Annotation 32 - Fourteenth Amendment

  Fundamental Interests: The Political Process

''The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. . . , absent of course the discrimination which the Constitution condemns.'' 94 The Constitution provides that the qualifications of electors in congressional elections are to be determined by reference to the qualifications prescribed in the States for the electors of the most numerous branch of the legislature, and the States are authorized to determine the manner in which presidential electors are selected. 95 The second section of the Fourteenth Amendment provides for a proportionate reduction in a State's representation in the House when it denies the franchise to its qualified male citizens 96 and specific discriminations on the basis of race, sex, and age are addressed in other Amendments. ''We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record . . . are obvious examples indicating factors which a State may take into consideration in determining the qualification of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot.'' 97  

The perspective of this 1959 opinion by Justice Douglas has now been revolutionized. ''Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.'' 98 ''Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.

''And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. . . . [W]hen we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a 'rational basis' for the distinctions made are not applicable.'' 99 Using this analytical approach, the Court has established a regime of close review of a vast range of state restrictions on the eligibility to vote, on access to the ballot by candidates and parties, and on the weighing of votes cast through the devices of apportionment and districting. Changes in Court membership over the years has led to some relaxation in the application of principles, but even as the Court has drawn back in other areas it has tended to preserve, both doctrinally and in fact, the election cases. 100  

Voter Qualifications .--A State may require residency as a qualification to vote but since durational residency requirements impermissibly restrict the right to vote and penalize the assertion of the constitutional right to travel they are invalid. 101 The Court indicated that the States have a justified interest in preventing fraud and in facilitating determination of the eligibility of potential registrants and granted that durational residency requirements furthered these interests, but, it said, the State had not shown that the requirements were ''necessary,'' that is that the interests could not be furthered by means which imposed a lesser burden on the right to vote. Other asserted interests--knowledgeability of voters, common interests, intelligent voting--were said either not to be served by the requirements or to be impermissible interests.

A 50-day durational residency requirement was sustained in the context of the closing of the registration process at 50 days prior to elections and of the mechanics of the State's registration process. The period, the Court found, was necessary to achieve the State's legitimate goals. 102  

A State that exercised general criminal, taxing, and other jurisdiction over persons on certain federal enclaves within the State, the Court held, could not treat these persons as nonresidents for voting purposes. 103 A statute which provided that anyone who entered military service outside the State could not establish voting residence in the State so long as he remained in the military was held to deny to such a person the opportunity such as all non-military persons enjoyed of showing that he had established residence. 104 Restricting the suffrage to those persons who had paid a poll tax was an invidious discrimination because it introduced a ''capricious or irrelevant factor'' of wealth or ability to pay into an area in which it had no place. 105 Extending this ruling, the Court held that the eligibility to vote in local school elections may not be limited to persons owning property in the district or who have children in school, 106 and denied States the right to restrict the vote to property owners in elections on the issuance of revenue bonds 107 or general obligation bonds. 108  

However, the Court held that because the activities of a water storage district fell so disproportionately on landowners as a group, a limitation of the franchise in elections for the district's board of directors to landowners, whether resident or not and whether natural persons or not, excluding non-landowning residents and lessees of land, and weighing the votes granted according to assessed valuation of land, comported with equal protection standards. 109 Adverting to the reservation in prior local governmental unit election cases 110 that some functions of such units might be so specialized as to permit deviation from the usual rules, the Court then proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict scrutiny. 111 Also narrowly approached was the issue of the effect of the District's activities, the Court focusing upon the assessments against landowners as the sole means of paying expenses rather than additionally noting the impact upon lessees and non-landowning residents of such functions as flood control. The approach taken in this case seems different in great degree from that in prior cases and could in the future alter the results in other local government cases. These cases were extended somewhat in Ball v. James, 112 in which the Court sustained a system in which voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they owned. The entity was a water reclamation district which stores and delivers water to 236,000 acres of land in the State and subsidizes its water operations by selling electricity to hundreds of thousands of consumers in a nearby metropolitan area. The entity's board of directors was elected through a system in which the eligibility to vote was as described above. The Court thought the entity was a specialized and limited form to which its general franchise rulings did not apply. 113  

Finding that prevention of ''raiding''--the practice whereby voters in sympathy with one party vote in another's primary election in order to distort that election's results--is a legitimate and valid state goal, as one element in the preservation of the integrity of the electoral process, the Court sustained a state law requiring those voters eligible at that time to register to enroll in the party of their choice at least 30 days before the general election in order to be eligible to vote in the party's next primary election, 8 to 11 months hence. The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment, the Court held, and it was because of the plaintiffs' voluntary failure to register that they did not meet the deadline. 114 But a law which prohibited a person from voting in the primary election of a political party if he has voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided, inasmuch as it constituted a severe restriction upon a voter's right to associate with the party of his choice by requiring him to forgo participation in at least one primary election in order to change parties. 115 A less restrictive ''closed primary'' system was also invalidated, the Court finding insufficient justification for a state's preventing a political party from allowing independents to vote in its primary. 116  

It must not be forgotten, however, that it is only when a State extends the franchise to some and denies it to others that a ''right to vote'' arises and is protected by the equal protection clause. If a State chooses to fill an office by means other than through an election, neither the equal protection clause nor any other constitutional provision prevents it from doing so. Thus, in Rodriguez v. Popular Democratic Party, 117 the Court unanimously sustained a Puerto Rico statute which authorized the political party to which an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation. Neither the fact that the seat was filled by appointment nor the fact that the appointment was by the party, rather than by the Governor or some other official, raised a constitutional question.

The right of unconvicted jail inmates and convicted misdemeanants (who typically are under no disability) to vote by absentee ballot remains unsettled. In an early case applying rational basis scrutiny, the Court held that the failure of a State to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny equal protection when it was not shown that the inmates could not vote in any other way. 118 Subsequently, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences, but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could register and vote absentee while those confined in the counties of their residences could not, or whether the statute's jumbled distinctions among categories of qualified voters on no rational standard made it wholly arbitrary. 119  

Access to the Ballot .--The equal protection clause applies to state specification of qualifications for elective and appointive office. While one may ''have no right'' to be elected or appointed to an office, all persons ''do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualification. The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guaran tees.'' 120 In Bullock v. Carter, 121 the Court utilized a somewhat modified form of the strict test in passing upon a filing fee system for primary election candidates which imposed the cost of the election wholly on the candidates and which made no alternative provision for candidates unable to pay the fees; the reason for application of the standard, however, was that the fee system deprived some classes of voters of the opportunity to vote for certain candidates and it worked its classifications along lines of wealth. The system itself was voided because it was not reasonably connected with the State's interest in regulating the ballot and did not serve that interest and because the cost of the election could be met out of the state treasury, thus avoiding the discrimination. 122  

Recognizing the state interest in maintaining a ballot of reasonable length in order to promote rational voter choice, the Court observed nonetheless that filing fees alone do not test the genuineness of a candidacy or the extent of voter support for an aspirant. Therefore, effectuation of the legitimate state interest must be achieved by means that do not unfairly or unnecessarily burden the party's or the candidate's ''important interest in the continued availability of political opportunity. The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance.'' ''[T]he process of qualifying candidates for a place on the ballot may not constitutionally be measured solely in dollars.'' 123 In the absence of reasonable alternative means of ballot access, the Court held, a State may not disqualify an indigent candidate unable to pay filing fees. 124  

In Clements v. Fashing, 125 the Court sustained two provisions of state law, one that barred certain officeholders from seeking election to the legislature during the term of office for which they had been elected or appointed, but that did not reach other officeholders whose terms of office expired with the legislators' terms and did not bar legislators from seeking other offices during their terms, and the other that automatically terminated the terms of certain officeholders who announced for election to other offices, but that did not apply to other officeholders who could run for another office while continuing to serve. The Court was splintered in such a way, however, that it is not possible to derive a principle from the decision applicable to other fact situations.

In Williams v. Rhodes, 126 a complex statutory structure which had the effect of keeping off the ballot all but the candidates of the two major parties was struck down under the strict test because it deprived the voters of the opportunity of voting for independent and third-party candidates and because it seriously impeded the exercise of the right to associate for political purposes. Similarly, a requirement that an independent candidate for office in order to obtain a ballot position must obtain 25,000 signatures, including 200 signatures from each of at least 50 of the State's 102 counties, was held to discriminate against the political rights of the inhabitants of the most populous counties, when it was shown that 93.4% of the registered voters lived in the 49 most populous counties. 127 But to provide that the candidates of any political organization obtaining 20% or more of the vote in the last gubernatorial or presidential election may obtain a ballot position simply by winning the party's primary election while requiring candidates of other parties or independent candidates to obtain the signatures of less than five percent of those eligible to vote at the last election for the office sought is not to discriminate unlawfully, inasmuch as the State placed no barriers of any sort in the way of obtaining signatures and since write-in votes were also freely permitted. 128  

Reviewing under the strict test the requirements for qualification of new parties and independent candidates for ballot positions, the Court recognized as valid objectives and compelling interests the protection of the integrity of the nominating and electing process, the promotion of party stability, and the assurance of a modicum of order in regulating the size of the ballot by requiring a showing of some degree of support for independents and new parties before they can get on the ballot. 129 ''[T]o comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot.'' 130 Decision whether or not a state statutory structure affords a feasible opportunity is a matter of degree, ''very much a matter of 'consider[ing] the facts and circumstances behind the law, the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.''' 131  

Thus, in order to assure that parties seeking ballot space command a significant, measurable quantum of community support, Texas was upheld in treating different parties in ways rationally constructed to achieve this objective. Candidates of parties whose gubernatorial choice polled more than 200,000 votes in the last general election had to be nominated by primary elections and went on the ballot automatically, because the prior vote adequately demonstrated support. Candidates whose parties polled less than 200,000 but more than 2 percent could be nominated in primary elections or in conventions. Candidates of parties not coming within either of the first two categories had to be nominated in conventions and could obtain ballot space only if the notarized list of participants at the conventions totalled at least one percent of the total votes cast for governor in the last preceding general election or, failing this, if in the 55 succeeding days a requisite number of qualified voters signed petitions to bring the total up to one percent of the gubernatorial vote. [W]hat is demanded may not be so exessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot,'' but the Court thought that one percent, or 22,000 signatures in 1972, ''falls within the outer boundaries of support the State may require.'' 132 Similarly, independent candidates can be required to obtain a certain number of signatures as a condition to obtain ballot space. 133 A State may validly require that each voter participate only once in each year's nominating process and it may therefore disqualify any person who votes in a primary election from signing nominating or supporting petitions for independent parties or candidates. 134 Equally valid is a state requirement that a candidate for elective office, as an independent or in a regular party, must not have been affiliated with a political party, or with one other than the one of which he seeks its nomination, within one year prior to the primary election at which nominations for the general election are made. 135 So too, a state may limit access to the general election ballot to candidates who received at least 1% of the primary votes cast for the particular office. 136 But it is impermissible to print the names of the candidates of the two major parties only on the absentee ballots, leaving off independents and other parties. 137 Also invalidated was a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November ballot. 138  

Apportionment and Districting .--Prior to 1962, attacks in federal courts on the drawing of boundaries for congressional and legislative election districts or the apportionment of seats to previously existing units ran afoul of the ''political question'' doctrine. 139 But Baker v. Carr 140 reinterpreted the doctrine in considerable degree and opened the federal courts to voter complaints founded on unequally populated voting districts. Wesberry v. Sanders 141 found in Article I, Sec. 2, of the Constitution a command that in the election of Members of the House of Representatives districts were to be made up of substantially equal numbers of persons. In six decisions handed down on June 15, 1964, the Court required the alteration of the election districts for practically all the legislative bodies in the United States. 142  

''We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with the votes of citizens living in other parts of the State.'' 143 What was required was that each State ''make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.'' 144  

Among the principal issues raised by these decisions were which units were covered by the principle, to what degree of exactness population equality had to be achieved, and to what other elements of the apportionment and districting process the equal protection clause extended.

The first issue has largely been resolved, although some few problem areas persist. It has been held that a school board the members of which were appointed by boards elected in units of disparate populations and which exercised only administrative powers rather than legislative powers was not subject to the principle of the apportionment ruling. 145 Avery v. Midland County 146 held that when a State delegates lawmaking power to local government and provides for the election by district of the officials to whom the power is delegated, the districts must be established of substantially equal populations. But in Hadley v. Junior College District, 147 the Court abandoned much of the limitation which was explicit in these two decisions and held that whenever a State chooses to vest ''governmental functions'' in a body and to elect the members of that body from districts, the districts must have substantially equal populations. The ''governmental functions'' should not be characterized as ''legislative'' or ''administrative'' or necessarily important or unimportant; it is the fact that members of the body are elected from districts which triggers the application. 148  

The second issue has been largely but not precisely resolved. In Swann v. Adams, 149 the Court set aside a lower court ruling ''for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts. . . . De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy.'' Two congressional district cases were disposed of on the basis of Swann, 150 but when the Court ruled that no congressional districting could be approved without a ''good-faith effort to achieve precise mathematical equality'' or the justification of ''each variance, no matter how small, 151 it did not then purport to utilize this standard in judging legislative apportionment and districting. 152 And in Abate v. Mundt 153 the Court approved a plan for apportioning a county governing body which permitted a substantial population disparity, explaining that in the absence of a built-in bias tending to favor any particular area or interest, a plan could take account of localized factors in justifying deviations from equality which might in other circumstances cause the invalidation of a plan. 154 The total population deviation allowed in Abate was 11.9%; the Court refused, however, to extend Abate to approve a total deviation of 78% resulting from an apportionment plan providing for representation of each of New York City's five boroughs on the New York City Board of Estimate. 155  

Nine years after Reynolds v. Sims, the Court reexamined the population equality requirement of the apportionment cases. Relying upon language in prior decisions that distinguished legislative apportionment from congressional districting as possibly justifying different standards of permissible deviations from equality, the Court held that more flexibility is constitutionally permissible with respect to the former than to the latter. 156 But it was in determining how much greater flexibility was permissible that the Court moved in new directions. First, applying the traditional standard of rationality rather than the strict test of compelling necessity, the Court held that a maximum 16.4% deviation from equality of population was justified by the State's policy of maintaining the integrity of political subdivision lines, or according representation to subdivisions qua subdivisions, because the legislature was responsible for much local legislation. 157 Second, just as the first case ''demonstrates, population deviations among districts may be sufficiently large to require justification but nonetheless be justified and legally sustainable. It is now time to recognize . . . that minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.'' 158 This recognition of a de minimis deviation, below which no justification was necessary, was mandated, the Court felt, by the margin of error in census statistics, by the population change over the ten-year life of an apportionment, and by the relief it afforded federal courts able thus to avoid over-involvement in essentially a political process. The ''goal of fair and effective representation'' is furthered by eliminating gross population variations among districts, but it is not achieved by mathematical equality solely. Other relevant factors are to be taken into account. 159 But when a judicially-imposed plan is to be formulated upon state default, it ''must ordinarily achieve the goal of population equality with little more than de minimis variation'' and deviations from approximate population equality must be supported by enunciation of historically significant state policy or unique features. 160  

Gerrymandering and the permissible use of multimember districts present examples of the third major issue. It is clear that racially based gerrymandering is unconstitutional under the Fifteenth Amendment, at least when it is accomplished through the manipulation of district lines. 161 Even if racial gerrymandering is intended to benefit minority voting populations, it is subject to strict scrutiny under the Equal Protection Clause if racial considerations are the dominant and controlling rationale in drawing district lines. Supp.9 Showing that a district's ''bizarre'' shape departs from traditional districting principles such as compactness, contiguity, and respect for political subdivision lines may serve to reinforce such a claim, Supp.10 although a plurality of the Justices would not preclude the creation of ''reasonably compact'' majority-minority districts in order to remedy past discrimination or to comply with the requirements of the Voting Rights Act of 1965. Supp.11 Partisan gerrymandering raised more difficult issues. Several lower courts ruled that the issue was beyond judicial cognizance, 162 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been drawn with the intent to achieve a rough approximation of the statewide political strengths of the two parties, recognized the goal as legitimate and observed that, while the manipulation of apportionment and districting is not wholly immune from judicial scrutiny, ''we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.'' 163  

More recently, however, in a decision of potentially major import reminiscent of Baker v. Carr, the Court in Davis v. Bandemer 164 ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause. But although the vote was 6 to 3 in favor of justiciability, a majority of Justices could not agree on the proper test for determining whether particular gerrymandering is unconstitutional, and the lower court's holding of unconstitutionality was reversed by vote of 7 to 2. 165 Thus, while courthouse doors are now ajar for claims of partisan gerrymandering, it is unclear what it will take to succeed on the merits. On the justiciability issue, the Court viewed the ''political question'' criteria as no more applicable than they had been in Baker v. Carr. Because Reynolds v. Sims had declared ''fair and effective representation for all citizens'' 166 to be ''the basic aim of legislative apportionment,'' and because racial gerrymandering issues had been treated as justiciable, the Court viewed the representational issues raised by partisan gerrymandering as indistinguishable. Agreement as to the existence of ''judicially discoverable and manageable standards for resolving'' gerrymandering issues, however, did not result in a consensus as to what those standards are. 167 While a majority of Justices agreed that discriminatory ef fect as well as discriminatory intent must be shown, there was significant disagreement as to what constitutes discriminatory effect. Justice White's plurality opinion suggested that there need be ''evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.'' 168 Moreover, continued frustration of the chance to influence the political process can not be demonstrated by the results of only one election; there must be a history of disproportionate results or a finding that such results will continue. Justice Powell, joined by Justice Stevens, did not formulate a strict test, but suggested that ''a heavy burden of proof'' should be required, and that courts should look to a variety of factors as they relate to ''the fairness of a redistricting plan'' in determining whether it contains invalid gerrymandering. Among these factors are the shapes of the districts, adherence to established subdivision lines, statistics relating to vote dilution, the nature of the legislative process by which the plan was formulated, and evidence of intent revealed in legislative history. 169  

It had been thought that the use of multimember districts to submerge racial, ethnic, and political minorities might be treated differently, 170 but in Whitcomb v. Chavis 171 the Court, while dealing with the issue on the merits, so enveloped it in strict standards of proof and definitional analysis as to raise the possibility that it might be beyond judicial review.

In Chavis the Court held that inasmuch as the multimember districting represented a state policy of more than 100 years observance and could not therefore be said to be motivated by racial or political bias, only an actual showing that the multimember delegation in fact inadequately represented the allegedly submerged minority would suffice to raise a constitutional question. But the Court also rejected as impermissible the argument that any interest group had any sort of right to be represented in a legislative body, in proportion to its members' numbers or on some other basis, so that the failure of that group to elect anyone merely meant that alone or in combination with other groups it simply lacked the strength to obtain enough votes, whether the election be in single-member or in multimember districts. That fact of life was not of constitutional dimension, whether the group was composed of blacks, or Republicans or Democrats, or some other category of persons. Thus, the submerging argument was rejected, as was the argument of a voter in another county that the Court should require uniform single-member districting in populous counties because voters in counties which elected large delegations in blocs had in effect greater voting power than voters in other districts; this argument the Court found too theoretical and too far removed from the actualities of political life.

Subsequently, and surprisingly in light of Chavis, the Court in White v. Regester 172 affirmed a district court invalidation of the use of multimember districts in two Texas counties on the ground that, when considered in the totality of the circumstances of discrimination in registration and voting and in access to other political opportunities, such use denied African Americans and Mexican Americans the opportunity to participate in the election process in a reliable and meaningful manner. 173  

Doubt was cast on the continuing vitality of White v. Regester, however, by the badly split opinion of the Court in City of Mobile v. Bolden. 174 A plurality undermined the earlier case in two respects, although it is not at all clear that a majority of the Court had been or could be assembled on either point. First, the plurality argued that an intent to discriminate on the part of the redistricting body must be shown before multimember districting can be held to violate the equal protection clause. 175 Second, the plurality read White v. Regester as being consistent with this principle and the various factors developed in that case to demonstrate the existence of unconstitutional discrimination to be in fact indicia of intent; however, the plurality seemingly disregarded the totality of circumstances test utilized in Regester and evaluated instead whether each factor alone was sufficient proof of intent. 176  

Again switching course, the Court in Rogers v. Lodge 177 approved the findings of the lower courts that a multimember electoral system for electing a county board of commissioners was being maintained for a racially discriminatory purpose, although it had not been instituted for that purpose. Applying a totality of the circumstances test, and deferring to lower court factfinding, the Court, in an opinion by one of the Mobile dissenters, canvassed a range of factors which it held could combine to show a discriminatory motive, and largely overturned the limitations which the Mobile plurality had attempted to impose in this area. With the enactment of federal legislation specifically addressed to the issue of multimember districting and dilution of the votes of racial minorities, however, it may be that the Court will have little further opportunity to develop the matter in the context of constitutional litigation. 178 In Thornburg v. Gingles, 179 the Court held that multimember districting violates Sec. 2 of the Voting Rights Act by diluting the voting power of a racial minority when that minority is ''sufficiently large and geographically compact to constitute a majority in a single-member district,'' when it is politically cohesive, and when block voting by the majority ''usually'' defeats preferred candidates of the minority.

Finally, it should be said that the Court has approved the discretionary exercise of equity powers by the lower federal courts in drawing district boundaries and granting other relief in districting and apportionment cases, 180 although that power is bounded by the constitutional violations found, so that courts do not have carte blanche, and they should ordinarily respect the structural decisions made by state legislatures and the state constitutions. 181  

Weighing of Votes .--It is not the weighing of votes but the manner in which it is done which brings the equal protection clause into play. Gray v. Sanders 182 struck down the Georgia county unit system under which each county was allocated either two, four, or six votes in statewide elections and the candidate carrying the county received those votes. Since there were a few very populous counties and scores of poorly-populated ones, the rural counties in effect dominated statewide elections and candidates with popular majorities statewide could be and were defeated. But Gordon v. Lance 183 approved a provision requiring a 60 percent affirmative vote in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded. The Court acknowledged that the provision departed from strict majority rule but stated that the Constitution did not prescribe majority rule; it instead proscribed discrimination through dilution of voting power or denial of the franchise because of some class characteristic--race, urban residency, or the like--while the provision in issue was neither directed to nor affected any identifiable class.


[Footnote 94] Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50 -51 (1959).

[Footnote 95] Article I, Sec. 2, cl. 1 (House of Representatives); Seventeenth Amendment (Senators); Article II, Sec. 1, cl. 2 (presidential electors). See Article I, Sec. 4, cl. 1 and discussion supra, pp. 118-21.

[Footnote 96] Fourteenth Amendment, Sec. 2. Justice Harlan argued that the inclusion of this provision impliedly permitted the States to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan undertook a rebuttal of this position in Oregon v. Mitchell, supra at 229, 250 (concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974), where Sec. 2 was relevant in precluding an equal protection challenge.

[Footnote 97] Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959).

[Footnote 98] Reynolds v. Sims, 377 U.S. 533, 561 -62 (1964).

[Footnote 99] Kramer v. Union Free School Dist., 395 U.S. 621, 626 -28 (1969). See also Hill v. Stone, 421 U.S. 289, 297 (1975). But cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978).

[Footnote 100] Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34 -35 nn.74 & 78 (1973), a major doctrinal effort to curb the ''fundamental interest'' side of the ''new'' equal protection, the Court acknowledged that the right to vote did not come within its prescription that rights to be deemed fundamental must be explicitly or implicitly guaranteed in the Constitution. Nontheless, citizens have a ''constitutionally protected right to participate in elections'' which is protected by the equal protection clause. Dunn v. Blumstein, 405 U.S. 330, 336 (1972). The franchise is the guardian of all other rights. Reynolds v. Sims, 377 U.S. 533, 562 (1964).

[Footnote 101] Dunn v. Blumstein, 405 U.S. 330 (1972). Justice Blackmun concurred specially, id. at 360, Chief Justice Burger dissented, id. at 363, and Justices Powell and Rehnquist did not participate. The voided statute imposed a requirement of one year in the State and three months in the county. The Court did not indicate what duration less than ninety days would be permissible, although it should be noted that in the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. Sec. 1973aa-1, Congress prescribed a thirty-day period for purposes of voting in presidential elections. Note also that it does not matter whether one travels interstate or intrastate. Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970), aff'd, 405 U.S. 1035 (1972).

[Footnote 102] Marston v. Lewis, 410 U.S. 679 (1973). Registration was by volunteer workers who made statistically significant errors requiring corrections by county recorders before certification. Primary elections were held in the fall, thus occupying the time of the recorders, so that a backlog of registrations had to be processed before the election. A period of 50 days rather than 30, the Court thought, was justifiable. However, the same period was upheld for another State on the authority of Marston in the absence of such justification, but it appeared that plaintiffs had not controverted the State's justifying evidence. Burns v. Fortson, 410 U.S. 686 (1973). Justices Brennan, Douglas, and Marshall dissented in both cases. Id. at 682, 688.

[Footnote 103] Evans v. Cornman, 398 U.S. 419 (1970).

[Footnote 104] Carrington v. Rash, 380 U.S. 89 (1965).

[Footnote 105] Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. Poll tax qualifications had previously been upheld in Breedlove v. Suttles, 302 U.S. 277 (1937); and Butler v. Thompson, 341 U.S. 937 (1951).

[Footnote 106] Kramer v. Union Free School Dist., 395 U.S. 621 (1969). The Court assumed without deciding that the franchise in some circumstances could be limited to those ''primarily interested'' or ''primarily affected'' by the outcome, but found that the restriction permitted some persons with no interest to vote and disqualified others with an interest. Justices Stewart, Black, and Harlan dissented. Id. at 594.

[Footnote 107] Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices Black, Harlan, and Stewart concurred specially. Id. at 707.

[Footnote 108] City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). Justice Stewart and Chief Justice Burger dissented. Id. at 215. In Hill v. Stone, 421 U.S. 289 (1975), the Court struck down a limitation on the right to vote on a general obligation bond issue to persons who have ''rendered'' or listed real, mixed, or personal property for taxation in the election district. It was not a ''special interest'' election since a general obligation bond issue is a matter of general interest.

[Footnote 109] Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973). See also Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners in the creation and maintenance of district upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. at 735, 745.

[Footnote 110]   410 U.S. at 727 -28.

[Footnote 111] Id. at 730, 732. Thus, the Court posited reasons that might have moved the legislature to adopt the exclusions.

[Footnote 112]   451 U.S. 355 (1981). Joining the opinion of the Court were Justices Stewart, Powell, Rehnquist, Stevens, and Chief Justice Burger. Dissenting were Justices White, Brennan, Marshall, and Blackmun. Id. at 374.

[Footnote 113] The water district cases were distinguished in Quinn v. Millsap, 491 U.S. 95, 109 (1989), the Court holding that a ''board of freeholders'' appointed to recommend a reorganization of local government had a mandate ''far more encompassing'' than land use issues, since its recommendations ''affect[] all citizens . . . regardless of land ownership.''

[Footnote 114] Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763.

[Footnote 115] Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun and Rehnquist dissented. Id. at 61, 65.

[Footnote 116] Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). Although independents were allowed to register in a party on the day before a primary, the state's justifications for ''protect[ing] the integrity of the Party against the Party itself'' were deemed insubstantial. Id. at 224.

[Footnote 117]   457 U.S. 1 (1982). See also Fortson v. Morris, 385 U.S. 231 (1966) (legislature could select Governor from two candidates having highest number of votes cast when no candidate received majority); Sailors v. Board of Elections, 387 U.S. 105 (1967) (appointment rather than election of county school board); Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968) (three-judge court), aff'd, 393 U.S. 405 (1969) (gubernatorial appointment to fill United States Senate vacancy).

[Footnote 118] McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969). But see Goosby v. Osser, 409 U.S. 512 (1973) (McDonald does not preclude challenge to absolute prohibition on voting).

[Footnote 119] O'Brien v. Skinner, 414 U.S. 524 (1974). See American Party of Texas v. White, 415 U.S. 767, 794 -95 (1974).

[Footnote 120] Turner v. Fouche, 396 U.S. 346, 362 -63 (1970) (voiding a property qualification for appointment to local school board). See also Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977) (voiding a qualification for appointment as airport commissioner of ownership of real or personal property that is assessed for taxes in the jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95 (1989) (voiding property ownership requirement for appointment to board authorized to propose reorganization of local government). Cf. Snowden v. Hughes, 321 U.S. 1 (1944).

[Footnote 121]   405 U.S. 134, 142 -44 (1972).

[Footnote 122] Id. at 144-49.

[Footnote 123] Lubin v. Panish, 415 U.S. 709, 716 (1974).

[Footnote 124] Concurring, Justices Blackmun and Rehnquist suggested that a reasonable alternative would be to permit indigents to seek write-in votes without paying a filing fee, id. at 722, but the Court indicated this would be inadequate. Id. at 719 n.5.

[Footnote 125]   457 U.S. 957 (1982). A plurality of four contended that save in two circumstances--ballot access classifications based on wealth and ballot access classifications imposing burdens on new or small political parties or independent candidates--limitations on candidate access to the ballot merit only traditional rational basis scrutiny, because candidacy is not a fundamental right. The plurality found both classifications met the standard. Id. at 962-73 (Justices Rehnquist, Powell, O'Connor, and Chief Justice Burger). Justice Stevens concurred, rejecting the plurality's standard, but finding that inasmuch as the disparate treatment was based solely on the State's classification of the different offices involved, and not on the characteristics of the persons who occupy them or seek them, the action did not violate the equal protection clause. Id. at 973. The dissent primarily focused on the First Amendment but asserted that the classifications failed even a rational basis test. Id. at 976 (Justices Brennan, White, Marshall, and Blackmun).

[Footnote 126]   393 U.S. 23 (1968). ''[T]he totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.'' Id. at 34. Justices Douglas and Harlan would have relied solely on the First Amendment, id. at 35, 41, while Justices Stewart and White and Chief Justice Warren dissented. Id. at 48, 61, 63.

[Footnote 127] Moore v. Ogilvie, 394 U.S. 814 (1969) (overruling MacDougall v. Green, 335 U.S. 281 (1948)).

[Footnote 128] Jenness v. Fortson, 403 U.S. 431 (1971).

[Footnote 129] Storer v. Brown, 415 U.S. 724 (1974); American Party of Texas v. White, 415 U.S. 767 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979). And see Indiana Communist Party v. Whitcomb, 414 U.S. 441 (1974) (impermissible to condition ballot access upon a political party's willingness to subscribe to oath that party ''does not advocate the overthrow of local, state or national government by force or violence,'' opinion of Court based on First Amendment, four Justices concurring on equal protection grounds).

[Footnote 130] Storer v. Brown, 415 U.S. 724, 746 (1974).

[Footnote 131] Id. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).

[Footnote 132] American Party of Texas v. White, 415 U.S. 767, 783 (1974). In Storer v. Brown, 415 U.S. 724, 738 -40 (1974), the Court remanded so that the district court could determine whether the burden imposed on an independent party was too severe, it being required in 24 days in 1972 to gather 325,000 signatures from a pool of qualified voters who had not voted in that year's partisan primary elections. See also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (voiding provision that required a larger number of signatures to get on ballot in subdivisions than statewide).

[Footnote 133] American Party of Texas v. White, 415 U.S. 767, 788 -91 (1974). The percentages varied with the office but no more than 500 signatures were needed in any event.

[Footnote 134] Id. at 785-87.

[Footnote 135] Storer v. Brown, 415 U.S. 724, 728 -37 (1974). Dissenting, Justices Brennan, Douglas and Marshall thought the state interest could be adequately served by a shorter time period than a year before the primary election, which meant in effect 17 months before the general election. Id. at 755.

[Footnote 136] Munro v. Socialist Workers Party, 479 U.S. 189 (1986).

[Footnote 137] American Party of Texas v. White, 415 U.S. 767, 794 -95 (1974). Upheld, however, was state financing of the primary election expenses that excluded convention expenses of the small parties. Id. at 791-94. But the major parties had to hold conventions simultaneously with the primary elections the cost of which they had to bear. For consideration of similar contentions in the context of federal financing of presidential elections, see Buckley v. Valeo, 424 U.S. 1, 93 -97 (1976).

[Footnote 138] Anderson v. Celebrezze, 460 U.S. 780 (1983). State interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters.

[Footnote 139] Supra, pp. 687-98. Applicability of the doctrine to cases of this nature was left unresolved in Smiley v. Holm, 285 U.S. 355 (1932), and Wood v. Broom, 287 U.S. 1 (1932), was supported by only a plurality in Colegrove v. Green, 328 U.S. 549 (1946), but became the position of the Court in subsequent cases. Cook v. Fortson, 329 U.S. 675 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall v. Green, 335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v. Sloan, 357 U.S. 916 (1958).

[Footnote 140]   369 U.S. 186 (1962).

[Footnote 141]   376 U.S. 1 (1964). Supra, pp. 106-08. Striking down a county unit system of electing a governor, the Court, in an opinion by Justice Douglas, had already coined a variant phrase of the more popular ''one man, one vote.'' ''The conception of political equality from the Declaration of Independence to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing--one person, one vote.'' Gray v. Sanders, 372 U.S. 368, 381 (1963).

[Footnote 142] Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); Donis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). In the last case, the Court held that approval of the apportionment plan in a vote of the people was insufficient to preserve it from constitutional attack. ''An individual's constitutionally protected right to cast an equally weighed vote cannot be denied even by a vote of a majority of a State's electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause.'' Id. at 736. Justice Harlan dissented wholly, denying that the equal protection clause had any application at all to apportionment and districting and contending that the decisions were actually the result of a ''reformist'' nonjudicial attitude on the part of the Court. 377 U.S. at 589 . Justices Stewart and Clark dissented in two and concurred in four cases on the basis of their view that the equal protection clause was satisfied by a plan that was rational and that did not systematically frustrate the majority will. 377 U.S., 741, 744.

[Footnote 143] Reynolds v. Sims, 377 U.S. 533, 568 (1964).

[Footnote 144] Id. at 577.

[Footnote 145] Sailors v. Board of Education, 387 U.S. 105 (1967).

[Footnote 146]   390 U.S. 474 (1968). Justice Harlan continued his dissent from the Reynolds line of cases, id. at 486, while Justices Fortas and Stewart called for a more discerning application and would not have applied the principle to the county council here. Id. at 495, 509.

[Footnote 147]   397 U.S. 50 (1970). The governmental body here was the board of trustees of a junior college district. Justices Harlan and Stewart and Chief Justice Burger dissented. Id. at 59, 70.

[Footnote 148] The Court observed that there might be instances ''in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds supra, might not be required. . . .'' Id. at 56. For cases involving such units, see Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973); Associated Enterprises v. Toltec Watershed Imp. Dist., 410 U.S. 743 (1973); Ball v. James, 451 U.S. 355 (1981). Judicial districts need not comply with Reynolds. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three-judge court), aff'd. per curiam, 409 U.S. 1095 (1973).

[Footnote 149]   385 U.S. 440, 443 -44 (1967). See also Kilgarlin v. Hill, 386 U.S. 120 (1967).

[Footnote 150] Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v. Grills, 385 U.S. 455 (1967).

[Footnote 151] Kirkpatrick v. Preisler, 394 U.S. 526, 530 -31 (1969); Wells v. Rockefeller, 394 U.S. 542 (1969). Supra, pp. 107-08. The Court has continued to adhere to this strict standard for congressional districting, voiding a plan in which the maximum deviation between largest and smallest district was 0.7%, or 3,674 persons. Karcher v. Daggett, 462 U.S. 725 (1983) (rejecting assertion that deviations less than estimated census error are necessarily permissible).

[Footnote 152] The Court relied on Swann in disapproving of only slightly smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S. 124, 161 -63 (1971). In Connor v. Williams, 404 U.S. 549, 550 (1972), the Court said of plaintiffs' reliance on Preisler and Wells that ''these decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise substantial questions concerning the constitutionality of the District Court's plan as a design for permanent apportionment.''

[Footnote 153]   403 U.S. 182 (1971).

[Footnote 154] It should also be noted that while the Court has used total population figures for purposes of computing variations between districts, it did approve in Burns v. Richardson, 384 U.S. 73 (1966), the use of eligible voter population as the basis for apportioning in the context of a State with a large transient military population, but with the caution that such a basis would be permissible only so long as the results did not diverge substantially from that obtained by using a total population base. Merely discounting for military populations was disapproved in Davis v. Mann, 377 U.S. 678, 691 (1964), but whether some more precise way of distinguishing between resident and nonresident population would be constitutionally permissible is unclear. Kirkpatrick v. Preisler, 394 U.S. 526, 534 (1969); Hadley v. Junior College Dist., 397 U.S. 50, 57 n.9 (1970).

[Footnote 155] New York City Bd. of Estimate v. Morris, 489 U.S. 688 (1989). Under the plan each of the City's five boroughs was represented on the board by its president and each of these members had one vote; three citywide elected officials (the mayor, the comptroller, and the president of the city council) were also placed on the board and given two votes apiece (except that the mayor had no vote on the acceptance or modification of his budget proposal). The Court also ruled that, when measuring population deviation for a plan that mixes at-large and district representation, the at-large representation must be taken into account. Id. at 699-701.

[Footnote 156] Mahan v. Howell, 410 U.S. 315, 320 -25 (1973).

[Footnote 157] Id. at 325-30. The Court indicated that a 16.4% deviation ''may well approach tolerable limits.'' Id. at 329. Dissenting, Justices Brennan, Douglas, and Marshall would have voided the plan; additionally, they thought the deviation was actually 23.6% and that the plan discriminated geographically against one section of the State, an issue not addressed by the Court. In Chapman v. Meier, 420 U.S. 1, 21 -26 (1975), holding that a 20% variation in a court-developed plan was not justified, the Court indicated that such a deviation in a legislatively- produced plan would be quite difficult to justify. See also Summers v. Cenarrusa, 413 U.S. 906 (1973) (vacating and remanding for further consideration the approval of a 19.4% deviation). But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for further consideration the rejection of a deviation in excess of 10% intended topreserve political subdivision boundaries). In Brown v. Thomson, 462 U.S. 835 (1983), the Court held that a consistent state policy assuring each county at least one representative can justify substantial deviation from population equality when only the marginal impact of representation for the state's least populous county was challenged (the effect on plaintiffs, voters in larger districts, was that they would elect 28 of 64 members rather than 28 of 63), but there was indication in Justice O'Connor's concurring opinion that a broader-based challenge to the plan, which contained a 16% average deviation and an 89% maximum deviation, could have succeeded.

[Footnote 158] Gaffney v. Cummings, 412 U.S. 735, 745 (1973). The maximum deviation was 7.83%. The Court did not precisely indicate at what point a deviation had to be justified, but it applied the de minimis standard in White v. Regester, 412 U.S. 755 (1973), in which the maximum deviation was 9.9%. ''Very likely, larger differences between districts would not be tolerable without justifications.'' Id. at 764. Justices Brennan, Douglas, and Marshall dissented. See also Brown v. Thomson, 462 U.S. 835, 842 (1983): ''Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within [the] category of minor deviations [insufficient to make out a prima facie case].''

[Footnote 159] Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast, the Court has held that estimated margin of error for census statistics does not justify deviation from population equality in congressional districting. Karcher v. Daggett, 462 U.S. 725 (1983).

[Footnote 160] Chapman v. Meier, 420 U.S. 1, 21 -27 (1975). The Court did say that court-ordered reapportionment of a state legislature need not attain the mathematical preciseness required for congressional redistricting. Id. at 27 n.19. Apparently, therefore, the Court's reference to both ''de minimis'' variations and ''approximate population equality'' must be read as referring to some range approximating the Gaffney principle. See also Connor v. Finch, 431 U.S. 407 (1977).

[Footnote 161] Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v. Rockefeller, 376 U.S. 52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965) (three-judge court).

[Footnote 9 (1996 Supplement)] Miller v. Johnson, 115 S. Ct. 2475 (1995) (drawing congressional district lines in order to comply with Sec. 5 of the Voting Rights Act as interpreted by the Department of Justice not a compelling governmental interest).

[Footnote 10 (1996 Supplement)] Id.; Shaw v. Reno, 509 U.S. 630 (1993). See also Shaw v. Hunt, 116 S.Ct. 1894 (1996) (creating an unconventionally-shaped majority-minority congressional district in one portion of state in order to alleviateeffect of fragmenting geographically compact minority population in another portion of state does not remedy a violation of Sec. 2 of Voting Rights Act, and is thus not a compelling governmental interest).

[Footnote 11 (1996 Supplement)] Bush v. Vera, 116 S. Ct. 1941, 1961 (1996) (opinion of Justice O'Connor, joined by Chief Justice Rehnquist and Justice Kennedy) (also involving congressional districts).

[Footnote 162] E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965) (three-judge court), aff'd, 382 U.S. 4 (1965); Sincock v. Gately, 262 F. Supp. 739 (D. Del. 1967) (three-judge court).

[Footnote 163] Gaffney v. Cummings, 412 U.S. 735, 751 , 754 (1973).

[Footnote 164]   478 U.S. 109 (1986). The vote on justiciability was 6-3, with Justice White's opinion of the Court being joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens. This represented an apparent change of view by 3 of the majority Justices, who just 2 years earlier had denied that ''the existence of noncompact or gerrymandered districts is by itself a constitutional violation.'' Karcher v. Daggett, 466 U.S. 910, 917 (1983) (Justice Brennan, joined by Justices White and Marshall, dissenting from denial of stay in challenge to district court's rejection of a remedial districting plan on the basis that it contained ''an intentional gerrymander'').

[Footnote 165] Only Justices Powell and Stevens thought the Indiana redistricting plan void; Justice White, joined by Justices Brennan, Marshall, and Blackmun, thought the record inadequate to demonstrate continuing discriminatory impact, and Justice O'Connor, joined by Chief Justice Burger and by Justice Rehnquist, would have ruled that partisan gerrymandering is nonjusticiable as constituting a political question not susceptible to manageable judicial standards.

[Footnote 166]   377 U.S. 533, 565 -66 (1964). This phrase has had a life of its own in the commentary. See D. Alfange, Jr., Gerrymandering and the Constitution: Into the Thorns of the Thicket at Last, 1986 Sup. Ct. Rev. 175, and sources cited therein. It is not clear from its original context, however, that the phrase was coined with such broad application in mind.

[Footnote 167] The quotation is from the Baker v. Carr measure for existence of a political question, 369 U.S. 186, 217 (1962).

[Footnote 168]   478 U.S. at 133 . Joining in this part of the opinion were Justices Brennan, Marshall, and Blackmun.

[Footnote 169]   478 U.S. at 173 . A similar approach had been proposed in Justice Stevens' concurring opinion in Karcher v. Daggett, 462 U.S. 725, 744 (1983).

[Footnote 170] Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S. 73, 88 -89 (1965); Kilgarlin v. Hill, 386 U.S. 120, 125 n.3 (1967).

[Footnote 171]   403 U.S. 124 (1971). Justice Harlan concurred specially, id. at 165, and Justices Douglas, Brennan, and Marshall, dissented, finding racial discrimination in the operation of the system. Id. at 171.

[Footnote 172]   412 U.S. 755, 765 -70 (1973).

[Footnote 173] ''To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question--that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.'' Id. at 765-66.

[Footnote 174]   446 U.S. 55 (1980). On Congress' response to the case, see supra, pp. 1818-19; infra, p. 1936.

[Footnote 175] Id. at 65-68 (Justices Stewart, Powell, Rehnquist, and Chief Justice Burger). On intent versus impact analysis, see supra, pp. 1815-20. Justices Blackmun and Stevens concurred on other grounds, id. at 80, 83, and Justices White, Brennan, and Marshall dissented. Id. at 94, 103. Justice White agreed that purposeful discrimination must be found, id. at 101, while finding it to have been shown, Justice Blackmun assumed that intent was required, and Justices Stevens, Brennan, and Marshall would not so hold.

[Footnote 176] Id. at 68-74. Four Justices rejected this view of the plurality, while Justice Stevens also appeared to do so but followed a mode of analysis significantly different than that of any other Justice.

[Footnote 177]   458 U.S. 613 (1982). Joining the opinion of the Court were Justices White, Brennan, Marshall, Blackmun, O'Connor, and Chief Justice Burger. Dissenting were Justices Powell and Rehnquist, id. at 628, and Justice Stevens. Id. at 631.

[Footnote 178] On the legislation, see supra, pp. 1818-19; infra, p. 1936.

[Footnote 179]   478 U.S. 30, 50 -51 (1986). Use of multimember districting for purposes of political gerrymandering was at issue in Davis v. Bandemer, 478 U.S. 109 (1986), decided the same day as Gingles, but there was no agreement as to the appropriate constitutional standard. A plurality led by Justice White relied on the Whitcomb v. Chavis reasoning, suggesting that proof that multimember districts were constructed for the advantage of one political party falls short of the necessary showing of deprivation of opportunity to participate in the electoral process. 478 U.S. at 136 -37. Two Justices thought the proof sufficient for a holding of invalidity, the minority party having won 46% of the vote but only 3 of 21 seats from the multimember districts, and ''the only discernible pattern [being] the appearance of these districts in areas where their winner-take-all aspects can best be employed to debase [one party's] voting strength,'' (id. at at 179-80, Justices Powell and Stevens), and three Justices thought political gerrymandering claims to be nonjusticiable.

[Footnote 180] E.g., Reynolds v. Sims, 377 U.S. 533, 586 -87 (1964); Sixty- Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195 -200 (1972); White v. Weiser, 412 U.S. 783, 794 -95 (1973); Upham v. Seamon, 456 U.S. 37, 41 -42 (1982). When courts draw their own plans, the court is held to tighter standards than is a legislature and has to observe smaller population deviations and utilize single-member districts more than multimember ones. Connor v. Johnson, 402 U.S. 690, 692 (1971); Chapman v. Meier, 420 U.S. 1, 14 -21 (1975); Wise v. Lipscomb, 437 U.S. 535, 540 (1978). Cf. Mahan v. Howell, 410 U.S. 315, 333 (1973).

[Footnote 181] E.g., Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972) (reduction of numbers of members); Whitcomb v. Chavis, 403 U.S. 124, 160 -61 (1971) (disregard of policy of multimember districts not found unconstitutional); White v. Weiser, 412 U.S. 783, 794 -95 (1973); Upham v. Seamon, 406 U.S. 37 (1982). But see Karcher v. Daggett, 466 U.S. 910 (1983) (denying cert. over dissent's suggestion that court-adopted congressional districting plan had strayed too far from the structural framework of the legislature's invalidated plan).

[Footnote 182]   372 U.S. 368 (1963).

[Footnote 183]   403 U.S. 1 (1971).

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