Colegrove v. Green/Dissent Black
Mr. Justice BLACK, dissenting.

The complaint alleges the following facts essential to the position I take: Petitioners, citizens and voters of Illinois, live in Congressional election districts, the respective populations of which range from 612,000 to 914,000. Nineteen other Congressional election districts have populations that range from 112,116 to 385,207. In seven of these districts the population is below 200,000. The Illinois Legislature established these districts in 1901 on the basis of the Census of 1900. The Federal Census of 1910, of 1920, of 1930, and of 1940, each showed a growth of population in Illinois and a substantial shift in the distribution of population among the districts established in 1901. But up to date, attempts to have the State Legislature reapportion Congressional election districts so as more nearly to equalize their population have been unsuccessful. A contributing cause of this situation, according to petitioners, is the fact that the State Legislature is chosen on the basis of State election districts inequitably apportioned in a way similar to that of the 1901 Congressional election districts. The implication is that the issues of State and Congressional apportionment are thus so interdependent that it is to the interest of State Legislators to perpetuate the inequitable apportionment of both State and Congressional election districts. Prior to this proceeding a series of suits had been brought in the State courts challenging the State's local and federal apportionment system. In all these cases the Supreme Court of the State had denied effective relief. 

In the present suit the complaint attacked the 1901 State Apportionment Act on the ground that it among other things violates Article One and the Fourteenth Amendment of the Constitution. Petitioners claim that since they live in the heavily populated districts their vote is much less effective than the vote of those living in a district which under the 1901 Act is also allowed to choose one Congressman, though its population is sometimes only one-ninth that of the heavily populated districts. Petitioners contend that this reduction of the effectiveness of their vote is the result of a wilful legislative discrimination against them and thus amounts to a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. They further assert that this reduction of the effectiveness of their vote also violates the privileges and immunities clause of the Fourteenth Amendment in abridging their privilege as citizens of the United States to vote for Congressmen, a privilege guaranteed by Article One of the Constitution. They further contend that the State Apportionment Act directly violates Article One which guaranteest hat each citizen eligible to vote has a right to vote for Congressmen and to have his vote counted. The assertion here is that the right to have their vote counted is abridged unless that vote is given approximately equal weight to that of other citizens. It is my judgment that the District Court had jurisdiction;  that the complaint presented a justiciable case and controversy,  and that petitioners had standing to sue, since the facts alleged show that they have been injured as individuals.  Unless previous decisions of this Court are to be overruled, the suit is not one against the State but against State officials as individuals.  The complaint attacked the 1901 Apportionment Act as unconstitutional and alleged facts indicating that the Act denied petitioners the full right to vote and the equal protection of the laws. These allegations have not been denied. Under these circumstances, and since there is no adequate legal remedy for depriving a citizen of his right to vote, equity can and should grant relief.

It is difficult for me to see why the 1901 State Apportionment Act does not deny petitioners equal protection of the laws. The failure of the Legislature to reapportion the Congressional election districts for forty years, despite census figures indicating great changes in the distribution of the population, has resulted in election districts the populations of which range from 112,000 to 900,000. One of the petitioners lives in a district of more than 900,000 people. His vote is consequently much less effective than that of each of the citizens living in the district of 112,000. And such a gross inequality in the voting power of citizens irrefutably demonstrates a complete lack of effort to make an equitable apportionment. The 1901 State Apportionment Act if applied to the next election would thus result in a wholly indefensible discrimination against petitioners and all other voters in heavily populated districts. The equal protection clause of the Fourteenth Amendment forbids such discrimination. It does not permit the states to pick out certain qualified citizens or groups of citizens and deny them the right to vote at all. See Nixon v. Herndon, 273 U.S. 536, 541, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458. 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 petitioners, 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.

The 1901 State Apportionment Act in reducing the effectiveness of petitioners' votes abridges their privilege as citizens to vote for Congressmen and violates Article 1 of the Constitution. Article 1 provides that Congressman 'shall be * * * chosen * * * by the People of the several States.' It thus gives those qualifie  a right to vote and a right to have their vote counted. Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355. This Court in order to prevent 'an interference with the effective choice of the voters' has held that this right extends to primaries. United States v. Classic, 313 U.S. 299, 314, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368. While the Constitution contains no express provision requiring that Congressional election districts established by the states must contain approximately equal populations, the Constitutionally guaranteed right to vote and the right to have one's vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast. To some extent this implication of Article One is expressly stated by Section 2 of the Fourteenth Amendment which provides that 'Representatives shall be apportioned among the several States according to their respective numbers * * *.' The purpose of this requirement is obvious: It is to make the votes of the citizens of the several States equally effective in the selection of members of Congress. It was intended to make illegal a nation-wide 'rotten borough' system as between the States. The policy behind it is broader than that. It prohibits as well Congressional 'rotten boroughs' within the States, such as the ones here involved. The policy is that which is laid down by all the Constitutional provisions regulating the election of members of the House of Representatives, including Article One which guarantees the right to vote and to have that vote effectively counted: All groups, classes, and individuals shall to the extent that it is practically feasible be given equal representation in the House of Representatives, which, in conjunction with the Senate, writes the laws affecting the life, liberty, and property of all the people.

It is true that the States are authorized by Section 2 of Article One of the Constitution to legislate on the subject of Congressional elections to the extent that Congress has not done so. Thus the power granted to the State Legislature on this subject is primarily derived from the Federal and not from the State Constitution. But this federally-granted power with respect to elections of Congressmen is not to formulate policy but rather to implement the policy laid down in the Constitution, that, so far as feasible, votes by given equally effective weight. Thus, a state legislature cannot deny eligible voters the right to vote for Congressmen and the right to have their vote counted. It can no more destroy the effectiveness of their vote in part and no more accomplish this in the name of 'apportionment' than under any other name. For legislation which must inevitably bring about glaringly unequal representation in the Congress in favor of special classes and groups should be invalidated, 'whether accomplished ingeniously or ingenuously.' Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 166, 85 L.Ed. 84. See also Lane v. Wilson, 307 U.S. 268, 272, 59 S.Ct. 872, 874, 83 L.Ed. 1281.

Had Illinois passed an Act requiring that all of its twenty-four Congressmen be elected by the citizens of one county, it would clearly have amounted to a denial to the citizens of the other counties of their Constitutionally guaranteed right to vote. And I cannot imagine that an Act that would have apportioned twenty-three Congressmen to the State's smallest county and one Congressman to all the others, would have been sustained by any Court. Such an Act would clearly have violated the Constitutional policy of equal representation. The 1901 Apportionment Act here involved violates that policy in the same way. The policy with respect to federal elections laid down by the Constitution, while it does not mean that the Courts can or should prescribe the precise methods to be followed by state legislatures and the invalidation of all Acts that do not embody those precise methods, does mean that state legislatures must make real efforts to bring about approximately equal representation of citizens in Congress. Here the legislature of Illinois has not done so. Whether that was due to negligence or was a wilful effort to deprive some citizens of an effective vote, the admitted result is that the Constitutional policy of equality of representation has been defeated. Under these circumstances it is the Court's duty to invalidate the state law.

It is contended, however, that a court of equity does not have the power, or even if it has the power, that it should not exercise it in this case. To do so, it is argued, would mean that the Court is entering the area of 'political questions.' I cannot agree with that argument. There have been cases, such as Coleman v. Miller, supra, 307 U.S., pages 454, 457, 59 S.Ct. 982, 983, 83 L.Ed. 1385, 122 A.L.R. 695, where this Court declined to decide a question because it was political. In the Miller case, however, the question involved was ratification of a Constitutional amendment, a matter over which the Court believed Congress had been given final authority. To have decided that question would have amounted to a trespass upon the Constitutional power of Congress. Here we have before us a state law which abridges the Constitutional rights of citizens to cast votes in such way as to obtain the kind of Congressional representation the Constitution guarantees to them.

It is true that voting is a part of elections and that elections are 'political.' But as this Court said in Nixon v. Herndon, supra, it is a mere 'play on words' to refer to a controversy such as this as 'political' in the sense that courts have nothing to do with protecting and vindicating the right of a voter to cast an effective ballot. The Classic case, among myriads of others, refutes the contention that courts are impotent in connection with evasions of all 'political' rights. Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131, does not preclude the granting of equitable relief in this case. There this Court simply held that the State Apportionment Act did not violate the Congressional Reapportionment Act of 1929, 46 Stat. 21, 26, 27, since that Act did not require election districts of equal population. The Court expressly reserved the question of 'the right of the complainant to relief in equity.' Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909, also did not hold that a Court of Equity could not, or should not, exercise its power in a case like this. As we said with reference to that decision in Lane v. Wilson, 307 U.S. 268, 272, 273, 59 S.Ct. 872, 874, 875, 83 L.Ed. 1281, it stands for the principle that Courts will not attempt to 'supervise' elections. Furthermore, the author of the Giles v. Harris opinion also wrote the opinion in Nixon v. Herndon, in which a voter's right to cast a ballot was held to give rise to a justiciable controversy.

In this case, no supervision over elections is asked for. What is asked is that this Court do exactly what it did in Smiley v. Holm, supra. It is asked to declare a state apportionment bill invalid and to enjoin state officials from enforcing it. The only difference between this case and the Smiley case is that there the case originated in the State Courts while here the proceeding originated in the Federal District Court. The only type of case in which this Court has held that a federal district court should in its discretion stay its hand any more than a state court is where the question is one which state courts or administrative agencies have special competence to decide. This is not that type of question. What is involved here is the right to vote guaranteed by the Federal Constitution. It has always been the rule that where a federally protected right has been invaded the federal courts will provide the remedy to rectify the wrong done. Federal courts have not hesitated to exercise their equity power in cases involving deprivation of property andl iberty. Ex parte Young, supra; Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. There is no reason why they should do so where the case involves the right to choose representatives that make laws affecting liberty and property.

Nor is there any more difficulty in enforcing a decree in this case than there was in the Smiley case. It is true that declaration of invalidity of the State Act and the enjoining of State officials would result in prohibiting the State from electing Congressmen under the system of the old Congressional districts. But it would leave the State free to elect them from the State at large, which, as we held in the Smiley case, is a manner authorized by the Constitution. It is said that it would be inconvenient for the State to conduct the election in this manner. But it has an element of virtue that the more convenient method does not have-namely, it does not discriminate against some groups to favor others, it gives all the people an equally effective voice in electing their representatives as is essential under a free government, and it is Constitutional.

Mr. Justice DOUGLAS and Mr. Justice MURPHY join in this dissent.

Notes

 People ex rel. Woodyatt v. Thompson, 155 Ill. 451, 40 N.E. 307; Fergus v. Marks, 321 Ill. 510, 152 N.E. 557, 46 A.L.R. 960; Fergus v. Kinney, 333 Ill. 437, 164 N.E. 665; People v. Clardy, 334 Ill. 160, 165 N.E. 638; People ex rel. v. Blackwell, 342 Ill. 223, 173 N.E. 750; Daly v. Madison County, 378 Ill. 357, 38 N.E.2d 160; Cf. Moran v. Bowley, 347 Ill. 148, 179 N.E. 526.

 28 U.S.C. § 41(14), 28 U.S.C.A. § 41(14); Bell et al. v. Hood et al., 327 U.S. 678, 66 S.Ct. 773.

 Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795; Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805; Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807; Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131; Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759; McPherson v. Blacker, 146 U.S. 1, 23, 24, 13 S.Ct. 3, 6, 36 L.Ed. 869; see also cases collected in 2 A.L.R. note, 1337 et seq.

 Coleman v. Miller, 307 U.S. 433, 438, 467, 59 S.Ct. 972, 975, 988, 83 L.Ed. 1385, 122 A.L.R. 695.

 Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764; Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375.