U.S. Supreme Court Karcher v. Daggett, 462
U.S. 725 (1983) Karcher v. Daggett No. 81-2057 Argued March 2, 1983 Decided June 22, 1983 462
U.S. 725 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY Syllabus As a result of the 1980 census, the New Jersey Legislature
reapportioned the State's congressional districts. The
reapportionment plan contained 14 districts, with an average
population per district of 526,059, each district, on the average,
differing from the "ideal" figure by 0.1384%. The largest district
(Fourth District) had a population of 527,472, and the smallest
(Sixth District) had a population of 523,798, the difference
between them being 0.6984% of the average district. In a suit by a
group of individuals challenging the plan's validity, the District
Court held that the plan violated Art. I, § 2, of the Constitution
because the population deviations among districts, although small,
were not the result of a good faith effort to achieve population
equality. Held: 1. The "equal representation" standard of Art. I, § 2, requires
that congressional districts be apportioned to achieve population
equality as nearly as is practicable. Parties challenging
apportionment legislation bear the burden of proving that
population differences among districts could have been reduced or
eliminated by a good faith effort to draw districts of equal
population. If the plaintiffs carry their burden, the State must
then bear the burden of proving that each significant variance
between districts was necessary to achieve some legitimate goal. Cf. Kirkpatrick v. Preisler, 394 U.
S. 526 ; White v. Weiser, 412 U.
S. 783 . Pp. 462 U. S.
730 -731.

															2. New Jersey's plan may not be regarded per se as the
product of a good faith effort to achieve population equality
merely because the maximum population deviation among districts is
smaller than the predictable undercount in available census data.
Pp. 462 U. S.
731 -740.

															(a) The "as nearly as practicable" standard for apportioning
congressional districts

															"is inconsistent with adoption of fixed numerical standards
which excuse population variances without regard to the
circumstances of each particular case." Kirkpatrick, supra, at 394 U. S. 530 .
Only the principle of population equality as developed in Kirkpatrick, supra, and Wesberry v. Sanders, 376 U. S. 1 ,
reflects the aspirations of Art. I, § 2. There are no de
minimis population variations, which could practicably Page 462 U. S. 726 be avoided, that may be considered as meeting the standard of
Art. I, § 2, without justification. Pp. 462 U. S.
731 -734.

															(b) There is no merit to the contention that population
deviation from ideal district size should be considered to be the
functional equivalent of zero as a matter of law where that
deviation is less than the predictable undercount in census
figures. Even assuming that the extent to which the census system
systematically undercounts actual population can be precisely
determined, it would not be relevant. The census count provides the
only reliable -- albeit less than perfect -- indication of the
districts' "real" relative population levels, and furnishes the
only basis for good faith attempts to achieve population equality.
Pp. 462 U. S.
735 -738.

															(c) The population differences involved here could have been
avoided or significantly reduced with a good faith effort to
achieve population equality. Resort to the simple device of
transferring entire political subdivisions of known population
between contiguous districts would have produced districts much
closer to numerical equality. Thus, the District Court did not err
in finding that the plaintiffs met their burden of showing that the
plan did not come as nearly as practicable to population equality.
Pp. 462 U. S.
738 -740.

															3. The District Court properly found that the defendants did not
meet their burden of proving that the population deviations in the
plan were necessary to achieve a consistent, nondiscriminatory
legislative policy. The State must show with specificity that a
particular objective required the specific deviations in its plan.
The primary justification asserted was that of preserving the
voting strength of racial minority groups, but appellants failed to
show that the specific population disparities were necessary to
preserve minority voting strength. Pp. 462 U. S.
740 -744. 535 F.
Supp. 978 , affirmed.

															BRENNAN,J., delivered the opinion of the Court, in which
MARSHALL, BLACKMUN,STEVENS, and O'CONNOR, JJ., joined. STEVENS,J.,
filed a concurring opinion, post, p. 462 U. S. 744 .
WHITE,J., filed a dissenting opinion, in which BURGER, C.J., and
POWELL and REHNQUIST,JJ., joined, post, p. 462 U. S. 765 .
POWELL,J., filed a dissenting opinion, post, p. 462 U. S.
784 . Page 462 U. S. 727 JUSTICE BRENNAN delivered the opinion of the Court.

															The question presented by this appeal is whether an
apportionment plan for congressional districts satisfies Art. I, §
2, of the Constitution without need for further justification if
the population of the largest district is less than one percent
greater than the population of the smallest district. A three-judge
District Court declared New Jersey's 1982 reapportionment plan
unconstitutional on the authority of Kirkpatrick v.
Preisler, 394 U. S. 526 (1969), and White v. Weiser, 412 U.
S. 783 (1973), because the population deviations among
districts, although small, were not the result of a good faith
effort to achieve population equality. We affirm. I After the results of the 1980 decennial census had been
tabulated, the Clerk of the United States House of Representatives
notified the Governor of New Jersey that the number of
Representatives to which the State was entitled had decreased from
15 to 14. Accordingly, the New Jersey Legislature was required to
reapportion the State's congressional districts. The State's 199th
Legislature passed two reapportionment bills. One was vetoed by the
Governor, and the second, although signed into law, occasioned
significant dissatisfaction among those who felt it diluted
minority voting strength in the city of Newark. See App.
83-84, 86-90. In response, the 200th Legislature returned to the
problem of apportioning congressional districts when it convened in
January, 1982, and it swiftly passed a bill (S-711) introduced by
Senator Feldman, President pro tem of the State
Senate, Page 462 U. S. 728 which created the apportionment plan at issue in this case. The
bill was signed by the Governor on January 19, 1982, becoming
Pub.L.1982, ch. 1 (hereinafter Feldman Plan). A map of the
resulting apportionment is appended infra. Like every plan considered by the legislature, the Feldman Plan
contained 14 districts, with an average population per district (as
determined by the 1980 census) of 526,059. [ Footnote 1 ] Each district did not have the same
population. On the average, each district differed from the "ideal"
figure by 0.1384%, or about 726 people. The largest district, the
Fourth District, which includes Trenton, had a population of
527,472, and the smallest, the Sixth District, embracing most of
Middlesex County, a population of 523,798. The difference between
them was 3,674 people, or 0.6984% of the average district. The
populations of the other districts also varied. The Ninth District,
including most of Bergen County, in the northeastern corner of the
State, had a population of 527,349, while the population of the
Third District, along the Atlantic shore, was only 524,825. App.
124.

															The legislature had before it other plans with appreciably
smaller population deviations between the largest and smallest
districts. The one receiving the most attention in the District
Court was designed by Dr. Ernest Reock, Jr, a political science
professor at Rutgers University and Director of the Bureau of
Government Research. A version of the Reock Page 462 U. S. 729 Plan introduced in the 200th Legislature by Assemblyman Hardwick
had a maximum population difference of 2,375, or 0.4514% of the
average figure. Id. at 133.

															Almost immediately after the Feldman Plan became law, a group of
individuals with varying interests, including all incumbent
Republican Members of Congress from New Jersey, sought a
declaration that the apportionment plan violated Art. I, § 2, of
the Constitution [ Footnote 2 ]
and an injunction against proceeding with the primary election for
United States Representatives under the plan. A three-judge
District Court was convened pursuant to 28 U.S.C. 2284(a). The
District Court held a hearing on February 26, 1982, at which the
parties submitted a number of depositions and affidavits, moved for
summary judgment, and waived their right to introduce further
evidence in the event the motions for summary judgment were
denied.

															Shortly thereafter, the District Court issued an opinion and
order declaring the Feldman Plan unconstitutional. Denying the
motions for summary judgment and resolving the case on the record
as a whole, the District Court held that the population variances
in the Feldman Plan were not "unavoidable despite a good faith
effort to achieve absolute equality," see Kirkpatrick,
supra, at 394 U. S. 531 .
The court rejected appellants' argument that a deviation lower than
the statistical imprecision of the decennial census was "the
functional equivalent of mathematical equality." Daggett v.
Kimmelman, 535 F.
Supp. 978 , 982-983 (NJ 1982). It also held that appellants had
failed to show that the population variances were justified by the
legislature's purported goals of preserving minority Page 462 U. S. 730 voting strength and anticipating shifts in population. Ibid. The District Court enjoined appellants from
conducting primary or general elections under the Feldman Plan, but
that order was stayed pending appeal to this Court, 455 U.
S. 1303 (1982) (BRENNAN, J., in chambers), and we noted
probable jurisdiction, 457 U.S. 1131 (1982). II Article I, § 2, establishes a "high standard of justice and
common sense" for the apportionment of congressional districts:
"equal representation for equal numbers of people." Wesberry v.
Sanders, 376 U. S. 1 , 376 U. S. 18 (1964). Precise mathematical equality, however, may be impossible
to achieve in an imperfect world; therefore, the "equal
representation" standard is enforced only to the extent of
requiring that districts be apportioned to achieve population
equality "as nearly as is practicable." See id. at 7-8,
18. As we explained further in Kirkpatrick v. Preiser: "[T]he 'as nearly as practicable' standard requires that the
State make a good faith effort to achieve precise mathematical
equality. See Reynolds v. Sims, 377 U. S.
533 , 377 U.S.
577 (1964). Unless population variances among congressional
districts are shown to have resulted despite such effort, the State
must justify each variance, no matter how small."

															394 U.S. at 394 U. S.
530 -531. Article I, § 2, therefore,

															"permits only the limited population variances which are
unavoidable despite a good faith effort to achieve absolute
equality, or for which justification is shown." Id. at 394 U. S. 531 . Accord, White v. Weiser, 412 U.S. at 412 U. S.
790 .

															Thus, two basic questions shape litigation over population
deviations in state legislation apportioning congressional
districts. First, the court must consider whether the population
differences among districts could have been reduced or eliminated
altogether by a good faith effort to draw districts of equal
population. Parties challenging apportionment legislation Page 462 U. S. 731 must bear the burden of proof on this issue, and if they fail to
show that the differences could have been avoided, the
apportionment scheme must be upheld. If, however, the plaintiffs
can establish that the population differences were not the result
of a good faith effort to achieve equality, the State must bear the
burden of proving that each significant variance between districts
was necessary to achieve some legitimate goal. Kirkpatrick, 394 U.S. at 394 U. S. 532 ; cf. Swann v. Adams, 385 U. S. 440 , 385 U. S.
443 -444 (1967). III Appellants' principal argument in this case is addressed to the
first question described above. They contend that the Feldman Plan
should be regarded per se as the product of a good faith
effort to achieve population equality because the maximum
population deviation among districts is smaller than the
predictable undercount in available census data. A Kirkpatrick squarely rejected a nearly identical
argument.

															"The whole thrust of the 'as nearly as practicable' approach is
inconsistent with adoption of fixed numerical standards which
excuse population variances without regard to the circumstances of
each particular case."

															394 U.S. at 394 U. S. 530 ; see White v. Weiser, supra, at 412 U. S. 790 ,
n. 8, and 412 U. S.
792 -793. Adopting any standard other than population
equality, using the best census data available, see 394
U.S. at 394 U. S. 532 ,
would subtly erode the Constitution's ideal of equal
representation. If state legislators knew that a certain de
minimis level of population differences was acceptable, they
would doubtless strive to achieve that level, rather than equality.
[ Footnote 3 ] Id. at Page 462 U. S. 732 493 U. S. 531 .
Furthermore, choosing a different standard would import a high
degree of arbitrariness into the process of reviewing apportionment
plans. Ibid. In this case, appellants argue that a maximum
deviation of approximately 0.7% should be considered de
minimis. If we accept that argument, how are we to regard
deviations of 0.8%, 0.95%, 1%, or 1.1%?

															Any standard, including absolute equality, involves a certain
artificiality. As appellants point out, even the census data are
not perfect, and the well-known restlessness of the American people
means that population counts for particular localities are outdated
long before they are completed. Yet problems with the data at hand
apply equally to any population-based standard we could choose.
[ Footnote 4 ] As between two
standards -- equality or something less than equality -- only the
former reflects the aspirations of Art. I, § 2.

															To accept the legitimacy of unjustified, though small,
population deviations in this case would mean to reject the basic
premise of Kirkpatrick and Wesberry. We decline
appellants' invitation to go that far. The unusual rigor of their
standard has been noted several times. Because of that rigor, we
have required that absolute population equality be the paramount
objective of apportionment only in the case of Page 462 U. S. 733 congressional districts, for which the command of Art. I, § 2,
as regards the National Legislature outweighs the local interests
that a State may deem relevant in apportioning districts for
representatives to state and local legislatures, but we have not
questioned the population equality standard for congressional
districts. See, e.g., White v. Weiser, 412 U.S. at 412 U. S. 793 ; White v. Regester, 412 U. S. 755 , 412 U. S. 763 (1973); Mahan v. Howell, 410 U. S. 315 , 410 U. S.
321 -323 (1973). The principle of population equality for
congressional districts has not proved unjust or socially or
economically harmful in experience. Cf. Washington v. Dawson
& Co., 264 U. S. 219 , 264 U. S. 237 (1924) (Brandeis, J., dissenting); B. Cardozo, The Nature of the
Judicial Process 150 (1921). If anything, this standard should
cause less difficulty now for state legislatures than it did when
we adopted it in Wesberry. The rapid advances in computer
technology and education during the last two decades make it
relatively simple to draw contiguous districts of equal population
and at the same time to further whatever secondary goals the State
has. [ Footnote 5 ] Finally, to
abandon unnecessarily a clear and oft-confirmed constitutional
interpretation would impair our authority in other cases, Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147 , 450 U. S.
153 -154 (1981) (STEVENS, J., concurring); Pollock v.
Farmers' Loan & Trust Co., 157 U.
S. 429 , 157 U. S. 652 (1895) (White, J., dissenting), would implicitly open the door to a
plethora of requests that we reexamine other rules that some may
consider Page 462 U. S. 734 burdensome, Cardozo, supra, at 149-150, and would
prejudice those who have relied upon the rule of law in seeking an
equipopulous congressional apportionment in New Jersey, see
Florida Nursing Home Assn., supra, at 450 U. S. 154 (STEVENS, J., concurring). We thus reaffirm that there are no de minimis population variations which could practicably
be avoided but which nonetheless meet the standard of Art. I, Sec.
2 without justification. [ Footnote
6 ] Page 462 U. S. 735 B The sole difference between appellants' theory and the argument
we rejected in Kirkpatrick is that appellants have
proposed a de minimis line that gives the illusion of
rationality and predictability: the "inevitable statistical
imprecision of the census." They argue:

															"Where, as here, the deviation from ideal district size is less
than the known imprecision of the census figures, that variation is
the functional equivalent of zero."

															Brief for Appellants 18. There are two problems with this
approach. First, appellants concentrate on the extent to which the
census systematically undercounts actual population -- a figure
which is not known precisely and which, even if it were known,
would not be relevant to this case. Second, the mere existence of
statistical imprecision does not make small deviations among
districts the functional equivalent of equality.

															In the District Court and before this Court, appellants rely
exclusively on an affidavit of Dr. James Trussell, a Princeton
University demographer. See App. 97-104. Dr. Trussell's
carefully worded statement reviews various studies of the
undercounts in the 1950, 1960, and 1970 decennial censuses, and it
draws three important conclusions: (1) "the undercount in the 1980
census is likely to be above one percent"; (2) "all the evidence to
date indicates that all places are not undercounted to the same
extent, since the undercount rate has been shown to depend on race,
sex, age, income, and education"; and (3) "[t]he distribution of
the undercount in New Jersey is . . . unknown, and I see no reason
to believe that it would be uniformly spread over all
municipalities." Id. at 103-104. Assuming for purposes of
argument that each of Page 462 U. S. 736 these statements is correct, they do not support appellants'
argument.

															In essence, appellants' one percent benchmark is little more
than an attempt to present an attractive de minimis line
with a patina of scientific authority. Neither Dr. Trussell's
statement nor any of appellants' other evidence specifies a precise
level for the undercount in New Jersey, and Dr. Trussell's
discussion of the census makes clear that it is impossible to
develop reliable estimates of the undercount on anything but a
nationwide scale. See id. at 98-101. His conclusion that
the 1980 undercount is "likely to be above one percent" seems to be
based on the undercounts in previous censuses and a guess as to how
well new procedures adopted in 1980 to reduce the undercount would
work. Therefore, if we accepted appellants' theory that the
national undercount level sets a limit on our ability to use census
data to tell the difference between the populations of
congressional districts, we might well be forced to set that level
far above one percent when final analyses of the 1980 census are
completed. [ Footnote 7 ]

															As Dr. Trussell admits, id. at 103, the existence of a
one percent undercount would be irrelevant to population deviations
among districts if the undercount were distributed evenly among
districts. The undercount in the census affects the accuracy of the deviations between districts only to the extent that the
undercount varies from district to district. For a one percent
undercount to explain a one percent deviation between the census
populations of two districts, the undercount in the smaller
district would have to be approximately three times as large as the
undercount in the larger Page 462 U. S. 737 district. [ Footnote 8 ] It is
highly unlikely, of course, that this condition holds true,
especially since appellants have utterly failed to introduce
evidence showing that the districts were designed to compensate for
the probable undercount. Dr. Trussell's affidavit states that the
rate of undercounting may vary from municipality to municipality,
but it does not discuss by how much it may vary, or to what extent
those variations would be reflected at the district level, with
many municipalities combined. Nor does the affidavit indicate that
the factors associated with the rate of undercounting -- race, sex,
age, etc. -- vary from district to district, or (more importantly)
that the populations in the smaller districts reflect the relevant
factors more than the populations in the larger districts.
[ Footnote 9 ] As Dr. Trussell
admits, the distribution of the undercount in New Jersey is
completely unknown. Only by bizarre coincidence could the
systematic undercount in the Page 462 U. S. 738 census bear some statistical relationship to the districts drawn
by the Feldman Plan.

															The census may systematically undercount population, and the
rate of undercounting may vary from place to place. Those facts,
however, do not render meaningless the differences in population
between congressional districts, as determined by uncorrected
census counts. To the contrary, the census data provide the only
reliable -- albeit less than perfect -- indication of the
districts"'real" relative population levels. Even if one cannot say
with certainty that one district is larger than another merely
because it has a higher census count, one can say with
certainty that the district with a larger census count is more
likely to be larger than the other district than it is to be
smaller or the same size. That certainty is sufficient for
decisionmaking. Cf. City of Newark v.
Blumenthal, 457 F. Supp.
30 , 34 (DC 1978). Furthermore, because the census count
represents the "best population data available," see
Kirkpatrick, 394 U.S. at 394 U. S. 528 ,
it is the only basis for good faith attempts to achieve population
equality. Attempts to explain population deviations on the basis of
flaws in census data must be supported with a precision not
achieved here. See id. at 394 U. S.
535 . C Given that the census-based population deviations in the Feldman
Plan reflect real differences among the districts, it is clear that
they could have been avoided or significantly reduced with a good
faith effort to achieve population equality. For that reason alone,
it would be inappropriate to accept the Feldman Plan as
"functionally equivalent" to a plan with districts of equal
population.

															The District Court found that several other plans introduced in
the 200th Legislature had smaller maximum deviations than the
Feldman Plan. 535 F. Supp. at 982. Cf. White v. Weiser, 412 U.S. at 412 U. S. 790 ,
and n. 9. Appellants object that the alternative plans considered
by the District Court were not comparable to the Feldman Plan,
because Page 462 U. S. 739 their political characters differed profoundly. See,
e.g., App. 93-96 (affidavit of S. H. Woodson, Jr.) (arguing
that alternative plans failed to protect the interests of black
voters in the Trenton and Camden areas). We have never denied that
apportionment is a political process, or that state legislatures
could pursue legitimate secondary objectives as long as those
objectives were consistent with a good faith effort to achieve
population equality at the same time. Nevertheless, the claim that
political considerations require population differences among
congressional districts belongs more properly to the second level
of judicial inquiry in these cases, see infra at 462 U. S.
740 -741, in which the State bears the burden of
justifying the differences with particularity.

															In any event, it was unnecessary for the District Court to rest
its finding on the existence of alternative plans with radically
different political effects. As in Kirkpatrick, "resort to the simple device of transferring entire political
subdivisions of known population between contiguous districts would
have produced districts much closer to numerical equality."

															394 U.S. at 394 U. S. 532 .
Starting with the Feldman Plan itself and the census data available
to the legislature at the time it was enacted, see App.
23-34, one can reduce the maximum population deviation of the plan
merely by shifting a handful of municipalities from one district to
another. [ Footnote 10 ] Page 462 U. S. 740 See also Swann v. Adams, 385 U.S. at 385 U. S.
445 -446; n. 4, supra. Thus the District Court
did not err in finding that the plaintiffs had met their burden of
showing that the Feldman Plan did not come as nearly as practicable
to population equality. IV By itself, the foregoing discussion does not establish that the
Feldman Plan is unconstitutional. Rather, appellees' success in
proving that the Feldman Plan was not the product of a good faith
effort to achieve population equality means only that the burden
shifted to the State to prove that the population deviations in its
plan were necessary to achieve some legitimate state objective. White v. Weiser demonstrates that we are willing to defer
to state legislative policies, so long as they are consistent with
constitutional norms, even if they require small differences in the
population of congressional districts. See 412 U.S. at 412 U. S.
795 -797; cf. Upham v. Seamon, 456 U. S.
37 (1982); Connor v. Finch, 431 U.
S. 407 , 431 U. S.
414 -415 (1977). Any number of consistently applied
legislative policies might justify some variance, including, for
instance, making districts compact, respecting municipal
boundaries, preserving the cores of prior districts, and avoiding
contests between incumbent Representatives. As long as the criteria
are nondiscriminatory, see Gomillion v. Lightfoot, 364 U. S. 339 (1960), these are all legitimate objectives that, on a proper
showing, could justify minor population deviations. See, e.g.,
West Virginia Civil Liberties Union v. Page 462 U. S. 741 Rockefeller, 336 F.
Supp. 395 , 398-400 (SD W.Va.1972) (approving plan with 0.78%
maximum deviation as justified by compactness provision in State
Constitution); c§f. Reynolds v. Sims, 377 U.
S. 533 , 377 U.S.
579 (1964); Burns v. Richardson, 384 U. S.
73 , 384 U. S. 89 ,
and n. 16 (1966). The State must, however, show with some
specificity that a particular objective required the specific
deviations in its plan, rather than simply relying on general
assertions. The showing required to justify population deviations
is flexible, depending on the size of the deviations, the
importance of the State's interests, the consistency with which the
plan as a whole reflects those interests, and the availability of
alternatives that might substantially vindicate those interests yet
approximate population equality more closely. By necessity, whether
deviations are justified requires case-by-case attention to these
factors.

															The possibility that a State could justify small variations in
the census-based population of its congressional districts on the
basis of some legitimate, consistently applied policy was
recognized in Kirkpatrick itself. In that case, Missouri
advanced the theory, echoed by JUSTICE WHITE in dissent, see
post at 462 U. S.
771 -772, that district-to-district differences in the
number of eligible voters, or projected population shifts,
justified the population deviations in that case. 394 U.S. at 394 U. S.
534 -535. We rejected its arguments not because those
factors were impermissible considerations in the apportionment
process, but rather because of the size of the resulting deviations
and because Missouri "[a]t best . . . made haphazard adjustments to
a scheme based on total population," made "no attempt" to account
for the same factors in all districts, and generally failed to
document its findings thoroughly and apply them "throughout the
State in a systematic, not an ad hoc, manner." Id. at 394 U. S. 535 .
[ Footnote 11 ] Page 462 U. S. 742 The District Court properly found that appellants did not
Justify the population deviations in this case. At argument before
the District Court and on appeal in this Court, appellants
emphasized only one justification for the Feldman Plan's population
deviations -- preserving the voting strength of racial minority
groups. [ Footnote 12 ] They
submitted affidavits from Page 462 U. S. 743 Mayors Kenneth Gibson of Newark and Thomas Cooke of East Orange,
discussing the importance of having a large majority of black
voters in Newark's Tenth District, App. 86-92, as well as an
affidavit from S. Howard Woodson, Jr., a candidate for Mayor of
Trenton, comparing the Feldman Plan's treatment of black voters in
the Trenton and Camden areas with that of the Reock Plan, id. at 93-96. See also id. at 82-83 (affidavit of
A. Karcher). The District Court found, however:

															"[Appellants] have not attempted to demonstrate, nor can they
demonstrate, any causal relationship between the goal of preserving
minority voting strength in the Tenth District and the population
variances in the other districts. . . . We find that the goal of
preserving minority voting strength in the Tenth District is not
related in any way to the population deviations in the Fourth and
Sixth Districts."

															535 F. Supp. at 982.

															Under the Feldman Plan, the largest districts are the Fourth and
Ninth Districts, and the smallest are the Third and Sixth. See
supra at 462 U. S. 728 .
None of these districts borders on the Tenth, and only one -- the
Fourth -- is even mentioned in appellants' discussions of
preserving minority voting strength. Nowhere do appellants suggest
that the large population of the Fourth District was necessary to
preserve minority voting strength; in fact, the deviation between
the Fourth District and other districts has the effect of diluting
the votes of all residents of that district, including members of
racial minorities, as compared with other districts with fewer
minority voters. The record is completely silent on the
relationship between preserving minority voting Page 462 U. S. 744 strength and the small populations of the Third and Sixth
Districts. Therefore, the District Court's findings easily pass the
"clearly erroneous" test. V The District Court properly applied the two-part test of Kirkpatrick v. Preisler to New Jersey's 1982 apportionment
of districts for the United States House of Representatives. It
correctly held that the population deviations in the plan were not
functionally equal as a matter of law, and it found that the plan
was not a good faith effort to achieve population equality using
the best available census data. It also correctly rejected
appellants' attempt to justify the population deviations as not
supported by the evidence. The judgment of the District Court,
therefore, is Affirmed. [ Footnote 1 ]

															Three sets of census data are relevant to this case. In early
1981, the Bureau of the Census released preliminary figures showing
that the total population of New Jersey was 7,364,158. In October,
1981, it released corrected data, which increased the population of
East Orange (and the State as a whole) by 665 people. Brief for
Appellants 3, n. 1. All calculations in this opinion refer to the
data available to the legislature -- that is, the October, 1981,
figures. After the proceedings below had concluded, the Bureau of
the Census made an additional correction in the population of East
Orange, adding another 188 people, and bringing the total
population of the State to 7,365,011. Ibid. Because this
last correction was not available to the legislature at the time it
enacted the plan at issue, we need not consider it.

															[ Footnote 2 ]

															In relevant part:

															"The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States. . .
." * * * * "Representatives . . . shall be apportioned among the several
States which may be included within this Union, according to their
respective Numbers. . . ."

															[ Footnote 3 ]

															There is some evidence in the record from which one could infer
that this is precisely what happened in New Jersey. Alan Karcher,
Speaker of the Assembly, testified that he had set one-percent
maximum deviation as the upper limit for any plans to be considered
seriously by the legislature, Record Doc. No. 41, pp. 56-58
(Karcher deposition), but there is no evidence of any serious
attempt to seek improvements below the one-percent level.

															[ Footnote 4 ]

															Such problems certainly apply to JUSTICE WHITE's concededly
arbitrary five-percent solution, see post at 462 U. S. 782 ,
apparently selected solely to avoid the embarrassment of discarding
the actual result in Kirkpatrick, along with its
reasoning. No de minimis line tied to actual population in
any way mitigates differences identified post at 462 U. S.
771 -772, between the number of adults or eligible,
registered, or actual voters in any two districts. As discussed
below, see infra at 462 U. S.
736 -738, unless some systematic effort is made to
correct the distortions inherent in census counts of total
population, deviations from the norm of population equality are far
more likely to exacerbate the differences between districts. If a
State does attempt to use a measure other than total population or
to "correct" the census figures, it may not do so in a haphazard,
inconsistent, or conjectural manner. Kirkpatrick, 394 U.S.
at 394 U. S.
534 -535; see infra at 462 U. S.
740 -741.

															[ Footnote 5 ]

															Note that many of the problems that the New Jersey Legislature
encountered in drawing districts with equal population stemmed from
the decision, which appellees never challenged, not to divide any
municipalities between two congressional districts. The entire
State of New Jersey is divided into 567 municipalities, with
populations ranging from 329,248 (Newark) to 9 (Tavistock Borough). See Brief for Appellants 36, n. 38. Preserving political
subdivisions intact, however, while perfectly permissible as a
secondary goal, is not a sufficient excuse for failing to achieve
population equality without the specific showing described infra at 462 U. S.
740 -741. See Kirkpatrick v. Preisler, supra, at 394 U. S.
533 -534; White v. Weiser, 412 U.
S. 783 , 412 U. S. 791 (1973).

															[ Footnote 6 ]

															JUSTICE WHITE objects that "the rule of absolute equality is
perfectly compatible with gerrymandering' of the worst sort," Wells v. Rockefeller, 394 U. S. 542 , 394 U. S. 551 (1969) (Harlan, J., dissenting). Post at 462 U. S. 776 .
That may certainly be true to some extent: beyond requiring States
to justify population deviations with explicit, precise reasons,
which might be expected to have some inhibitory effect, Kirkpatrick does little to prevent what is known as
gerrymandering. See generally Backstrom, Robins, &
Eller, Issues in Gerrymandering: An Exploratory Measure of Partisan
Gerrymandering Applied to Minnesota, 62 Minn.L.Rev. 1121, 1144-1159
(1978); cf. 394 U.S. at 394 U. S. 534 ,
n. 4. Kirkpatrick's object, achieving population equality,
is far less ambitious than what would be required to address
gerrymandering on a constitutional level. In any event, the additional claim that Kirkpatrick actually promotes gerrymandering (as opposed to merely failing to
stop it) is completely empty. A federal principle of population
equality does not prevent any State from taking steps to inhibit
gerrymandering, so long as a good faith effort is made to achieve
population equality as well. See, e.g., Colo. Const. Art.
V, § 47 (guidelines as to compactness, contiguity, boundaries of
political subdivisions, and communities of interest); Mass.Const.,
Amended Art. CI, 1 (boundaries); N.Y.Elec.Law 4-100(2) (McKinney
1978) (compactness and boundaries).

															JUSTICE WHITE further argues that the lack of a de
minimis rule encourages litigation and intrusion by federal
courts into state affairs. Post at 462 U. S.
777 -778. It cannot be gainsaid that the de
minimis rule he proposes would have made litigation in this
case unattractive. But experience proves that cases in which a
federal court is called upon to invalidate an existing
apportionment, and sometimes to substitute a court-ordered plan in
its stead, frequently arise not because a newly enacted
apportionment plan fails to meet the test of Kirkpatrick, but because partisan politics frustrate the efforts of a state
legislature to enact a new plan after a recent census has shown
that the existing plan is grossly malapportioned. See, e.g.,
Carstens v. Lamm, 543 F. Supp.
68 (Colo.1982); Shayer v. Kirkpatrick, 541 F.
Supp. 922 (WD Mo.), summarily aff'd, 456 U.S. 966
(1982); O'Sullivan v. Brier, 540
F. Supp. 1200 (Kan.1982); Donnelly v.
Meskill, 345 F.
Supp. 962 (Conn.1972); David v. Cahill, 342 F.
Supp. 463 (NJ 1972); Skolnick v. State Electoral Board of
Illinois, 336 F.
Supp. 839 (ND Ill.1971).

															[ Footnote 7 ] See generally J. Passel, J. Siegel, & J. Robinson,
Coverage of the National Population in the 1980 Census, by Age,
Sex, and Race: Preliminary Estimates by Demographic Analysis
(Nov.1981) (Record Doc. No. 31) (hereinafter Passel). Estimates for
the national undercount in previous censuses range from 2.5% to
3.3%. See, e.g., Panel on Decennial Census Plans, Counting
the People in 1980: An Appraisal of Census Plans 2
(Nat.Acad.Sciences 1978).

															[ Footnote 8 ]

															As an example, assume that in a hypothetical State with two
congressional districts District A has a population of 502,500, and
District B has a population of 497,500. The deviation between them
is 5,000, or one percent of the mean. If the statewide undercount
is also one percent, and it is distributed evenly between the two
districts, District A will have a "real" population of 507,525, and
District B will have a "real" population of 502,475. The deviation
between them will remain one percent. Only if three-fourths of the
uncounted people in the State live in District B will the two
districts have equal populations. If three-fourths of the uncounted
people happen to live in District A, the deviation between the two
districts will increase to 1.98%.

															[ Footnote 9 ]

															For instance, it is accepted that the rate of undercount in the
census for black population on a nationwide basis is significantly
higher than the rate of undercount for white population. See
generally Passel 9-20. Yet the census population of the
districts in the Feldman Plan is unrelated to the percentage of
blacks in each district. The Fourth District, for instance, is the
largest district in terms of population, 0.268% above the mean; it
has a 17.3% black population, App. 94. The First District is 14.6%
black, id. at 96, and it is almost exactly average in
overall population. The undercount in any particular district
cannot be predicted only from the percentage of blacks in the
district, but to the extent that blacks are not counted, the
undercount would be more severe in the Fourth District than in the
relatively less populous First District.

															[ Footnote 10 ]

															According to the population figures used by Dr. Reock, the
following adjustments to the Feldman Plan as enacted in Pub.L.1982,
ch. 1, would reduce its maximum population variance to 0.449%,
somewhat lower than the version of the Reock Plan introduced in the
legislature: to the Fifth District, add Oakland and Franklin Lakes
(from the Eighth District), and Hillsdale, Woodcliff Lake, and
Norwood (from the Ninth District). To the Sixth District, add North
Brunswick (from the Seventh District). To the Seventh District, add
Roosevelt (from the Fourth District), and South Plainfield and
Helmetta (from the Sixth District). To the Eighth District, add
Montville and Boonton Town (from the Fifth District). To the Ninth
District, add River Edge and Oradell (from the Fifth District).

															Some of these changes are particularly obvious. Shifting the
small town of Roosevelt from the Fourth to the Seventh District
brings both appreciably closer to the mean, and the town is already
nearly surrounded by the Seventh District. Similarly, River Edge,
Oradell, Norwood, and Montville are barely contiguous with their
present districts and almost completely surrounded by the new
districts suggested above. Further improvement could doubtless be
accomplished with the aid of a computer and detailed census data. See also n 5, supra. We do not, of course, prejudge the validity of a plan
incorporating these changes, nor do we indicate that a plan cannot
represent a good faith effort whenever a court can conceive of
minor improvements. We point them out only to illustrate that
further reductions could have been achieved within the basic
framework of the Feldman Plan.

															[ Footnote 11 ]

															The very cases on which Kirkpatrick relied made clear
that the principle of population equality did not entirely preclude
small deviations caused by adherence to consistent state policies. See Swann v. Adams, 385 U. S. 440 , 385 U. S. 444 (1967); Reynolds v. Sims, 377 U.
S. 533 , 377 U.S.
579 (1964). District Courts applying the Kirkpatrick standard have consistently recognized that
small deviations could be justified. See, e.g., Doulin v.
White, 528 F.
Supp. 1323 , 1330 (ED Ark.1982) (rejecting projected population
shifts as justification for plan with 1.87% maximum deviation
because largest district also had largest projected growth); West Virginia Civil Liberties Union v.
Rockefeller, 336 F.
Supp. 395 , 398-400 (SD W.Va.1972). Furthermore, courts using
the Kirkpatrick standard to evaluate proposed remedies for
unconstitutional apportionments have often, as in White v.
Weiser, rejected the plan with the lowest population deviation
in favor of plans with slightly higher deviations that reflected
consistent state policies. See, e.g., David v.
Cahill, 342 F.
Supp. 463 (NJ 1972); Skolnick v. State Electoral Board of
Illinois, 336 F. Supp. at 842-846. A number of District Courts
applying the Kirkpatrick test to apportionments of state
legislatures, before this Court disapproved the practice in Mahan v. Howell, 410 U. S. 315 (1973), also understood that justification of small deviations was
a very real possibility. E.g., Kelly v.
Bumpers, 340 F.
Supp. 568 , 571 (ED Ark.1972), summarily aff'd, 413
U.S. 901 (1973); Ferrell v. Oklahoma ex rel.
Nall, 339 F. Supp.
73 , 84-85 (WD Okla.), summarily aff'd, 406 U.S. 939
(1972); Sewell v. St. Tammany Parish Police
Jury, 338 F.
Supp. 252 , 255 (ED La.1971). The court in Graves v.
Barnes, 343 F.
Supp. 704 (WD Tex.1972) later reversed by this Court for
applying Kirkpatrick at all, White v. Regester, 412 U. S. 755 (1973) characterized the inquiry required by Kirkpatrick as follows:

															"The critical issue remains the same: has the State justified
any and all variances, however small, on the basis of a consistent,
rational State policy."

															343 F. Supp. at 713; see id. at 713-716.

															[ Footnote 12 ]

															At oral argument in this Court, appellants stated that the
drafters of the Feldman Plan were concerned with a number of other
objectives as well, namely "to preserve the cores of existing
districts" and "to preserve municipal boundaries." Tr. of Oral Arg.
4, 14. See also Answer and Counterclaim on Behalf of Alan
J. Karcher � 10 (Record Doc. No. 17). Similarly, Speaker Karcher's
affidavit suggests that the legislature was concerned that the
Ninth District should lie entirely within Bergen County. App. 84.
None of these justifications was presented to the District Court or
this Court in any but the most general way, however, and the
relevant question presented by appellants to this Court excludes
them:

															"Whether the legislative policy of preserving minority voting
strength justifies small deviations from census population equality
in a congressional reapportionment plan."

															Brief for Appellants i. Furthermore, several plans before the
legislature with significantly lower population deviations kept
municipalities intact and had an all-Bergen County Ninth District. See App. 66-14.

															JUSTICE STEVENS, concurring.

															As an alternative ground for affirmance, the appellees contended
at oral argument that the bizarre configuration of New Jersey's
congressional districts is sufficient to demonstrate that the plan
was not adopted in "good faith." This argument, as I understand it,
is a claim that the district boundaries are unconstitutional
because they are the product of political gerrymandering. Since my
vote is decisive in this case, it seems appropriate to explain how
this argument influences my analysis of the question that divides
the Court. As I have previously pointed out, political
gerrymandering is one species of "vote dilution" that is proscribed
by the Equal Protection Clause. [ Footnote 2/1 ] Because an adequate judicial analysis
of Page 462 U. S. 745 a gerrymandering claim raises special problems, I shall comment
at some length on the legal basis for a gerrymandering claim, the
standards for judging such a claim, and their relevance to the
present case. I Relying on Art. I, § 2, of the Constitution, as interpreted in Wesberry v. Sanders, 376 U. S. 1 (1964),
and subsequent cases, appellees successfully challenged the
congressional districting plan adopted by the New Jersey
Legislature. For the reasons stated in JUSTICE BRENNAN's opinion
for the Court, which I join, the doctrine of stare decisis requires that result. It can be demonstrated, however, that the
holding in Wesberry, as well as our holding today, has
firmer roots in the Constitution than those provided by Art. I, §
2.

															The constitutional mandate contained in Art. I, § 2, concerns
the number of Representatives that shall be "apportioned among the several States." [ Footnote 2/2 ] The section says nothing about the
composition of congressional districts within a State.
[ Footnote 2/3 ] Indeed, the text of
that section places no restriction whatsoever on the power of any
State to define the group of persons within the State who may vote
for particular candidates. If a State should divide its registered
voters into separate classes defined by the alphabetical order of
their initials, by their age, by their period of residence in the
State, or even by their political affiliation, such a
classification would not be barred by the text of Art. I, § 2, even
if the classes contained widely different numbers of voters. Page 462 U. S. 746 As Justice Harlan pointed out in his dissenting opinion in Wesberry, prior to the Civil War, the principle of
numerical equality of representation was actually contradicted by
the text of Art. I, § 2, which provided that the "whole Number of
free Persons" should be counted, that certain Indians should be
excluded, and that only "three-fifths of all other Persons" should
be added to the total. [ Footnote
2/4 ] In analyzing the Constitution, we cannot ignore the
regrettable fact that, as originally framed, it expressly tolerated
the institution of slavery. On the other hand, neither can we
ignore the basic changes caused by the Civil War Amendments. They
planted the roots that firmly support today's holding.

															The abolition of slavery and the guarantees of citizenship and
voting rights contained in the Thirteenth, Fourteenth, and
Fifteenth Amendments effectively repealed Art. I, § 2's requirement
that some votes be given greater weight than others. It remains
true, however, that Art. I, § 2, does not itself contain any
guarantee of equality of representation. The source of that
guarantee must be found elsewhere. But as Justice Clark
perceptively noted in his partial concurrence Page 462 U. S. 747 in Wesberry -- and as Justice Black had written earlier
in his dissent in Colegrove v. Green, 328 U.
S. 549 , 328 U. S. 569 (1946) -- that guarantee is firmly grounded in the Equal Protection
Clause of the Fourteenth Amendment. [ Footnote 2/5 ] Even Justice Harlan's powerful dissent in Wesberry could find no flaw in that analysis.

															In its review of state laws redefining congressional districts
subsequent to Wesberry v. Sanders, the Court has not found
it necessary to rely on the Equal Protection Clause. That Clause
has, however, provided the basis for applying the "one person, one
vote" standard to other electoral districts. See, e.g., Baker
v. Carr, 369 U. S. 186 (1962); Reynolds v. Sims, 377 U.
S. 533 (1964); Avery v. Midland County, 390 U. S. 474 (1968). Even if Art. I, § 2, were wholly disregarded, the "one
person, one vote" rule would unquestionably apply to action by
state officials defining congressional districts just as it does to
state action defining state legislative districts. [ Footnote 2/6 ] Page 462 U. S. 748 The Equal Protection Clause requires every State to govern
impartially. When a State adopts rules governing its election
machinery or defining electoral boundaries, those rules must serve
the interests of the entire community. See Reynolds v. Sims,
supra, at 377 U.S.
565 -566. If they serve no purpose other than to favor one
segment -- whether racial, ethnic, religious, economic, or
political -- that may occupy a position of strength at a particular
point in time, or to disadvantage a politically weak segment of the
community, they violate the constitutional guarantee of equal
protection.

															In Gomillion v. Lightfoot, 364 U.
S. 339 , 364 U. S. 340 (1960), the Court invalidated a change in the city boundaries of
Tuskegee, Alabama, "from a square to an uncouth twenty-eight-sided
figure" excluding virtually all of the city's black voters. The
Court's opinion identified the right that had been violated as a
group right:

															"When a legislature thus singles out a readily isolated segment
of a racial minority for special discriminatory treatment, it
violates the Fifteenth Amendment. In no case involving unequal
weight in voting distribution that has come before the Court did
the decision sanction a differentiation on racial lines whereby
approval was given to unequivocal withdrawal of the vote solely
from colored citizens." Id. at 364 U. S. 346 .
Although the Court explicitly rested its decision on the Fifteenth
Amendment, the analysis in Justice Whittaker's concurring opinion
-- like Justice Clark's in Wesberry -- is equally
coherent, see 364 U.S. at 364 U. S. 349 .
Moreover, the Court has subsequently treated Gomillion as
though it had been decided on equal protection grounds. See
Whitcomb v. Chavis, 403 U. S. 124 , 403 U. S. 149 (1971). Page 462 U. S. 749 Gomillion involved complete geographical exclusion of a
racially identified group. But in case after case arising under the
Equal Protection Clause the Court has suggested that "dilution" of
the voting strength of cognizable political as well as
racial groups may be unconstitutional. Thus, the question reserved
in Fortson v. Dorsey, 379 U. S. 433 , 379 U. S. 439 (1965), related to an apportionment scheme that might "operate to
minimize or cancel out the voting strength of racial or political
elements of the voting population." See also Gaffney v.
Cummings, 412 U. S. 735 , 412 U. S. 751 ,
754 (1973); White v. Regester, 412 U.
S. 755 , 412 U. S.
765 -770 (1973); Whitcomb v. Chavis, supra, at 403 U. S.
143 -144; Burns v. Richardson, 384 U. S.
73 , 384 U. S. 88 -89
(1966). In his separate opinion in Williams v. Rhodes, 393 U. S. 23 , 393 U. S. 39 (1968), Justice Douglas pointed out that the Equal Protection
Clause protects "voting rights and political groups . . . as well
as economic units, racial communities, and other entities." And in Abate v. Mundt, 403 U. S. 182 , 403 U. S. 187 (1971), the Court noted the absence of any "built-in bias tending
to favor particular political interests or geographic areas." In
his dissenting opinion today, JUSTICE WHITE seems to agree that New
Jersey's plan would violate the Equal Protection Clause if it
"invidiously discriminated against a racial or political group." Post at 462 U. S.
783 .

															There is only one Equal Protection Clause. Since the Clause does
not make some groups of citizens more equal than others, see
Zobel v. Williams, 457 U. S. 55 , 457 U. S. 71 (1982) (BRENNAN, J., concurring), its protection against vote
dilution cannot be confined to racial groups. As long as it
proscribes gerrymandering against such groups, its proscription
must provide comparable protection for other cognizable groups of
voters as well. As I have previously written:

															"In the line-drawing process, racial, religious, ethnic, and
economic gerrymanders are all species of political
gerrymanders."

															"From the standpoint of the groups of voters that are affected
by the line-drawing process, it is also important Page 462 U. S. 750 to recognize that it is the group's interest in gaining or
maintaining political power that is at stake. The mere fact that a
number of citizens share a common ethnic, racial, or religious
background does not create the need for protection against
gerrymandering. It is only when their common interests are strong
enough to be manifested in political action that the need arises.
For the political strength of a group is not a function of its
ethnic, racial, or religious composition; rather, it is a function
of numbers -- specifically the number of persons who will vote in
the same way." Mobile v. Bolden, 446 U. S. 55 , 446 U. S. 88 (1980) (concurring in judgment). See Cousins v. City Council of
Chicago, 466 F.2d 830, 851852 (CA7) (Stevens, J., dissenting), cert. denied, 409 U.S. 893 (1972). [ Footnote 2/7 ] II Like JUSTICE WHITE, I am convinced that judicial preoccupation
with the goal of perfect population equality is an inadequate
method of judging the constitutionality of an apportionment plan. I
would not hold that an obvious gerrymander is wholly immune from
attack simply because it comes closer to perfect population
equality than every competing plan. On the other hand, I do not
find any virtue in the proposal to relax the standard set forth in Wesberry and subsequent cases, and to ignore population
disparities after some arbitrarily defined threshold has been
crossed. [ Footnote 2/8 ] As one
commentator Page 462 U. S. 751 has written:

															"Logic, as well as experience, tells us. . . that there can be
no total sanctuaries in the political thicket, else unfairness will
simply shift from one form to another. [ Footnote 2/9 ]"

															Rather, we should supplement the population equality standard
with additional criteria that are no less "judicially manageable."
In evaluating equal protection challenges to districting plans,
just as in resolving such attacks on other forms of discriminatory
action, I would consider whether the plan has a significant adverse
impact on an identifiable political group, whether the plan has
objective indicia of irregularity, and then, whether the State is
able to produce convincing evidence that the plan nevertheless
serves neutral, legitimate interests of the community as a
whole.

															Until two decades ago, constrained by its fear of entering a
standardless political thicket, the Court simply abstained from any
attempt to judge the constitutionality of legislative apportionment
plans, even when the districts varied in population from 914,053 to
112,116. See Colegrove v. Green, 328 U.S. at 328 U. S. 557 .
In Baker v. Carr, 369 U. S. 186 (1962), and Reynolds v. Sims, 377 U.
S. 533 (1964), the Court abandoned that extreme form of
judicial restraint and enunciated the "one person, one vote"
principle. That standard is "judicially manageable" because census
data are concrete and reasonably reliable and because judges can
multiply and divide.

															Even as a basis for protecting voters in their individual
capacity, the "one person, one vote" approach has its shortcomings.
Although population disparities are easily quantified, the standard
provides no measure of the significance of any numerical
difference. It is easy to recognize the element of Page 462 U. S. 752 unfairness in allowing 112,116 voters to elect one Congressman
while another is elected by 914,053. But how significant is the
difference between census counts of 527,472 and 523,798? Given the
birth rate, the mortality rate, the transient character of modern
society, and the acknowledged errors in the census, we all know
that such differences may vanish between the date of the census and
the date of the next election. Absolute population equality is
impossible to achieve.

															More important, mere numerical equality is not a sufficient
guarantee of equal representation. Although it directly protects
individuals, it protects groups only indirectly, at best. See
Reynolds v. Sims, supra, at 377 U. S. 561 .
A voter may challenge an apportionment scheme on the ground that it
gives his vote less weight than that of other voters; for that
purpose, it does not matter whether the plaintiff is combined with
or separated from others who might share his group affiliation. It
is plainly unrealistic to assume that a smaller numerical disparity
will always produce a fairer districting plan. Indeed, as Justice
Harlan correctly observed in Wells v. Rockefeller, 394 U. S. 542 , 394 U. S. 551 (1969), a standard

															"of absolute equality is perfectly compatible with
'gerrymandering' of the worst sort. A computer may grind out
district lines which can totally frustrate the popular will on an
overwhelming number of critical issues."

															Since Justice Harlan wrote, developments in computer technology
have made the task of the gerrymanderer even easier. See
post at 462 U. S. 776 (WHITE, J., dissenting). [ Footnote
2/10 ] Page 462 U. S. 753 The imperfections in the numerical standard do not, of course,
render it useless. It provides one neutral criterion for evaluating
a districting plan. Numerical disparities may provide sufficient
basis for shifting the burden of justification to the State.
Moreover, if all other factors were in equipoise, it would be
proper to conclude that the plan that most nearly attains the goal
of complete equality would be the fairest plan. The major
shortcoming of the numerical standard is its failure to take
account of other relevant -- indeed, more important -- criteria
relating to the fairness of group participation in the political
process. To that extent, it may indeed be counterproductive. See Gaffney v. Cummings, 412 U.S. at 412 U. S.
748 -749. [ Footnote
2/11 ]

															To a limited extent, the Court has taken cognizance of
discriminatory treatment of groups of voters. The path the Court
has sometimes used to enter this political thicket is marked by the
label "intent." A finding that the majority deliberately sought to
make it difficult for a minority group to elect representatives may
provide a sufficient basis for holding that an objectively neutral
electoral plan is unconstitutional. See Rogers v. Lodge, 458 U. S. 613 , 458 U. S.
616 -617 (1982). For reasons that I have already set
forth at length, this standard is inadequate. See id. at 458 U. S.
642 -650 (STEVENS, J., dissenting); Mobile v.
Bolden, 446 U.S. at 446 U. S. 83 (STEVENS,J., concurring in judgment). I would not condemn a
legislature's districting plan in the absence of discriminatory
impact simply because its proponents were motivated, in part, by
partisanship or group animus. Legislators are, after all,
politicians; it is unrealistic to attempt to proscribe all
political considerations in the essentially political process of
redistricting. In the long run, constitutional adjudication that is
premised on a case-by-case appraisal of the subjective intent of
local decisionmakers Page 462 U. S. 754 cannot possibly satisfy the requirement of impartial
administration of the law that is embodied in the Equal Protection
Clause of the Fourteenth Amendment. On the other hand, if a plan
has a significant adverse impact upon a defined political group, an
additional showing that it departs dramatically from neutral
criteria should suffice to shift the task of justification to the
state defendants.

															For a number of reasons, this is a burden that plaintiffs can
meet in relatively few cases. As a threshold matter, plaintiffs
must show that they are members of an identifiable political group
whose voting strength has been diluted. They must first prove that
they belong to a politically salient class, see supra at 462 U. S.
749 -750, one whose geographical distribution is
sufficiently ascertainable that it could have been taken into
account in drawing district boundaries. [ Footnote 2/12 ] Second, they must prove that in the
relevant district or districts or in the State as a whole, their
proportionate voting influence has been adversely affected by the
challenged scheme. [ Footnote
2/13 ] Third, plaintiffs Page 462 U. S. 755 must make a prima facie showing that raises a
rebuttable presumption of discrimination.

															One standard method by which members of a disadvantaged
political group may establish a dilution of their voting rights is
by reliance on the "one person, one vote" principle, which depends
on a state-wide statistical analysis. But prima facie evidence of gerrymandering can surely be presented in other ways.
One obvious type of evidence is the shape of the district
configurations themselves. One need not use Justice Stewart's
classic definition of obscenity -- "I know it when I see it"
[ Footnote 2/14 ] -- as an ultimate
standard for judging the constitutionality of a gerrymander to
recognize that dramatically irregular shapes may have sufficient
probative force to call for an explanation. [ Footnote 2/15 ]

															Substantial divergences from a mathematical standard of
compactness may be symptoms of illegitimate gerrymandering. As Dr.
Ernest Reock, Jr., of Rutgers University has written:

															"Without some requirement of compactness, the boundaries of a
district may twist and wind their way across the map in fantastic
fashion in order to absorb scattered Page 462 U. S. 756 pockets of partisan support. [ Footnote 2/16 ]"

															To some extent, geographical compactness serves independent
values; it facilitates political organization, electoral
campaigning, and constituent representation. [ Footnote 2/17 ] A number of state statutes and
Constitutions require districts to be compact and contiguous. These
standards have been of limited utility, because they have not been
defined and applied with rigor and precision. [ Footnote 2/18 ] Yet Professor Reock and other
scholars have set forth a number of methods of measuring
compactness that can be computed with virtually the same degree of
precision as a population count. [ Footnote 2/19 ] It is true, of course, that the
significance of a particular Page 462 U. S. 757 compactness measure may be difficult to evaluate, but as the
figures in this case demonstrate, the same may be said of
population disparities. In addition, although some deviations from
compactness may be inescapable because of the geographical
configuration or uneven population density of a particular State,
[ Footnote 2/20 ] the relative
degrees of compactness of different Page 462 U. S. 758 district maps can always be compared. As with the numerical
standard, it seems fair to conclude that drastic departures from
compactness are a signal that something may be amiss.

															Extensive deviation from established political boundaries is
another possible basis for a prima facie showing of
gerrymandering. As we wrote in Reynolds v. Sims: "Indiscriminate districting, without any regard for political
subdivision or natural or historical boundary lines, may be little
more than an open invitation to partisan gerrymandering."

															377 U.S. at 377 U.S.
578 -579. [ Footnote 2/21 ]
Subdivision boundaries tend to remain stable over time. Residents
of political units such as townships, cities, and counties often
develop a community of interest, particularly when the subdivision
plays an important role in the provision of governmental services.
In addition, legislative districts that do not cross subdivision
boundaries are administratively convenient and less likely to
confuse the voters. [ Footnote
2/22 ] Although the significance of deviations from
subdivision Page 462 U. S. 759 boundaries will vary with the number of legislative seats and
the number, size, and shape of the State's subdivisions, the number
can be counted [ Footnote 2/23 ]
and alternative plans can be compared.

															A procedural standard, although obviously less precise, may also
be enlightening. If the process for formulating and adopting a plan
excluded divergent viewpoints, openly reflected the use of partisan
criteria, and provided no explanation of the reasons for selecting
one plan over another, it would seem appropriate to conclude that
an adversely affected plaintiff group is entitled to have the
majority explain its action. [ Footnote 2/24 ] On the other hand, if neutral
decisionmakers developed the plan on the basis of neutral criteria,
if there was an adequate opportunity for the presentation and
consideration of differing points of view, and if the guidelines
used in selecting a plan were explained, a strong presumption of
validity should attach to whatever plan such a process
produced.

															Although a scheme in fact worsens the voting position of a
particular group, [ Footnote 2/25 ]
and though its geographic configuration or Page 462 U. S. 760 genesis is sufficiently irregular to violate one or more of the
criteria just discussed, it will nevertheless be constitutionally
valid if the State can demonstrate that the plan as a whole
embodies acceptable, neutral objectives. The same kinds of
justification that the Court accepts as legitimate in the context
of population disparities would also be available whenever the
criteria of shape, compactness, political boundaries, or
decisionmaking procedures have sent up warning flags. In order to
overcome a prima facie case of invalidity, the State may
adduce "legitimate considerations incident to the effectuation of a
rational state policy," Reynolds v. Sims, 377 U.S. at 377 U.S. 579 , and may
also

															"show with some specificity that a particular objective requires
the specific deviations in its plan, rather than simply relying on
general assertions. The showing . . . is flexible, depending on the
size of the deviations, the importance of the State's interests,
the consistency with which the plan as a whole reflects those
interests, and the availability of alternatives that might
substantially vindicate those interests yet approximate population
equality more closely." Ante at 462 U. S. 741 .
[ Footnote 2/26 ]

															If a State is unable to respond to a plaintiff's prima
facie case by showing that its plan is supported by adequate
neutral criteria, I believe a court could properly conclude that
the challenged scheme is either totally irrational or entirely Page 462 U. S. 761 motivated by a desire to curtail the political strength of the
affected political group. This does not mean that federal courts
should invalidate or even review every apportionment plan that may
have been affected to some extent by partisan legislative
maneuvering. [ Footnote 2/27 ] But
I am convinced that the Judiciary is not powerless to provide a
constitutional remedy in egregious cases. [ Footnote 2/28 ] III In this case, it is not necessary to go beyond the reasoning in
the Court's opinions in Wesberry v. Sanders, 376 U. S.
1 (1964), Kirkpatrick v. Preisler, 394 U.
S. 526 (1969), and Page 462 U. S. 762 White v. Weiser, 412 U. S. 783 (1973), to reach the correct result. None of the additional
criteria that I have mentioned would cast any doubt on the
propriety of the Court's holding in this case. Although I need not
decide whether the plan's shortcomings regarding shape and
compactness, subdivision boundaries, and neutral decisionmaking
would establish a prima facie case, these factors
certainly strengthen my conclusion that the New Jersey plan
violates the Equal Protection Clause.

															A glance at the map shows district configurations well deserving
the kind of descriptive adjectives -- "uncouth" [ Footnote 2/29 ] and "bizarre" [ Footnote 2/30 ] -- that have traditionally been
used to describe acknowledged gerrymanders. I have not applied the
mathematical measures of compactness to the New Jersey map, but I
think it likely that the plan would not fare well. In addition,
while disregarding geographical compactness, the redistricting
scheme wantonly disregards county boundaries. For example, in the
words of a commentator:

															"In a flight of cartographic fancy, the Legislature packed North
Jersey Republicans into a new district many call 'the Swan.' Its
long neck and twisted body stretch from the New York suburbs to the
rural upper reaches of the Delaware River."

															That district, the Fifth, contains segments of at least seven
counties. The same commentator described the Seventh District,
comprised of parts of five counties, as tracing "a curving partisan
path through industrial Elizabeth, liberal, academic Princeton and
largely Jewish Marlboro Page 462 U. S. 763 in Monmouth County." The resulting monstrosity was called "the
Fishhook" by detractors.

															40 Congressional Quarterly 1193-1195 (1982). [ Footnote 2/31 ]

															Such a map prompts an inquiry into the process that led to its
adoption. The plan was sponsored by the leadership in the
Democratic Party, which controlled both houses of the state
legislature as well as the Governor's office, and was signed into
law the day before the inauguration of a Republican Governor. The
legislators never formally explained the guidelines used in
formulating their plan or in selecting it over other available
plans. Several of the rejected plans contained districts that were
more nearly equal in population, more compact, and more consistent
with subdivision boundaries, including one submitted by a
recognized expert, Dr. Ernest Reock, Jr., whose impartiality and
academic credentials were not challenged. The District Court found
that the Reock Plan "was rejected because it did not reflect the
leadership's partisan concerns." Daggett v.
Kimmelman, 535 F.
Supp. 978 , 982 (NJ 1982). This conclusion, which arises
naturally from the absence of persuasive justifications for the
rejection of the Reock Plan, is buttressed by a letter written to
Dr. Reock by the Democratic Speaker of the New Jersey General
Assembly. This letter frankly explained the importance to the
Democrats of taking advantage of their opportunity to control
redistricting after the 1980 census. The Speaker justified his own
overt partisanship by describing the political considerations that
had motivated the Republican majority in the adoption of district
plans in New Page 462 U. S. 764 Jersey in the past -- and in other States at the present.
[ Footnote 2/32 ] In sum, the
record indicates that the decisionmaking process leading to
adoption of the challenged plan was far from neutral. It was
designed to increase the number of Democrats, and to decrease the
number of Republicans, that New Jersey's voters would send to
Congress in future years. [ Footnote
2/33 ] Finally, the record does not show any legitimate
justifications for the irregularities in the New Jersey plan,
although concededly the case was tried on a different theory in the
District Court.

															Because I have not made a comparative study of other districting
plans, and because the State has not had the opportunity Page 462 U. S. 765 to offer justifications specifically directed toward the
additional concerns I have discussed, I cannot conclude with
absolute certainty that the New Jersey plan was an unconstitutional
partisan gerrymander. But I am in full agreement with the Court's
holding that, because the plan embodies deviations from population
equality that have not been justified by any neutral state
objective, it cannot stand. Further, if population equality
provides the only check on political gerrymandering, it would be
virtually impossible to fashion a fair and effective remedy in a
case like this. For if the shape of legislative districts is
entirely unconstrained, the dominant majority could no doubt
respond to an unfavorable judgment by providing an even more
grotesque-appearing map that reflects acceptable numerical equality
with even greater political inequality. If federal judges can
prevent that consequence by taking a hard look at the shape of
things to come in the remedy hearing, I believe they can also
scrutinize the original map with sufficient care to determine
whether distortions have any rational basis in neutral criteria.
Otherwise, the promise of Baker v. Carr and Reynolds
v. Sims -- that judicially manageable standards can assure
"[f]ull and effective participation by all citizens," 377 U.S. at 377 U. S. 56 --
may never be fulfilled.

															[ Footnote 2/1 ] See Cousins v. City Council of Chicago, 466 F.2d 830,
848-853 (CA7) (stevens, J., dissenting), cert. denied, 409
U.S. 893 (1972); Mobile v. Bolden, 446 U. S.
55 , 446 U. S. 86 -89
(1980) (STEVENS, J., concurring in judgment); Rogers v.
Lodge, 458 U. S. 613 , 458 U. S. 652 (1982) (STEVENS, J., dissenting).

															[ Footnote 2/2 ]

															Article I, § 2, provides, in part:

															"Representatives and direct Taxes shall be apportioned among the several States which may be included within this
Union, according to their respective Numbers, which shall be
determined by adding to the whole Number of free Persons, including
those bound to Service for a Term of Years, and excluding Indians
not taxed, three fifths of all other Persons."

															U.S.Const., Art. 1, 2, cl. 3 (emphasis supplied).

															[ Footnote 2/3 ]

															During the first 50 years of our Nation's history, it was a
widespread practice to elect Members of the House of
Representatives as a group on a statewide basis. Wesberry v.
Sanders, 376 U. S. 1 , 376 U. S. 8 (1964).

															[ Footnote 2/4 ]

															"Representatives were to be apportioned among the States on the
basis of free population plus three-fifths of the slave population.
Since no slave voted, the inclusion of three-fifths of their number
in the basis of apportionment gave the favored States
representation far in excess of their voting population. If, then,
slaves were intended to be without representation, Article I did
exactly what the Court now says it prohibited: it 'weighted' the
vote of voters in the slave States. Alternatively, it might have
been thought that Representatives elected by free men of a State
would speak also for the slaves. But since the slaves added to the
representation only of their own State, Representatives from the
slave States could have been thought to speak only for the slaves
of their own States, indicating both that the Convention believed
it possible for a Representative elected by one group to speak for
another nonvoting group and that Representatives were in large
degree still thought of as speaking for the whole population of a
State." Id. at 376 U. S.
27 -28.

															Reading a "one person, one vote" requirement into Art. I, § 2,
is historically as well as textually unsound. See Kelly,
Clio and the Court: An Illicit Love Affair, 1965 S.Ct.Rev. 119,
135-136.

															[ Footnote 2/5 ]

															That Clause

															"does not permit the States to pick out certain qualified
citizens or groups of citizens and deny them the right to vote at
all. . . . No one would deny that the equal protection clause would
also prohibit a law that would expressly give certain citizens a
half-vote and others a full vote. The probable effect of the 1901
State Apportionment Act in the coming election will be that certain
citizens, and among them the appellants, will in some instances
have votes only one-ninth as effective in choosing representatives
to Congress as the votes of other citizens. Such discriminatory
legislation seems to me exactly the kind that the equal protection
clause was intended to prohibit." Colegrove v. Green, 328 U.S. at 328 U. S. 569 (Black, J., dissenting), quoted in part in Wesberry v. Sanders,
supra, at 19 (Clark, J., concurring in part and dissenting in
part).

															[ Footnote 2/6 ]

															The "one person, one vote" rule, like the Equal Protection
Clause in which it is firmly grounded, provides protection against
more than one form of discrimination. In the cases in which the
rule was first developed, district boundaries accorded
significantly less weight to individual votes in the most populous
districts. But it was also clear that those boundaries maximized
the political strength of rural voters and diluted the political
power of urban voters. See A. Hacker, Congressional
Districting: The Issue of Equal Representation 20-26 (1963); see generally Standards for Congressional Districts
(Apportionment), Hearings before Subcommittee No. 2 of the House
Committee on the Judiciary on H.R. 73, H.R. 575, H.R. 8266, and
H.R. 8473, 86th Cong., 1st Sess., 65-90 (1959). The primary
consequence of the rule has been its protection of the individual
voter, but it has also provided one mechanism for identifying and
curtailing discrimination against cognizable groups of voters.

															[ Footnote 2/7 ]

															Similarly, the motivation for the gerrymander turns on the
political strength of members of the group, derived from cohesive
voting patterns, rather than on the source of their common
interests. 466 F.2d at 852.

															[ Footnote 2/8 ]

															The former would appear to be consistent with what the Court has
written in this case, ante at 462 U. S.
734 -735, n. 6; the latter would be consistent with what
JUSTICE WHITE has written in dissent, post at 462 U. S.
780 -783. Either of these approaches would leave the door
to unrestricted gerrymandering wide open. See Engstrom,
The Supreme Court and Equipopulous Gerrymandering: A Remaining
Obstacle in the Quest for Fair and Effective Representation, 1976
Ariz.State L.J. 277, 285-286, 296; Baker, Quantitative and
Descriptive Guidelines to Minimize Gerrymandering, 219 Annals
N.Y.Acad.Sci. 200, 208 (1973) ("If more specific guidelines to
minimize gerrymandering are not forthcoming, then a great
democratic principle -- one man, one vote -- will have degenerated
into a simplistic arithmetical facade for discriminatory
cartography on an extensive scale").

															[ Footnote 2/9 ]

															Dixon, The Court, the People, and "One Man, One Vote," in
Reapportionment in the 1970s, p. 32 (N. Polsby ed.1971).

															[ Footnote 2/10 ]

															Computers now make it possible to generate a large number of
alternative plans, consistent with equal population guidelines and
various other criteria, in a relatively short period of time, and
to analyze the political characteristics of each one in
considerable detail. In contrast,

															"[i]n the 1970's round of reapportionment, some states were
barely able to generate a single reapportionment plan in the time
allotted to the task."

															National Conference of State Legislatures, Reapportionment: Law
and Technology 55 (June 1980); see also Engstrom, supra, 462
U.S. 725 fn2/8|>n. 8, at 281-282.

															[ Footnote 2/11 ] See Edwards, The Gerrymander and "One Man, One Vote,"
46 N.Y.U.L.Rev. 879 (1971); Elliott, Prometheus, Proteus, Pandora,
and Procrustes Unbound: The Political Consequences of
Reapportionment, 37 U.Chi.L.Rev. 474, 483-488 (1970); Engstrom, supra, 462
U.S. 725 fn2/8|>n. 8.

															[ Footnote 2/12 ]

															Identifiable groups will generally be based on political
affiliation, race, ethnic group, national origin, religion, or
economic status, but other characteristics may become politically
significant in a particular context. See Clinton, Further
Explorations in the Political Thicket: The Gerrymander and the
Constitution, 59 Iowa L.Rev. 1, 38-39 (1973) (cognizable interest
group with coherent and identifiable legislative policy); Comment,
Political Gerrymandering: A Statutory Compactness Standard as an
Antidote for Judicial Impotence, 41 U.Chi.L.Rev. 398, 407-408
(1974) (clearly identifiable and stable group).

															[ Footnote 2/13 ]

															The difficulty in making this showing stems from the existence
of alternative strategies of vote dilution. Depending on the
circumstances, vote dilution may be demonstrated if a population
concentration of group members has been fragmented among districts,
or if members of the group have been overconcentrated in a single
district greatly in excess of the percentage needed to elect a
candidate of their choice. See Mobile v. Bolden, 446 U.S.
at 446 U. S. 91 ,
and n. 13 (STEVENS, J., concurring in judgment); Hacker, supra, 462
U.S. 725 fn2/5|>n. 6, at 46-50; cf. Note,
Compensatory Racial Reapportionment, 25 Stan.L.Rev. 84, 97-100
(1972) (pointing to the shortcomings of several tests of political
strength, including opportunity to cast swing votes and opportunity
to elect a representative of their own group).

															In litigation under the Voting Rights Act, federal courts have
developed some familiarity with the problems of identifying and
measuring dilution of racial group voting strength. Some of the
concepts developed for statutory purposes might be applied in
adjudicating constitutional claims by other types of political
groups. The threshold showing of harm may be more difficult for
adherents of a political party than for members of a racial group,
however, because there are a number of possible baseline measures
for a party's strength, including voter registration and past
vote-getting performance in one or more election contests. See
generally Backstrom, Robins, & Eller, Issues in
Gerrymandering: An Exploratory Measure of Partisan Gerrymandering
Applied to Minnesota, 62 Minn.L.Rev. 1121, 1131-1139 (1978).

															[ Footnote 2/14 ] Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 197 (1964).

															[ Footnote 2/15 ]

															Professor Dixon quite properly warns against defining gerrymandering in terms of odd shapes. See R. Dixon,
Democratic Representation: Reapportionment in Law and Politics
459-460 (1968). At the same time, however, he recognizes that a
rule of compactness and contiguity, "if used merely to force an
explanation for odd-shaped districts, can have much merit." Id. at 460. See L. Tribe, American Constitutional
Law 760 (1978) (oddity of district's shape, coupled with racial
distribution of the population, should shift the burden of
justification to the State).

															[ Footnote 2/16 ]

															Reock, Measuring Compactness as a Requirement of Legislative
Apportionment, 5 Midwest J.Pol.Sci. 70, 71 (1961). Cf. Backstrom, Robins, & Eller, supra, 462
U.S. 725 fn2/13|>n. 13, at 1126, 1137 (compactness standard
cannot eliminate gerrymandering but may reduce the band of
discretion available to those drawing district boundaries). It is,
of course, possible to dilute a group's voting strength even if all
districts are relatively compact. Engstrom, supra, 462
U.S. 725 fn2/8|>n. 8, at 280.

															[ Footnote 2/17 ] See Taylor, A New Shape Measure for Evaluating
Electoral District Patterns, 67 Am.Pol.Sci.Rev. 947, 948 (1973).
Compactness is not to be confused with physical area. As we stated
in Reynolds v. Sims, 377 U. S. 533 , 377 U.S. 580 (1964):

															"Modern developments and improvements in transportation and
communications make rather hollow, in the mid-1960's, most claims
that deviations from population-based representation can validly be
based solely on geographical considerations. Arguments for allowing
such deviations in order to insure effective representation for
sparsely settled areas and to prevent legislative districts from
becoming so large that the availability of access of citizens to
their representatives is impaired are today, for the most part,
unconvincing."

															Nevertheless, although low population density may require
geographically extensive districts, different questions are
presented by the creation of districts with distorted shapes and
irregular, indented boundaries.

															[ Footnote 2/18 ]

															One state statute and 21 State Constitutions explicitly require
that districts be compact; two state statutes and 27 Constitutions
explicitly provide that districts be formed of contiguous
territory. See Congressional Research Service, State
Constitutional and Statutory Provisions Concerning Congressional
and State Legislative Redistricting (June 1981). But see Clinton, supra, 462
U.S. 725 fn2/12|>n. 12, at 2 (ineffective enforcement);
Comment, supra, 462
U.S. 725 fn2/12|>n. 12, at 412-413.

															[ Footnote 2/19 ]

															The scholarly literature suggests a number of different
mathematical measures of compactness, each focusing on different
variables. One relatively simple method is to measure the
relationship between the area of the district and the area of the
smallest possible circumscribing circle. See Reock, supra, 462
U.S. 725 fn2/16|>n. 16, at 71. This calculation is
particularly sensitive to the degree of elongation of a given
shape. Another simple method is to determine the ratio of a
figure's perimeter to the circumference of the smallest possible
circumscribing circle, a measurement that is well suited to
measuring the degree of indentation. See Schwartzberg,
Reapportionment, Gerrymanders, and the Notion of "Compactness," 50
Minn.L.Rev. 443-452 (1966). Other measures of compactness are based
on the aggregate of the distances from the district's geometrical
or population-weighted center of gravity to each of its points, see Kaiser, An Objective Method for Establishing
Legislative Districts, 10 Midwest J.Pol.Sci. 200-223 (1966); Weaver
& Hess, A Procedure for Nonpartisan Districting: Development of
Computer Techniques, 73 Yale L.J. 288, 296-300 (1963); the degree
of indentation of the boundaries of a nonconvex district, see Taylor, supra, 462
U.S. 725 fn2/17|>n. 17; the aggregate length of district
boundaries, see Common Cause, Toward a System of "Fair and
Effective Representation" 54-55 (1977); Adams, Statute: A Model
State Apportionment Process: The Continuing Quest for "Fair and
Effective Representation," 14 Harv.J.Legis. 825, 875-876, and n.
184 (1977); Edwards, supra, 462
U.S. 725 fn2/11|>n. 11, at 894; Walker, One Man-One Vote: In
Pursuit Of an Elusive Ideal, 3 Hastings Const.L.Q. 453, 475 (1976);
and the ratio of the maximum to the minimum diameters in a
district, R. Morrill, Political Redistricting and Geographic Theory
22 (1981). In each case, the smaller the measurement, the more
compact the district or districts. See also 1980 Iowa
Acts, ch. 1021, § 4b(3)c (setting forth alternative geometrical
tests for determining relative compactness of alternative
districting plans: the absolute value of the difference between the
length and width of the district, and the "ratio of the dispersion
of population about the population center of the district to the
dispersion of population about the geographic center of the
district").

															[ Footnote 2/20 ]

															If a State's political subdivisions have oddly shaped
boundaries, adhering to these boundaries may detract from
geographical compactness. See Colo.Rev.Stat. §§ 2-2-105,
2-2-203 (1980) (legislative explanations that variations from
compactness were caused by "the shape of county boundary lines,
census enumeration lines, natural boundaries, population density,
and the need to retain compactness of adjacent districts");
Adams, supra, 462
U.S. 725 fn2/19|>n. 19, at 875-876, n. 184.

															In addition, geographic compactness may differ from
sociopolitical compactness. Baker, supra, 462
U.S. 725 fn2/8|>n. 8, at 205. As one geographer has
noted:

															"In many regions, the population is uneven, perhaps strung out
along roads or railroads. Travel may be easier and cheaper in some
directions than in others, such that an elongated district astride
a major transport corridor might in fact be the most compact in the
sense of minimum travel time for a representative to travel around
the district. If so, then a modified criterion, the ratio of the
maximum to the minimum travel time, would be a preferred
measure."

															Morrill, supra, 462
U.S. 725 fn2/19|>n.19, at 22.

															[ Footnote 2/21 ]

															In Kirkpatrick v. Preisler, 394 U.
S. 526 , 394 U. S. 534 ,
n. 4 (1969), the Court correctly noted that adherence to
subdivision boundaries could not prevent gerrymandering. But there
it was concerned with the State's attempt to justify population
disparities by a policy of adhering to existing subdivision
boundaries. My discussion here is directed toward partisan
gerrymandering in a scheme with relatively equipopulous districts.
To the extent that dicta in Kirkpatrick reject the notion
that respecting subdivision boundaries will not inhibit
gerrymandering, I respectfully disagree. See 462
U.S. 725 fn2/26|>n. 26, infra. [ Footnote 2/22 ]

															Morrill, supra, 462
U.S. 725 fn2/19|>n.19, at 25.

															[ Footnote 2/23 ] See, e.g., Mahan v. Howell, 410 U.
S. 315 , 410 U. S. 319 ,
323 (1973); Backstrom, Robins, & Eller, supra, 462
U.S. 725 fn2/13|>n. 13, at 1145, n. 71; Morrill, supra, 462
U.S. 725 fn2/19|>n.19, at 25. The smaller the population of a
subdivision relative to the average district population, the more
dubious it is to divide it among two or more districts. It is also
particularly suspect to divide a particular political subdivision
among more than two districts which also contain territory in other
subdivisions.

															[ Footnote 2/24 ] See, e.g., Wright v. Rockefeller, 376 U. S.
52 , 376 U. S. 73 -74
(1964) (Goldberg, J., dissenting); Edwards, supra, 462
U.S. 725 fn2/11|>n. 11, at 881 (the 1961 New York
congressional redistricting plan was drawn up by majority party
members of a legislative committee and staff without participation
by any member of the opposition party; no public hearings were
held; the plan was released to the public the day before its
adoption; it was approved by a straight party-line vote in a single
afternoon at an extraordinary session of the legislature; and the
Governor signed the bill the same day).

															[ Footnote 2/25 ]

															The State may defend on the grounds that this element has not
been adequately shown. For example, if the plaintiffs' challenge is
based on a particular district or districts, the State may be able
to show that the group's voting strength is not diluted in the
State as a whole. Even if the group's voting strength has in fact
been reduced, the previous plan may have been gerrymandered in its
favor. See generally Backstrom, Robins, & Eller, supra, 462
U.S. 725 fn2/13|>n. 13, at 1134-1137 (discussing possible
standards of "fair representation").

															[ Footnote 2/26 ]

															In determining whether the State has carried its burden of
justification, I would give greater weight to the importance of the
State's interests and the consistency with which those interests
are served than to the size of the deviations. Thus, I do not share
the perspective implied in the Court's discussion of purported
justifications in Kirkpatrick v. Preisler, 394 U.S. at 394 U. S.
533 -536.

															[ Footnote 2/27 ]

															Given the large number of potentially affected political groups,
even a neutral, justifiable plan may well change the position of
some groups for the worse. In addition, some "vote dilution" will
inevitably result from residential patterns, see Backstrom, Robins, & Eller, supra, 462
U.S. 725 fn2/13|>n. 13, at 1127. Although the State may, of
course, adduce this factor in defense of its plan, the criteria for
a prima facie case should be demanding enough that they
are not satisfied in the case of every apportionment plan. See
Mobile v. Bolden, 446 U.S. at 446 U. S. 90 (STEVENS, J., concurring in judgment) ("the standard cannot condemn
every adverse impact on one or more political groups without
spawning more dilution litigation than the judiciary can manage"); id. at 446 U. S. 93 , n.
15 (quoting opinion of Justice Frankfurter in Baker v.
Carr, 369 U. S. 186 , 369 U.S. 267 (1962)).

															[ Footnote 2/28 ] See Gomillion v. Lightfoot, 364 U.
S. 339 , 364 U. S. 341 (1960) (noting that allegations would "abundantly establish that
Act 140 was not an ordinary geographic redistricting measure even
within familiar abuses of gerrymandering"). If the Tuskegee map in Gomillion had excluded virtually all Republicans, rather
than blacks, from the city limits, the Constitution would also have
been violated. Professor Tribe gives a comparably egregious
numerical hypothetical:

															"For example, if a jurisdiction consisting of 540 Republicans
and 460 Democrats were subdivided randomly into 10 districts,
Republicans would probably be elected in six or more districts.
However, if malevolent Democrats could draw district lines with
precision, they might be able to isolate 100 Republicans in one
district and win all the other district elections by a margin of
one or two votes, thus capturing 90% of the state legislature while
commanding only 46% of the popular vote."

															Tribe, supra, 462
U.S. 725 fn2/15|>n. 15, at 756, n. 2. See Hacker, supra, 462
U.S. 725 fn2/6|>n. 6, at 47-50.

															[ Footnote 2/29 ] Gomillion v. Lightfoot, supra, at 364 U. S. 339 .

															[ Footnote 2/30 ]

															Indeed, this very map was so described in a recent article
entitled New Jersey Map Imaginative Gerrymander, appearing in the
Congressional Quarterly:

															"New Jersey's new congressional map is a four-star gerrymander
that boasts some of the most bizarrely shaped districts to be found
in the nation."

															40 Congressional Quarterly 1190 (1982). A quick glance at
congressional districting maps for the other 49 States lends
credence to this conclusion. See 1983-1984 Official
Congressional Directory 989-1039 (1983).

															[ Footnote 2/31 ]

															The same commentator described the Thirteenth District in this
manner:

															In an effort to create a "dumping ground" for Republican votes
troubling to Democrats Hughes and Howard, the Legislature
established a 13th District that stretches all over the map, from
the Philadelphia suburbs in Camden County to the New York suburbs
in Monmouth County.

															40 Congressional Quarterly, at 1198. At oral argument, we
observed the likeness between the boundaries of yet another
district -- the Fourth -- and the shape of a running back. Tr. of
Oral Arg. 21.

															[ Footnote 2/32 ]

															"Congressional redistricting in New Jersey must also be viewed
from the more broad-based national perspective. The Republican
party is only 27 votes short of absolute control of Congress. With
a shift of population and consequently Congressional seats from the
traditionally Democratic urban industrial states to the more
Republican dominated sun-belt states, the redistricting process is
viewed by Republicans as an opportunity to close that 27-vote
margin, or perhaps even overcome it entirely."

															535 F. Supp. at 991. Copies of the letter were sent to all
Democratic legislators.

															[ Footnote 2/33 ]

															Although Circuit Judge Gibbons disagreed with the holding of the
District Court in this case, the concluding paragraphs of his
dissenting opinion unambiguously imply that he would have no
difficulty identifying this as a case in which the district lines
were drawn in order to disadvantage an identifiable political
group. He wrote:

															"The apportionment map produced by P. L.1982, c.1 leaves me, as
a citizen of New Jersey, disturbed. It creates several districts
which are anything but compact, and at least one district which is
contiguous only for yachtsmen. While municipal boundaries have been
maintained, there has been little effort to create districts having
a community of interests. In some districts, for example, different
television and radio stations, different newspapers, and different
transportation systems serve the northern and southern localities.
Moreover the harshly partisan tone of Speaker Christopher Jackman's
letter to Ernest C. Reock, Jr. is disedifying, to say the least. It
is plain, as well, that partisanship produced artificial bulges or
appendages of two districts so as to place the residences of
Congressmen Smith and Courter in districts where they would be
running against incumbents." Id. at 984.

															JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and
JUSTICE REHNQUIST join, dissenting.

															This case concerns the congressional reapportionment of New
Jersey. The districting plan enacted by the New Jersey Legislature
and signed into law by the Governor on January 19, 1982,
Pub.L.1982, ch. 1, reduced the number of congressional districts in
the State from 15 to 14 as required by the 1980 census figures. The
14 congressional districts created by the legislature have an
average deviation of 0.1384% and a maximum deviation between the
largest and smallest districts of 0.6984%. In other words, this
case concerns a Page 462 U. S. 766 maximum difference of 3,674 individuals in districts
encompassing more than a half million people. The New Jersey plan
was invalidated by a divided District Court because these
population variances were not " unavoidable despite a good faith
effort to achieve absolute equality.'" Daggett v.
Kimmelman, 535 F.
Supp. 978 , 982 (NJ 1982), quoting Kirkpatrick v.
Preisler, 394 U. S. 526 , 394 U. S. 531 (1969). Today, the Court affirms the District Court's decision,
thereby striking for the first time in the Court's experience a
legislative or congressional districting plan with an average and
maximum population variance of under 1%. I respectfully dissent from the Court's unreasonable insistence
on an unattainable perfection in the equalizing of congressional
districts. The Court's decision today is not compelled by Kirkpatrick v. Preisler, supra, and White v.
Weiser, 412 U. S. 783 (1973), see Part I, infra, and if the Court is
convinced that our cases demand the result reached today, the time
has arrived to reconsider these precedents. In any event, an
affirmance of the decision below is inconsistent with the
majority's own "modifications" of Kirkpatrick and White, which require, at a minimum, further consideration
of this case by the District Court. See 462 U.
S. infra. I "[T]he achieving of fair and effective representation for all
citizens is concededly the basic aim of legislative apportionment." Reynolds v. Sims, 377 U. S. 533 ,
565-566 (1964). One must suspend credulity to believe that the
Court's draconian response to a trifling 0.6984% maximum deviation
promotes "fair and effective representation" for the people of New
Jersey. The requirement that "as nearly as is practicable, one
man's vote in a congressional election is to be worth as much as
another's," Wesberry v. Sanders, 376 U. S.
1 , 376 U.S. 7 -8
(1964), must be understood in light of the malapportionment in the
States at the time Wesberry was decided. The plaintiffs in Wesberry were voters in a congressional district
(population 823,680) encompassing Atlanta that was three Page 462 U. S. 767 times larger than Georgia's smallest district (272,154) and more
than double the size of an average district. Because the State had
not reapportioned for 30 years, the Atlanta District possessing
one-fifth of Georgia's population had only one-tenth of the
Congressmen. Georgia was not atypical; congressional districts
throughout the country had not been redrawn for decades, and
deviations of over 50% were the rule. [ Footnote 3/1 ] These substantial differences in district
size diminished, in a real sense, the representativeness of
congressional elections. The Court's invalidation of these
profoundly unequal districts should not be read as a demand for
precise mathematical equality between the districts. Indeed, the
Court sensibly observed that "it may not be possible [for the
States] to draw congressional districts with mathematical
precision." Id. at 376 U. S. 18 . In Reynolds v. Sims, supra, at 377 U.S. 577 , decided the same Term,
the Court disavowed a requirement of mathematical exactness for
legislative districts in even more explicit terms:

															"We realize that it is a practical impossibility to arrange
legislative districts so that each one has an identical number of
residents, or citizens, or voters. Mathematical exactness or
precision is hardly a workable constitutional requirement."

															The States responded to Wesberry by eliminating gross
disparities between congressional districts. Nevertheless,
redistricting plans with far smaller variations were struck by the
Court five years later in Kirkpatrick v. Preisler, supra, and its companion, Wells v. Rockefeller, 394 U.
S. 542 (1969). The redistricting statutes before the
Court contained total percentage deviations of 5.97% and 13.1%,
respectively. Page 462 U. S. 768 But Wesberry's "as nearly as practicable" standard was
read to require "a good faith effort to achieve precise numerical
equality." 394 U.S. at 394 U. S.
530 -531. Over the objections of four Justices, see
id. at 394 U. S. 536 (Fortas, J., concurring); id. at 394 U. S. 549 (Harlan, J., joined by Stewart, J., dissenting); id. at 394 U. S. 553 (WHITE, J., dissenting), Kirkpatrick rejected the argument
that there is a fixed numerical or percentage population variance
small enough to be considered de minimis and to satisfy
the "as nearly as practicable" standard. Kirkpatrick's rule was applied by the Court in White v. Weiser, supra, to invalidate Texas' redistricting scheme which had a maximum
population variance of 4.13%.

															Just as Wesberry did not require Kirkpatrick, Kirkpatrick does not ineluctably lead to the Court's
decision today. Although the Court stated that it could see "no
nonarbitrary way" to pick a de minimis point, the maximum
deviation in Kirkpatrick, while small, was more than eight
times as large as that posed here. Moreover, the deviation in Kirkpatrick was not argued to fall within the officially
accepted range of statistical imprecision of the census.
Interestingly enough, the Missouri redistricting plan approved
after Kirkpatrick contained a deviation of 0.629% --
virtually the same deviation declared unconstitutional in this
case. Preisler v. Secretary of State of
Missouri, 341 F.
Supp. 1158 , 1162 (WD Mo.), summarily aff'd sub nom.
Danforth v. Preisler, 407 U.S. 901 (1972). [ Footnote 3/2 ] Accordingly, I do not view the
Court's decision today as foreordained by Kirkpatrick and Weiser. Apparently neither did JUSTICE BRENNAN who, in
staying the District Court's order, wrote:

															"The appeal would thus appear to present the important question
whether Kirkpatrick v. Preisler requires adoption of the
plan that achieves the most precise mathematical Page 462 U. S. 769 exactitude, or whether Kirkpatrick left some latitude
for the New Jersey Legislature to recognize the considerations
taken into account by it as a basis for choosing among several
plans, each with arguably 'statistically insignificant' variances
from the constitutional ideal of absolute precision." 455 U.S.
1303 , 455 U. S.
1305 (1982).

															There can be little question but that the variances in the New
Jersey plan are "statistically insignificant." Although the
Government strives to make the decennial census as accurate as
humanly possible, the Census Bureau has never intimated that the
results are a perfect count of the American population. The Bureau
itself estimates the inexactitude in the taking of the 1970 census
at 2.3%, [ Footnote 3/3 ] a figure
which is considerably larger than the 0.6984% maximum variance in
the New Jersey plan, and which dwarfs the 0.2470% difference
between the maximum deviations of the selected plan and the leading
alternative plan, that suggested by Professor Reock. Because the
amount of undercounting differs from district to district, there is
no point for a court of law to act under an unproved assumption
that such tiny differences between redistricting plans reflect
actual differences in population. As Dr. James Trussel, an expert
in these matters, and whose testimony the Court purports to accept, ante at 462 U. S.
735 -736, explained:

															"The distribution of the undercount in New Jersey is obviously
also unknown, and I see no reason to believe that Page 462 U. S. 770 it would be uniformly spread over all municipalities. For these
reasons, one cannot make congressional districts of truly equal
size if one relies on census counts. Nor is it meaningful to rank
one redistricting plan as superior to another when differences in
district size are small. In my professional opinion, districts
whose enumerated populations differ one from another by less than
one percent should be considered to be equal in size. To push for
numerical equality beyond this point is an exercise in
illusion."

															App. 103-104.4 [ Footnote
3/4 ] Page 462 U. S. 771 Even if the 0.6984% deviation here is not encompassed within the
scope of the statistical imprecision of the census, it is miniscule
when compared with other variations among the districts inherent in
translating census numbers into citizens' votes. First, the census
"is more of an event than a process." Gaffney v. Cummings, 412 U. S. 735 , 412 U. S. 746 (1973).

															"It measures population at only a single instant in time.
District populations are constantly changing, often at different
rates in either direction, up or down." Ibid. As the Court admits,

															"the well-known restlessness of the American people means that
population counts for particular localities are outdated long
before they are completed." Ante at 462 U. S. 732 .
[ Footnote 3/5 ] Second, far larger
differences among districts are introduced because a substantial
percentage of the total population is too Page 462 U. S. 772 young to register or is disqualified by alienage. [ Footnote 3/6 ] Third, census figures cannot
account for the proportion of all those otherwise eligible
individuals who fail to register. [ Footnote 3/7 ] The differences in the number of eligible
voters per district for these reasons overwhelm the minimal
variations attributable to the districting plan itself. [ Footnote 3/8 ]

															Accepting that the census, and the districting plans which are
based upon it, cannot be perfect represents no backsliding in our
commitment to assuring fair and equal representation in the
election of Congress. I agree with the views of Judge Gibbons, who
dissented in the District Court, that Kirkpatrick should
not be read as a

															"prohibition against toleration of de minimis population variances which have no statistically relevant effect on
relative representation." Daggett v. Kimmelman, 535 F. Supp. at 984. A plus-minus
deviation of 0.6984% surely falls within this category.

															If today's decision simply produced an unjustified standard with
little practical import, it would be bad enough. Unfortunately, I
fear that the Court's insistence that

															"there are no de minimis population variations which
could practicably be avoided but which nonetheless meet the
standard of Art. I, § 2, without justification," ante at 462 U. S. 734 ,
invites further litigation of virtually every congressional
redistricting plan in Page 462 U. S. 773 the Nation. At least 12 States which have completed
redistricting on the basis of the 1980 census have adopted plans
with a higher deviation than that presented here, and 4 others have
deviations quite similar to New Jersey's. [ Footnote 3/9 ] Of course, under the Court's rationale,
even Rhode Island's plan -- whose two districts have a deviation of
0.02% or about 95 people would be subject to constitutional
attack.

															In all such cases, state legislatures will be hard pressed to
justify their preference for the selected plan. A good faith effort
to achieve population equality is not enough if the population
variances are not "unavoidable." The court must consider whether
the population differences could have been further "reduced or
eliminated altogether." Ante at 462 U. S. 730 .
With the assistance of computers, there will generally be a plan
with an even more minimal deviation from the mathematical ideal.
Then, "the State must bear the burden of proving that each
significant variance between districts was necessary to achieve
some legitimate goal." Ante at 462 U. S. 731 .
As this case illustrates, literally any variance between districts
will be considered "significant." [ Footnote 3/10 ] The State's burden will not be easily
met: "the State bears the burden of justifying Page 462 U. S. 774 the differences with particularity." Ante at 462 U. S. 739 .
When the State fails to sustain its burden, the result will
generally be that a court must select an alternative plan. The
choice will often be disputed until the very eve of an election, see, e.g., Upham v. Seamon, 456 U. S.
37 , 456 U. S. 44 (1982) (per curiam), leaving candidates and voters in a state of
confusion.

															The only way a legislature or bipartisan commission can hope to
avoid litigation will be to dismiss all other legitimate concerns
and opt automatically for the districting plan with the smallest
deviation. [ Footnote 3/11 ] Yet no
one can seriously contend that such an inflexible insistence upon
mathematical exactness will serve to promote "fair and effective
representation." The more likely result of today's extension of Kirkpatrick is to move closer to fulfilling Justice
Fortas' prophecy that

															"a legislature might have to ignore the boundaries of common
sense, running the congressional district line down the middle of
the corridor of an apartment house or even dividing the residents
of a single-family house between two districts."

															394 U.S. at 394 U. S. 538 .
Such sterile and mechanistic application only brings the principle
of "one man, one vote" into disrepute. II One might expect the Court had strong reasons to force this
Sisyphean task upon the States. Yet the Court offers Page 462 U. S. 775 no positive virtues that will follow from its decision. No
pretense is made that this case follows in the path of Reynolds and Wesberry in insuring the "fair and
effective representation" of citizens. No effort is expended to
show that Art. I, § 2's requirement that Congressmen be elected "by
the people," Wesberry v. Sanders, 376 U. S.
1 (1964), demands the invalidation of population
deviations at this level. Any such absolute requirement, if it did
exist, would be irreconcilable with the Court's recognition of
certain justifications for population variances. See ante at 462 U. S. 740 .
Given no express constitutional basis for the Court's holding, and
no showing that the objectives of fair representation are
compromised by these minimal disparities, the normal course would
be to uphold the actions of the legislature in fulfilling its
constitutionally delegated responsibility to prescribe the manner
of holding elections for Senators and Representatives. Art. I, § 4.
Doing so would be in keeping with the Court's oft-expressed
recognition that apportionment is primarily a matter for
legislative judgment. Upham v. Seamon, supra, at 456 U. S. 41 ; White v. Weiser, 412 U.S. at 412 U. S. 795 ; Reynolds v. Sims, 377 U.S. at 377 U.S. 586 .

															"[A] state legislature is the institution that is by far the
best situated to identify and then reconcile traditional state
policies within the constitutionally mandated framework. . . ." Connor v. Finch, 431 U. S. 407 , 431 U. S.
414 -415 (1977).

															Instead, the Court is purely defensive in support of its
decision. The Court refuses to adopt any fixed numerical standard
below which the federal courts would not intervene, asserting that
"[t]he principle of population equality for congressional districts
has not proved unjust or socially or economically harmful in
experience." Ante at 462 U. S. 733 .
Of course, the principle of population equality is not
unjust; the unreasonable application of this principle is
the rub. Leaving aside that the principle has never been applied
with the vengeance witnessed today, there are many, including
myself, who take issue with the Court's self-congratulatory
assumption that Kirkpatrick has been a success. First,
a Page 462 U. S. 776 decade of experience with Kirkpatrick has shown that
"the rule of absolute equality is perfectly compatible with gerrymandering' of the worst sort." Wells v.
Rockefeller, 394 U.S. at 394 U. S. 551 (Harlan, J., dissenting). With ever more sophisticated computers,
legislators can draw countless plans for absolute population
equality, but each having its own political ramifications. Although
neither a rule of absolute equality nor one of substantial equality
can, alone, prevent deliberate partisan gerrymandering, the former
offers legislators a ready justification for disregarding
geographical and political boundaries. I remain convinced of what I
said in dissent in Kirkpatrick and Wells: "[Those] decisions . . . downgrade a restraint on a far greater
potential threat to equality of representation, the gerrymander.
Legislatures intent on minimizing the representation of selected
political or racial groups are invited to ignore political
boundaries and compact districts so long as they adhere to
population equality among districts using standards which we know
and they know are sometimes quite incorrect."

															394 U.S. at 394 U. S. 555 .
There is now evidence that Justice Harlan was correct to predict
that

															"[e]ven more than in the past, district lines are likely to be
drawn to maximize the political advantage of the party temporarily
dominant in public affairs." Id. at 552. [ Footnote
3/12 ] Page 462 U. S. 777 In addition to providing a patina of respectability for the
equipopulous gerrymander, Kirkpatrick's regime assured
extensive intrusion of the judiciary into legislative business. Page 462 U. S. 778 "[T]he [re]apportionment task, dealing as it must with
fundamental 'choices about the nature of representation,' Burns
v. Richardson, 384 U.S. at 384 U. S.
92 , is primarily a political and legislative
process." Gaffney v. Cummings, 412 U.S. at 412 U. S. 749 .
What we said in Gaffney with respect to legislative
reapportionment is apropos here:

															"[T]he goal of fair and effective representation [is not]
furthered by making the standards of reapportionment so difficult
to satisfy that the reapportionment task is recurringly removed
from legislative hands and performed by federal courts which
themselves must make the political decisions necessary to formulate
a plan or accept those made by reapportionment plaintiffs who may
have wholly different goals from those embodied in the official
plan." Ibid. More than a decade's experience with Kirkpatrick demonstrates that insistence on precise
numerical equality only invites those who lost in the political
arena to refight their battles in federal court. Consequently,
"[m]ost estimates are that between 25 percent and 35 percent of
current house district lines were drawn by the Courts." American
Bar Association, Congressional Redistricting 20 (1981). As I have
already noted, by extending Kirkpatrick to deviations
below even the 1% level, the redistricting plan in every State with
more than a single Representative is rendered vulnerable to
after-the-fact attack by anyone with a complaint and a
calculator.

															The Court ultimately seeks refuge in stare decisis. I
do not slight the respect that doctrine is due, see, e.g., 412 U. S. Page 462 U. S. 779 Weiser, 412 U. S. 783 (1973), but is it not at least ironic to find stare
decisis invoked to protect Kirkpatrick as the Court
itself proceeds to overrule other holdings in that very decision?
In Kirkpatrick, the Court squarely rejected the argument
that slight variances in district size were proper in order to
avoid fragmenting political subdivisions:

															"[W]e do not find legally acceptable the argument that variances
are justified if they necessarily result from a State's attempt to
avoid fragmenting political subdivisions by drawing congressional
district lines along existing county, municipal, or other political
subdivision boundaries."

															394 U.S. at 394 U. S.
533 -534. [ Footnote
3/13 ] Several pages later, the Court rejected in equally
uncategorical terms the idea that variances may be justified in
order to make districts more compact. Id. at 394 U. S.
535 -536. "A State's preference for pleasingly shaped
districts," the Court concluded, "can hardly justify population
variances." Id. at 394 U. S. 536 .
In Justice Fortas' words, the Kirkpatrick Court
"reject[s], seriatim, every type of justification that has
been -- possibly, every one that could be advanced." Id. at 394 U. S.
537 .

															Yet today the Court -- with no mention of the contrary holdings
in Kirkpatrick, opines:

															"Any number of consistently applied legislative policies might
justify some variance, including for instance, making districts
compact, respecting municipal boundaries, preserving the cores of
prior districts, and avoiding contests between incumbent
Representatives. Page 462 U. S. 780 Ante at 462 U. S. 740 . I, of course,
welcome the Court's overruling of these ill-considered holdings of Kirkpatrick. There should be no question but that state
legislatures may account for political and geographic boundaries in
order to preserve traditional subdivisions and achieve compact and
contiguous districts. JUSTICE STEVENS recognizes that courts
should"

															"give greater weight to the importance of the State's interests
and the consistency with which those interests are served than to
the size of the deviations." Ante at 462 U. S. 760 ,
n. 26. Thus, a majority of the Court appears ready to apply this
new standard "with a strong measure of deference to the legitimate
concerns of the State." Post at 462 U.S. 785 , n. 1 (POWELL, J.,
dissenting).

															In order that legislatures have room to accommodate these
legitimate noncensus factors, a range of de minimis population deviation, like that permitted in the legislative
reapportionment cases, is required. The Court's insistence that
every deviation, no matter how small, be justified with specificity
discourages legislatures from considering these "legitimate"
factors in making their plans, lest the justification be found
wanting, the plan invalidated, and a judicially drawn substitute
put in its place. Moreover, the requirement of precise mathematical
equality continues to invite those who would bury their political
opposition to employ equipopulous gerrymanders. A de
minimis range would not preclude such gerrymanders, but would
at least force the political cartographer to justify his work on
its own terms. III Our cases dealing with state legislative apportionment have
taken a more sensible approach. We have recognized that certain
small deviations do not, in themselves, ordinarily constitute a prima facie constitutional violation. Gaffney v.
Cummings, 412 U. S. 735 (1973); White v. Regester, 412 U.
S. 755 (1973). Moreover, we have upheld plans with
reasonable variances that were necessary to account for
political Page 462 U. S. 781 subdivisions, Mahan v. Howell, 410 U.
S. 315 (1973), to preserve the voting strength of
minority groups, and to insure political fairness, Gaffney v.
Cummings, supra. What we held in Gaffney v. Cummings for legislative apportionment is fully applicable to congressional
redistricting:

															"'[T]he achieving of fair and effective representation for all
citizens is' . . . a vital and worthy goal, but surely its
attainment does not, in any common sense way, depend upon
eliminating the insignificant population variations involved in
this case. Fair and effective representation may be destroyed by
gross population variations among districts, but it is apparent
that such representation does not depend solely on mathematical
equality among district populations. . . . An unrealistic
overemphasis on raw population figures, a mere nose count in the
districts, may submerge these other considerations and itself
furnish a ready tool for ignoring factors that in day-to-day
operation are important to an acceptable representation and
apportionment arrangement."

															412 U.S. at 412 U. S.
748 -749.

															Bringing together our state legislative and congressional cases
does not imply overlooking relevant differences between the two.
States normally draw a larger number of legislative districts,
which accordingly require a greater margin to account for
geographical and political boundaries. "[C]ongressional districts
are not so intertwined and freighted with strictly local interests
as are state legislative districts." White v. Weiser, 412
U.S. at 412 U. S. 793 .
Furthermore, because congressional districts are generally much
larger than state legislative districts, each percentage point of
variation represents a commensurately greater number of people. But
these are differences of degree. They suggest that the level at
which courts should entertain challenges to districting plans,
absent unusual circumstances, should be lower in the Page 462 U. S. 782 congressional cases, but not altogether nonexistent. [ Footnote 3/14 ] Although I am not wedded
to a precise figure, in light of the current range of population
deviations, a 5% cutoff appears reasonable. I would not entertain
judicial challenges, absent extraordinary circumstances, where the
maximum deviation is less than 5%. Somewhat greater deviations, if
rationally related to an important state interest, may also be
permissible. [ Footnote 3/15 ]
Certainly, the maintaining of compact, contiguous districts, the
respecting of political subdivisions, and efforts to assure
political fairness, e.g., Gaffney v. Cummings, supra, constitute such interests.

															I would not hold up New Jersey's plan as a model reflection of
such interests. Nevertheless, the deviation involved here is de
minimis, and, regardless of what other infirmities the Page 462 U. S. 783 plan may have, constitutional or otherwise, there is no
violation of Art. I, § 2 -- the sole issue before us. It would, of
course, be a different matter if appellees could demonstrate that
New Jersey's plan invidiously discriminated against a racial or
political group. See White v. Regester, supra; Gaffney v.
Cummings, supra, at 412 U. S.
751 -754; Whitcomb v. Chavis, 403 U.
S. 124 (1971); Gomillion v. Lightfoot, 364 U. S. 339 (1960). IV Even if the Court's view of the law were correct, its
disposition of the case is not. At a minimum, the Court should
vacate the decision of the District Court and remand for further
consideration. As previously indicated, the Court finally
recognizes today that considerations such as respecting political
subdivisions and avoiding contests between incumbent
Representatives might justify small population variances. Indeed,
the Court indicates that "any number of consistently applied
legislative policies" might do so. Ante at 462 U. S. 740 .
There is evidence in the record to suggest that the New Jersey
Legislature was concerned with such considerations. [ Footnote 3/16 ] The Court itself
notes:

															"many of the problems that the New Jersey Legislature
encountered in drawing districts with equal population stemmed from
the decision . . . not to divide any municipalities between two
congressional districts." Ante at 462 U. S. 733 ,
n. 5. But even if there were no evidence in the record, the State
should be given a chance to defend its plan on this basis. Surely,
the Court cannot rely on the fact that appellants have advanced
only one justification for the plan's population deviations --
preserving the voting strength of racial minority groups. Relying
on Kirkpatrick and White v. Weiser, supra, appellants no doubt concluded that other justifications were
foreclosed, and that the introduction of such proof would be
futile. Page 462 U. S. 784 [ Footnote 3/1 ]

															By 1962, 35 out of 42 States had variances among their districts
of over 100,000. Wesberry v. Sanders, 376 U. S.
1 , 376 U. S. 20 -21
(1964) (Harlan, J. dissenting). The Court has recognized the
significance of the fact that "enormous variations" in district
size were at issue in the early legislative apportionment cases. Gaffney v. Cummings, 412 U. S. 735 , 412 U. S. 744 ,
and n. 9 (1973)

															[ Footnote 3/2 ]

															District Courts have upheld or selected plans with similar
deviations. See, e.g., Doulin v. White, 535 F.
Supp. 450 , 451 (ED Ark.1982) (court ordered implementation of
plan with 0.78% deviation despite alternative plan with deviation
of 0.13%).

															[ Footnote 3/3 ]

															U.S. Bureau of the Census, Users' Guide, 1980 Census of
Population and Housing 100 (Mar.1982). The National Academy of
Sciences has estimated that the national undercount in the 1970
census was 2.5%. Panel on Decennial Census Plans, Counting the
People in 1980: An Appraisal of Census Plans 2 (1978). One estimate
is that the undercount error in the 1980 census is likely to be
more than 2 million people nationwide, App. 103 (Dr. Trussel), and
may be as high as 5 million. J. Passel, J. Siegel, & J.
Robinson, Coverage of the National Population in the 1980 Census,
by Age, Sex, and Race: Preliminary Estimates by Demographic
Analysis (Nov.1981) (Record Doc. No. 31).

															[ Footnote 3/4 ]

															The Court, after professing to "[a]ssum[e] for purposes of
argument that each of [Dr. Trussel's] statements is correct," ante at 462 U. S.
735 -736, proceeds in the following paragraph to
denigrate his calculation as guesswork because the margin of
statistical imprecision, i.e., the undercounting of
persons, cannot be known precisely. The failure to quantify
uncertainty exactly does not excuse pretending that it does not
exist. When the question is whether the range of error is 1% or 2%
or 2.5% and the deviation at hand is no larger than 0.6984%, the
question is more academic than practical. Moreover, if a fixed
benchmark were required, the margin of error officially recognized
by the Census Bureau -- last estimated at 2.3% -- could easily be
selected.

															The Court also makes much of the fact that the precise amount of
variation in undercounting among districts cannot be known with
certainty. The relevant point, however, is that these
district-to-district variances make it impossible to determine with
statistical confidence whether opting for the plan with the
smallest maximum deviation is ameliorating or aggravating actual
equality of population among the districts. In addition, the count
of individuals per district depends upon the Census Bureau's
selection of geographic boundaries by which to group data.

															"Data from the 1980 census have been compiled for congressional
districts by equating component census geographic areas to each
district and summing all data for areas coded to the district.
Where the smallest census geographic area was split by a
congressional district boundary, the census maps for the area were
reviewed to determine in which district the majority of the
population fell, and the entire area was coded to that
district."

															U.S. Bureau of Census, Congressional Districts of the 98th
Congress A-1 (1983) (preliminary draft). Thus, completely aside
from undercounting effects, it is obvious that even absolute
numerical equality between the census figures for congressional
districts does not reflect districts of equal size.

															Finally, the Court dismisses the entire concept of statistical
error with the sophistic comment that,

															"[e]ven if one cannot say with certainty that one district is
larger than another merely because it has a higher census count,
one can say with certainty that the district with a larger
census count is more likely to be larger than the other district
than it is to be smaller or the same size." Ante at 462 U. S. 738 .
The degree of that certainty, however, is speculative. The relevant
consideration is not whether District Four is larger than District
Six, but how much larger, and, how much less larger under the
selected plan vis-a-vis an alternative plan. Moreover,
variable undercounting and differences between census units and
district lines may result in other districts having higher maximum
deviations.

															The general point is that, when the numbers become so small, it
makes no sense to concentrate on ever finer gradations when one
cannot even be certain whether doing so increases or decreases
actual population variances.

															[ Footnote 3/5 ]

															In New Jersey, for example, population growth during the 1970's
enlarged some districts by up to 26%, while other congressional
districts lost up to 8.7% of their 1970 population. U.S. Bureau of
Census, Congressional Districts of the 98th Congress 32-3 (1983). See also Gaffney v. Cummings, 412 U.S. at 412 U. S. 746 ,
n. 11.

															JUSTICE STEVENS makes the same point.

															"Given the birth rate, the mortality rate, the transient
character of modern society, and the acknowledged errors in the
census, we all know that such differences may vanish between the
date of the census and the date of the next election. Absolute
population equality is impossible to achieve." Ante at 462 U. S. 752 (concurring opinion).

															[ Footnote 3/6 ]

															In New Jersey, for example, the population 18 years old and over
differs significantly among the congressional districts. In 1978,
District 10 had but 282,000 such individuals, while District 2 had
429,000. U.S. Bureau of Census, State and Metropolitan Area Data
Book 549 (1979). See also Gaffney v. Cummings, supra, at 412 U. S. 747 ,
n. 13.

															[ Footnote 3/7 ]

															Throughout the Nation, approximately 71% of the voting age
population registers to vote. U.S. Bureau of Census, State and
Metropolitan Area Data Book 567 (1982).

															[ Footnote 3/8 ]

															As a result of all these factors, as well as the failure of many
registered voters to cast ballots, the weight of a citizen's vote
in one district is inevitably different from that in others. For
example, the total number of votes cast in the 1982 New Jersey
congressional races differed significantly between districts,
ranging from 92,852 in District 10 to 186,879 in District 9. 41
Congressional Quarterly 391 (1983).

															[ Footnote 3/9 ]

															States with larger deviations are Indiana (2.96%); Alabama
(2.45%); Tennessee (2.40%); Georgia (2.00%); Virginia (1.81%);
North Carolina (1.76%); New York (1.64%); Kentucky (1.39%);
Washington (1.30%); Massachusetts (1.09%); New Mexico (0.87%);
Arkansas (0.78%). States with similar maximum deviations are Ohio
(0.68%); Nevada (0.60%); Oklahoma (0.58%); West Virginia (0.49%).
Council of State Governments & National Conference of State
Legislatures, 1 Reapportionment Information Update 6-7 (Nov. 12,
1982).

															[ Footnote 3/10 ]

															The Court's language suggests that not only must the maximum
variance in a plan be supported, but that also every deviation from
absolute equality must be so justified. Ante at 462 U. S. 740 .
Consider the staggering nature of the burden imposed: each
population difference between any two districts in a State must be
justified, apparently even if none of the plans before the
legislature or commission would have reduced the difference. See 462
U.S. 725 fn3/11|>n. 11, infra. [ Footnote 3/11 ]

															Even by choosing the plan with the smallest deviation, a
legislature or commission cannot be assured of avoiding
constitutional challenge. In this case the Court does not find that
the 0.6984% deviation was avoidable because there were other plans
before the New Jersey Legislature with smaller maximum variations.
Nor does the Court counter appellants' position, supported by
evidence in the record, that these alternative plans had other
disqualifying faults. Instead, the Court tries its own hand at
redistricting New Jersey, and concludes that, by moving around 13
New Jersey subdivisions, the maximum deviation could be reduced to
0.449%. Ante at 462 U. S.
739 -740, n. 10. The message for state legislatures is
clear: it is not enough that the chosen plan be superior to any
actual plans introduced as alternatives, the plan must also be
better than any conceivable alternative a federal judge can
devise.

															[ Footnote 3/12 ]

															Unlike population deviations, political gerrymandering does not
lend itself to arithmetic proof. Nevertheless, after reviewing the
recent redistricting throughout the country, one commentator
offered the following assessment:

															"The nobly aimed 'one-man, one-vote' principle is coming into
increasing use as a weapon for state legislators bent on partisan
gerrymandering. From California to New Jersey and points in
between, Republicans and Democrats alike are justifying highly
partisan remaps by demonstrating respect for the 1964 Supreme Court
mandate that population of congressional districts within states
must be made as equal as possible. Meanwhile, other interests at
stake in redistricting -- such as the preservation of community
boundaries and the grouping of constituencies with similar concerns
-- are being brushed aside. . . . The emphasis on one-man, one-vote
not only permits gerrymandering, it encourages it. In many states,
it is impossible to approach population equality without crossing
city, county and township lines. Once the legislature recognizes
that move must be made, it is only a short step further to the
drawing of a line that dances jaggedly through every region of the
state. Local interests, informed that it is no longer legally
permissible to draw a whole-county congressional map in most
states, are far less likely to object than they were in the past. .
. . The court's decision to reject a tiny deviation in favor of an
even smaller one may further encourage the hairsplitting numbers
game that has given rise to partisan gerrymanders all over the
country."

															Congressional Quarterly, Inc., State Politics and Redistricting
1-2 (1982). See also Engstrom, The Supreme Court and
Equipopulous Gerrymandering: A Remaining Obstacle in the Quest for
Fair and Effective Representation, 1976 Ariz.State L.J. 277, 278
("Not only has the Court failed to develop effective checks on the
practice of gerrymandering, but, in pursuing the goal of population
equality to a point of satiety, it has actually facilitated that
practice"); Baker, One Man, One Vote, and "Political Fairness," 23
Emory L.J. 701, 710 (1974) (hereafter Baker) ("Priority was
typically given to miniscule population variations at the expense
of any recognition of political subdivisions. Charges of partisan
gerrymandering were more widespread than in past decades for two
major reasons: the extent of redistricting activity among all fifty
states, and the lack of emphasis on former norms of compactness and
adherence to local boundary lines").

															In the eyes of some commentators, the experience of New York in
the aftermath of Wells v. Rockefeller is instructive.

															"Subsequent congressional districting in New York became a
possible prototype for the 'equal-population gerrymander.' Whereas
the former district pattern nullified by the Supreme Court had been
the result of bipartisan compromise with each major party
controlling one house, by 1970, the Republicans held both
legislative houses, as well as the governorship. The assistant
counsel to the senate majority leader (and chief coordinator of the
redistricting) candidly remarked: 'The Supreme Court is just making
gerrymandering easier than it used to be.' Not only was New York
City subjected to major cartographic surgery, but upstate cities
were also fragmented, with portions being joined to suburban and
rural areas in an attempt to dilute concentrations of
Democrats."

															Baker, at 712-713. Yet, under the new plan, no district deviated
by more than than 490 persons from the average, and the
configuration of district boundaries revealed generally compact and
contiguous contours. Baker, Gerrymandering: Privileged Sanctuary or
Next Judicial Target?, in Reapportionment in the 1970s, p. 138 (N.
Polsby ed.1971). Ironically, David Wells, the plaintiff who
successfully challenged the former district pattern, returned to
federal court in February, 1970, to ask if the old plan could be
restored. See Dixon, "One Man, One Vote -- What Happens
Next?," 60 Nat.Civic Rev. 259, 265 (1971).

															[ Footnote 3/13 ] See also Mahan v. Howell, 410 U.
S. 315 , 410 U. S. 341 (1973)(BRENNAN,J., concurring in part and dissenting in part)
("What our decisions have made clear is that certain state
interests that are pertinent to legislative reapportionment can
have no possible relevance to congressional districting. Thus, the
need to preserve the integrity of political subdivisions as
political subdivisions may, in some instances, justify small
variations in the population of districts from which state
legislators are elected. But that interest can hardly be asserted
in justification of malapportioned congressional districts. Kirkpatrick v. Preisler, supra ").

															[ Footnote 3/14 ]

															As the law has developed, our congressional cases are rooted in
Art 1, § 2, of the Constitution while our legislative cases rely
upon the Equal Protection Clause of the Fourteenth Amendment. I am
not aware, however, of anything in the respective provisions which
justifies, let alone requires, the difference in treatment that has
emerged between the two lines of decisions. Our early cases were
frequently cross-cited, and the formulation "as nearly of equal
population as is practicable" appears in Reynolds v. Sims, 377 U.S. at 377 U.S. 589 ,
as well as in Wesberry v. Sanders, 376 U.S. at 376 U.S. 7 -8. The differing
paths the cases have taken since Kirkpatrick must result
from that decision's rejection of the legitimacy of considering
nonpopulation factors in congressional redistricting. See Mahan
v. Howell, 410 U.S. at 410 U. S. 341 (BRENNAN, J., concurring in part and dissenting in part). With
today's long-awaited overruling of that holding in Kirkpatrick, any remaining justification disappears for
such a marked difference in our approach to congressional and
legislative reapportionment.

															[ Footnote 3/15 ]

															Experience in the legislative apportionment field following our
allowance of a range of de minimis variance is convincing
proof that we need not fear that the goal of equal population in
the districts will receive less than its due. JUSTICE BRENNAN's
prediction that tolerating de minimis population variances
would "jeopardize the very substantial gains" made in equalizing
legislative districts, White v. Regester, 412 U.
S. 755 , 412 U.S.
781 (1973) (concurring in part and dissenting in part), has
not been proved, and, indeed, the prediction is refuted by an
analysis of the legislative redistricting undertaken after the 1980
census. See Council of State Governments & National
Conference of State Legislatures, 1 Reapportionment Information
Update 6 (Nov. 12, 1982).

															[ Footnote 3/16 ] See, e.g., Feldman Deposition, at 91-94 (Record Doc.
No. 39) (concern with fairness to incumbents); Jackman Deposition,
at 91-92 (Record Doc. No. 40) (concern with preserving political
subdivisions).

															JUSTICE POWELL, dissenting.

															I join JUSTICE WHITE's excellent dissenting opinion, and
reaffirm my previously expressed doubt that

															"the Constitution -- a vital and living charter after nearly two
centuries because of the wise flexibility of its key provisions --
could be read to require a rule of mathematical exactitude in
legislative reapportionment." White v. Weiser, 412 U. S. 783 , 412 U. S. 798 (1973) (concurring opinion). I write separately to express some
additional thoughts on gerrymandering and its relation to
apportionment factors that presumably were not thought relevant
under Kirkpatrick v. Preisler, 394 U.
S. 526 (1969). I The Court, following Kirkpatrick, today invalidates New
Jersey's redistricting plan solely because various alternative
plans, principally the one proposed by Professor Reock, had what
the Court views as "appreciably smaller population deviations
between the largest and smallest districts." Ante at 462 U. S. 728 .
Under all of the plans, the maximum population variances were under
1%. I view these differences as neither "appreciable" nor
constitutionally significant. As JUSTICE WHITE demonstrates, ante at 462 U. S.
769 -772 (dissenting opinion), the Court's insistence on
precise mathematical equality is self-deluding, given the inherent
inaccuracies of the census data and the other difficulties in
measuring the voting population of a district that will exist for a
period of 10 years. See Kirkpatrick, supra, at 462 U. S. 538 (Fortas, J., concurring) (pursuit of precise equality "is a search
for a will-o'-the-wisp"). Moreover, it has become clear that Kirkpatrick leaves no room for proper legislative
consideration of other factors, such as preservation of political
and geographic boundaries, that plainly are relevant to rational
reapportionment decisions, [ Footnote
4/1 ] See Gaffney Page 462 U. S. 785 v. Cummings, 412 U. S. 735 , 412 U. S. 749 (1973); Mahan v. Howell, 410 U. S. 315 , 410 U. S. 329 (1973). As JUSTICE WHITE correctly observes, ante at 462 U. S.
775 -776, a decade of experience has confirmed the fears
of the Kirkpatrick dissenters that an uncompromising
emphasis on numerical equality would serve to encourage and
legitimate even the most outrageously partisan gerrymandering, see 394 U.S. at 394 U. S.
551 -552 (Harlan, J., dissenting); id. at 394 U. S. 555 (WHITE, J., dissenting). The plain fact is that, in the computer
age, this type of political and discriminatory gerrymandering can
be accomplished entirely consistently with districts of equal
population. [ Footnote 4/2 ] Page 462 U. S. 786 I therefore continue to believe that the Constitution permits
variations from

															"theoretical 'exactitude' in recognition of the impracticality
of applying the Kirkpatrick rule as well as in deference
to legitimate state interests." White v. Weiser, supra, at 412 U. S. 798 (POWELL,J., concurring). Certainly when a State has adopted a
districting plan with an average population deviation of 0.1384%,
and a maximum deviation of 0.6984%, it has complied with the
Constitution's mandate that population be apportioned equally among
districts. II The extraordinary map of the New Jersey congressional districts
prompts me to comment on the separate question of gerrymandering --
"the deliberate and arbitrary distortion of district boundaries and
populations for partisan or personal political purposes," Kirkpatrick, supra, at 394 U. S. 538 (Fortas, J., concurring). I am in full agreement with JUSTICE
WHITE's observation more than a decade ago that gerrymandering
presents "a far greater potential threat to equality of
representation" than a State's failure to achieve Page 462 U. S. 787 "precise adherence to admittedly inexact census figures." Wells v. Rockefeller, 394 U. S. 542 , 394 U. S. 555 (1969) (dissenting opinion). I also believe that the injuries that
result from gerrymandering may rise to constitutional dimensions.
As JUSTICE STEVENS observes, if a State's electoral rules

															"serve no purpose other than to favor one segment -- whether
racial, ethnic, religious, economic, or political -- that may
occupy a position of strength at a particular point in time, or to
disadvantage a politically weak segment of the community, they
violate the constitutional guarantee of equal protection." Ante at 462 U. S. 748 (concurring opinion). Moreover, most gerrymandering produces
districts "without any regard for political subdivision or natural
or historical boundary lines," Reynolds v. Sims, 377 U. S. 533 , 377 U.S. 578 -579 (1964), a
result that is profoundly destructive of the apportionment goal of
"fair and effective representation," id. at 377 U.S. 565 . A legislator cannot
represent his constituents properly -- nor can voters from a
fragmented district exercise the ballot intelligently -- when a
voting district is nothing more than an artificial unit divorced
from, and indeed often in conflict with, the various communities
established in the State. [ Footnote
4/3 ] The map attached to the Court's opinion [omitted]
illustrates this far better than words can describe.

															I therefore am prepared to entertain constitutional challenges
to partisan gerrymandering that reaches the level of discrimination
described by JUSTICE STEVENS. See ante at 462 U. S. 748 (concurring opinion). I do not suggest that the shape of a Page 462 U. S. 788 districting map itself invariably is dispositive. Some
irregularity in shape is inevitable, with the degree of
irregularity depending primarily on the geographic and political
boundaries within the State, as well as the distribution of its
population. Moreover, political considerations, even partisan ones,
are inherent in a democratic system. A court therefore, should not
"attemp[t] the impossible task of extirpating politics from what
are the essentially political processes of the sovereign States." Gaffney, 412 U.S. at 412 U. S. 754 .
Finally, I do not suggest that a legislative reapportionment plan
is invalid whenever an alternative plan might be viewed as less
partisan or more in accord with various apportionment criteria. The
state legislature necessarily must have discretion to accommodate
competing considerations.

															I do believe, however, that the constitutional mandate of "fair
and effective representation," Reynolds, supra, at 377 U.S. 565 , proscribes
apportionment plans that have the purpose and effect of
substantially disenfranchising identifiable groups of voters.
Generally, the presumptive existence of such unconstitutional
discrimination will be indicated by a districting plan the
boundaries of which appear on their face to bear little or no
relationship to any legitimate state purpose. As JUSTICE STEVENS
states, "dramatically irregular shapes may have sufficient
probative force to call for an explanation," ante at 462 U. S. 755 (concurring opinion); "drastic departures from compactness are a
signal that something may be amiss," ante at 462 U. S. 758 ;
and "[e]xtensive deviation from established political boundaries is
another possible basis for a prima facie showing of
gerrymandering," ibid. In such circumstances, a State
should be required to provide a legitimate and nondiscriminatory
explanation for the districting lines it has drawn. See
Reynolds, supra, at 377 U.S.
568 (the apportionment "presented little more than crazy
quilts, completely lacking in rationality, and could be found
invalid on that basis alone").

															In this case, one cannot rationally believe that the New Jersey
Legislature considered factors other than the most Page 462 U. S. 789 partisan political goals and population equality. It hardly
could be suggested, for example, that the contorted Districts 3, 5,
and 7 reflect any attempt to follow natural, historical, or local
political boundaries. [ Footnote
4/4 ] Nor do these district lines reflect any consideration of
the likely effect on the quality of representation when the
boundaries are so artificial that they are likely to confound the
Congressmen themselves. As Judge Gibbons stated eloquently in his
dissent below:

															"The apportionment map produced by P. L.1982, c. 1 leaves me, as
a citizen of New Jersey, disturbed. It creates several districts
which are anything but compact, and at least one district which is
contiguous only for yachtsmen. While municipal boundaries have been
maintained, there has been little effort to create districts having
a community of interests. In some districts, for example, different
television and radio stations, different newspapers, and different
transportation systems serve the northern and southern localities.
Moreover, the harshly partisan tone of Speaker Christopher
Jackman's letter to Ernest C. Reock, Jr. is disedifying, to say the
least. It is plain, as well, that partisanship produced artificial
bulges or appendages of two districts so as to place the residences
of Congressmen Smith and Courter in districts where they would be
running against incumbents." Daggett v. Kimmelman, 535 F.
Supp. 978 , 984 (NJ 1982).

															This summary statement by Judge Gibbons, a resident of New
Jersey, is powerful and persuasive support for a conclusion Page 462 U. S. 790 that the New Jersey Legislature's redistricting plan is an
unconstitutional gerrymander. Cf. ante at 462 U. S. 764 ,
n. 33 (STEVENS, J., concurring). Because this precise issue was not
addressed by the District Court, however, it need not be reached
here. As to the issue of population equality, I dissent for the
reasons set forth above and in JUSTICE WHITE's dissenting
opinion.

															[ Footnote 4/1 ]

															The Court holds that

															"[a]ny number of consistently applied legislative policies might
justify some variance, including, for instance, making districts
compact, respecting municipal boundaries, preserving the cores of
prior districts, and avoiding contests between incumbent
Representatives." Ante at 462 U. S. 740 .
Although it is remarkable that the Court thus silently discards
important features of Kirkpatrick while simultaneously
invoking stare decisis to defend the remainder of that
decision, see ante at 462 U. S.
778 -780 (WHITE,J., dissenting), I welcome this change in
the law. It is to be hoped that this new standard will be applied
with a strong measure of deference to the legitimate concerns of
the State. See ante at 462 U. S. 760 ,
n. 26 (STEVENS,J., concurring) (recognizing that courts should
"give greater weight to the importance of the State's interests and
the consistency with which those interests are served than to the
size of the deviations").

															[ Footnote 4/2 ]

															An illustration is the recent congressional redistricting in
Illinois. After the Illinois Legislature had failed to enact a
reapportionment plan, a three-judge District Court chose among four
plans varying from 0.02851% to O. 14797% in maximum deviation.
Following Kirkpatrick, the majority of the court chose the
plan with the smallest deviation, one that was a "Democratic plan"
designed to maximize Democratic voting strength at the expense of
Republicans. See In re Illinois Congressional Districts
Reapportionment Cases, No. 81-C-3915 (ND Ill.1981), summarily aff'd sub nom. Ryan v. Otto, 454 U.S. 1130
(1982). A commentator noted:

															"The Democratic victory was due in part to a sophisticated
computer program that made possible the creation of districts
having almost exactly equal population. The most populous district
has only 171 more people than the least populous one. That accuracy
seemed to impress the court, which expressed no concern that the
new district lines divided cities and carved up counties all over
the state."

															Illinois Map is Unpleasant Surprise for the GOP, 40
Congressional Quarterly 573 (1982). See also Carstens v.
Lamm, 543 F. Supp.
68 , 73-74, and 84, n. 39 (Colo.1982) (three-judge District
Court reviewed five major redistricting plans, including the
Republican legislature's plan with a difference between largest and
smallest districts of seven persons, i.e., a maximum
deviation of 0.0015%, and the Democratic Governor's plan with a
15-person difference, i.e., a maximum deviation of
0.0031%); O'Sullivan v. Brier, 540 F.
Supp. 1200 , 1202 (Kan.1982) (three-judge District Court asked
to choose between a Democratic plan with a 0.11% maximum deviation
and a Republican plan with a 0.09% maximum deviation).

															These cases also illustrate an additional unfortunate side
effect of Kirkpatrick: the increasing tendency of state
legislators and Governors -- who have learned that any
redistricting plan is "vulnerable to after-the-fact attack by
anyone with a complaint and a calculator," ante at 462 U. S. 778 (WHITE, J., dissenting) -- to spurn compromise in favor of simply
drawing up the most partisan plan that appears consistent with the
population equality criterion. No longer do federal district courts
merely review the constitutionality of a State's redistricting
plan. Rather, in many cases, they are placed in the position of
choosing a redistricting plan in the first instance.

															[ Footnote 4/3 ]

															In Carstens v. Lamm, supra, the three-judge District
Court noted that preserving an entire city as one voting district
facilitated "voter identity":

															"Most voters know what city and county they live in, but fewer
are likely to know what congressional district they live in if the
districts split counties and cities. If a voter knows his
congressional district, he is more likely to know who his
representative is. This presumably would lead to more informed
voting."

															543 F. Supp. at 98, n. 78. It also is likely to lead to a
Representative who knows the needs of his district and is more
responsive to them.

															[ Footnote 4/4 ]

															It may be noted, for example, that the plan adopted by New
Jersey (the Feldman Plan) divided the State's 21 counties into 55
fragments. The plan proposed by Professor Reock, introduced by
Assemblyman Hardwick, created 45 county fragments, and the existing
congressional districts divided the counties into 42 fragments. See App. 123 (Appendix A to Affidavit of Samuel A. Alito,
Executive Director of the Office of Legislative Services of the New
Jersey Legislature).

Summary:
Here is a summary of the case:

Karcher v. Daggett (1983) concerned the validity of New Jersey's reapportionment plan for congressional districts following the 1980 census. The plan had an average population per district of 526,059, with a maximum deviation of 0.6984% between the largest and smallest districts. The District Court held that the plan violated Article I, Section 2 of the Constitution, as the population differences were not due to a good faith effort to achieve population equality.

The Supreme Court affirmed, stating that congressional districts must be apportioned to achieve population equality as nearly as practicable. Plaintiffs challenging a reapportionment plan must prove that population differences could have been reduced, and if they succeed, the state must justify each significant variance. The Court rejected the argument that deviations smaller than the census undercount should be considered legally acceptable. It emphasized that only the principle of population equality reflects the aspirations of Article I, Section 2, and there are no de minimis population variations that can be justified without a legitimate reason.

The Court's decision underscored the importance of achieving population equality in congressional districting and set a high standard for states to meet in justifying deviations from equal population principles.