412 U.S. 772 (1973), 71--1476, 72--147., Gaffney v. Cummings

Docket Nº:Nos. 71--1476, 72--147.
Citation:412 U.S. 772, 93 S.Ct. 2342, 37 L.Ed.2d 328
Party Name:J. Brian GAFFNEY, Appellant, v. Theodore R. CUMMINGS et al. Mark WHITE, Jr., et al., Appellants, v. Diana REGESTER et al.
Case Date:June 18, 1973
Court:United States Supreme Court

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412 U.S. 772 (1973)

93 S.Ct. 2342, 37 L.Ed.2d 328

J. Brian GAFFNEY, Appellant,


Theodore R. CUMMINGS et al.

Mark WHITE, Jr., et al., Appellants,


Diana REGESTER et al.

Nos. 71--1476, 72--147.

United States Supreme Court.

June 18, 1973

For opinions of the Court see 93 S.Ct. 2321, 2332.

[93 S.Ct. 2342] Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, concurring in part and dissenting in part in No. 72--147, and dissenting in No. 71--1476.

The Court today upholds statewide legislative apportionment plans for Connecticut and Texas, even though these plans admittedly entail substantial inequalities in the population of the representative districts, and even though the States have made virtually no attempt to justify their failure 'to construct districts . . . as nearly of equal population as is practicable.' Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964). In reaching this conclusion, the Court sets aside [93 S.Ct. 2343] the judgment of the United States District Court for the District of Connecticut holding the Connecticut plan invalid, and the judgment of the United States District Court for the Western District

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of Texas reaching a similar result as to the Texas plan. In the Texas case, the Court does affirm, however, the District Court's determination that the use of multimember districts in Dallas and Bexar Counties had the unconstitutional effect of minimizing the voting strength of racial groups. 1 See Whitcomb v. Chavis, 403 U.S. 124, 142--144, 91 S.Ct. 1858, 1868--1869, 29 L.Ed.2d 363 (1971); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). With that latter conclusion I am in full agreement, as I also agree with and join Part I of the Court's opinion in No. 72--147, White v. Regester. But the decision to uphold the state apportionment schemes reflects a substantial and very unfortunate retreat from the principles established in our earlier cases, and I therefore must state my dissenting views.


At issue in No. 71--1476, Gaffney v. Cummings, is the 1971 reapportionment plan for election of members of the House of Representatives of Connecticut. The plan was premised on a 151-member House, with each member elected from a single-member district. Since the population of the State was 3,032,217, according to 1970 census data, the ideal would fix the population of each district at 20,081. In fact, the population of many

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districts deviated substantially from the ideal, ranging from a district underrepresented by 3.93% to one overrepresented by 3.9%. The total spread of deviation--a figure deemed relevant in each of our earlier decisions--was 7.83%. The population of 39 assembly districts deviated from the average by more than 3%. Another 34 districts deviated by more than 2%. The average deviation was just under 2%. To demonstrate that the state plan did not achieve the greatest practicable degree of equality in per-district population, appellees submitted a number of proposed apportionment plans, including one that would have significantly reduced the extent of inequality. The total range of deviation under appellees' plan would have been 2.61%, as compared to 7.83% under the state plan.

The District Court held the state plan invalid on the ground that 'the deviations from equality of populations of the . . . House districts are not justified by any sufficient state interest.' 2 341 F.Supp. 139, 148 (Conn.1972). Instead of adopting one of appellees' plans, [93 S.Ct. 2344] the court appointed a Special Master to chart a new plan, and his effort produced a scheme with a total range of deviation of only 1.16%. In overturning the District Court's decision, the Court does not conclude, as it did earlier this Term in Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), that the District Court failed to discern the State's sufficient justification for the deviations. Indeed, in view of appellants halfhearted attempts to justify

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the deviations at issue here such a conclusion could hardly be supported. Whereas the Commonwealth of Virginia made a substantial effort to draw district lines in conformity with the boundaries of political subdivisions--an effort that was found sufficient in Mahan v. Howell to validate a plan with total deviation of 16.4%--the evidence in the case before us requires the conclusion that Connecticut's apportionment plan was drawn in complete disregard of political subdivision lines. The District Court pointed out that '(t)he boundary lines of 47 towns are cut under the Plan so that one or more portions of each of these 47 towns are added to another town or a portion of another town to form an assembly district.' 341 F.Supp., at 142. Moreover, the boundary lines of 29 of these 47 towns were cut more than once, and the plan created '78 segments of towns in the formation of 151 assembly districts.' Ibid.

Although appellant failed to offer cogent reasons in explanation of the substantial variations in district population, the Court nevertheless upholds the state plan. The Court reasons that even in the absence of any explanation for the failure to achieve equality, the showing of a total deviation of almost 8% does not make out a prima facie case of invidious discrimination under the Fourteenth Amendment. Deviations no greater than 8% are, in other words, to be deemed de minimis, and the State need not offer any justification at all for the failure to approximate more closely the ideal of Reynolds v. Sims, supra.

The Texas reapportionment case, No. 72--147, White v. Regester, presents a similar situation, except that the range of deviation in district population is greater and the State's justifications are, if anything, more meager. An ideal district in Texas, which choses the 150 members of the State House of Representatives from 79 single-member and 11 multimember districts, is 74,645. As

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defined in the State's 1970 plan, a substantial number of districts departed significantly from the ideal. The total range of deviation was at least 9.9%, and arguably almost 30%, depending on the mode of calculation. 3 The District Court pointed out that

'(i)n all of the evidence presented in this case, the State has not attempted to explain in terms of rational State policy its failure to create districts equal in population as neraly as practicable, nor has the State sought to justify a single deviation from precise mathematical equality. The lengthy depositions of the members of the legislative redistricting board and of the staff members who did the actual drawing of the legislative district lines are devoid of any meaningful indications of the standards used.' 343 F.Supp. 704, 714 (WD Tex.1972).

As the District Court's opinion makes clear, the variations surely cannot be defended as a necessary byproduct of a state effort to avoid fragmentation of [93 S.Ct. 2345] political subdivisions. Nevertheless, the Court today sets aside the District Court's decision, reasoning, as in the Connecticut case, that a showing of as much as 9.9% total deviation still does not establish a prima facie case under the Equal Protection Clause of the Fourteenth Amendment. Since the Court expresses no misgivings about our recent decision in Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), where we held that a total deviation of 11.9% must be

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justified by the State, one can reasonably surmise that a line has been drawn at 10%--deviations in excess of that amount are apparently acceptable only on a showing of justification by the State; deviations less than that amount require no justification whatsoever.


The proposition that certain deviations from equality of district population are so small as to lack constitutional significance, while repeatedly urged on this Court by States that failed to achieve precise equality, has never before commanded a majority of the Court. 4 Indeed, in Kirkpatrick v. Preisler, 394 U.S. 526, 530, 89 S.Ct. 1225, 1228, 23 L.Ed.2d 519 (1969), we expressly rejected the argument

'that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the 'asnearly as practicable' standard. The whole thrust of the 'as nearly as practicable' approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case.'

The Court reasons, however, that Kirkpatrick v. Preisler,

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supra, a case that concerned the division of Missouri into congressional districts, has no application to the apportionment of seats in a state legislature. In my dissenting opinion in Mahan v. Howell, supra, I pointed out that the language, reasoning, and background of the Kirkpatrick decision all command the conclusion that our...

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