384 U.S. 73 (1966), 318, Burns v. Richardson

Docket Nº:No. 318
Citation:384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376
Party Name:Burns v. Richardson
Case Date:April 25, 1966
Court:United States Supreme Court

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384 U.S. 73 (1966)

86 S.Ct. 1286, 16 L.Ed.2d 376




No. 318

United States Supreme Court

April 25, 1966

Argued February 21, 1966




The Hawaii Constitution provides that three small counties elect 15 of 25 state senators, while the fourth county (Oahu), with 79% of the State's population, elects 10. Under an apportionment authorized by the Constitution, Oahu has been allocated 36 of the 51 seats in the state house of representatives, the representatives being elected from multi-member districts apportioned on the basis of the number of registered voters in each. Suit was brought in federal district court attacking the apportionment plan. The District Court held the senate, but not the house, apportionment unconstitutional, and directed the legislature to submit to the voters the question of a convention to amend the constitution. On motion of intervening legislators, it modified its order to require the enactment of three statutes: (1) an interim senate apportionment plan, using registered voters as a basis, to be submitted to the court, for use in the 1966 election, (2) a constitutional amendment embodying pertinent provisions of the interim plan for submission to the voters at that election, and (3) submission to the electorate of the question of calling a constitutional convention. The senate apportionment plan adopted by the legislature allocated 19 of the 25 senators to Oahu on the basis of registered voters. The senators were to be elected from five multi-member districts. The District Court, while expressly approving the use of a registered voters basis, disapproved the plan because of the failure to create single member districts, and reinstated its earlier order requiring immediate resort to the convention method.


1. In permitting legislative action, the District Court should have allowed legislative review of the entire apportionment scheme, without restricting the available choices for interim and permanent plans. Pp. 83-86.

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2. The proposed senate reapportionment plan, together with the existing house apportionment, constitutes an interim arrangement which has not been shown to fall short of federal standards. Pp. 85-97.

(a) The Equal Protection Clause does not require that at least one house of a bicameral legislature consist of single member districts. The legislative choice of multi-member districts is subject to constitutional challenge only upon a showing that the plan was designed to or would operate to minimize or cancel out the voting strength of racial or political groups, and no such showing was made. Pp. 88-89.

(b) Although both houses of the legislature must be apportioned substantially on a population basis, the Equal Protection Clause does not require the use of total population figures derived from the federal census as the only standard to measure substantial population equivalency. Pp. 90-92.

(c) Hawaii's registered voters basis, depending in part upon political activity and chance factors, is not itself a permissible population basis, but may be used so long as it produces a distribution of legislators not substantially different from that which would result from use of a permissible population basis. Pp. 92-93.

(d) Hawaii's special population problems, including large concentrations of military and other transients centered on Oahu, suggest that state citizen population, rather than total population, is the appropriate comparative guide. Pp. 94-95.

(e) The registered voters basis is acceptable for the interim plan in view of the District Court's conclusion that the apportionment achieved by its use substantially approximated that which would have occurred had state citizen population been the guide. Pp. 95-96.

3. The District Court is directed on remand to enter an order adopting the proposed senate reapportionment plan plus the existing house apportionment as an interim legislative apportionment for Hawaii, and retaining jurisdiction for such further proceeding as may be appropriate after the 1966 general elections have been held. P. 98.

238 F.Supp. 468, 240 F.Supp. 724, vacated and remanded.

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BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This reapportionment case was brought in the District Court of Hawaii by residents and qualified voters of the City and County of Honolulu, appellees in each of the three appeals consolidated here. They alleged that Hawaii's legislative apportionment was unconstitutional under our decisions in Reynolds v. Sims, 377 U.S. 533, and companion cases.1 William S. Richardson, Lieutenant Governor of Hawaii, also an appellee in all three appeals, was named defendant in his capacity as the state officer responsible for supervising state elections. John A. Burns, Governor of Hawaii, appellant in No. 318, intervened as a party plaintiff. Members of the State

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House of Representatives, appellants in No. 323, and members of the State Senate, appellants in No. 409, intervened as parties defendant.

Under the Hawaii Constitution, adopted in 1950 and put into effect upon admission to statehood in 1959, the State is divided into four major counties, referred to in the State Constitution as "basic areas." Each county is made up of a group of islands, separated from each of the other counties by wide and deep ocean waters. The principal island of the City and County of Honolulu, the most populous county, is the island of Oahu. It is the State's industrial center, principal tourist attraction, and site of most of the many federal military establishments located in the State. In 1960, 79% of the State's population lived there. The three other counties, primarily rural and agricultural, are Hawaii County, Maui County, and Kauai County.2

The apportionment article of the State Constitution was framed to assure that the three small counties would choose a controlling majority of the State Senate, and that the population center, Oahu, would control the State House of Representatives. Thus, Art. III, § 2, of the State Constitution apportions a 25-member senate among six fixed senatorial districts, assigning a specified number of [86 S.Ct. 1289] seats to each. Fifteen senate seats, a controlling majority, are allocated among Hawaii, Kauai and

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Maui Counties, and 10 seats are assigned to Oahu. Alteration of this apportionment is made very difficult by a provision

that no constitutional amendment altering . . . the representation from any senatorial district in the senate shall become effective unless it shall also be approved by a majority of the votes tallied upon the question in each of a majority of the counties.3

3 Hawaii Const., Art. XV, § 2, ¶ 6.

For the State House of Representatives, on the other hand, the State Constitution establishes 18 representative districts, 10 of which are on Oahu, and requires the Governor to apportion the 51-member body among these districts on the basis of the number of voters registered in each. The first apportionment occurred in 1959, just prior to statehood, and was based on registration figures for the 1958 territorial election. It produced 13 multi-member representative districts and five single member districts, and allocated 36 representatives, a controlling majority, to Oahu.4 The Governor is required to reapportion

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the State decennially, a duty which may be enforced by mandamus from the State Supreme Court.

This apportionment scheme was first attacked in the Supreme Court of Hawaii within a month after we decided Reynolds v. Sims. That court refused to pass on the validity of the apportionment at that time. It noted the imminence of the 1964 election, and stated its belief that, consistent with the Hawaii Constitution, judicial proceedings should await legislative proposals for a constitutional amendment or a constitutional convention. Guntert v. Richardson, 47 Haw. 662, 394 P.2d 444. Compare Reynolds v. Sims, 377 U.S. at 585. A special legislative session was then called by the Governor to consider reapportionment. It failed to act.

This suit was brought on August 13, 1964. A three-Judge court was convened, as required by 28 U.S.C. §§ 2281, 2284 (1964 ed.). Interim relief was denied in view of the pendency of the 1964 elections, and hearings were set for January, 1965. The court published its first decision and order on February 17, 1965. 238 F.Supp. 468. That order declared all provisions of the apportionment plan contained in the Hawaii Constitution valid under the Equal Protection Clause except the mentioned provisions relating to the apportionment of the State Senate. These were affirmatively declared to be invalid and unconstitutional.

In the February 17 order, the District Court decided not to fashion its own reapportionment plan for the senate. Nor did it instruct the legislature to reapportion [86 S.Ct. 1290] the senate or to propose constitutional amendments for that purpose.5 Instead, it directed the legislature to submit

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to the electorate at an immediate special election the question, "Shall there be a convention to propose a revision of or amendments to the Constitution?" The legislature was also directed to establish the convention procedures according to a timetable the court set.6 The court retained jurisdiction for all purposes, including that of itself reapportioning the senate in the event of

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a negative vote on the question, failure of the convention to adopt a suitable amendment, or rejection by the electorate of the amendment adopted by the convention.

The court chose the convention route over the legislative route for two reasons. Under the Hawaii Constitution, all elections necessary to adoption of amendments proposed by a constitutional convention may be held on a special basis. Legislative proposals, on the other hand,...

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