contended for, [ Footnote 4/24 ]"

															the Court said:

															". . . [The] essentially political nature [of this claim] is at
once made manifest by understanding that the assault which the
contention here advanced makes it [ sic ] not on the tax as
a tax, but on the State as a State. It is addressed to the
framework and political character of the government by which the
statute levying the tax was passed. It is the government, the
political entity, which (reducing the case to its essence) is
called to the bar of this court not for the purpose of testing
judicially some exercise of power assailed, on the ground that its
exertion Page 369 U. S. 292 has injuriously affected the rights of an individual because of
repugnancy to some constitutional limitation, but to demand of the
State that it establish its right to exist as a State, republican
in form." Id. at 223 U. S.
150 -151.

															The starting point of the doctrine applied in these cases is, of
course, Luther v.
Borden , 7 How. 1. The case arose out of the Dorr
Rebellion in Rhode Island in 1841-1842. Rhode Island, at the time
of the separation from England, had not adopted a new constitution,
but had continued, in its existence as an independent State, under
its original royal Charter, with certain statutory alterations.
This frame of government provided no means for amendment of the
fundamental law; the right of suffrage was to be prescribed by
legislation, which limited it to freeholders. In the 1830's,
largely because of the growth of towns in which there developed a
propertied class whose means were not represented by freehold
estates, dissatisfaction arose with the suffrage qualifications of
the charter government. In addition, population shifts had caused a
dated apportionment of seats in the lower house to yield
substantial numerical inequality of political influence, even among
qualified voters. The towns felt themselves underrepresented, and
agitation began for electoral reform. When the charter government
failed to respond, popular meetings of those who favored the
broader suffrage were held and delegates elected to a convention
which met and drafted a state constitution. This constitution
provided for universal manhood suffrage (with certain
qualifications), and it was to be adopted by vote of the people at
elections at which a similarly expansive franchise obtained. This
new scheme of government was ratified at the polls and declared
effective by the convention, but the government elected and
organized under it, with Dorr at its head, never came to power.
The Page 369 U. S. 293 charter government denied the validity of the convention, the
constitution and its government and, after an insignificant
skirmish, routed Dorr and his followers. It meanwhile provided for
the calling of its own convention, which drafted a constitution
that went peacefully into effect in 1843. [ Footnote 4/25 ] Luther v. Borden was a trespass action brought by one
of Dorr's supporters in a United States Circuit Court to recover
damages for the breaking and entering of his house. The defendants
justified under military orders pursuant to martial law declared by
the charter government, and plaintiff, by his reply, joined issue
on the legality of the charter government subsequent to the
adoption of the Dorr constitution. Evidence offered by the
plaintiff tending to establish that the Dorr government was the
rightful government of Rhode Island was rejected by the Circuit
Court; the court charged the jury that the charter government was
lawful, and, on a verdict for defendants, plaintiff brought a writ
of error to this Court.

															The Court, through Mr. Chief Justice Taney, affirmed. After
noting that the issue of the charter government's legality had been
resolved in that government's favor by the state courts of Rhode
Island -- that the state courts, deeming the matter a political one
unfit for judicial determination, had declined to entertain attacks
upon the existence and authority of the charter government -- the
Chief Justice held that the courts of the United States must follow
those of the State in this regard. Id. at 48 U. S. 39 -40. It
was recognized that the compulsion to follow Page 369 U. S. 294 state law would not apply in a federal court in the face of a
superior command found in the Federal Constitution, ibid., but no such command was found. The Constitution, the Court said --
referring to the Guarantee Clause of the Fourth Article --

															". . . as far as it has provided for an emergency of this kind,
and authorized the general government to interfere in the domestic
concerns of a State, has treated the subject as political in its
nature, and placed the power in the hands of that department." Id. at 48 U. S. 42 .

															"Under this article of the Constitution, it rests with Congress
to decide what government is the established one in a State. For,
as the United States guarantee to each State a republican
government, Congress must necessarily decide what government is
established in the State before it can determine whether it is
republican or not. And when the senators and representatives of a
State are admitted into the councils of the Union, the authority of
the government under which they are appointed, as well as its
republican character, is recognized by the proper constitutional
authority. And its decision is binding on every other department of
the government, and could not be questioned in a judicial tribunal.
It is true that the contest in this case did not last long enough
to bring the matter to this issue, and as no senators or
representatives were elected under the authority of the government
of which Mr. Dorr was the head, Congress was not called upon to
decide the controversy. Yet the right to decide is placed there,
and not in the courts." Ibid. [ Footnote
4/26 ] Page 369 U. S. 295 In determining this issue nonjusticiable, the Court was
sensitive to the same considerations to which its later decisions
have given the varied applications already discussed. It adverted
to the delicacy of judicial intervention into the very structure of
government. [ Footnote 4/27 ] It
acknowledged that tradition had long entrusted questions of this
nature to nonjudicial processes, [ Footnote 4/28 ] and that judicial processes were
unsuited to their decision. [ Footnote
4/29 ] The absence of guiding standards for judgment was
critical, for the question whether the Dorr constitution had been
rightfully adopted depended, in part, upon the extent of the
franchise to be recognized -- the very point of contention over
which rebellion had been fought.

															". . . [I]f the Circuit Court had entered upon this inquiry, by
what rule could it have determined the qualification of voters upon
the adoption or rejection of the proposed constitution, unless
there was some previous law of the State to guide it? It is the
province of a court to expound the law, not to make it. And
certainly it is no part of the judicial functions of any court of
the United States to prescribe the qualification of voters in a
State, giving the right to those to whom it is denied by the
written and established constitution and laws of the State, or
taking it away from those to whom it is given; nor has it the right
to determine what political privileges Page 369 U. S. 296 the citizens of a State are entitled to, unless there is an
established constitution or law to govern its decision." Id. at 48 U. S. 41 .

															Mr. Justice Woodbury (who dissented with respect to the effect
of martial law) agreed with the Court regarding the
inappropriateness of judicial inquiry into the issues:

															"But, fortunately for our freedom from political excitements in
judicial duties, this court can never with propriety be called on
officially to be the umpire in questions merely political. The
adjustment of these questions belongs to the people and their
political representatives, either in the State or general
government. These questions relate to matters not to be settled on
strict legal principles. They are adjusted rather by inclination --
or prejudice or compromise, often. Some of them succeed or are
defeated even by public policy alone, or mere naked power, rather
than intrinsic right. . . ."

															"Another evil, alarming and little foreseen, involved in
regarding these as questions for the final arbitrament of judges
would be that, in such an event. all political privileges and
rights would, in a dispute among the people, depend on our decision
finally. . . . [D]isputed points in making constitutions, depending
often, as before shown, on policy, inclination, popular resolves,
and popular will, . . . if the people, in the distribution of
powers under the constitution, should ever think of making judges
supreme arbiters in political controversies, when not selected by
nor, frequently, amenable to them, nor at liberty to follow such
various considerations in their judgments as belong to mere
political questions, they will dethrone themselves and lose one of
their own invaluable birthrights; building up in this way --
slowly, but surely -- a new sovereign power in the Page 369 U. S. 297 republic, in most respects irresponsible and unchangeable for
life, and one more dangerous, in theory at least, than the worst
elective oligarchy in the worst of times. . . ." Id. at 48 U. S. 51 -53.
[ Footnote 4/30 ] III The present case involves all of the elements that have made the
Guarantee Clause cases nonjusticiable. It is, in effect, a
Guarantee Clause claim masquerading under a different label. But it
cannot make the case more fit for judicial action that appellants
invoke the Fourteenth Amendment, rather than Art. IV, § 4, where,
in fact, the gist of their complaint is the same -- unless it can
be found that the Fourteenth Amendment speaks with greater
particularity to their situation. We have been admonished to avoid
"the tyranny of labels." Snyder v. Massachusetts, 291 U. S. 97 , 291 U. S. 114 .
Art. IV, § 4, is not committed by express constitutional terms to
Congress. It is the nature of the controversies arising under it,
nothing else, which has made it judicially unenforceable. Of
course, if a controversy falls within judicial power, it depends
"on how he [the plaintiff] casts his action," Pan American
Petroleum Corp. v. Superior Court, 366 U.
S. 656 , 366 U. S. 662 ,
whether he brings himself within a jurisdictional statute. But
where judicial competence is wanting, it cannot be created by
invoking one clause of the Constitution rather than another. When
what was essentially a Guarantee Clause claim was sought to be
laid, as well, under the Equal Protection Clause in Pacific
States Telephone & Telegraph Co. v. Oregon, supra, the
Court had no difficulty in "dispelling Page 369 U. S. 298 any mere confusion resulting from forms of expression and
considering the substance of things. . . ." 223 U.S. at 223 U. S.
140 .

															Here, appellants attack "the State as a State," precisely as it
was perceived to be attacked in the Pacific States case, id. at 223 U. S. 150 .
Their complaint is that the basis of representation of the
Tennessee Legislature hurts them. They assert that "a minority now
rules in Tennessee," that the apportionment statute results in a
"distortion of the constitutional system," that the General
Assembly is no longer "a body representative of the people of the
State of Tennessee," all "contrary to the basic principle of
representative government. . . ." Accepting appellants' own
formulation of the issue, one can know this handsaw from a hawk.
Such a claim would be nonjusticiable not merely under Art. IT, § 4,
but under any clause of the Constitution, by virtue of the very
fact that a federal court is not a forum for political debate. Massachusetts v. Mellon, supra. But appellants, of course, do not rest on this claim simpliciter. In invoking the Equal Protection Clause, they
assert that the distortion of representative government complained
of is produced by systematic discrimination against them, by way of
"a debasement of their votes. . . ." Does this characterization,
with due regard for the facts from which it is derived, add
anything to appellants' case? [ Footnote 4/31 ]

															At first blush, this charge of discrimination based on
legislative underrepresentation is given the appearance of Page 369 U. S. 299 a more private, less impersonal, claim than the assertion that
the frame of government is askew. Appellants appear as
representatives of a class that is prejudiced as a class, in
contradistinction to the polity in its entirety. However, the
discrimination relied on is the deprivation of what appellants
conceive to be their proportionate share of political influence.
This, of course, is the practical effect of any allocation of power
within the institutions of government. Hardly any distribution of
political authority that could be assailed as rendering government
nonrepublican would fail similarly to operate to the prejudice of
some groups, and to the advantage of others, within the body
politic. It would be ingenuous not to see, or consciously blind to
deny, that the real battle over the initiative and referendum, or
over a delegation of power to local, rather than statewide
authority, is the battle between forces whose influence is
disparate among the various organs of government to whom power may
be given. No shift of power but works a corresponding shift in
political influence among the groups composing a society.

															What, then, is this question of legislative apportionment?
Appellants invoke the right to vote and to have their votes
counted. [ Footnote 4/32 ] But they
are permitted to vote, and their votes are counted. They go to the
polls, they cast their ballots, they send their representatives to
the state Page 369 U. S. 300 councils. Their complaint is simply that the representatives are
not sufficiently numerous or powerful -- in short, that Tennessee
has adopted a basis of representation with which they are
dissatisfied. Talk of "debasement" or "dilution" is circular talk.
One cannot speak of "debasement" or "dilution" of the value of a
vote until there is first defined a standard of reference as to
what a vote should be worth. What is actually asked of the Court in
this case is to choose among competing bases of representation --
ultimately, really, among competing theories of political
philosophy -- in order to establish an appropriate frame of
government for the State of Tennessee, and thereby for all the
States of the Union.

															In such a matter, abstract analogies which ignore the facts of
history deal in unrealities; they betray reason. This is not a case
in which a State has, through a device however oblique and
sophisticated, denied Negroes or Jews or redheaded persons a vote,
or given them only a third or a sixth of a vote. That was Gomillion v. Lightfoot, 364 U. S. 339 .
What Tennessee illustrates is an old and still widespread method of
representation -- representation by local geographical division,
only in part respective of population -- in preference to others,
others, forsooth, more appealing. Appellants contest this choice,
and seek to make this Court the arbiter of the disagreement. They
would make the Equal Protection Clause the charter of adjudication,
asserting that the equality which it guarantees comports, if not
the assurance of equal weight to every voter's vote, at least the
basic conception that representation ought to be proportionate to
population, a standard by reference to which the reasonableness of
apportionment plans may be judged.

															To find such a political conception legally enforceable in the
broad and unspecific guarantee of equal protection is to rewrite
the Constitution. See Luther v. Borden, supra. Certainly
"equal protection" is no more secure Page 369 U. S. 301 a foundation for judicial judgment of the permissibility of
varying forms of representative government than is "Republican
Form." Indeed, since "equal protection of the laws" can only mean
an equality of persons standing in the same relation to whatever
governmental action is challenged, the determination whether
treatment is equal presupposes a determination concerning the
nature of the relationship. This, with respect to apportionment,
means an inquiry into the theoretic base of representation in an
acceptably republican state. For a court could not determine the
equal protection issue without, in fact, first determining the
Republican Form issue, simply because what is reasonable for equal
protection purposes will depend upon what frame of government,
basically, is allowed. To divorce "equal protection" from
"Republican Form" is to talk about half a question.

															The notion that representation proportioned to the geographic
spread of population is so universally accepted as a necessary
element of equality between man and man that it must be taken to be
the standard of a political equality preserved by the Fourteenth
Amendment -- that it is, in appellants' words "the basic principle
of representative government" -- is, to put it bluntly, not true.
However desirable and however desired by some among the great
political thinkers and framers of our government, it has never been
generally practiced, today or in the past. It was not the English
system, it was not the colonial system, it was not the system
chosen for the national government by the Constitution, it was not
the system exclusively or even predominantly practiced by the
States at the time of adoption of the Fourteenth Amendment, it is
not predominantly practiced by the States today. Unless judges, the
judges of this Court, are to make their private views of political
wisdom the measure of the Constitution -- views which, in all
honesty, cannot but give the appearance, if not reflect the
reality, of Page 369 U. S. 302 involvement with the business of partisan politics so
inescapably a part of apportionment controversies -- the Fourteenth
Amendment, "itself a historical product," Jackman v. Rosenbaum
Co., 260 U. S. 22 , 260 U. S. 31 ,
provides no guide for judicial oversight of the representation
problem.

															1. Great Britain. Writing in 1958, Professor W. J. M.
Mackenzie aptly summarized the British history of the principle of
representation proportioned to population:

															"'Equal electoral districts' formed part of the programme of
radical reform in England in the 1830's, the only part of that
programme which has not been realised. [ Footnote 4/33 ]"

															Until the late nineteenth century, the sole base of
representation (with certain exceptions not now relevant) was the
local geographical unit: each county or borough returned its fixed
number of members, usually two for the English units, regardless of
population. [ Footnote 4/34 ] Prior
to the Reform Act of 1832, this system was marked by the almost
total disfranchisement of the populous northern industrial centers,
which had grown to significant size at the advent of the Industrial
Revolution and had not been granted borough representation, and by
the existence of the rotten borough, playing its substantial part
in the Crown's struggle for continued control of the Commons.
[ Footnote 4/35 ] In 1831, ten
southernmost English counties, numbering three and a quarter
million people, had two hundred and thirty-five parliamentary
representatives, while the six northernmost counties, with more
than three and a half million people, had sixty-eight. [ Footnote 4/36 ] It was said that one
hundred and eighty persons appointed three hundred and Page 369 U. S. 303 fifty members in the Commons. [ Footnote 4/37 ] Less than a half century earlier,
Madison, in the Federalist, had remarked that half the House was
returned by less than six thousand of the eight million people of
England and Scotland. [ Footnote
4/38 ]

															The Act of 1832, the product of a fierce partisan political
struggle and the occasion of charges of gerrymandering not without
foundation, [ Footnote 4/39 ]
effected eradication of only the most extreme numerical
inequalities of the unreformed system. It did not adopt the
principle of representation based on population, but merely
disfranchised certain among the rotten borough and enfranchised
most of the urban centers -- still quite without regard to their
relative numbers. [ Footnote 4/40 ]
In the wake of the Act, there remained substantial electoral
inequality: the boroughs of Cornwall were represented sixteen times
as weightily, judged by population, as the county's eastern
division; the average ratio of seats to population in ten
agricultural counties was four and a half times that in ten
manufacturing divisions; Honiton, with about three thousand
inhabitants, was equally represented with Liverpool, which had four
hundred thousand. [ Footnote 4/41 ]
In 1866, apportionment by population began to be advocated
generally in the House, but was not made the basis of the
redistribution of 1867, although the act of that year did apportion
representation more evenly, gauged by the population standard.
[ Footnote 4/42 ] Population shifts
increased the surviving inequalities; by 1884, the representation
ratio Page 369 U. S. 304 in many small boroughs was more than twenty-two times that of
Birmingham or Manchester, forty-to-one disparities could be found
elsewhere, and, in sum, in the 1870's and 1880's, a fourth of the
electorate returned two-thirds of the members of the House.
[ Footnote 4/43 ]

															The first systematic English attempt to distribute seats by
population was the Redistribution Act of 1885. [ Footnote 4/44 ] The statute still left ratios of
inequality of as much as seven to one, [ Footnote 4/45 ] which had increased to fifteen to one by
1912. [ Footnote 4/46 ] In 1918,
Parliament again responded to "shockingly bad" conditions of
inequality, [ Footnote 4/47 ] and
to partisan political inspiration, [ Footnote 4/48 ] by redistribution. [ Footnote 4/49 ] In 1944, redistribution was put on
a periodic footing by the House of Commons (Redistribution of
Seats) Act of that year, [ Footnote
4/50 ] which committed a continuing primary responsibility for
reapportioning the Commons to administrative agencies (Boundary
Commissions for England, Scotland, Wales and Northern Ireland,
respectively). [ Footnote 4/51 ]
The Commissions, having regard to certain rules prescribed for
their guidance, are to prepare at designated intervals reports for
the Home Secretary's submission to Parliament, along with the draft
of an Order in Council to give effect to the Page 369 U. S. 305 Commissions' recommendations. The districting rules adopt the
basic principle of representation by population, although the
principle is significantly modified by directions to respect local
geographic boundaries as far as practicable, and by discretion to
take account of special geographical conditions, including the
size, shape and accessibility of constituencies. Under the original
1944 Act, the rules provided that (subject to the exercise of the
discretion respecting special geographical conditions and to regard
for the total size of the House of Commons as prescribed by the
Act) so far as practicable, the single-member districts should not
deviate more than twenty-five percent from the electoral quota
(population divided by number of constituencies). However,
apparently at the recommendation of the Boundary Commission for
England, the twenty-five percent standard was eliminated as too
restrictive in 1947, and replaced by the flexible provision that
constituencies are to be as near the electoral quota as
practicable, a rule which is expressly subordinated both to the
consideration of special geographic conditions and to that of
preserving local boundaries. [ Footnote 4/52 ] Free of the twenty-five percent rule,
the Commissions drew up plans of distribution in which inequalities
among the districts run, in ordinary cases, as high as two to one
and, in the case of a few extraordinary constituencies, three to
one. [ Footnote 4/53 ] The action
of the Boundary Commission for England was twice challenged in the
courts in 1954 -- the claim being that the Commission had violated
statutory rules Page 369 U. S. 306 prescribing the standards for its judgment -- and, in both
cases, the Judges declined to intervene. In Hammersmith Borough
Council v. Boundary Commission for England, [ Footnote 4/54 ] Harman, J., was of opinion that the
nature of the controversy and the scheme of the Acts made the
matter inappropriate for judicial interference, and in Harper
v. Home Secretary, [ Footnote
4/55 ] the Court of Appeal, per Evershed, M.R., quoting Harman,
J., with approval, adverting to the wide range of discretion
entrusted to the Commission under the Acts, and remarking the
delicate character of the parliamentary issues in which it was
sought to engage the court, reached the same conclusion. [ Footnote 4/56 ]

															The House of Commons (Redistribution of Seats) Act, 1958,
[ Footnote 4/57 ] made two further
amendments to the law. Responsive to the recommendation of the
Boundary Commission for England, [ Footnote 4/58 ] the interval permitted between
Commission reports was more than doubled, to a new maximum of
fifteen years. [ Footnote 4/59 ]
And at the suggestion of the same Commission that

															"[i]t would ease the future labours of the Commission and remove
much local irritation if Rule 5 [requiring that the electorate of
each constituency be as near the electoral quota as practicable]
were to be so amended as to allow us to make recommendations
preserving the status quo in any area where such a course
appeared to be desirable and not inconsistent Page 369 U. S. 307 with the broad intention of the Rules, [ Footnote 4/60 ]"

															the Commissions were directed to consider the inconveniences
attendant upon the alteration of constituencies, and the local ties
which such alteration might break. The Home Secretary's view of
this amendment was that it worked to erect "a presumption against
making changes unless there is a very strong case for them."
[ Footnote 4/61 ]

															2. The Colonies and the Union. For the guiding
political theorists of the Revolutionary generation, the English
system of representation, in its most salient aspects of numerical
inequality, was a model to be avoided, not followed. [ Footnote 4/62 ] Nevertheless, the basic
English principle of apportioning representatives among the local
governmental entities, towns or counties, rather than among units
of approximately equal population, had early taken root in the
colonies. [ Footnote 4/63 ] In
some, as in Massachusetts and Rhode Island, numbers of electors
were taken into account, in a rough fashion, by allotting
increasing fixed quotas of representatives to several towns or
classes of towns graduated by population, but in most of the
colonies, delegates were allowed to the local units without respect
to numbers. [ Footnote 4/64 ] This
resulted in grossly unequal electoral units. [ Footnote 4/65 ] The representation ratio in one
North Carolina county was more than eight times that, in another.
[ Footnote 4/66 ] Moreover,
American rotten boroughs had appeared, [ Footnote 4/67 ] and apportionment was made an instrument
first in the political Page 369 U. S. 308 struggles between the King or the royal governors and the
colonial legislatures, [ Footnote
4/68 ] and, later, between the older tidewater regions in the
colonies and the growing interior. [ Footnote 4/69 ] Madison, in the Philadelphia Convention,
adverted to the "inequality of the Representation in the
Legislatures of particular States, . . ." [ Footnote 4/70 ] arguing that it was necessary to confer
on Congress the power ultimately to regulate the times, places and
manner of selecting Representatives, [ Footnote 4/71 ] in order to forestall the
overrepresented counties' securing themselves a similar
overrepresentation in the national councils. The example of South
Carolina, where Charleston's overrepresentation was a continuing
bone of contention between the tidewater and the back country, was
cited by Madison in the Virginia Convention and by King in the
Massachusetts Convention, in support of the same power, and King
also spoke of the extreme numerical inequality arising from
Connecticut's town representation system. [ Footnote 4/72 ]

															Such inequalities survived the constitutional period. The United
States Constitution itself did not largely adopt the principle of
numbers. Apportionment of the national legislature among the States
was one of the most difficult problems for the Convention;
[ Footnote 4/73 ] its solution --
involving State representation in the Senate [ Footnote 4/74 ] and the three-fifths compromise in
the House [ Footnote 4/75 ] -- left
neither chamber apportioned proportionately to population. Page 369 U. S. 309 Within the States, electoral power continued to be allotted to
favor the tidewater. [ Footnote
4/76 ] Jefferson, in his Notes on Virginia, recorded the "very
unequal" representation there: individual counties differing in
population by a ratio of more than seventeen to one elected the
same number of representatives, and those nineteen thousand of
Virginia's fifty thousand men who lived between the falls of the
rivers and the seacoast returned half the State's senators and
almost half its delegates. [ Footnote
4/77 ] In South Carolina in 1790, the three lower districts,
with a white population of less than twenty-nine thousand, elected
twenty senators and seventy assembly members; while, in the
uplands, more than one hundred and eleven thousand white persons
elected seventeen senators and fifty-four assemblymen. [ Footnote 4/78 ]

															In the early nineteenth century, the demands of the interior
became more insistent. The apportionment quarrel in Virginia was a
major factor in precipitating the calling of a constitutional
convention in 1829. Bitter animosities racked the convention,
threatening the State with disunion. At last, a compromise which
gave the three hundred and twenty thousand people of the west
thirteen senators, as against the nineteen senators returned by the
three hundred sixty-three thousand people of the east, commanded
agreement. It was adopted at the polls, but left the western
counties so dissatisfied that there were threats of revolt and
realignment with the State of Maryland. [ Footnote 4/79 ]

															Maryland, however, had her own numerical disproportions. In
1820, one representative vote in Calvert County Page 369 U. S. 310 was worth five in Frederick County, and almost two hundred
thousand people were represented by eighteen members, while fifty
thousand others elected twenty. [ Footnote 4/80 ] This was the result of the county
representation system of allotment. And, except for Massachusetts,
which, after a long struggle, did adopt representation by
population at the mid-century, a similar town representation
principle continued to prevail in various forms throughout New
England, with all its attendant, often gross, inequalities.
[ Footnote 4/81 ]

															3. The States at the time of ratification of the Fourteenth
Amendment, and those later admitted. The several state
conventions throughout the first half of the nineteenth century
were the scenes of fierce sectional and party strifes respecting
the geographic allocation of representation. [ Footnote 4/82 ] Their product was a wide variety of
apportionment methods which recognized the element of population in
differing ways and degrees. Particularly pertinent to appraisal of
the contention that the Fourteenth Amendment embodied a standard
limiting the freedom of the States with regard to the principles
and bases of local legislative apportionment is an examination of
the apportionment provisions of the thirty-three States which
ratified the Amendment between 1866 and 1870, at their respective
times of ratification. These may be considered in two groups: (A)
the ratifying States other than the ten Southern States whose
constitutions, at the time of ratification or shortly thereafter,
were the work of the Reconstruction Act conventions; [ Footnote 4/83 ] and Page 369 U. S. 311 (B) the ten Reconstruction-Act States. All thirty-three are
significant, because they demonstrate how unfounded is the
assumption that the ratifying States could have agreed on a
standard apportionment theory or practice, and how baseless the
suggestion that, by voting for the Equal Protection Clause, they
sought to establish a test mold for apportionment which -- if
appellants' argument is sound -- struck down sub silentio not a few of their own state constitutional provisions. But the
constitutions of the ten Reconstruction Act States have an added
importance, for it is scarcely to be thought that the Congress
which was so solicitous for the adoption of the Fourteenth
Amendment as to make the readmission of the late rebel States to
Congress turn on their respective ratifications of it, would have
approved constitutions which -- again, under appellants' theory --
contemporaneously offended the Amendment.

															A. Of the twenty-three ratifying States of the first group,
seven or eight had constitutions which demanded or allowed
apportionment of both houses on the basis of population, [ Footnote 4/84 ] unqualifiedly or with only
qualifications respecting the preservation of local boundaries.
[ Footnote 4/85 ] Three Page 369 U. S. 312 more apportioned on what was essentially a population base, but
provided that, in one house, counties having a specified fraction
of a ratio -- a moiety or two-thirds -- should have a
representative. [ Footnote 4/86 ]
Since each of these three States limited the size of their
chambers, the fractional rule could operate -- and, at least in
Michigan, has, in fact, operated [ Footnote 4/87 ] -- to produce substantial numerical
inequalities Page 369 U. S. 313 in favor of the sparsely populated counties. [ Footnote 4/88 ] Iowa favored her small counties by
the rule that no more than four counties might be combined in a
representative district, [ Footnote
4/89 ] and New York and Kansas compromised population and county
representation principles by assuring every county, regardless of
the number of its inhabitants, at least one seat in their
respective Houses. [ Footnote
4/90 ]

															Ohio and Maine recognized the factor of numbers by a different
device. The former gave a House representative to each county
having half a ratio, two representatives for a ratio and
three-quarters, three representatives for three ratios, and a
single additional representative for each additional ratio.
[ Footnote 4/91 ] The latter, after
apportioning among counties on a population base, gave each town of
fifteen hundred inhabitants one representative, each town of three
thousand, seven hundred and fifty inhabitants two representatives,
and so on in increasing intervals to twenty-six thousand, two
hundred and fifty inhabitants -- towns of that size or larger
receiving the maximum permitted number of representatives: seven.
[ Footnote 4/92 ] The departure
from numerical equality under these systems is apparent: in Maine,
assuming the incidence of towns in Page 369 U. S. 314 all categories, representative ratios would differ by factors of
two and a half to one, at a minimum. Similarly, Missouri gave each
of its counties, however small, one representative, two
representatives for three ratios, three representatives for six
ratios, and one additional representative for each three ratios
above six. [ Footnote 4/93 ] New
Hampshire allotted a representative to each town of one hundred and
fifty ratable male polls of voting age and one more representative
for each increment of three hundred above that figure; [ Footnote 4/94 ] its Senate was not
apportioned by population, but among districts based on the
proportion of direct taxes paid. [ Footnote 4/95 ] In Pennsylvania, the basis of
apportionment in both houses was taxable inhabitants, and in the
House, every county of at least thirty-five hundred taxables had a
representative, nor could more than three counties be joined in
forming a representative district; while, in the Senate, no city or
county could have more than four of the State's twenty-five to
thirty-three senators. [ Footnote
4/96 ]

															Finally, four States apportioned at least one House with no
regard whatever to population. In Connecticut, [ Footnote 4/97 ] and Vermont [ Footnote 4/98 ] representation in the House was on a
town basis; Rhode Island gave one senator to each of its towns or
cities, [ Footnote 4/99 ] and New
Jersey one to each of its counties. [ Footnote 4/100 ] Page 369 U. S. 315 Nor, in any of these States, was the other House apportioned on
a strict principle of equal numbers: Connecticut gave each of its
counties a minimum of two senators [ Footnote 4/101 ] and Vermont, one; [ Footnote 4/102 ] New Jersey assured each county a
representative; [ Footnote
4/103 ] and, in Rhode Island, which gave at least one
representative to each town or city, no town or city could have
more than one-sixth of the total number in the House. [ Footnote 4/104 ]

															B. Among the ten late Confederate States affected by the
Reconstruction Acts, in only four did it appear that apportionment
of both state legislative houses would or might be based strictly
on population. [ Footnote 4/105 ]
In North Carolina, [ Footnote
4/106 ] South Carolina, [ Footnote 4/107 ] Louisiana, [ Footnote 4/108 ] and Alabama, [ Footnote 4/109 ] each county (in the case of Louisiana,
each parish) was assured at least one seat in the lower House
irrespective of numbers -- a distribution which exhausted,
respectively, Page 369 U. S. 316 on the basis of the number of then-existing counties,
three-quarters, one-quarter, two-fifths and three-fifths of the
maximum possible number of representatives, before a single seat
was available for assignment on a population basis, and, in South
Carolina, moreover, the Senate was composed of one member elected
from each county, except that Charleston sent two. [ Footnote 4/110 ] In Florida's House,
each county had one seat guaranteed and an additional seat for
every thousand registered voters up to a maximum of four
representatives, [ Footnote
4/111 ] while Georgia, whose Senate seats were distributed among
forty-four single member districts each composed of three
contiguous counties, [ Footnote
4/112 ] assigned representation in its House as follows: three
seats to each of the six most populous counties, two to each of the
thirty-one next most populous, one to each of the remaining
ninety-five. [ Footnote 4/113 ]
As might be expected, the "one representative per county" minimum
pattern has proved incompatible with numerical equality, [ Footnote 4/114 ] and Georgia's Page 369 U. S. 317 county-clustering system has produced representative ratio
disparities, between the largest and smallest counties, of more
than sixty to one. [ Footnote
4/115 ]

															C. The constitutions [ Footnote
4/116 ] of the thirteen States which Congress admitted to the
Union after the ratification of the Fourteenth Amendment showed a
similar pattern. Six of them required or permitted apportionment of
both Houses by population, subject only to qualifications
concerning local boundaries. [ Footnote 4/117 ] Wyoming, apportioning by population,
guaranteed to each of its counties at least one seat in each House,
[ Footnote 4/118 ] and Idaho,
which prescribed (after the first legislative session) that
apportionment should be "as may be provided by law," gave each
county at least one representative. [ Footnote 4/119 ] In Oklahoma, House members were
apportioned among counties so as to give one Page 369 U. S. 318 seat for half a ratio, two for a ratio and three-quarters, and
one for each additional ratio up to a maximum of seven
representatives per county. [ Footnote 4/120 ] Montana required reapportionment of
its House on the basis of periodic enumerations according to ratios
to be fixed by law, [ Footnote
4/121 ] but its counties were represented as counties in the
Senate, each county having one senator. [ Footnote 4/122 ] Alaska [ Footnote 4/123 ] and Hawaii [ Footnote 4/124 ] each apportioned a number of senators
among constitutionally fixed districts; their respective Houses
were to be periodically reapportioned by population, subject to a
moiety rule in Alaska [ Footnote
4/125 ] and to Hawaii's guarantee of one representative to each
of four constitutionally designated areas. [ Footnote 4/126 ] The Arizona Constitution assigned
representation to each county in each house, giving one or two
senators and from one to seven representatives to each, and making
no provision for reapportionment. [ Footnote 4/127 ] Page 369 U. S. 319 4. Contemporary apportionment. Detailed recent studies
are available to describe the present-day constitutional and
statutory status of apportionment in the fifty States. [ Footnote 4/128 ] They demonstrate a
decided twentieth-century trend away from population as the
exclusive base of representation. Today, only a dozen state
constitutions provide for periodic legislative reapportionment of
both houses by a substantially unqualified application of the
population standard, [ Footnote
4/129 ] and only about a dozen more prescribe such
reapportionment for even a single chamber.

															"Specific provision for county representation in at least one
house of the state legislature has been increasingly adopted since
the end of the 19th century. [ Footnote 4/130 ]"

															More than twenty States now guarantee each county at least one
seat in one of their houses regardless of population, and in nine
others county or town units are given equal representation in one
legislative branch, whatever the number of each unit's inhabitants.
Of course, numerically considered, "These provisions invariably
result in over-representation of the least populated areas."
[ Footnote 4/131 ] And in an
effort to curb the political dominance of metropolitan regions, at
least ten States now limit the maximum entitlement of any single
county (or, in some cases, city) Page 369 U. S. 320 in one legislative house -- another source of substantial
numerical disproportion. [ Footnote
4/132 ]

															Moreover, it is common knowledge that the legislatures have not
kept reapportionment up to date, even where state constitutions in
terms require it. [ Footnote
4/133 ] In particular, the pattern of according greater per
capita representation to rural, relatively sparsely populated areas
-- the same pattern which finds expression in various state
constitutional provisions, [ Footnote 4/134 ] and which has been given effect in
England and elsewhere [ Footnote
4/135 ] -- has, in some of the States, been made the law by
legislative inaction in the face of Page 369 U. S. 321 population shifts. [ Footnote
4/136 ] Throughout the country, urban and suburban areas tend to
be given higher representation ratios than do rural areas.
[ Footnote 4/137 ]

															The stark fact is that, if, among the numerous widely varying
principles and practices that control state legislative
apportionment today, there is any generally prevailing feature,
that feature is geographic inequality in relation to the population
standard. [ Footnote 4/138 ]
Examples could be endlessly multiplied. In New Jersey, counties
of Page 369 U. S. 322 thirty-five thousand and of more than nine hundred and five
thousand inhabitants respectively each have a single senator.
[ Footnote 4/139 ] Representative
districts in Minnesota range from 7,290 inhabitants to 107,246
inhabitants. [ Footnote 4/140 ]
Ratios of senatorial representation in California vary as much as
two hundred and ninety-seven to one. [ Footnote 4/141 ] In Oklahoma, the range is ten to one
for House constituencies and roughly sixteen to one for Senate
constituencies. [ Footnote
4/142 ] Colebrook, Connecticut -- population 592 -- elects two
House representatives; Hartford -- population 177,397 -- also
elects two. [ Footnote 4/143 ]
The first, third and fifth of these examples are the products of
constitutional provisions which subordinate population to regional
considerations in apportionment; the second is the result of
legislative inaction; the fourth derives from both constitutional
and legislative sources. A survey made in 1955, in sum, reveals
that less than thirty percent of the population inhabit districts
sufficient to elect a House majority in thirteen States and a
Senate majority in nineteen States. [ Footnote 4/144 ] These figures show more than
individual variations from a generally accepted standard of
electoral equality. They show that there is not -- as there has
never been -- a standard by Page 369 U. S. 323 which the place of equality as a factor in apportionment can be
measured.

															Manifestly, the Equal Protection Clause supplies no clearer
guide for judicial examination of apportionment methods than would
the Guarantee Clause itself. Apportionment, by its character, is a
subject of extraordinary complexity, involving -- even after the
fundamental theoretical issues concerning what is to be represented
in a representative legislature have been fought out or compromised
-- considerations of geography, demography, electoral convenience,
economic and social cohesions or divergencies among particular
local groups, communications, the practical effects of political
institutions like the lobby and the city machine, ancient
traditions and ties of settled usage, respect for proven incumbents
of long experience and senior status, mathematical mechanics,
censuses compiling relevant data, and a host of others. [ Footnote 4/145 ] Page 369 U. S. 324 Legislative responses throughout the country to the
reapportionment demands of the 1960 Census have glaringly confirmed
that these are not factors that lend themselves to evaluations of a
nature that are the staple of judicial determinations or for which
judges are equipped to adjudicate by legal training or experience
or native wit. And this is the more so true because, in every
strand of this complicated, intricate web of values meet the
contending forces of partisan politics. [ Footnote 4/146 ] The practical significance of
apportionment is that the next election results may differ because
of it. Apportionment battles are overwhelmingly party or
intra-party contests. [ Footnote
4/147 ] It will add a virulent source of friction and tension in
federal-state relations to embroil the federal judiciary in them.
[ Footnote 4/148 ] Page 369 U. S. 325 IV Appellants, however, contend that the federal courts may provide
the standard which the Fourteenth Amendment lacks by reference to
the provisions of the constitution of Tennessee. The argument is
that, although the same or greater disparities of electoral
strength may be suffered to exist immune from federal judicial
review in States where they result from apportionment legislation
consistent with state constitutions, the Tennessee Legislature may
not abridge the rights which, on its face, its own constitution
appears to give, without by that act denying equal protection of
the laws. It is said that the law of Tennessee, as expressed by the
words of its written constitution, has made the basic choice among
policies in favor of representation proportioned to population, and
that it is no longer open to the State to allot its voting power on
other principles.

															This reasoning does not bear analysis. Like claims invoking
state constitutional requirement have been rejected here, and for
good reason. It is settled that whatever federal consequences may
derive from a discrimination worked by a state statute must be the
same as if the same discrimination were written into the Page 369 U. S. 326 State's fundamental law. Nashville, C. & St.L. R. Co. v.
Browning, 310 U. S. 362 . And see Castillo v. McConnico, 168 U.
S. 674 ; Coulter v. Louisville & N. R. Co., 196 U. S. 599 , 196 U. S.
608 -609; Owensboro Waterworks Co. v. Owensboro, 200 U. S. 38 ; Hebert v. Louisiana, 272 U. S. 312 , 272 U. S.
316 -317; Snowden v. Hughes, 321 U. S.
1 , 321 U. S. 11 .
Appellants complain of a practice which, by their own allegations,
has been the law of Tennessee for sixty years. They allege that the
Apportionment Act of 1901 created unequal districts when passed,
and still maintains unequal districts. They allege that the
Legislature has, since 1901, purposefully retained unequal
districts. And the Supreme Court of Tennessee has refused to
invalidate the law establishing these unequal districts. Kidd
v. McCanless, 200 Tenn. 273, 292
S.W.2d 40 ; appeal dismissed here in 352 U.S. 920. In
these circumstances, what was said in the Browning case, supra, at 310 U. S. 369 ,
clearly governs this case:

															". . . Here, according to petitioner's own claim, all the organs
of the state are conforming to a practice, systematic, unbroken for
more than forty years, and now questioned for the first time. It
would be a narrow conception of jurisprudence to confine the notion
of 'laws' to what is found written on the statute books, and to
disregard the gloss which life has written upon it. Settled state
practice cannot supplant constitutional guarantees, but it can
establish what is state law. The Equal Protection Clause did not
write an empty formalism into the Constitution. Deeply embedded
traditional ways of carrying out state policy, such as those of
which petitioner complains, are often tougher and truer law than
the dead words of the written text. . . . [T]he Equal Protection
Clause is not a command of candor. . . . " Page 369 U. S. 327 Tennessee's law and its policy respecting apportionment are what
60 years of practice show them to be, not what appellants cull from
the unenforced and, according to its own judiciary, unenforceable
words of its Constitution. The statute comes here on the same
footing, therefore, as would the apportionment laws of New Jersey,
California or Connecticut, [ Footnote 4/149 ] and is unaffected by its supposed
repugnance to the state constitutional language on which appellants
rely. [ Footnote 4/150 ]

															In another aspect, however, the Kidd v. McCanless case, supra, introduces a factor peculiar to this litigation,
which only emphasizes the duty of declining the exercise of federal
judicial jurisdiction. In all of the apportionment cases which have
come before the Court, a consideration which has been weighty in
determining their nonjusticiability has been the difficulty or
impossibility of devising effective judicial remedies in this class
of case. An injunction restraining a general election unless the
legislature reapportions would paralyze the critical centers of a
State's political system and threaten political dislocation whose
consequences are not foreseeable. A declaration devoid Page 369 U. S. 328 of implied compulsion of injunctive or other relief would be an
idle threat. [ Footnote 4/151 ]
Surely a Federal District Court could not itself remap the State:
the same complexities which impede effective judicial review of
apportionment a fortiori make impossible a court's
consideration of these imponderables as an original matter. And the
choice of elections at large, as opposed to elections by district,
however unequal the districts, is a matter of sweeping political
judgment having enormous political implications, the nature and
reach of which are certainly beyond the informed understanding of,
and capacity for appraisal by, courts.

															In Tennessee, moreover, the McCanless case has closed off
several among even these unsatisfactory and dangerous modes of
relief. That case was a suit in the state courts attacking the 1901
Reapportionment Act and seeking a declaration and an injunction of
the Act's enforcement or, alternatively, a writ of mandamus
compelling state election officials to hold the elections at large,
or, again alternatively, a decree of the court reapportioning the
State. The Chancellor denied all coercive relief, but entertained
the suit for the purpose of rendering a declaratory judgment. It
was his view that, despite an invalidation of the statute under
which the present legislature was elected, that body would continue
to possess de facto authority to reapportion, and that,
therefore, the maintaining of the suit did not threaten the
disruption of the government. The Tennessee Supreme Court agreed
that no coercive relief could be granted; in particular, it said,
"There is no provision of law for election of our General Assembly
by an election at large over the State." 200 Tenn. at 277, 292
S.W.2d at 42. Thus, a legislature elected at Page 369 U. S. 329 large would not be the legally constituted legislative authority
of the State. The court reversed, however, the Chancellor's
determination to give declaratory relief, holding that the ground
of demurrer which asserted that a striking down of the statute
would disrupt the orderly process of government should have been
sustained:

															"(4) It seems obvious, and we therefore hold, that, if the Act
of 1901 is to be declared unconstitutional, then the de
facto doctrine cannot be applied to maintain the present
members of the General Assembly in office. If the Chancellor is
correct in holding that this statute has expired by the passage of
the decade following its enactment, then, for the same reason, all
prior apportionment acts have expired by a like lapse of time, and
are nonexistent. Therefore, we would not only not have any existing
members of the General Assembly, but we would have no apportionment
act whatever under which a new election could be held for the
election of members to the General Assembly."

															" * * * *" "The ultimate result of holding this Act unconstitutional by
reason of the lapse of time would be to deprive us of the present
Legislature and the means of electing a new one and ultimately
bring about the destruction of the State itself."

															200 Tenn. at 281-282, 292 S.W.2d at 44.

															A federal court enforcing the Federal Constitution is not, to be
sure, bound by the remedial doctrines of the state courts. But it
must consider as pertinent to the propriety or impropriety of
exercising its jurisdiction those state law effects of its decree
which it cannot itself control. A federal court cannot provide the
authority requisite to make a legislature the proper governing body
of the State of Tennessee. And it cannot be doubted that the
striking Page 369 U. S. 330 down of the statute here challenged on equal protection grounds,
no less than on grounds of failure to reapportion decennially,
would deprive the State of all valid apportionment legislation and
-- under the ruling in McCanless -- deprive the State of
an effective law-based legislative branch. Just such
considerations, among others here present, were determinative in Luther v. Borden and the Oregon initiative cases.
[ Footnote 4/152 ]

															Although the District Court had jurisdiction in the very
restricted sense of power to determine whether it could adjudicate
the claim, the case is of that class of political controversy
which, by the nature of its subject, is unfit for federal judicial
action. The judgment of the District Court, in dismissing the
complaint for failure to state a claim on which relief can be
granted, should therefore be affirmed.

															* It is worth reminding that the problem of legislative
apportionment is not one dividing North and South. Indeed, in the
present House of Representatives, for example, Michigan's
congressional districts are far less representative of the numbers
of inhabitants, according to the 1960 census, than are Louisiana's.
Michigan's Sixteenth District, which is 93.1% urban, contains
802,994 persons, and its Twelfth, which is 47.6% urban, contains
177,431 -- one-fifth as many persons. Louisiana's most populous
district, the Sixth, is 53.6% urban and contains 536,029 persons,
and its least populous, the Eighth, 36.7% urban, contains 263,850
-- nearly half. Gross disregard of any assumption that our
political system implies even approximation to the notion that
individual votes in the various districts within a State should
have equal weight is as true, e.g., of California,
Illinois, and Ohio as it is of Georgia. See United States
Department of Commerce, Census Release, February 24, 1962,
CB62-23.

															[ Footnote 4/1 ] See Wood v. Broom, 287 U. S. 1 ; Colegrove v. Green, 328 U. S. 549 , rehearing denied, 329 U.S. 825, motion for reargument
before the full bench denied, 329 U.S. 828; Cook v.
Fortson, 329 U. S. 675 , rehearing denied, 329 U.S. 829; Turman v.
Duckworth, 329 U. S. 675 , rehearing denied, 329 U.S. 829; Colegrove v.
Barrett, 330 U.S. 804; MacDougall v. Green, 335 U. S. 281 ; South v. Peters, 339 U. S. 276 ; Tedesco v. Board of Supervisors, 339 U.S. 940; Remmey
v. Smith, 342 U.S. 916; Cox v. Peters, 342 U.S. 936, rehearing denied, 343 U.S. 921; Anderson v.
Jordan, 343 U.S. 912; Kidd v. McCanless, 352 U.S.
920; Radford v. Gary, 352 U.S. 991; Hartsfield v.
Sloan, 357 U.S. 916; Matthews v. Handley, 361 U. S. 127 ; Perry v. Folsom, 144 F.
Supp. 874 (D.C.N.D.Ala.); Magraw v.
Donovan, 163 F.
Supp. 184 (D.C.D. Minn.); cf. Dyer v. Kazuhisa
Abe, 138 F.
Supp. 220 (D.C.D. Hawaii). And see Keogh v. Neely, 50
F.2d 685 (C.A. 7th Cir.).

															[ Footnote 4/2 ]

															Although the motion to intervene by the Mayor of Nashville
asserted an interest in the litigation in only a representative
capacity, the complaint which he subsequently filed set forth that
he was a qualified voter who also sued in his own behalf. The
municipalities of Knoxville and Chattanooga purport to represent
their residents. Since the claims of the municipal intervenors do
not differ materially from those of the parties who sue as
individual voters, the Court need not now determine whether the
municipalities are proper parties to this proceeding. See,
e.g., Stewart v. Kansas City, 239 U. S.
14 .

															[ Footnote 4/3 ]

															The original complaint named as defendants Tennessee's Secretary
of State, Attorney General, Coordinator of Elections, and the three
members of the State Board of Elections, seeking to make the Board
members representatives of all the State's County Election
Commissioners. The prayer in an intervening complaint by the City
of Knoxville, that the Commissioners of Elections of Knox County be
added as parties defendant seems not to have been acted on by the
court below. Defendants moved to dismiss, inter alia, on
the ground of failure to join indispensable parties, and they argue
in this Court that only the County Election Commissioners of the
ninety-five counties are the effective administrators of
Tennessee's elections laws, and that none of the defendants have
substantial duties in connection therewith. The District Court
deferred ruling on this ground of the motion. Inasmuch as it
involves questions of local law more appropriately decided by
judges sitting in Tennessee than by this Court, and since, in any
event, the failure to join County Election Commissioners in this
action looking to prospective relief could be corrected, if
necessary, by amendment of the complaints, the issue does not
concern the Court on this appeal.

															[ Footnote 4/4 ]

															Jurisdiction is predicated upon R.S. § 1979, 42 U.S.C. § 1983,
and 28 U.S.C. § 1343(3).

															[ Footnote 4/5 ]

															However, counties having two-thirds of the ratio required for a
Representative are entitled to seat one member in the House, and
there are certain geographical restrictions upon the formation of
Senate districts. The applicable provisions of Article II of the
Tennessee Constitution are:

															" Sec. 4. Census. -- An enumeration of the qualified
voters, and an apportionment of the Representatives in the General
Assembly, shall be made in the year one thousand eight hundred and
seventy-one, and within every subsequent term of ten years."

															" Sec. 5. Apportionment of representatives. -- The
number of Representatives shall, at the several periods of making
the enumeration, be apportioned among the several counties or
districts, according to the number of qualified voters in each, and
shall not exceed seventy-five, until the population of the State
shall be one million and a half, and shall never exceed
ninety-nine; Provided that any county having two-thirds of the
ratio shall be entitled to one member."

															" Sec. 6. Apportionment of senators. -- The number of
Senators shall, at the several periods of making the enumeration,
be apportioned among the several counties or districts according to
the number of qualified electors in each, and shall not exceed
one-third the number of representatives. In apportioning the
Senators among the different counties, the fraction that may be
lost by any county or counties, in the apportionment of members to
the House of Representatives shall be made up to such county or
counties in the Senate as near as may be practicable. When a
district is composed of two or more counties, they shall be
adjoining, and no county shall be divided in forming a district
."

															[ Footnote 4/6 ]

															It is alleged that certain amendments to the Act of 1901 made
only minor modifications of that Act, adjusting the boundaries of
individual districts in a manner not material to plaintiffs'
claims.

															[ Footnote 4/7 ]

															The exhibits do not reveal the source of the population figures
which they set forth, but it appears that the figures were taken
from the United States Census of Population, 1950, Volume II, Part
42 (Tennessee), Table 41, at 76-91. These census figures represent
the total population over twenty-one years of age in each Tennessee
county; they do not purport to enumerate "qualified voters" or
"qualified electors," the measure of apportionment prescribed by
the Tennessee Constitution. See 369
U.S. 186 fn4/5|>note 5, supra. To qualify to vote in
Tennessee, in addition to fulfilling the age requirement, an
individual must be a citizen of the United States, a resident of
the State for twelve months and of the county where he offers his
vote for six months next preceding the election, and must not be
under the disqualification attaching to conviction for certain
offenses. Tenn.Code Ann., 1955, §§ 2-201, 2-205. The statistics
found in the United States Census of Population, 1950, Volume II,
Part 42 (Tennessee), Table 42, at 92-97, suggest that the residence
requirement, in particular, may be an unknown variable of
considerable significance. Appellants do not suggest a means by
which a court, on the basis of the federal census figures, can
determine the number of qualified voters in the various Tennessee
counties.

															[ Footnote 4/8 ]

															The "county aid funds" derived from a portion of a state
gasoline privilege tax, for example, are distributed among the
counties as follows: one-half equally among the ninety-five
counties, one-quarter on the basis of area, one-quarter on the
basis of population, to be used by county authorities in the
building, repairing and improving of county roads and bridges.
Tenn.Code Ann., 1955, § 54-403. Appellants urge that this
distribution is discriminatory.

															[ Footnote 4/9 ]

															Plaintiffs also suggested, as an alternative to at-large
elections, that the District Court might itself redistrict the
State. They did not, however, expressly pray such relief.

															[ Footnote 4/10 ] See Bickel, Foreword: The Passive Virtues, 75
Harv.L.Rev. 40, 45 et seq. (1961).

															[ Footnote 4/11 ] See, e.g., 16 U. S. Palmer, 3 Wheat. 610, 16 U. S. 634 , 16 U. S. 635 ; The Divina
Pastora , 4 Wheat. 52; Williams
v. Suffolk Ins. Co. , 13 Pet. 415; Kennett v.
Chambers , 14 How. 38; Doe v.
Braden , 16 How. 635; Jones v. United
States, 137 U. S. 202 ; Terlinden v. Ames, 184 U. S. 270 ; Charlton v. Kelly, 229 U. S. 447 ; Oetjen v. Central Leather Co., 246 U.
S. 297 ; Ex parte Peru, 318 U.
S. 578 ; Clark v. Allen, 331 U.
S. 503 . Compare 27 U. S. Neilson, 2 Pet. 253, with 31 U. S. Arredondo, 6 Pet. 691. Of course, judgment concerning the
"political" nature of even a controversy affecting the Nation's
foreign affairs is not a simple mechanical matter, and certain of
the Court's decisions have accorded scant weight to the
consideration of unity of action in the conduct of external
relations. Compare Vermilya-Brown Co. v. Connell, 335 U. S. 377 , with United States v. Pink, 315 U.
S. 203 .

															[ Footnote 4/12 ]

															Obviously, this is the equivalent of saying that the
characteristics are not "constitutionally requisite" in a
judicially enforceable sense. The recognition of their necessity as
a condition of legislation is left, as is observance of certain
other constitutional commands, to the conscience of the nonjudicial
organs. Cf. 65 U. S. Dennison, 24 How. 66.

															[ Footnote 4/13 ] Also compare the Coleman case and United
States v. Sprague, 282 U. S. 716 , with Hawke v. Smith (No. 1), 253 U.
S. 221 . See the National Prohibition Cases, 253 U. S. 350 , and
consider the Court's treatment of the several contentions in Leser v. Garnett, 258 U. S. 130 .

															[ Footnote 4/14 ] E.g., Myers v. Anderson, 238 U.
S. 368 ; Nixon v. Condon, 286 U. S.
73 ; Lane v. Wilson, 307 U.
S. 268 ; Smith v. Allwright, 321 U.
S. 649 . The action for damages for improperly rejecting
an elector's vote had been given by the English law since the time
of Ashby v. White, 1 Brown's Cases in Parliament 62; 2
Ld.Raym. 938; 3 Ld.Raym. 320, a case which, in its own day,
precipitated an intra-parliamentary war of major dimensions. See 6 Hansard, Parliamentary History of England (1810),
225-324, 376-436. Prior to the racial discrimination cases, this
Court had recognized the action, by implication, in dictum in Swafford v. Templeton, 185 U. S. 487 , and Wiley v. Sinkler, 179 U. S. 58 , both
respecting federal elections.

															[ Footnote 4/15 ] Cf. Gomillion v. Lightfoot, 364 U.
S. 339 .

															[ Footnote 4/16 ]

															By statute, an action for preventive relief is now given the
United States in certain voting cases. 71 Stat. 637, 42 U.S.C. §
1971(c), amending R.S. § 2004. See United States v.
Raines, 362 U. S. 17 ; United States v. Thomas, 362 U. S. 58 .

															[ Footnote 4/17 ] Compare 37 U. S. Massachusetts, 12 Pet. 657, and cases following, with 73 U. S. Stanton, 6 Wall. 50.

															[ Footnote 4/18 ] Compare 31 U. S. Georgia, 6 Pet. 515, with 30 U. S. Georgia, 5 Pet. 1, 30 U. S. 20 , 30 U. S. 28 (Mr.
Justice Johnson, concurring), 30 U. S. 51 and 30 U. S. 75 (Mr.
Justice Thompson, dissenting).

															[ Footnote 4/19 ]

															This was an alternative ground of Chief Justice Marshall's
opinion for the Court. Id. at 30 U. S. 20 . The
question which Marshall reserved as "unnecessary to decide," ibid., was not the justiciability of the bill in this
aspect, but the "more doubtful" question whether that "part of the
bill which respects the land occupied by the Indians, and prays the
aid of the court to protect their possession," might be
entertained. Ibid. Mr. Justice Johnson, concurring, found
the controversy nonjusticiable, and would have put the ruling
solely on this ground, id. at 30 U. S. 28 , and
Mr. Justice Thompson, in dissent, agreed that much of the matter in
the bill was not fit for judicial determination. Id. at 30 U. S. 51 , 30 U. S. 75 .

															[ Footnote 4/20 ] Cf. 71 U. S. Johnson, 4 Wall. 475.

															[ Footnote 4/21 ]

															Considerations similar to those which determined the Cherokee Nation case and Georgia v. Stanton no
doubt explain the celebrated decision in Nabob of the Carnatic
v. East India Co., 1 Ves.jun. *371; 2 Ves.jun. *56, rather
than any attribution of a portion of British sovereignty, in
respect of Indian affairs, to the company. The reluctance of the
English Judges to involve themselves in contests of factional
political power is of ancient standing. In The Duke of York's
Claim to the Crown, 5 Rotuli Parl. 375, printed in Wambaugh,
Cases on Constitutional Law (1915), 1, the role which the Judges
were asked to play appears to have been rather that of advocates
than of judges, but the answer which they returned to the Lords
relied on reasons equally applicable to either role.

															[ Footnote 4/22 ]

															"The United States shall guarantee to every State in this Union
a Republican Form of Government, and shall protect each of them
against Invasion, and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against
domestic Violence."

															[ Footnote 4/23 ] Cf. the cases holding that the Fourteenth Amendment
imposes no such restriction upon the form of a State's governmental
organization as will permit persons affected by government action
to complain that, in its organization principles of separation of
powers have been violated. E.g., Dreyer v. Illinois, 187 U. S. 71 ; Soliah v. Heskin, 222 U. S. 522 ; Houck v. Little River Drainage District, 239 U.
S. 254 . The same consistent refusal of this Court to
find that the Federal Constitution restricts state power to design
the structure of state political institutions is reflected in the
cases rejecting claims arising out of the States' creation,
alteration, or destruction of local subdivisions or their powers,
insofar as these claims are made by the subdivisions themselves, see Laramie County v. Albany County, 92 U. S.
307 ; Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394 ; Trenton v. New Jersey, 262 U. S. 182 ; Risty v. Chicago, R.I. & P. R. Co., 270 U.
S. 378 , 270 U. S.
389 -390; Williams v. Mayor and City Council of
Baltimore, 289 U. S. 36 , or by
the whole body of their residents who share only a general,
undifferentiated interest in their preservation. See Hunter v.
Pittsburgh, 207 U. S. 161 . The
policy is also given effect by the denial of "standing" to persons
seeking to challenge state action as infringing the interest of
some separate unit within the State's administrative structure -- a
denial which precludes the arbitrament by federal courts of what
are only disputes over the local allocation of government functions
and powers. See, e.g., Smith v. Indiana, 191 U.
S. 138 ; Braxton County Court v. West Virginia, 208 U. S. 192 ; Marshall v. Dye, 231 U. S. 250 ; Stewart v Kansas City, 239 U. S. 14 .

															[ Footnote 4/24 ]

															223 U.S. at 223 U. S.
141 .

															". . . [T]he contention, if held to be sound, would necessarily
affect the validity not only of the particular statute which is
before us, but of every other statute passed in Oregon since the
adoption of the initiative and referendum. And, indeed, the
propositions go further than this, since, in their essence, they
assert that there is no governmental function, legislative or
judicial, in Oregon, because it cannot be assumed, if the
proposition be well founded, that there is at one and the same time
one and the same government which is republican in form and not of
that character." Compare 48 U. S. Borden, 7 How. 1, 48 U. S.
38 -39:

															". . . For, if this court is authorized to enter upon this
inquiry as proposed by the plaintiff, and it should be decided that
the charter government had no legal existence during the period of
time above mentioned -- if it had been annulled by the adoption of
the opposing government -- then the laws passed by its legislature
during that time were nullities, its taxes wrongfully collected,
its salaries and compensation to its officers illegally paid, its
public accounts improperly settled, and the judgments and sentences
of its courts in civil and criminal cases null and void, and the
officers who carried their decisions into operation answerable as
trespassers, if not, in some cases, as criminals."

															"When the decision of this court might lead to such results, it
becomes its duty to examine very carefully its own powers before it
undertakes to exercise jurisdiction."

															[ Footnote 4/25 ] See Bowen, The Recent Contest in Rhode Island (1844);
Frieze, A Concise History of the Efforts to Obtain an Extension of
Suffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842);
Mowry, The Dorr War (1901); Wayland, The Affairs of Rhode Island
(2d ed. 1842).

															[ Footnote 4/26 ]

															The Court reasoned, with respect to the guarantee against
domestic violence also contained in Art. IV, § 4, that this, too,
was an authority committed solely to Congress; that Congress had
empowered the President, not the courts, to enforce it, and that it
was inconceivable that the courts should assume a power to make
determinations in the premises which might conflict with those of
the Executive. It noted further that, in fact, the President had
recognized the governor of the charter government as the lawful
authority in Rhode Island, although it had been unnecessary to call
out the militia in his support.

															[ Footnote 4/27 ] See 369
U.S. 186 fn4/24|>note 24, supra. [ Footnote 4/28 ] Id. at 48 U. S. 39 , 48 U. S.
46 -47.

															[ Footnote 4/29 ] Id. at 48 U. S.
41 -42.

															[ Footnote 4/30 ]

															In evaluating the Court's determination not to inquire into the
authority of the charter government, it must be remembered that,
throughout the country, Dorr "had received the sympathy of the
Democratic press. His cause, therefore, became distinctly a party
issue." 2 Warren, The Supreme Court in United States History (Rev.
ed.1937), 186.

															[ Footnote 4/31 ]

															Appellants also allege discrimination in the legislature's
allocation of certain tax burdens and benefits. Whether or not such
discrimination would violate the Equal Protection Clause if the tax
statutes were challenged in a proper proceeding, see Dane v.
Jackson, 256 U. S. 589 ; cf. Nashville, C. & St.L. R. Co. v. Wallace, 288 U. S. 249 , 288 U. S. 268 ,
these recitative allegations do not affect the nature of the
controversy which appellants' complaints present.

															[ Footnote 4/32 ]

															Appellants would find a "right" to have one's ballot counted on
authority of United States v. Mosley, 238 U.
S. 383 ; United States v. Classic, 313 U.
S. 299 ; United States v. Saylor, 322 U.
S. 385 . All that these cases hold is that conspiracies
to commit certain sharp election practices which, in a federal
election, cause ballots not to receive the weight which the law
has, in fact, given them, may amount to deprivations of the
constitutionally secured right to vote for federal officers. But see United States v. Bathgate, 246 U.
S. 220 . The cases do not so much as suggest that there
exists a constitutional limitation upon the relative weight to
which the law might properly entitle respective ballots, even in
federal elections.

															[ Footnote 4/33 ]

															Mackenzie, Free Elections (1958) (hereafter, Mackenzie),
108.

															[ Footnote 4/34 ]

															Ogg, English Government and Politics (2d ed.1936) (hereafter
Ogg), 248-250, 257; Seymour, Electoral Reform in England and Wales
(1915) (hereafter, Seymour), 46-47.

															[ Footnote 4/35 ]

															Ogg 257-259; Seymour 45-52; Carpenter, The Development of
American Political Thought (1930) (hereafter, Carpenter),
45-46.

															[ Footnote 4/36 ]

															Ogg 258.

															[ Footnote 4/37 ]

															Seymour 51.

															[ Footnote 4/38 ]

															The Federalist, No. 56 (Wright ed.1961), at 382. Compare Seymour 49. This takes account of the restricted
franchise as well as the effect of the local unit apportionment
principle.

															[ Footnote 4/39 ]

															Seymour 52-76.

															[ Footnote 4/40 ]

															Ogg 264-265; Seymour 318-319.

															[ Footnote 4/41 ]

															For these and other instances of gross inequality, see Seymour 320-325.

															[ Footnote 4/42 ]

															Seymour 333-346; Ogg 265.

															[ Footnote 4/43 ]

															Seymour 349, 490-491.

															[ Footnote 4/44 ]

															Seymour 489-518.

															[ Footnote 4/45 ]

															Mackenzie 108; see also Seymour 513-517.

															[ Footnote 4/46 ]

															Ogg 270.

															[ Footnote 4/47 ]

															Ogg 253.

															[ Footnote 4/48 ]

															Ogg 270-271.

															[ Footnote 4/49 ]

															Ogg 273-274.

															[ Footnote 4/50 ]

															7 & 8 Geo. VI, c. 41. The 1944 Act was amended by the House
Of Commons (Redistribution Of Seats) Act, 1947, 10 & 11 Geo.
VI, c. 10, and the two, with other provisions, were consolidated in
the House Of Commons (Redistribution Of Seats) Act, 1949, 12 &
13 Geo. VI, c. 66, since amended by the House Of Commons
(Redistribution Of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26.

															[ Footnote 4/51 ] See generally Butler, The Redistribution Of Seats, 33
Public Administration 125 (1955).

															[ Footnote 4/52 ] See 369
U.S. 186 fn4/50|>note 50, supra. However,
Commissions are given discretion to depart from the strict
application of the local boundary rule to avoid excessive
disparities between the electorate of a constituency and the
electoral quota, or between the electorate of a constituency and
that of neighboring constituencies. For detailed discussion, see Craig, Parliament and Boundary Commissions, [1959]
Public Law 23. See also Butler, supra, 369
U.S. 186 fn4/51|>note 51, at 127.

															[ Footnote 4/53 ]

															Mackenzie 108, 113.

															[ Footnote 4/54 ]

															The Times, Dec. 15, 1954, p. 4, cols 3-4.

															[ Footnote 4/55 ]

															[1955] 1 Ch. 238.

															[ Footnote 4/56 ]

															The court reserved the question whether a judicial remedy might
be found in a case in which it appeared that a Commission had
manifestly acted in complete disregard of the Acts.

															[ Footnote 4/57 ] 369
U.S. 186 fn4/50|>Note 50, supra. [ Footnote 4/58 ]

															First Periodical Report of the Boundary Commission for England
[Cmd. 9311] (1954), 4, par.19.

															[ Footnote 4/59 ]

															Under the 1949 Act, see 369
U.S. 186 fn4/50|>note 50, supra, the intervals
between reports were to be not less than three nor more than seven
years, with certain qualifications. The 1958 Act raised the minimum
to ten and the maximum to fifteen years.

															[ Footnote 4/60 ]

															First Periodical Report, supra, 369
U.S. 186 fn4/58|>note 58, at 4, par. 20.

															[ Footnote 4/61 ]

															582 H.C.Deb. (5th ser.1957-1958), 30.

															[ Footnote 4/62 ] See The Federalist, No. 56, supra, 369
U.S. 186 fn4/38|>note 38; Tudor, Life of James Otis (1823),
188-190.

															[ Footnote 4/63 ]

															Griffith, The Rise and Development of the Gerrymander (1907)
(hereafter, Griffith), 23-24.

															[ Footnote 4/64 ]

															Luce, Legislative Principles (1930) (hereafter, Luce),
336-342.

															[ Footnote 4/65 ]

															Griffith 25

															[ Footnote 4/66 ]

															Griffith 15-16, n. 1.

															[ Footnote 4/67 ]

															Griffith 28.

															[ Footnote 4/68 ]

															Carpenter 48-49, 54; Griffith 26, 28-29; Luce 339-340.

															[ Footnote 4/69 ]

															Carpenter 87; Griffith 26-29, 31.

															[ Footnote 4/70 ]

															II Farrand, Records of the Federal Convention (1911), 241.

															[ Footnote 4/71 ]

															The power was provided. Art. I, § 4, cl. 1.

															[ Footnote 4/72 ]

															III Elliot's Debates (2d ed. 1891), 367; II id. at
50-51.

															[ Footnote 4/73 ] See Madison, in I Farrand, op. cit. supra, 369
U.S. 186 fn4/70|>note 70, at 321: "The great difficulty lies
in the affair of Representation, and if this could be adjusted, all
others would be surmountable."

															[ Footnote 4/74 ] See The Federalist, No. 62 (Wright ed.1961), at
408-409.

															[ Footnote 4/75 ] See The Federalist, No. 54, id. at
369-374.

															[ Footnote 4/76 ]

															Carpenter 130.

															[ Footnote 4/77 ]

															Jefferson, Notes on the State of Virginia (Peden ed.1955),
118-119. See also II writings of Thomas Jefferson
(Memorial ed.1903), 160-162.

															[ Footnote 4/78 ]

															Carpenter 139-140.

															[ Footnote 4/79 ]

															Griffith 102-104

															[ Footnote 4/80 ]

															Griffith 104-105

															[ Footnote 4/81 ]

															Luce 343-350. Bowen, supra, 369
U.S. 186 fn4/25|>note 25, at 17-18, records that, in 1824
Providence County, having three-fifths of Rhode Island's
population, elected only twenty-two of its seventy-two
representatives, and that the town of Providence, more than double
the size of Newport, had half Newport's number of
representatives.

															[ Footnote 4/82 ]

															Carpenter 130-137; Luce 364-367; Griffith 116-117.

															[ Footnote 4/83 ] See 14 Stat. 428; 15 Stat. 2, 14, 41.

															[ Footnote 4/84 ]

															Various indices of population were employed among the States
which took account of the factor of numbers. Some counted all
inhabitants, e.g., N.J.Const., 1844, Art. IV, § 3; some,
only white inhabitants, e.g., Ill.Const., 1848, Art. III,
§ 8; some, male inhabitants over twenty-one, e.g., Ind.Const., 1851, Art. IV, §§ 4-5; some, qualified voters, e.g., Tenn.Const., 1834, Art. II, §§ 4 to 6; some excluded
aliens, e.g., N.Y.Const., 1846, Art. III, §§ 4, 5 (and
untaxed persons of color); some excluded untaxed Indians and
military personnel, e.g., Neb.Const., 1866-1867, Art. II,
§ 3. For present purposes, these differences, although not
unimportant as revealing fundamental divergences in representation
theory, will be disregarded.

															[ Footnote 4/85 ]

															Ore.Const., 1857, Art. IV, §§ 5, 6, 7; Ill.Const., 1848, Art.
III, §§ 8, 9; Ind.Const., 1851, Art. IV, §§ 4, 5, 6; Minn.Const.,
1857, Art. IV, § 2; Wis.Const., 1848, Art. IV, §§ 3 to 5;
Mass.Const., 1780, Amends. XXI, XXII; Neb.Const., 1866-1867, Art.
II, § 3. All of these but Minnesota made provision for periodic
reapportionment. Nevada's Constitution of 1864, Art. XV, § 13,
provided that the federal censuses and interim state decennial
enumerations should serve as the bases of representation for both
houses, but did not expressly require either numerical equality or
reapportionment at fixed intervals .

															Several of these constitutions contain provisions which forbid
splitting counties or which otherwise require recognition of local
boundaries. See, e.g., the severe restriction in
Ill.Const., 1848, Art. III, § 9. Such provisions will almost
inevitably produce numerical inequalities. See, for
example, University of Oklahoma, Bureau of Government
Research, Legislative Apportionment in Oklahoma (1956), 21-23.
However, because their effect in this regard will turn on
idiosyncratic local factors, and because other constitutional
provisions are a more significant source of inequality, these
provisions are here disregarded.

															[ Footnote 4/86 ]

															Tenn.Const., 1834, Art. II, §§ 4 to 6 (two-thirds of a ratio
entitles a county to one representative in the House); W.Va.Const.,
1861-1863, Art. IV, §§ 4, 5, 7, 8, 9 (one-half of a ratio entitles
a county to one representative in the House); Mich.Const., 1850,
Art. IV, §§ 2 to 4 (one-half of a ratio entitles each county
thereafter organized to one representative in the House). In Oregon
and Iowa, a major-fraction rule applied which gave a House seat not
only to counties having a moiety of a single ratio, but to all
counties having more than half a ratio in excess of the multiple of
a ratio. Ore.Const., 1857, Art. IV, § 6, 369
U.S. 186 fn4/85|>note 85, supra; Iowa Const., 1857,
Art. III, §§ 33, 34, 35, 37, 369
U.S. 186 fn4/89|>note 89, infra. [ Footnote 4/87 ] See Bone, States Attempting to Comply with
Reapportionment Requirements, 17 Law & Contemp.Prob. 387, 391
(1952).

															[ Footnote 4/88 ]

															It also appears, although the section is not altogether clear,
that the provisions of West Virginia's Constitution controlling
apportionment of senators would operate in favor of the State's
less populous regions by limiting any single county to a maximum of
two senators. W.Va.Const., 1861-1863, Art. IV, § 4.

															[ Footnote 4/89 ]

															Iowa Const., 1857, Art. III, §§ 33, 34, 35, 37.

															[ Footnote 4/90 ]

															N.Y.Const., 1846, Art. III, §§ 4, 5 (except Hamilton County);
Kan.Const., 1859, Art. 2, § 2; Art. 10. The Kansas provisions
require periodic apportionment based on censuses, but do not in
terms demand equal districts.

															[ Footnote 4/91 ]

															Ohio Const., 1851, Art. XI, §§ 1 to 5. See Art. XI, §§
6 to 9 for Senate apportionment.

															[ Footnote 4/92 ]

															Me.Const., 1819, Art. IV, Pt. First, §§ 2, 3. See Art.
IV, Pt. Second, § 2, for Senate apportionment based on numbers.

															[ Footnote 4/93 ]

															Mo.Const., 1865, Art. IV, §§ 2, 7, 8. See Art. IV, §§ 4
to 8, for Senate apportionment based on numbers.

															[ Footnote 4/94 ]

															Towns smaller than one hundred and fifty, if so situated that it
was "very inconvenient" to join them to other towns for voting
purposes, might be permitted by the legislature to send a
representative.

															[ Footnote 4/95 ]

															N.H.Const., 1792, Pt. Second, §§ IX to XI; Pt. Second, §
XXVI.

															[ Footnote 4/96 ]

															Pa.Const., 1838, as amended, Art. I, §§ 4, 6, 7.

															[ Footnote 4/97 ]

															Conn.Const., 1818, Art. Third, § 3.

															[ Footnote 4/98 ]

															Vt.Const., 1793, c. II, § 7.

															[ Footnote 4/99 ]

															R.I.Const., 1842, Art. VI, § 1.

															[ Footnote 4/100 ]

															N.J.Const., 1844, Art. IV, § 2, cl. One.

															[ Footnote 4/101 ]

															Conn.Const., 1818, Amend. II.

															[ Footnote 4/102 ]

															Vt.Const., 1793, Amend. 23.

															[ Footnote 4/103 ]

															N.J.Const., 1844, Art. IV, § 3, cl. One

															[ Footnote 4/104 ]

															R I.Const., 1842, Art. V, § 1.

															[ Footnote 4/105 ]

															Ark.Const., 1868, Art. V, §§ 8, 9; Va.Const., 1864, Art. IV, § 6
(this constitution was in effect when Virginia ratified the
Fourteenth Amendment); Va.Const., 1870, Art. V, § 4 (this was
Virginia's Reconstruction Act convention constitution);
Miss.Const., 1868, Art. IV, §§ 33 to 35; Tex.Const., 1868, Art.
III, §§ 11, 34. The Virginia Constitutions and Texas' provisions
for apportioning its lower chamber do not, in terms, require
equality of numbers, although they call for reapportionment
following a census. In Arkansas, the legislature was authorized,
but not commanded, to reapportion periodically; it is not clear
that equality was required.

															[ Footnote 4/106 ]

															N.C.Const., 1868, Art. II, §§ 6, 7. See Art. II, § 5,
for Senate apportionment based on numbers.

															[ Footnote 4/107 ]

															S.C.Const., 1868, Art. I, § 34; Art. II, §§ 4 to 6.

															[ Footnote 4/108 ]

															La.Const., 1868, Tit. II, Arts. 20, 21. See Tit. II,
Arts. 28 to 30, for Senate apportionment based on numbers.

															[ Footnote 4/109 ]

															Ala.Const., 1867, Art. VIII, § 1. See Art. VIII, § 3,
for Senate apportionment based on numbers.

															[ Footnote 4/110 ]

															S.C.Const., 1868, Art. II, § 8.

															[ Footnote 4/111 ]

															Fla.Const., 1868, Art. XIV, par. 1. See Art. XIV, par.
2, for Senate apportionment.

															[ Footnote 4/112 ]

															Ga.Const., 1868, Art. III, § 2. The extent of legislative
authority to alter these districts is unclear, but it appears that
the structure of three contiguous counties for each of forty-four
districts is meant to be permanent.

															[ Footnote 4/113 ]

															Ga.Const., 1868, Art. III, § 3. The extent of legislative
authority to alter the apportionment is unclear, but it appears
that the three-tiered structure is meant to be permanent.

															[ Footnote 4/114 ] See, e.g., Durfee, Apportionment of Representation in
the Legislature: A Study of State Constitutions, 43 Mich.L.Rev.
1091, 1097 (1945); Short, States That Have Not Met Their
Constitutional Requirements, 17 Law & Contemp.Prob. 377 (1952);
Harvey, Reapportionments of State Legislatures -- Legal
Requirements, 17 Law & Contemp.Prob. 364, 370 (1952). For an
excellent case study of numerical inequalities deriving solely from
a "one member per county" minimum provision in Ohio, see Aumann, Rural Ohio Hangs On, 46 Nat.Mun.Rev. 189, 191-192
(1957).

															[ Footnote 4/115 ]

															Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571,
574 (1955). (This is the effect of a later Georgia constitutional
provision, Ga.Const., 1945, § 2-1501, substantially similar to that
of 1868.) The same three-tiered system has subsequently been
adopted in Florida, Fla.Const., 1885, Art. VII, §§ 3, 4, where its
effects have been inequalities of the order of eighty to one. Dauer
and Kelsay, supra, at 575, 587.

															[ Footnote 4/116 ]

															The constitutions discussed are those under which the new States
entered the Union.

															[ Footnote 4/117 ]

															Colo.Const., 1876, Art. V, §§ 45, 47; N.D.Const., 1889, Art. 2,
§§ 29, 35; S.D.Const., 1889, Art. III, § 5; Wash.Const., 1889, Art.
II, §§ 3, 6; Utah Const., 1895, Art. IX, §§ 2, 4; N.M.Const., 1911,
Art. IV, following § 41. The Colorado and Utah Constitutions
provide for reapportionment "according to ratios to be fixed by
law" after periodic census and enumeration. In New Mexico, the
legislature is authorized, but not commanded, to reapportion
periodically. North Dakota does not, in terms, demand equality in
House representation; members are to be assigned among the several
senatorial districts, which are of equal population.

															[ Footnote 4/118 ]

															Wyo, Const., 1889, Art. III, Legislative Department, § 3; Art.
III, Apportionment, §§ 2, 3.

															[ Footnote 4/119 ]

															Idaho Const., 1889, Art. III, § 4.

															[ Footnote 4/120 ]

															Okla.Const., 1907, Art. V, § 10(b) to (j). See Art. V,
§§ 9(a), 9(b) for Senate apportionment based on numbers.

															[ Footnote 4/121 ]

															Mont.Const., 1889, Art. VI, §§ 2, 3

															[ Footnote 4/122 ]

															Mont.Const., 1889, Art. V, § 4; Art. VI, § 4. The effective
provisions are, first, that there shall be no more than one senator
from each county, and, second, that no senatorial district shall
consist of more than one county.

															[ Footnote 4/123 ]

															Alaska Const., 1956, Art. VI, § 7; Art. XIV, § 2. The exact
boundaries of the districts may be modified to conform to changes
in House districts, but their numbers of senators and their
approximate perimeters are to be preserved.

															[ Footnote 4/124 ]

															Hawaii Const., 1950, Art. III, § 2

															[ Footnote 4/125 ]

															Alaska Const., 1956, Art. VI, §§ 3, 4, 6. The method of equal
proportions is used.

															[ Footnote 4/126 ]

															Hawaii Const., 1950, Art. III, § 4. The method of equal
proportions is used, and, for sub-apportionment within the four
"basic" areas, a form of moiety rule obtains.

															[ Footnote 4/127 ]

															Ariz.Const., 1910, Art. IV, Pt. 2, § 1. On the basis of 1910
census figures, this apportionment yielded, for example, a
senatorial ratio differential of more than four to one between
Mohave and Cochise or between Mohave and Maricopa Counties. II
Thirteenth Census of the United States (1910), 71-73.

															[ Footnote 4/128 ]

															The pertinent state constitutional provisions are set forth in
tabular form in XIII Book of the States (1960-1961), 54-58, and
Greenfield, Ford and Emery, Legislative Reapportionment: California
in National Perspective (University of California, Berkeley, 1959),
81-85. An earlier treatment, now outdated in several respects but
still useful, is Durfee, supra, 369
U.S. 186 fn4/114|>note 114. See discussions in
Harvey, supra, 369
U.S. 186 fn4/114|>note 114; Shull, Political and Partisan
Implications of State Legislative Apportionment, 17 Law &
Contemp.Prob. 417, 418-421 (1952).

															[ Footnote 4/129 ]

															Nebraska's unicameral legislature is included in this count.

															[ Footnote 4/130 ]

															Greenfield, Ford and Emery, supra, 369
U.S. 186 fn4/128|>note 128, at 7.

															[ Footnote 4/131 ]

															Harvey, supra, 369
U.S. 186 fn4/114|>note 114, at 367. See Tabor, The
Gerrymandering of State and Federal Legislative Districts, 16
Md.L.Rev. 277, 282-283 (1956).

															[ Footnote 4/132 ] See, e.g., Mather and Ray, The Iowa Senatorial
Districts Can Be Reapportioned -- A Possible Plan, 39 Iowa L.Rev.
535, 536-537 (1954).

															[ Footnote 4/133 ] See, e.g., Walter, Reapportionment and Urban
Representation, 195 Annals of the American Academy of Political and
Social Science 11, 12-13 (1938); Bone, supra, 369
U.S. 186 fn4/87|>note 87. Legislative inaction and state
constitutional provisions rejecting the principle of equal numbers
have both contributed to the generally prevailing numerical
inequality of representation in this country. Compare Walter supra, with Baker, One Vote, One Value, 47
Nat.Mun.Rev. 16, 18 (1958).

															[ Footnote 4/134 ] See, e.g., Griffith 116-117; Luce 364-367, 370;
Merriam, American Political Ideas (1929), 244-245; Legislation,
Apportionment of the New York State Senate, 31 St. John's L.Rev.
335, 341-342 (1957).

															[ Footnote 4/135 ]

															In 1947, the Boundary Commission for England,

															". . . impressed by the advantages of accessibility [that large
compact urban regions] . . . enjoy over widely scattered rural
areas . . . , came to the conclusion that they could conveniently
support electorates in excess of the electoral quota, and would, in
the majority of cases, prefer to do so, rather than suffer
severance of local unity for parliamentary purposes"

															-- that, "in general, urban constituencies could more
conveniently support large electorates than rural constituencies. .
. ." Initial Report of the Boundary Commission for England [Cmd.
7260] (1947), 5. See also Mackenzie 110-111; De Grazia,
General Theory of Apportionment, 17 Law & Contemp.Prob. 256,
261-262 (1952).

															[ Footnote 4/136 ] See Walter, supra, 369
U.S. 186 fn4/133|>note 133; Walter, Reapportionment of State
Legislative Districts, 37 Ill.L.Rev. 20, 37-38 (1942). The
urban-rural conflict is often the core of apportionment
controversy. See Durfee, supra, 369
U.S. 186 fn4/114|>note 114, at 1093-1094; Short, supra, 369
U.S. 186 fn4/114|>note 114, at 381.

															[ Footnote 4/137 ]

															Baker, Rural Versus Urban Political Power (1955), 11-19;
MacNeil, Urban Representation in State Legislatures, 18 State
Government 59 (1945); United States Conference of Mayors,
Government Of the People, By the People, For the People
(ca.1947).

															[ Footnote 4/138 ] See, in addition to the authorities cited in notes 369
U.S. 186 fn4/130|>130, 369
U.S. 186 fn4/131|>131, 369
U.S. 186 fn4/136|>136 and 369
U.S. 186 fn4/137|>137, supra, and 369
U.S. 186 fn4/140|>140 to 369
U.S. 186 fn4/144|>144, infra (all containing other
examples than those remarked in text), Hurst, The Growth of
American Law, The Law Makers (1950), 41-42; American Political
Science Assn., Committee on American Legislatures, American State
Legislatures (Zeller ed.1954), 34-35; Gosnell, Democracy, The
Threshold of Freedom (1948), 179-181; Lewis, Legislative
Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057,
1059-1064 (1958); Friedman, Reapportionment Myth, 49 Nat.Civ.Rev.
184, 185-186 (1960); 106 Cong.Rec. 14901-14916 (remarks of Senator
Clark and supporting materials); H.R.Rep. No. 2533, 85th Cong., 2d
Sess. 24; H.R.Doc. No.198, 84th Cong., 1st Sess. 38-40; Hadwiger,
Representation in the Missouri General Assembly, 24 Mo.L.Rev. 178,
180-181 (1959); Hamilton, Beardsley and Coats, Legislative
Reapportionment in Indiana: Some Observations and a Suggestion, 35
Notre Dame Law. 368-370 (1960); Corter, Pennsylvania Ponders
Apportionment, 32 Temple L.Q. 279, 283-288 (1959). Concerning the
classical gerrymander, see Griffith, passim; Luce
395-404; Brooks, Political Parties and Electoral Problems (3d
ed.1933), 472-481. For foreign examples of numerical disproportion, see Hogan, Election and Representation (1945), 95; Finer,
Theory and Practice of Modern Government (Rev. ed.1949),
551-552.

															[ Footnote 4/139 ]

															Baker, supra, 369
U.S. 186 fn4/137|>note 137, at 11. Recent New Jersey
legislation provides for reapportionment of the State's lower House
by executive action following each United States census subsequent
to that of 1960. N.J.Laws 1961, c. 1. The apportionment is to be
made on the basis of population, save that each county is assured
at least one House seat. In the State's Senate, however, by
constitutional command, each county elects a single senator,
regardless of population. N.J.Const., 1947, Art. IV, § II, par.
1.

															[ Footnote 4/140 ]

															Note, 42 Minn.L.Rev. 617, 618-619 (1958).

															[ Footnote 4/141 ]

															Greenfield, Ford and Emery, supra, 369
U.S. 186 fn4/128|>note 128, at 3.

															[ Footnote 4/142 ]

															University of Oklahoma, Bureau of Government Research, The
Apportionment Problem in Oklahoma (1959), 16-29.

															[ Footnote 4/143 ]

															1 Labor's Economic Rev. 89, 96 (1956).

															[ Footnote 4/144 ]

															Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571,
572, 574 (1955).

															[ Footnote 4/145 ] See the Second Schedule to the House of Commons
(Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, as
amended by the House of Commons (Redistribution of Seats) Act,
1958, 6 & 7 Eliz. II, c. 26, § 2, and the English experience
described in text at notes 369
U.S. 186 fn4/50|>50 to 61, supra. See also the Report of the Assembly Interim Committee on Elections and
Reapportionment, California Assembly (1951) (hereafter, California
Committee Report), 37:

															"The geographic -- the socioeconomic -- the desires of the
people -- the desires of the elected officeholders -- the desires
of political parties -- all these can and do legitimately operate
not only within the framework of the 'relatively equal in
population districts' factor, but also within the factors of
contiguity and compactness. The county and Assembly line legal
restrictions operate outside the framework of theoretically 'equal
in population districts.' All the factors might conceivably have
the same weight in one situation; in another, some factors might be
considerably more important than others in making the final
determination."

															A Virginia legislative committee adverted to

															". . . many difficulties such as natural topographical barriers,
divergent business and social interests, lack of communication by
rail or highway, and disinclinations of communities to breaking up
political ties of long standing, resulting in some cases of
districts requesting to remain with populations more than their
averages, rather than have their equal representation with the
changed conditions."

															Report of the Joint Committee on the Reapportionment of the
State into Senatorial and House Districts, Virginia General
Assembly, House of Delegates, H. Doc. No. 9 (1922), 1-2. And the
Tennessee State Planning Commission, concerning the problem of
congressional redistricting in 1950, spoke of a

															"tradition [which] relates to the sense of belonging --
loyalties to groups and items of common interest with friends and
fellow citizens of like circumstance, environment or region."

															Tennessee State Planning Commission, Pub. No. 222, Redistricting
for Congress (1950), first page.

															[ Footnote 4/146 ] See, e.g., California Committee Report at 52.

															". . . [T]he reapportionment process is, by its very nature,
political. . . . There will be politics in reapportionment as long
as a representative form of government exists. . . ."

															"It is impossible to draw a district boundary line without that
line's having some political significance. . . ."

															[ Footnote 4/147 ] See, e.g., S, Celler, Congressional Apportionment --
Past, Present, and Future, 17 Law & Contemp.Prob. 268 (1952),
speaking of the history of congressional apportionment:

															". . . A mere reading of the debates [from the Constitutional
Convention down to contemporary Congresses] on this question of
apportionment reveals the conflicting interests of the large and
small states and the extent to which partisan politics permeates
the entire problem."

															[ Footnote 4/148 ] See Standards for Congressional Districts
(Apportionment), Hearings before Subcommittee No. 2 of the
Committee on the Judiciary, House of Representatives, 86th Cong.,
1st Sess. 23, concerning a proposed provision for judicial
enforcement of certain standards in the laying out of
districts:

															"Mr. KASEM. You do not think that that [a provision embodying
the language: 'in as compact form as practicable'] might result in
a decision depending upon the political inclinations of the
judge?"

															"Mr. CELLER. Are you impugning the integrity of our Federal
judiciary?"

															"Mr. KASEM. No; I just recognize their human frailties."

															For an instance of a court torn, in fact, or fancy, over the
political issues involved in reapportionment, see State ex rel.
Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017, and especially
the dissenting opinion of Higbee, J., 290 Mo. at 613, 235 S.W. at
1037.

															[ Footnote 4/149 ] See text at notes 369
U.S. 186 fn4/139|>139-143, supra. [ Footnote 4/150 ]

															Decisions of state courts which have entertained apportionment
cases under their respective state constitutions do not, of course,
involve the very different considerations relevant to federal
judicial intervention. State court adjudication does not involve
the delicate problems of federal-state relations which would inhere
in the exercise of federal judicial power to impose restrictions
upon the States' shaping of their own governmental institutions.
Moreover, state constitutions generally speak with a specificity
totally lacking in attempted utilization of the generalities of the
Fourteenth Amendment to apportionment matters. Some expressly
commit apportionment to state judicial review, see, e.g., N.Y.Const., 193, Art. III, § 5, and, even where they do not, they
do precisely fix the criteria for judicial judgment respecting the
allocation of representative strength within the electorate. See, e.g., Asbury Park Press. Inc., v. Woolley, 33 N.J. 1, 161 A.2d
705 .

															[ Footnote 4/151 ]

															Appellants' suggestion that, although no relief may need be
given, jurisdiction ought to be retained as a "spur" to legislative
action does not merit discussion.

															[ Footnote 4/152 ] See 369
U.S. 186 fn4/24|>note 24, supra. Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICE
FRANKFURTER joins.

															The dissenting opinion of MR. JUSTICE FRANKFURTER, in which I
join, demonstrates the abrupt departure the majority makes from
judicial history by putting the federal courts into this area of
state concerns -- an area which, in this instance, the Tennessee
state courts themselves have refused to enter.

															It does not detract from his opinion to say that the panorama of
judicial history it unfolds, though evincing a steadfast underlying
principle of keeping the federal courts out of these domains, has a
tendency, because of variants in expression, to becloud analysis in
a given case. With due respect to the majority, I think that has
happened here.

															Once one cuts through the thicket of discussion devoted to
"jurisdiction," "standing," "justiciability," and "political Page 369 U. S. 331 question," there emerges a straightforward issue which, in my
view, is determinative of this case. Does the complaint disclose a
violation of a federal constitutional right, in other words, a
claim over which a United States District Court would have
jurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983? The
majority opinion does not actually discuss this basic question,
but, as one concurring Justice observes, seems to decide it
" sub silentio. " Ante, p. 369 U.S. 261 . However, in my opinion,
appellants' allegations, accepting all of them as true, do not,
parsed down or as a whole, show an infringement by Tennessee of any
rights assured by the Fourteenth Amendment. Accordingly, I believe
the complaint should have been dismissed for "failure to state a
claim upon which relief can be granted." Fed.Rules Civ.Proc., Rule
12(b)(6).

															It is at once essential to recognize this case for what it is.
The issue here relates not to a method of state electoral
apportionment by which seats in the federal House of
Representatives are allocated, but solely to the right of a State
to fix the basis of representation in its own legislature. Until it
is first decided to what extent that right is limited by the
Federal Constitution, and whether what Tennessee has done or failed
to do in this instance runs afoul of any such limitation, we need
not reach the issues of "justiciability" or "political question" or
any of the other considerations which in such cases as Colegrove v. Green, 328 U. S. 549 , led
the Court to decline to adjudicate a challenge to a state
apportionment affecting seats in the federal House of
Representatives, in the absence of a controlling Act of Congress. See also Wood v. Broom, 287 U. S. 1 .

															The appellants' claim in this case ultimately rests entirely on
the Equal Protection Clause of the Fourteenth Amendment. It is
asserted that Tennessee has violated the Equal Protection Clause by
maintaining, in effect, a Page 369 U. S. 332 system of apportionment that grossly favors in legislative
representation the rural sections of the State as against its urban
communities. Stripped to it's essentials, the complaint purports to
set forth three constitutional claims of varying breadth:

															"(1) The Equal Protection Clause requires that each vote cast in
state legislative elections be given approximately equal
weight."

															"(2) Short of this, the existing apportionment of state
legislators is so unreasonable as to amount to an arbitrary and
capricious act of classification on the part of the Tennessee
Legislature, which is offensive to the Equal Protection
Clause."

															"(3) In any event, the existing apportionment is rendered
invalid under the Fourteenth Amendment because it flies in the face
of the Tennessee Constitution."

															For reasons given in MR. JUSTICE FRANKFURTER's opinion, ante pp. 369 U.S.
325 -327, the last of these propositions is manifestly
untenable, and need not be dealt with further. I turn to the other
two. I I can find nothing in the Equal Protection Clause or elsewhere
in the Federal Constitution which expressly or impliedly supports
the view that state legislatures must be so structured as to
reflect with approximate equality the voice of every voter. Not
only is that proposition refuted by history, as shown by my Brother
FRANKFURTER, but it strikes deep into the heart of our federal
system. Its acceptance would require us to turn our backs on the
regard which this Court has always shown for the judgment of state
legislatures and courts on matters of basically local concern Page 369 U. S. 333 In the last analysis, what lies at the core of this controversy
is a difference of opinion as to the function of representative
government. It is surely beyond argument that those who have the
responsibility for devising a system of representation may
permissibly consider that factors other than bare numbers should be
taken into account. The existence of the United States Senate is
proof enough of that. To consider that we may ignore the Tennessee
Legislature's judgment in this instance because that body was the
product of an asymmetrical electoral apportionment would, in
effect, be to assume the very conclusion here disputed. Hence, we
must accept the present form of the Tennessee Legislature as the
embodiment of the State's choice, or, more realistically, its
compromise, between competing political philosophies. The federal
courts have not been empowered by the Equal Protection Clause to
judge whether this resolution of the State's internal political
conflict is desirable or undesirable, wise or unwise.

															With respect to state tax statutes and regulatory measures, for
example, it has been said that the

															"day is gone when this Court uses the . . . Fourteenth Amendment
to strike down state laws . . . because they may be unwise,
improvident, or out of harmony with a particular school of
thought." Williamson v. Lee Optical Co., 348 U.
S. 483 , 348 U. S. 488 .
I would think it all the more compelling for us to follow this
principle of self-restraint when what is involved is the freedom of
a State to deal with so intimate a concern as the structure of its
own legislative branch. The Federal Constitution imposes no
limitation on the form which a state government may take other than
generally committing to the United States the duty to guarantee to
every State "a Republican Form of Government." And, as my Brother
FRANKFURTER so conclusively proves ( ante pp. 369 U.S. 308 -317), no intention to fix
immutably the Page 369 U. S. 334 means of selecting representatives for state governments could
have been in the minds of either the Founders or the draftsmen of
the Fourteenth Amendment.

															In short, there is nothing in the Federal Constitution to
prevent a State, acting not irrationally, from choosing any
electoral legislative structure it thinks best suited to the
interests, temper, and customs of its people. I would have thought
this proposition settled by MacDougall v. Green, 335 U. S. 281 , in
which the Court observed (at p. 335 U. S. 283 )
that to "assume that political power is a function exclusively of
numbers is to disregard the practicalities of government," and
reaffirmed by South v. Peters, 339 U.
S. 276 . A State's choice to distribute electoral
strength among geographical units, rather than according to a
census of population, is certainly no less a rational decision of
policy than would be its choice to levy a tax on property, rather
than a tax on income. Both are legislative judgments entitled to
equal respect from this Court. II The claim that Tennessee's system of apportionment is so
unreasonable as to amount to a capricious classification of voting
strength stands up no better under dispassionate analysis.

															The Court has said time and again that the Equal Protection
Clause does not demand of state enactments either mathematical
identity or rigid equality. E.g., Allied Stores of Ohio v.
Bowers, 358 U. S. 522 , 358 U. S.
527 -528, and authorities there cited; McGowan v.
Maryland, 366 U. S. 420 , 366 U. S.
425 -426. All that is prohibited is "invidious
discrimination" bearing no rational relation to any permissible
policy of the State. Williamson v. Lee Optical Co., supra, at 348 U. S. 489 .
And in deciding whether such discrimination has been practiced by a
State, it must be borne in mind that a "statutory discrimination
will not be set aside if any state of facts reasonably may be
conceived Page 369 U. S. 335 to justify it." McGowan v. Maryland, supra. It is not
inequality alone that calls for a holding of unconstitutionality;
only if the inequality is based on an impermissible standard may
this Court condemn it.

															What then is the basis for the claim made in this case that the
distribution of state senators and representatives is the product
of capriciousness or of some constitutionally prohibited policy? It
is not that Tennessee has arranged its electoral districts with a
deliberate purpose to dilute the voting strength of one race, cf. Gomillion v. Lightfoot, 364 U.
S. 339 , or that some religious group is intentionally
underrepresented. Nor is it a charge that the legislature has
indulged in sheer caprice by allotting representatives to each
county on the basis of a throw of the dice, or of some other
determinant bearing no rational relation to the question of
apportionment. Rather, the claim is that the State Legislature has
unreasonably retained substantially the same allocation of senators
and representatives as was established by statute in 1901, refusing
to recognize the great shift in the population balance between
urban and rural communities that has occurred in the meantime.

															It is further alleged that, even as of 1901, the apportionment
was invalid in that it did not allocate state legislators among the
counties in accordance with the formula set out in Art. II, § 5, of
the Tennessee Constitution. In support of this, the appellants have
furnished a Table which indicates that, as of 1901, six counties
were overrepresented and 11 were underrepresented. But that Table,
in fact, shows nothing in the way of significant discrepancy; in
the instance of each county, it is only one representative who is
either lacking or added. And it is further perfectly evident that
the variations are attributable to nothing more than the
circumstance that the then enumeration of voters resulted in
fractional remainders with respect to which the precise formula of
the Tennessee Constitution was, in some Page 369 U. S. 336 instances, slightly disregarded. Unless such de minimis departures are to be deemed of significance, these statistics
certainly provide no substantiation for the charge that the 1901
apportionment was arbitrary and capricious. Indeed, they show the
contrary.

															Thus, reduced to its essentials, the charge of arbitrariness and
capriciousness rests entirely on the consistent refusal of the
Tennessee Legislature over the past 60 years to alter a pattern of
apportionment that was reasonable when conceived.

															A Federal District Court is asked to say that the passage of
time has rendered the 1901 apportionment obsolete to the point
where its continuance becomes vulnerable under the Fourteenth
Amendment. But is not this matter one that involves a classic
legislative judgment? Surely it lies within the province of a state
legislature to conclude that an existing allocation of senators and
representatives constitutes a desirable balance of geographical and
demographical representation, or that, in the interest of stability
of government, it would be best to defer for some further time the
redistribution of seats in the state legislature.

															Indeed, I would hardly think it unconstitutional if a state
legislature's expressed reason for establishing or maintaining an
electoral imbalance between its rural and urban population were to
protect the State's agricultural interests from the sheer weight of
numbers of those residing in its cities. A State may, after all,
take account of the interests of its rural population in the
distribution of tax burdens, e.g., American Sugar Rfg. Co. v.
Louisiana, 179 U. S. 89 , and
recognition of the special problems of agricultural interests has
repeatedly been reflected in federal legislation, e.g., Capper-Volstead Act, 42 Stat. 388; Agricultural Adjustment Act of
1938, 52 Stat. 31. Even the exemption of agricultural activities
from state criminal statutes of otherwise general application has
not been deemed offensive to the Equal Protection Clause. Page 369 U. S. 337 Tigner v. Texas, 310 U. S. 141 .
Does the Fourteenth Amendment impose a stricter limitation upon a
State's apportionment of political representatives to its central
government? I think not. These are matters of local policy, on the
wisdom of which the federal judiciary is neither permitted nor
qualified to sit in judgment.

															The suggestion of my Brother FRANKFURTER that courts lack
standards by which to decide such cases as this is relevant not
only to the question of "justiciability," but also, and perhaps
more fundamentally, to the determination whether any cognizable
constitutional claim has been asserted in this case. Courts are
unable to decide when it is that an apportionment originally valid
becomes void because the factors entering into such a decision are
basically matters appropriate only for legislative judgment. And so
long as there exists a possible rational legislative policy for
retaining an existing apportionment, such a legislative decision
cannot be said to breach the bulwark against arbitrariness and
caprice that the Fourteenth Amendment affords. Certainly, with all
due respect, the facile arithmetical argument contained in Part II
of my Brother CLARK's separate opinion ( ante, pp. 369 U.S. 253 -258) provides
no tenable basis for considering that there has been such a breach
in this instance. ( See the 369
U.S. 186 app2|>Appendix to this opinion.)

															These conclusions can hardly be escaped by suggesting that
capricious state action might be found were it to appear that a
majority of the Tennessee legislators, in refusing to consider
reapportionment, had been actuated by self-interest in perpetuating
their own political offices or by other unworthy or improper
motives. Since Fletcher v.
Peck , 6 Cranch 87, was decided many years ago, it
has repeatedly been pointed out that it is not the business of the
federal courts to inquire into the personal motives of legislators. E.g., Arizona v. California, 283 U.
S. 423 , 283 U. S. 455 & n. 7. The function of the federal judiciary ends in Page 369 U. S. 338 matters of this kind once it appears, as I think it does here on
the undisputed facts, that the state action complained of could
have rested on some rational basis. ( See the 369
U.S. 186 app2|>Appendix to this opinion.)

															It is my view that the majority opinion has failed to point to
any recognizable constitutional claim alleged in this complaint.
Indeed, it is interesting to note that my Brother STEWART is at
pains to disclaim for himself, and to point out that the majority
opinion does not suggest, that the Federal Constitution requires of
the States any particular kind of electoral apportionment, still
less that they must accord to each voter approximately equal voting
strength. Concurring opinion, ante, p. 369 U.S. 265 . But that being so, what,
may it be asked, is left of this complaint? Surely the bare
allegations that the existing Tennessee apportionment is
"incorrect," "arbitrary," "obsolete" and "unconstitutional" --
amounting to nothing more than legal conclusions -- do not
themselves save the complaint from dismissal. See Snowden v.
Hughes, 321 U. S. 1 ; Collins v. Hardyman, 341 U. S. 651 . Nor
do those allegations shift to the appellees the burden of proving
the constitutionality of this state statute; as is so
correctly emphasized by my Brother STEWART ( ante, p. 369 U.S. 266 ), this Court
has consistently held in cases.arising under the Equal Protection
Clause that

															"'the burden of establishing the unconstitutionality of
a statute rests on him who assails it.' Metropolitan Casualty
Ins. Co. v. Brownell, 294 U. S. 580 , 294 U. S.
584 ."

															(Emphasis added.) Moreover, the appellants do not suggest that
they could show at a trial anything beyond the matters previously
discussed in this opinion, which add up to nothing in the way of a
supportable constitutional challenge against this statute. And
finally, the majority's failure to come to grips with the question
whether the complaint states a claim cognizable under the Federal
Constitution -- an issue necessarily presented by appellees' motion
to dismiss -- Page 369 U. S. 339 does not, of course, furnish any ground for permitting this
action to go to trial.

															From a reading of the majority and concurring opinions one will
not find it difficult to catch the premises that underlie this
decision. The fact that the appellants have been unable to obtain
political redress of their asserted grievances appears to be
regarded as a matter which should lead the Court to stretch to find
some basis for judicial intervention. While the Equal Protection
Clause is invoked, the opinion for the Court notably eschews
explaining how, consonant with past decisions, the undisputed facts
in this case can be considered to show a violation of that
constitutional provision. The majority seems to have accepted the
argument, pressed at the bar, that, if this Court merely asserts
authority in this field, Tennessee and other "malapportioning"
States will quickly respond with appropriate political action, so
that this Court need not be greatly concerned about the federal
courts becoming further involved in these matters. At the same
time, the majority has wholly failed to reckon with what the future
may hold in store if this optimistic prediction is not fulfilled.
Thus, what the Court is doing reflects more an adventure in
judicial experimentation than a solid piece of constitutional
adjudication. Whether dismissal of this case should have been for
want of jurisdiction or, as is suggested in Bell v. Hood, 327 U. S. 678 , 327 U. S.
682 -683, for failure of the complaint to state a claim
upon which relief could be granted, the judgment of the District
Court was correct.

															In conclusion, it is appropriate to say that one need not agree,
as a citizen, with what Tennessee has done or failed to do in order
to deprecate, as a judge, what the majority is doing today. Those
observers of the Court who see it primarily as the last refuge for
the correction of all inequality or injustice, no matter what its
nature or source, will no doubt applaud this decision and its
break Page 369 U. S. 340 with the past. Those who consider that continuing national
respect for the Court's authority depends in large measure upon its
wise exercise of self-restraint and discipline in constitutional
adjudication will view the decision with deep concern.

															I would affirm.

															| 369
U.S. 186 app2| APPENDIX TO OPINION OF MR. JUSTICE HARLAN THE INADEQUACY OF ARITHMETICAL FORMULAS AS MEASURES OF THE RATIONALITY OF TENNESSEE'S APPORTIONMENT Two of the three separate concurring opinions appear to concede
that the Equal Protection Clause does not guarantee to each state
voter a vote of approximately equal weight for the State
Legislature. Whether the existing Tennessee apportionment is
constitutional is recognized to depend only on whether it can find
"any possible justification in rationality" ( ante, p. 369 U.S. 265 ); it is to be
struck down only if "the discrimination here does not fit any
pattern" ( ante, p. 369
U.S. 258 ).

															One of the concurring opinions, that of my Brother STEWART,
suggests no reasons which would justify a finding that the present
distribution of state legislators is unconstitutionally arbitrary.
The same is true of the majority opinion. My Brother CLARK, on the
other hand, concludes that "the apportionment picture in Tennessee
is a topsy-turvical of gigantic proportions" ( ante, p. 369 U.S. 254 ), solely on
the basis of certain statistics presented in the text of his
separate opinion and included in a more extensive Table appended
thereto. In my view, that analysis is defective not only because
the "total representation" formula set out in footnote 7 of the
opinion ( ante, p. 369
U.S. 255 ), rests on faulty mathematical foundations, but,
more basically, because the approach taken wholly Page 369 U. S. 341 ignores all other factors justifying a legislative determination
of the sort involved in devising a proper apportionment for a State
Legislature.

															In failing to take any of such other matters into account and in
focusing on a particular mathematical formula which, as will be
shown, is patently unsound, my Brother CLARK's opinion has, I
submit, unwittingly served to bring into bas-relief the very
reasons that support the view that this complaint does not state a
claim on which relief could be granted. For in order to warrant
holding a state electoral apportionment invalid under the Equal
Protection Clause, a court, in line with well established
constitutional doctrine, must find that none of the
permissible policies and none of the possible formulas on
which it might have been based could rationally justify particular
inequalities. I At the outset, it cannot be denied that the apportionment rules
explicitly set out in the Tennessee Constitution are rational.
These rules are based on the following obviously permissible policy
determinations: (1) to utilize counties as electoral units; (2) to
prohibit the division of any county in the composition of electoral
districts; (3) to allot to each county that has a substantial
voting population -- at least two-thirds of the average voting
population per county -- a separate "direct representative"; (4) to
create "floterial" districts (multi-county representative
districts) made up of more than one county, and (5) to require that
such districts be composed of adjoining counties. [ Footnote 5/1 ] Such a framework unavoidably Page 369 U. S. 342 leads to unreliable arithmetic inequalities under any
mathematical formula whereby the counties' "total representation"
is sought to be measured. It particularly results in egregiously
deceptive disparities if the formula proposed in my Brother CLARK's
opinion is applied.

															That formula computes a county's "total representation" by
adding (1) the number of "direct representatives" the county is
entitled to elect; (2) a fraction of any other seats in the
Tennessee House which are allocated to that county jointly with one
or more others in a "floterial district"; (3) triple the number of
senators the county is entitled to elect alone, and (4) triple a
fraction of any seats in the Tennessee Senate which are allocated
to that county jointly with one or more others in a multi-county
senatorial district. The fractions used for items (2) and (4) are
computed by allotting to each county in a combined district an
equal share of the House or Senate seat, regardless of the
voting population of each of the counties that make up the election
district. [ Footnote 5/2 ] Page 369 U. S. 343 This formula is patently deficient in that it eliminates from
consideration the relative voting power of the counties that are
joined together in a single election district. As a result, the
formula unrealistically assigns to Moore County one-third of a
senator, in addition to its direct representative ( ante, p. 369 U.S. 255 ), although
it must be obvious that Moore's voting strength in the Eighteenth
Senatorial District is almost negligible. Since Moore County could
cast only 2,340 votes of a total eligible vote of 30,478 in the
senatorial district, it should in truth be considered as
represented by one-fifteenth of a senator. Assuming, arguendo, that any "total representation" figure is of
significance, Moore's "total representation" should be 1.23, not 2.
[ Footnote 5/3 ]

															The formula suggested by my Brother CLARK must be adjusted
regardless whether one thinks, as I assuredly do not, that the
Federal Constitution requires that each vote be given equal weight.
The correction is necessary simply to reflect the real facts of
political life. It may, of course, be true that the floterial
representative's "function Page 369 U. S. 344 is to represent the whole district" ( ante, p. 369 U.S. 256 ). But can it
be gainsaid that, so long as elections within the district are
decided not by a county unit system, in which each county casts one
vote, but, by adding the total number of individual votes cast for
each candidate, the concern of the elected representatives will
primarily be with the most populous counties in the district? II I do not mean to suggest that any mathematical formula, albeit
an "adjusted" one, would be a proper touchstone to measure the
rationality of the present or of appellants' proposed apportionment
plan. For, as the Table appended to my Brother CLARK's opinion so
conclusively shows, whether one applies the formula he suggests or
one that is adjusted to reflect proportional voting strength within
an election district, no plan of apportionment consistent with the
principal policies of the Tennessee Constitution could provide
proportionately equal "total representation" for each of
Tennessee's 95 counties. The pattern suggested by the appellants in
Exhibits "A" and "B" attached to their complaint is said to be a
"fair distribution" which accords with the Tennessee Constitution,
and under which each of the election districts represents
approximately equal voting population. But even when tested by the
"adjusted" formula, the plan reveals gross "total representation"
disparities that would make it appear to be a "crazy quilt." For
example, Loudon County, with twice the voting population of
Humphreys County, would have less representation than Humphreys and
about one-third the representation of Warren County, which has only
73 more voters. Among the more populous counties, similar
discrepancies would appear. Although Anderson County has only
somewhat over 10% more voters than Blount County, it would have Page 369 U. S. 345 approximately 75% more representation. And Blount would have
approximately two-thirds the representation of Montgomery County,
which has about 13% less voters. [ Footnote 5/4 ] III The fault with a purely statistical approach to the case at hand
lies not with the particular mathematical formula used, but in the
failure to take account of the fact that a multitude of legitimate
legislative policies, along with circumstances of geography and
demography, could account for the seeming electoral disparities
among counties. The principles set out in the Tennessee
Constitution are just some of those that were deemed significant.
Others may have been considered and accepted by those entrusted
with the responsibility for Tennessee's apportionment. And, for the
purposes of judging constitutionality under the Equal Protection
Clause, it must be remembered that what is controlling on the issue
of "rationality" is not what the State Legislature may actually have considered, but what it may be deemed to have considered.

															For example, in the list of "horribles" cited by my Brother
CLARK ( ante, p. 369 U.S.
255 ), all the "underrepresented" counties are semi-urban:
all contain municipalities of over 10,000 population. [ Footnote 5/5 ] This is not to say, however,
that the Page 369 U. S. 346 presence of any such municipality within a county necessarily
demands that its proportional representation be reduced in order to
render it consistent with an "urban versus rural" plan of
apportionment. Other considerations may intervene and outweigh the
Legislature's desire to distribute seats so as to achieve a proper
balance between urban and rural interests. The size of a county, in
terms of its total area, may be a factor. [ Footnote 5/6 ] Or the location within a county of some
major industry may be thought to call for dilution of voting
strength. [ Footnote 5/7 ] Again, the
combination of certain smaller counties with their more heavily
populated neighbors in senatorial or "floterial" districts may
result in apparent arithmetic inequalities. [ Footnote 5/8 ]

															More broadly, the disparities in electoral strength among the
various counties in Tennessee, both those relied upon by my Brother
CLARK and others, may be Page 369 U. S. 347 accounted for by various economic, [ Footnote 5/9 ] political, [ Footnote 5/10 ] and geographic [ Footnote 5/11 ] considerations. No allegation is made by
the appellants that the existing apportionment is the result of any
other forces than are always at work in any legislative process,
and the record, briefs, and arguments in this Court themselves
attest to the fact that the appellants could put forward nothing
further at a trial.

															By disregarding the wide variety of permissible legislative
considerations that may enter into a state electoral apportionment,
my Brother CLARK has turned a highly complex process into an
elementary arithmetical puzzle. Page 369 U. S. 348 It is only by blinking reality that such an analysis can stand
and that the essentially legislative determination can be made the
subject of judicial inquiry. IV Apart from such policies as those suggested which would suffice
to justify particular inequalities, there is a further
consideration which could rationally have led the Tennessee
Legislature, in the exercise of a deliberate choice, to maintain
the status quo. Rigidity of an apportionment pattern may
be as much a legislative policy decision as is a provision for
periodic reapportionment. In the interest of stability, a State may
write into its fundamental law a permanent distribution of
legislators among its various election districts, thus forever
ignoring shifts in population. Indeed, several States have achieved
this result by providing for minimum and maximum representation
from various political subdivisions such as counties, districts,
cities, or towns. See Harvey, Reapportionments of State
Legislatures -- Legal Requirements, 17 Law & Contemp.Probs.
(1952), 364, 368-372.

															It is said that one cannot find any rational standard in what
the Tennessee Legislature has failed to do over the past 60 years.
But surely one need not search far to find rationality in the
Legislature's continued refusal to recognize the growth of the
urban population that has accompanied the development of industry
over the past half decade. The existence of slight disparities
between rural areas does not overcome the fact that the foremost
apparent legislative motivation has been to preserve the electoral
strength of the rural interests notwithstanding shifts in
population. And I understand it to be conceded by at least some of
the majority that this policy is not Page 369 U. S. 349 rendered unconstitutional merely because it favors rural
voters.

															Once the electoral apportionment process is recognized for what
it is -- the product of legislative give-and-take and of compromise
among policies that often conflict -- the relevant constitutional
principles at once put these appellants out of the federal
courts.

															[ Footnote 5/1 ]

															The relevant provisions of the Tennessee Constitution are Art.
II, §§ 5 and 6:

															"Sec. 5. Apportionment of representatives. -- The
number of Representatives shall, at the several periods of making
the enumeration, be apportioned among the several counties or
districts, according to the number of qualified voters in each, and
shall not exceed seventy-five, until the population of the State
shall be one million and a half, and shall never exceed
ninety-nine; Provided, that any county having two-thirds of the
ratio shall be entitled to one member."

															"Sec. 6. Apportionment of senator. -- The number of
Senators shall, at the several periods of making the enumeration,
be apportioned among the several counties or districts according to
the number of qualified electors in each, and shall not exceed
one-third the number of representatives. In apportioning the
Senators among the different counties, the fraction that may be
lost by any county or counties, in the apportionment of members to
the House of Representatives, shall be made up to such county or
counties in the Senate, as near as may be practicable. When a
district is composed of two or more counties, they shall be
adjoining, and no counties shall be divided in forming a
district."

															[ Footnote 5/2 ]

															This formula is not clearly spelled out in the opinion, but it
is necessarily inferred from the figures that are presented. Knox
County, for example, is said to have a "total representation" of
7.25. It elects (1) three direct representatives (value 3.00); (2)
one representative from a two-county district (value .50); (3) one
direct senator (value 3.00), and (4) one senator in a four-county
district (value .75). See Appendix to opinion of MR.
JUSTICE CLARK, ante pp. 369 U.S. 262 -264.

															[ Footnote 5/3 ]

															If this "adjusted" formula for measuring "total representation"
is applied to the other "horribles" cited in the concurring opinion
( ante, p. 369 U.S.
255 ), it reveals that these counties -- which purportedly
have equal "total representation" but distinctly unequal voting
population -- do not have the same "total representation" at all.
Rather than having the same representation as Rutherford County,
Moore County has only about 40% of what Rutherford has. Decatur
County has only 55% of the representation of Carter County. While
Loudon and Anderson Counties are substantially underrepresented,
this is because of their proximity to Knox County, which outweighs
their votes in the Sixth Senatorial District and in the Eighth
Floterial District.

															[ Footnote 5/4 ]

															These disparities are as serious, if not more so, when my
Brother CLARK's formula is applied to the appellants' proposal. For
example, if the seven counties chosen by him as illustrative are
examined as they would be represented under the appellants'
distribution, Moore County, with a voting population of 2,340, is
given more electoral strength than Decatur County, with a voting
population of 5,563. Carter County (voting population 23,302) has
20% more "total representation" than Anderson County (voting
population 33,990), and 33% more than Rutherford County (voting
population 25,316).

															[ Footnote 5/5 ]

															Murfreesboro, Rutherford County (pop. 16,017); Elizabethton,
Carter County (pop. 10,754); Oak Ridge, Anderson County (pop.
7,387). Tennessee Blue Book, 1960, pp.143-149.

															[ Footnote 5/6 ]

															For example, Carter and Washington Counties are each
approximately 60% as large as Maury and Madison Counties in terms
of square miles, and this may explain the disparity between their
"total representation" figures.

															[ Footnote 5/7 ]

															For example, in addition to being "semi-urban," Blount County is
the location of the City of Alcoa, where the Aluminum Company of
America has located a large aluminum smelting and rolling plant.
This may explain the difference between its "total representation"
and that of Gibson County, which has no such large industry and
contains no municipality as large as Maryville.

															[ Footnote 5/8 ]

															For example, Chester County (voting population 6,391) is one of
those that is presently said to be overrepresented. But under the
appellants' proposal, Chester would be combined with populous
Madison County in a "floterial district" and with four others,
including Shelby County, in a senatorial district. Consequently,
its total representation according to the Appendix to my Brother
CLARK's opinion would be .19. ( Ante, p. 369 U.S. 262 .) This would have the
effect of disenfranchising all the county's voters. Similarly, Rhea
County's almost 9,000 voters would find their voting strength so
diluted as to be practically nonexistent.

															[ Footnote 5/9 ]

															For example, it is primarily the eastern portion of the State
that is complaining of malapportionment (along with the Cities of
Memphis and Nashville). But the eastern section is where industry
is principally located and where population density, even outside
the large urban areas, is highest. Consequently, if Tennessee is
apportioning in favor of its agricultural interests, as
constitutionally it was entitled to do, it would necessarily reduce
representation from the east.

															[ Footnote 5/10 ]

															For example, sound political reasons surely justify limiting the
legislative chambers to workable numbers; in Tennessee, the House
is set at 99 and the Senate at 33. It might have been deemed
desirable, therefore, to set a ceiling on representation from any
single county so as not to deprive others of individual
representation. The proportional discrepancies among the four
counties with large urban centers may be attributable to a
conscious policy of limiting representation in this manner.

															[ Footnote 5/11 ]

															For example, Moore County is surrounded by four counties each of
which has sufficient voting population to exceed two-thirds of the
average voting population per county (which is the standard
prescribed by the Tennessee Constitution for the assignment of a
direct representative), thus qualifying for direct representatives.
Consequently Moore County must be assigned a representative of its
own, despite its small voting population, because it cannot be
joined with any of its neighbors in a multi-county district, and
the Tennessee Constitution prohibits combining it with nonadjacent
counties. See 369
U.S. 186 fn5/1|>note 1, supra.