Gaffney v. Cummings

• Decision Date: 12 June 1972
• Docket Number: A-1248,No. 71-1476,71-1476
• Citation: 407 U.S. 902,92 S.Ct. 2441,32 L.Ed.2d 679
• Parties: J. Brian GAFFNEY, appellant, v. Theodore R. CUMMINGS et al. ()
• Court: U.S. Supreme Court

407 U.S. 902

92 S.Ct. 2441

32 L.Ed.2d 679

J. Brian GAFFNEY, appellant,

v Theodore R. CUMMINGS et al.

No. 71-1476 (A-1248).

Supreme Court of the United States June 12, 1972 Application for stay. The application for stay of judgment of the United States District Court for the District of Connecticut presented to Mr Justice MARSHALL and by him referred to the Court is granted djQ Mr. Justice DOUGLAS, dissenting. Appellant seeks to stay the judgment of a three-judge Federal District Court which held unconstitutional Connecticut's plan for apportioning its state legislature. 341 F.Supp. 139. The plan was adopted in September 1971, and was only in the preliminary stages of implementation when it was struck down as violative of the Equal Protection Clause on March 30, 1972. An appeal from that decision has been docketed in this Court. Gaffney v. Cummings, No 71-1476. Mr. Justice STEWART would deny the application. We denied a motion for expedited consideration of that appeal on May 22, 1972. 406 U.S. 942, 92 S.Ct. 2047, 32 L.Ed.2d 330. Appellant promptly moved the lower court for a stay of its

Page 903 March 30th decision, and when that stay was denied on May 26, 1972, appellant came here. Earlier this Term, in another reapportionment case, Mr. Justice Powell articulated the considerations involved in our review of applications for a stay of lower court judgments: 'A lower court judgment, entered by a tribunal that was closer to the facts . . ., is entitled to a presumption of validity. Any party seeking a stay of that judgment bears the burden of showing that the decision below was erroneous and that the implementation of the judgment pending appeal will lead to irreparable harm.' Graves v. Barnes, 405 U.S. 1201, 1203, 92 S.Ct. 752, 30 L.Ed.2d 769. 'Irreparable injury,' of course, inheres in any challenge to legislative apportionment. If the court below erred, the Fall election will be held under an improper order, one which will doubtless affect the composition of the next state legislature. But this type of 'irreparable injury' affects both sides equally, for if the court below was correct, staying its order will cause irreparable harm of precisely the same dimension. There is 'irreparable injury' in a different sense if the court's order striking down a state apportionment is handed down so near the upcoming election that it is administratively impractical to implement an orderly election. Here, there is no serious claim that irreparable injury, in this sense, would result if a stay is not granted. The court below found as fact that there is ample time before the Fall election to implement the plan submitted by the Special Master on May 26, 1972, or any proposed substitute which the State or appellant might submit within a reasonable time.¹ In-

Page 904 deed, appellant concedes that the question of which plan can be most easily implemented is a 'non-issue.'² Thus, the issue determinative of the stay application is the probable correctness of the decision below, and, in my view, appellant has not met his burden 'of showing that the decision below was erroneous.' In Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506, we said 'the Equal Protection Clause requires that a 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.' Moreover, a State may not be heard to argue that a population variance is justified because it is de minimus. '[T]he 'as nearly as practicable' standard requires that the State make a good faith effort to achieve precise mathematical equality. . . . Unless population variances among . . . districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small.' Kirkpatrick v. Preisler, 394 U.S. 526, 530-531, 89 S.Ct. 1225, 22 L.Ed.2d 519.³ A comparison of the population variances in this case with those disapproved in Kirkpatrick, supra, is striking. In Kirkpatrick, the average variation from the ideal district was only 1.6%. Here, assembly districts in the State Plan exhibited an average variation of 1.9%. In Kirkpatrick, the ratio of the largest to the smallest district was only 1.06 to 1. Here, the ratio of the largest to the smallest assembly district is 1.082

Page 905 to 1. In Kirkpatrick, 70% of the districts were within plus or minus 1.88% of the ideal population figure. Here, only 51.65% of the assembly districts are within 2.0% of the ideal. In Kirkpatrick, the total variance⁴ was 5.97%. Here, the total variance of the assembly redistricting is 7.83%. It is true, of course that 'the extent to which equality may practicably be achieved may differ from State to State. . . .,' Kirkpatrick, supra, at 530, 84 S.Ct. 1362. Thus a State may be able to justify certain variations. Here, however, only two justifications are offered, and neither appear to have particular merit. It is primarily argued that the variations are justified by a legitimate state interest in achieving 'a partisan balancing of strength in each house.' The District Court explained the concept as follows: 'The partisan balancing of strength in each house, termed by interveningdefendant [appellant in this Court] a 'fair political balance' and by plaintiffs [appellees herein] 'political gerrymandering' was obtained by so adjusting the census areas utilized as building blocks into the structuring of Senate and House districts that, on the basis of the vote for all the Senate candidates of each party in the elections of 1966, 1968 and 1970, whichever party carried the state should carry a majority of Senate seats proportional to the statewide party majority, and likewise in the House, based on the party vote for all the House candidates of each party in the same three elections. 'In one or more House and one or more Senate districts some accommodation was also made in

Page 906 the interest of retaining in office a particular incumbent.' 341 F.Supp. 139. This Court has never decided whether political gerrymandering or 'fair political balance' is per se unconstitutional, irrespective of population variances. See, e. g., Wells v....