Baker v. Carr (con't)

Within the States, electoral power continued to be allotted to favor the tidewater. [Footnote 4/76] Jefferson, in his Notes on Virginia, recorded the "very unequal" representation there: individual counties differing in population by a ratio of more than seventeen to one elected the same number of representatives, and those nineteen thousand of Virginia's fifty thousand men who lived between the falls of the rivers and the seacoast returned half the State's senators and almost half its delegates. [Footnote 4/77] In South Carolina in 1790, the three lower districts, with a white population of less than twenty-nine thousand, elected twenty senators and seventy assembly members; while, in the uplands, more than one hundred and eleven thousand white persons elected seventeen senators and fifty-four assemblymen. [Footnote 4/78]

In the early nineteenth century, the demands of the interior became more insistent. The apportionment quarrel in Virginia was a major factor in precipitating the calling of a constitutional convention in 1829. Bitter animosities racked the convention, threatening the State with disunion. At last, a compromise which gave the three hundred and twenty thousand people of the west thirteen senators, as against the nineteen senators returned by the three hundred sixty-three thousand people of the east, commanded agreement. It was adopted at the polls, but left the western counties so dissatisfied that there were threats of revolt and realignment with the State of Maryland. [Footnote 4/79]

Maryland, however, had her own numerical disproportions. In 1820, one representative vote in Calvert County

was worth five in Frederick County, and almost two hundred thousand people were represented by eighteen members, while fifty thousand others elected twenty. [Footnote 4/80] This was the result of the county representation system of allotment. And, except for Massachusetts, which, after a long struggle, did adopt representation by population at the mid-century, a similar town representation principle continued to prevail in various forms throughout New England, with all its attendant, often gross, inequalities. [Footnote 4/81]

3. The States at the time of ratification of the Fourteenth Amendment, and those later admitted. The several state conventions throughout the first half of the nineteenth century were the scenes of fierce sectional and party strifes respecting the geographic allocation of representation. [Footnote 4/82] Their product was a wide variety of apportionment methods which recognized the element of population in differing ways and degrees. Particularly pertinent to appraisal of the contention that the Fourteenth Amendment embodied a standard limiting the freedom of the States with regard to the principles and bases of local legislative apportionment is an examination of the apportionment provisions of the thirty-three States which ratified the Amendment between 1866 and 1870, at their respective times of ratification. These may be considered in two groups: (A) the ratifying States other than the ten Southern States whose constitutions, at the time of ratification or shortly thereafter, were the work of the Reconstruction Act conventions; [Footnote 4/83] and

(B) the ten Reconstruction-Act States. All thirty-three are significant, because they demonstrate how unfounded is the assumption that the ratifying States could have agreed on a standard apportionment theory or practice, and how baseless the suggestion that, by voting for the Equal Protection Clause, they sought to establish a test mold for apportionment which -- if appellants' argument is sound -- struck down sub silentio not a few of their own state constitutional provisions. But the constitutions of the ten Reconstruction Act States have an added importance, for it is scarcely to be thought that the Congress which was so solicitous for the adoption of the Fourteenth Amendment as to make the readmission of the late rebel States to Congress turn on their respective ratifications of it, would have approved constitutions which -- again, under appellants' theory -- contemporaneously offended the Amendment.

A. Of the twenty-three ratifying States of the first group, seven or eight had constitutions which demanded or allowed apportionment of both houses on the basis of population, [Footnote 4/84] unqualifiedly or with only qualifications respecting the preservation of local boundaries. [Footnote 4/85] Three more apportioned on what was essentially a population base, but provided that, in one house, counties having a specified fraction of a ratio -- a moiety or two-thirds -- should have a representative. [Footnote 4/86] Since each of these three States limited the size of their chambers, the fractional rule could operate -- and, at least in Michigan, has, in fact, operated [Footnote 4/87] -- to produce substantial numerical inequalities in favor of the sparsely populated counties. [Footnote 4/88] Iowa favored her small counties by the rule that no more than four counties might be combined in a representative district, [Footnote 4/89] and New York and Kansas compromised population and county representation principles by assuring every county, regardless of the number of its inhabitants, at least one seat in their respective Houses. [Footnote 4/90]

Ohio and Maine recognized the factor of numbers by a different device. The former gave a House representative to each county having half a ratio, two representatives for a ratio and three-quarters, three representatives for three ratios, and a single additional representative for each additional ratio. [Footnote 4/91] The latter, after apportioning among counties on a population base, gave each town of fifteen hundred inhabitants one representative, each town of three thousand, seven hundred and fifty inhabitants two representatives, and so on in increasing intervals to twenty-six thousand, two hundred and fifty inhabitants -- towns of that size or larger receiving the maximum permitted number of representatives: seven. [Footnote 4/92] The departure from numerical equality under these systems is apparent: in Maine, assuming the incidence of town all categories, representative ratios would differ by factors of two and a half to one, at a minimum. Similarly, Missouri gave each of its counties, however small, one representative, two representatives for three ratios, three representatives for six ratios, and one additional representative for each three ratios above six. [Footnote 4/93] New Hampshire allotted a representative to each town of one hundred and fifty ratable male polls of voting age and one more representative for each increment of three hundred above that figure; [Footnote 4/94] its Senate was not apportioned by population, but among districts based on the proportion of direct taxes paid. [Footnote 4/95] In Pennsylvania, the basis of apportionment in both houses was taxable inhabitants, and in the House, every county of at least thirty-five hundred taxables had a representative, nor could more than three counties be joined in forming a representative district; while, in the Senate, no city or county could have more than four of the State's twenty-five to thirty-three senators. [Footnote 4/96]

Finally, four States apportioned at least one House with no regard whatever to population. In Connecticut, [Footnote 4/97] and Vermont [Footnote 4/98] representation in the House was on a town basis; Rhode Island gave one senator to each of its towns or cities, [Footnote 4/99] and New Jersey one to each of its counties. [Footnote 4/100]  Nor, in any of these States, was the other House apportioned on a strict principle of equal numbers: Connecticut gave each of its counties a minimum of two senators [Footnote 4/101] and Vermont, one; [Footnote 4/102] New Jersey assured each county a representative; [Footnote 4/103] and, in Rhode Island, which gave at least one representative to each town or city, no town or city could have more than one-sixth of the total number in the House. [Footnote 4/104]

B. Among the ten late Confederate States affected by the Reconstruction Acts, in only four did it appear that apportionment of both state legislative houses would or might be based strictly on population. [Footnote 4/105] In North Carolina, [Footnote 4/106] South Carolina, [Footnote 4/107] Louisiana, [Footnote 4/108] and Alabama, [Footnote 4/109] each county (in the case of Louisiana, each parish) was assured at least one seat in the lower House irrespective of numbers -- a distribution which exhausted, respectively, on the basis of the number of then-existing counties, three-quarters, one-quarter, two-fifths and three-fifths of the maximum possible number of representatives, before a single seat was available for assignment on a population basis, and, in South Carolina, moreover, the Senate was composed of one member elected from each county, except that Charleston sent two. [Footnote 4/110] In Florida's House, each county had one seat guaranteed and an additional seat for every thousand registered voters up to a maximum of four representatives, [Footnote 4/111] while Georgia, whose Senate seats were distributed among forty-four single member districts each composed of three contiguous counties, [Footnote 4/112] assigned representation in its House as follows: three seats to each of the six most populous counties, two to each of the thirty-one next most populous, one to each of the remaining ninety-five. [Footnote 4/113] As might be expected, the "one representative per county" minimum pattern has proved incompatible with numerical equality, [Footnote 4/114] and Georgia's county-clustering system has produced representative ratio disparities, between the largest and smallest counties, of more than sixty to one. [Footnote 4/115]

C. The constitutions [Footnote 4/116] of the thirteen States which Congress admitted to the Union after the ratification of the Fourteenth Amendment showed a similar pattern. Six of them required or permitted apportionment of both Houses by population, subject only to qualifications concerning local boundaries. [Footnote 4/117] Wyoming, apportioning by population, guaranteed to each of its counties at least one seat in each House, [Footnote 4/118] and Idaho, which prescribed (after the first legislative session) that apportionment should be "as may be provided by law," gave each county at least one representative. [Footnote 4/119] In Oklahoma, House members were apportioned among counties so as to give one seat for half a ratio, two for a ratio and three-quarters, and one for each additional ratio up to a maximum of seven representatives per county. [Footnote 4/120] Montana required reapportionment of its House on the basis of periodic enumerations according to ratios to be fixed by law, [Footnote 4/121] but its counties were represented as counties in the Senate, each county having one senator. [Footnote 4/122] Alaska [Footnote 4/123] and Hawaii [Footnote 4/124] each apportioned a number of senators among constitutionally fixed districts; their respective Houses were to be periodically reapportioned by population, subject to a moiety rule in Alaska [Footnote 4/125] and to Hawaii's guarantee of one representative to each of four constitutionally designated areas. [Footnote 4/126] The Arizona Constitution assigned representation to each county in each house, giving one or two senators and from one to seven representatives to each, and making no provision for reapportionment. [Footnote 4/127

4. Contemporary apportionment. Detailed recent studies are available to describe the present-day constitutional and statutory status of apportionment in the fifty States. [Footnote 4/128] They demonstrate a decided twentieth-century trend away from population as the exclusive base of representation. Today, only a dozen state constitutions provide for periodic legislative reapportionment of both houses by a substantially unqualified application of the population standard, [Footnote 4/129] and only about a dozen more prescribe such reapportionment for even a single chamber.

"Specific provision for county representation in at least one house of the state legislature has been increasingly adopted since the end of the 19th century. [Footnote 4/130]"

More than twenty States now guarantee each county at least one seat in one of their houses regardless of population, and in nine others county or town units are given equal representation in one legislative branch, whatever the number of each unit's inhabitants. Of course, numerically considered, "These provisions invariably result in over-representation of the least populated areas." [Footnote 4/131] And in an effort to curb the political dominance of metropolitan regions, at least ten States now limit the maximum entitlement of any single county (or, in some cases, city) in one legislative house -- another source of substantial numerical disproportion. [Footnote 4/132]

Moreover, it is common knowledge that the legislatures have not kept reapportionment up to date, even where state constitutions in terms require it. [Footnote 4/133] In particular, the pattern of according greater per capita representation to rural, relatively sparsely populated areas -- the same pattern which finds expression in various state constitutional provisions, [Footnote 4/134] and which has been given effect in England and elsewhere [Footnote 4/135] -- has, in some of the States, been made the law by legislative inaction in the face of population shifts. [Footnote 4/136] Throughout the country, urban and suburban areas tend to be given higher representation ratios than do rural areas. [Footnote 4/137]

The stark fact is that, if, among the numerous widely varying principles and practices that control state legislative apportionment today, there is any generally prevailing feature, that feature is geographic inequality in relation to the population standard. [Footnote 4/138] Examples could be endlessly multiplied. In New Jersey, counties of thirty-five thousand and of more than nine hundred and five thousand inhabitants respectively each have a single senator. [Footnote 4/139] Representative districts in Minnesota range from 7,290 inhabitants to 107,246 inhabitants. [Footnote 4/140] Ratios of senatorial representation in California vary as much as two hundred and ninety-seven to one. [Footnote 4/141] In Oklahoma, the range is ten to one for House constituencies and roughly sixteen to one for Senate constituencies. [Footnote 4/142] Colebrook, Connecticut -- population 592 -- elects two House representatives; Hartford -- population 177,397 -- also elects two. [Footnote 4/143] The first, third and fifth of these examples are the products of constitutional provisions which subordinate population to regional considerations in apportionment; the second is the result of legislative inaction; the fourth derives from both constitutional and legislative sources. A survey made in 1955, in sum, reveals that less than thirty percent of the population inhabit districts sufficient to elect a House majority in thirteen States and a Senate majority in nineteen States. [Footnote 4/144] These figures show more than individual variations from a generally accepted standard of electoral equality. They show that there is not -- as there has never been -- a standard by which the place of equality as a factor in apportionment can be measured.

Manifestly, the Equal Protection Clause supplies no clearer guide for judicial examination of apportionment methods than would the Guarantee Clause itself. Apportionment, by its character, is a subject of extraordinary complexity, involving -- even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised -- considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others. [Footnote 4/145]

Legislative responses throughout the country to the reapportionment demands of the 1960 Census have glaringly confirmed that these are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience or native wit. And this is the more so true because, in every strand of this complicated, intricate web of values meet the contending forces of partisan politics. [Footnote 4/146] The practical significance of apportionment is that the next election results may differ because of it. Apportionment battles are overwhelmingly party or intra-party contests. [Footnote 4/147] It will add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them. [Footnote 4/148]

IV

Appellants, however, contend that the federal courts may provide the standard which the Fourteenth Amendment lacks by reference to the provisions of the constitution of Tennessee. The argument is that, although the same or greater disparities of electoral strength may be suffered to exist immune from federal judicial review in States where they result from apportionment legislation consistent with state constitutions, the Tennessee Legislature may not abridge the rights which, on its face, its own constitution appears to give, without by that act denying equal protection of the laws. It is said that the law of Tennessee, as expressed by the words of its written constitution, has made the basic choice among policies in favor of representation proportioned to population, and that it is no longer open to the State to allot its voting power on other principles.

This reasoning does not bear analysis. Like claims invoking state constitutional requirement have been rejected here, and for good reason. It is settled that whatever federal consequences may derive from a discrimination worked by a state statute must be the same as if the same discrimination were written into the State's fundamental law. Nashville, C. & St.L. R. Co. v. Browning, 310 U. S. 362And see Castillo v. McConnico, 168 U. S. 674Coulter v. Louisville & N. R. Co., 196 U. S. 599196 U. S. 608-609; Owensboro Waterworks Co. v. Owensboro, 200 U. S. 38Hebert v. Louisiana, 272 U. S. 312272 U. S. 316-317;Snowden v. Hughes, 321 U. S. 1321 U. S. 11. Appellants complain of a practice which, by their own allegations, has been the law of Tennessee for sixty years. They allege that the Apportionment Act of 1901 created unequal districts when passed, and still maintains unequal districts. They allege that the Legislature has, since 1901, purposefully retained unequal districts. And the Supreme Court of Tennessee has refused to invalidate the law establishing these unequal districts. Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40; appeal dismissed here in 352 U.S. 920. In these circumstances, what was said in the Browning case, supra, at 310 U. S. 369, clearly governs this case:

". . . Here, according to petitioner's own claim, all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years, and now questioned for the first time. It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text. . . . [T]he Equal Protection Clause is not a command of candor. . . . Tennessee's law and its policy respecting apportionment are what 60 years of practice show them to be, not what appellants cull from the unenforced and, according to its own judiciary, unenforceable words of its Constitution. The statute comes here on the same footing, therefore, as would the apportionment laws of New Jersey, California or Connecticut, [Footnote 4/149] and is unaffected by its supposed repugnance to the state constitutional language on which appellants rely. [Footnote 4/150]

In another aspect, however, the Kidd v. McCanless case, supra, introduces a factor peculiar to this litigation, which only emphasizes the duty of declining the exercise of federal judicial jurisdiction. In all of the apportionment cases which have come before the Court, a consideration which has been weighty in determining their nonjusticiability has been the difficulty or impossibility of devising effective judicial remedies in this class of case. An injunction restraining a general election unless the legislature reapportions would paralyze the critical centers of a State's political system and threaten political dislocation whose consequences are not foreseeable. A declaration devoid of implied compulsion of injunctive or other relief would be an idle threat. [Footnote 4/151] Surely a Federal District Court could not itself remap the State: the same complexities which impede effective judicial review of apportionment a fortiori make impossible a court's consideration of these imponderables as an original matter. And the choice of elections at large, as opposed to elections by district, however unequal the districts, is a matter of sweeping political judgment having enormous political implications, the nature and reach of which are certainly beyond the informed understanding of, and capacity for appraisal by, courts.

In Tennessee, moreover, the McCanless case has closed off several among even these unsatisfactory and dangerous modes of relief. That case was a suit in the state courts attacking the 1901 Reapportionment Act and seeking a declaration and an injunction of the Act's enforcement or, alternatively, a writ of mandamus compelling state election officials to hold the elections at large, or, again alternatively, a decree of the court reapportioning the State. The Chancellor denied all coercive relief, but entertained the suit for the purpose of rendering a declaratory judgment. It was his view that, despite an invalidation of the statute under which the present legislature was elected, that body would continue to possess de facto authority to reapportion, and that, therefore, the maintaining of the suit did not threaten the disruption of the government. The Tennessee Supreme Court agreed that no coercive relief could be granted; in particular, it said, "There is no provision of law for election of our General Assembly by an election at large over the State." 200 Tenn. at 277, 292 S.W.2d at 42. Thus, a legislature elected at large would not be the legally constituted legislative authority of the State. The court reversed, however, the Chancellor's determination to give declaratory relief, holding that the ground of demurrer which asserted that a striking down of the statute would disrupt the orderly process of government should have been sustained:

"(4) It seems obvious, and we therefore hold, that, if the Act of 1901 is to be declared unconstitutional, then the de facto doctrine cannot be applied to maintain the present members of the General Assembly in office. If the Chancellor is correct in holding that this statute has expired by the passage of the decade following its enactment, then, for the same reason, all prior apportionment acts have expired by a like lapse of time, and are nonexistent. Therefore, we would not only not have any existing members of the General Assembly, but we would have no apportionment act whatever under which a new election could be held for the election of members to the General Assembly."

"The ultimate result of holding this Act unconstitutional by reason of the lapse of time would be to deprive us of the present Legislature and the means of electing a new one and ultimately bring about the destruction of the State itself." 200 Tenn. at 281-282, 292 S.W.2d at 44.

A federal court enforcing the Federal Constitution is not, to be sure, bound by the remedial doctrines of the state courts. But it must consider as pertinent to the propriety or impropriety of exercising its jurisdiction those state law effects of its decree which it cannot itself control. A federal court cannot provide the authority requisite to make a legislature the proper governing body of the State of Tennessee. And it cannot be doubted that the striking

down of the statute here challenged on equal protection grounds, no less than on grounds of failure to reapportion decennially, would deprive the State of all valid apportionment legislation and -- under the ruling in McCanless -- deprive the State of an effective law-based legislative branch. Just such considerations, among others here present, were determinative in Luther v. Borden and the Oregon initiative cases. [Footnote 4/152]

Although the District Court had jurisdiction in the very restricted sense of power to determine whether it could adjudicate the claim, the case is of that class of political controversy which, by the nature of its subject, is unfit for federal judicial action. The judgment of the District Court, in dismissing the complaint for failure to state a claim on which relief can be granted, should therefore be affirmed.

* It is worth reminding that the problem of legislative apportionment is not one dividing North and South. Indeed, in the present House of Representatives, for example, Michigan's congressional districts are far less representative of the numbers of inhabitants, according to the 1960 census, than are Louisiana's. Michigan's Sixteenth District, which is 93.1% urban, contains 802,994 persons, and its Twelfth, which is 47.6% urban, contains 177,431 -- one-fifth as many persons. Louisiana's most populous district, the Sixth, is 53.6% urban and contains 536,029 persons, and its least populous, the Eighth, 36.7% urban, contains 263,850 -- nearly half. Gross disregard of any assumption that our political system implies even approximation to the notion that individual votes in the various districts within a State should have equal weight is as true, e.g., of California, Illinois, and Ohio as it is of Georgia. See United States Department of Commerce, Census Release, February 24, 1962, CB62-23.

[Footnote 4/1]

See Wood v. Broom, 287 U. S. 1Colegrove v. Green, 328 U. S. 549rehearing denied, 329 U.S. 825, motion for reargument before the full bench denied,329 U.S. 828; Cook v. Fortson, 329 U. S. 675rehearing denied, 329 U.S. 829; Turman v. Duckworth, 329 U. S. 675rehearing denied, 329 U.S. 829;Colegrove v. Barrett, 330 U.S. 804; MacDougall v. Green, 335 U. S. 281South v. Peters, 339 U. S. 276Tedesco v. Board of Supervisors, 339 U.S. 940;Remmey v. Smith, 342 U.S. 916; Cox v. Peters, 342 U.S. 936, rehearing denied, 343 U.S. 921; Anderson v. Jordan, 343 U.S. 912; Kidd v. McCanless, 352 U.S. 920; Radford v. Gary, 352 U.S. 991; Hartsfield v. Sloan, 357 U.S. 916; Matthews v. Handley, 361 U. S. 127Perry v. Folsom, 144 F.Supp. 874 (D.C.N.D.Ala.); Magraw v. Donovan, 163 F.Supp. 184 (D.C.D. Minn.); cf. Dyer v. Kazuhisa Abe, 138 F.Supp. 220 (D.C.D. Hawaii). And see Keogh v. Neely, 50 F.2d 685 (C.A. 7th Cir.).

[Footnote 4/2]

Although the motion to intervene by the Mayor of Nashville asserted an interest in the litigation in only a representative capacity, the complaint which he subsequently filed set forth that he was a qualified voter who also sued in his own behalf. The municipalities of Knoxville and Chattanooga purport to represent their residents. Since the claims of the municipal intervenors do not differ materially from those of the parties who sue as individual voters, the Court need not now determine whether the municipalities are proper parties to this proceeding. See, e.g., Stewart v. Kansas City, 239 U. S. 14.

[Footnote 4/3]

The original complaint named as defendants Tennessee's Secretary of State, Attorney General, Coordinator of Elections, and the three members of the State Board of Elections, seeking to make the Board members representatives of all the State's County Election Commissioners. The prayer in an intervening complaint by the City of Knoxville, that the Commissioners of Elections of Knox County be added as parties defendant seems not to have been acted on by the court below. Defendants moved to dismiss, inter alia, on the ground of failure to join indispensable parties, and they argue in this Court that only the County Election Commissioners of the ninety-five counties are the effective administrators of Tennessee's elections laws, and that none of the defendants have substantial duties in connection therewith. The District Court deferred ruling on this ground of the motion. Inasmuch as it involves questions of local law more appropriately decided by judges sitting in Tennessee than by this Court, and since, in any event, the failure to join County Election Commissioners in this action looking to prospective relief could be corrected, if necessary, by amendment of the complaints, the issue does not concern the Court on this appeal.

[Footnote 4/4]

Jurisdiction is predicated upon R.S. § 1979, 42 U.S.C. § 1983, and 28 U.S.C. § 1343(3).

[Footnote 4/5]

However, counties having two-thirds of the ratio required for a Representative are entitled to seat one member in the House, and there are certain geographical restrictions upon the formation of Senate districts. The applicable provisions of Article II of the Tennessee Constitution are:

"Sec. 4. Census. -- An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years."

"Sec. 5. Apportionment of representatives. -- The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each, and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided that any county having two-thirds of the ratio shall be entitled to one member."

"Sec. 6. Apportionment of senators. -- The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives shall be made up to such county or counties in the Senate as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining, and no county shall be divided in forming a district ."

[Footnote 4/6]

It is alleged that certain amendments to the Act of 1901 made only minor modifications of that Act, adjusting the boundaries of individual districts in a manner not material to plaintiffs' claims.

[Footnote 4/7]

The exhibits do not reveal the source of the population figures which they set forth, but it appears that the figures were taken from the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 41, at 76-91. These census figures represent the total population over twenty-one years of age in each Tennessee county; they do not purport to enumerate "qualified voters" or "qualified electors," the measure of apportionment prescribed by the Tennessee Constitution. See note 5, supra. To qualify to vote in Tennessee, in addition to fulfilling the age requirement, an individual must be a citizen of the United States, a resident of the State for twelve months and of the county where he offers his vote for six months next preceding the election, and must not be under the disqualification attaching to conviction for certain offenses. Tenn.Code Ann., 1955, §§ 2-201, 2-205. The statistics found in the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 42, at 92-97, suggest that the residence requirement, in particular, may be an unknown variable of considerable significance. Appellants do not suggest a means by which a court, on the basis of the federal census figures, can determine the number of qualified voters in the various Tennessee counties.

[Footnote 4/8]

The "county aid funds" derived from a portion of a state gasoline privilege tax, for example, are distributed among the counties as follows: one-half equally among the ninety-five counties, one-quarter on the basis of area, one-quarter on the basis of population, to be used by county authorities in the building, repairing and improving of county roads and bridges. Tenn.Code Ann., 1955, § 54-403. Appellants urge that this distribution is discriminatory.

[Footnote 4/9]

Plaintiffs also suggested, as an alternative to at-large elections, that the District Court might itself redistrict the State. They did not, however, expressly pray such relief.

[Footnote 4/10]

See Bickel, Foreword: The Passive Virtues, 75 Harv.L.Rev. 40, 45 et seq. (1961).

[Footnote 4/11]

See, e.g., 16 U. S. Palmer, 3 Wheat. 610, 16 U. S. 63416 U. S. 635The Divina Pastora, 4 Wheat. 52; Williams v. Suffolk Ins. Co., 13 Pet. 415; Kennett v. Chambers, 14 How. 38; Doe v. Braden, 16 How. 635; Jones v. United States, 137 U. S. 202Terlinden v. Ames, 184 U. S. 270Charlton v. Kelly, 229 U. S. 447Oetjen v. Central Leather Co., 246 U. S. 297Ex parte Peru, 318 U. S. 578Clark v. Allen, 331 U. S. 503Compare 27 U. S. Neilson, 2 Pet. 253, with 31 U. S. Arredondo, 6 Pet. 691. Of course, judgment concerning the "political" nature of even a controversy affecting the Nation's foreign affairs is not a simple mechanical matter, and certain of the Court's decisions have accorded scant weight to the consideration of unity of action in the conduct of external relations. Compare Vermilya-Brown Co. v. Connell, 335 U. S. 377with United States v. Pink, 315 U. S. 203.

[Footnote 4/12]

Obviously, this is the equivalent of saying that the characteristics are not "constitutionally requisite" in a judicially enforceable sense. The recognition of their necessity as a condition of legislation is left, as is observance of certain other constitutional commands, to the conscience of the nonjudicial organs. Cf. 65 U. S. Dennison, 24 How. 66.

[Footnote 4/13]

Also compare the Coleman case and United States v. Sprague, 282 U. S. 716with Hawke v. Smith (No. 1), 253 U. S. 221See the National Prohibition Cases, 253 U. S. 350, and consider the Court's treatment of the several contentions in Leser v. Garnett, 258 U. S. 130.

[Footnote 4/14]

E.g., Myers v. Anderson, 238 U. S. 368Nixon v. Condon, 286 U. S. 73Lane v. Wilson, 307 U. S. 268Smith v. Allwright, 321 U. S. 649. The action for damages for improperly rejecting an elector's vote had been given by the English law since the time of Ashby v. White, 1 Brown's Cases in Parliament 62; 2 Ld.Raym. 938; 3 Ld.Raym. 320, a case which, in its own day, precipitated an intra-parliamentary war of major dimensions. See 6 Hansard, Parliamentary History of England (1810), 225-324, 376-436. Prior to the racial discrimination cases, this Court had recognized the action, by implication, in dictum in Swafford v. Templeton, 185 U. S. 487, and Wiley v. Sinkler, 179 U. S. 58, both respecting federal elections.

[Footnote 4/15]

Cf. Gomillion v. Lightfoot, 364 U. S. 339.

[Footnote 4/16]

By statute, an action for preventive relief is now given the United States in certain voting cases. 71 Stat. 637, 42 U.S.C. § 1971(c), amending R.S. § 2004. See United States v. Raines, 362 U. S. 17United States v. Thomas, 362 U. S. 58.

[Footnote 4/17]

Compare 37 U. S. Massachusetts, 12 Pet. 657, and cases following, with 73 U. S. Stanton, 6 Wall. 50.

[Footnote 4/18]

Compare 31 U. S. Georgia, 6 Pet. 515, with 30 U. S. Georgia, 5 Pet. 1, 30 U. S. 2030 U. S. 28 (Mr. Justice Johnson, concurring), 30 U. S. 51 and 30 U. S. 75(Mr. Justice Thompson, dissenting).

[Footnote 4/19]

This was an alternative ground of Chief Justice Marshall's opinion for the Court. Id. at 30 U. S. 20. The question which Marshall reserved as "unnecessary to decide," ibid., was not the justiciability of the bill in this aspect, but the "more doubtful" question whether that "part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession," might be entertained. Ibid. Mr. Justice Johnson, concurring, found the controversy nonjusticiable, and would have put the ruling solely on this ground, id. at 30 U. S. 28, and Mr. Justice Thompson, in dissent, agreed that much of the matter in the bill was not fit for judicial determination. Id. at 30 U. S. 5130 U. S. 75.

[Footnote 4/20]

Cf. 71 U. S. Johnson, 4 Wall. 475.

[Footnote 4/21]

Considerations similar to those which determined the Cherokee Nation case and Georgia v. Stanton no doubt explain the celebrated decision in Nabob of the Carnatic v. East India Co., 1 Ves.jun. *371; 2 Ves.jun. *56, rather than any attribution of a portion of British sovereignty, in respect of Indian affairs, to the company. The reluctance of the English Judges to involve themselves in contests of factional political power is of ancient standing. In The Duke of York's Claim to the Crown, 5 Rotuli Parl. 375, printed in Wambaugh, Cases on Constitutional Law (1915), 1, the role which the Judges were asked to play appears to have been rather that of advocates than of judges, but the answer which they returned to the Lords relied on reasons equally applicable to either role.

[Footnote 4/22]

"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

[Footnote 4/23]

Cf. the cases holding that the Fourteenth Amendment imposes no such restriction upon the form of a State's governmental organization as will permit persons affected by government action to complain that, in its organization principles of separation of powers have been violated. E.g., Dreyer v. Illinois, 187 U. S. 71;Soliah v. Heskin, 222 U. S. 522Houck v. Little River Drainage District, 239 U. S. 254. The same consistent refusal of this Court to find that the Federal Constitution restricts state power to design the structure of state political institutions is reflected in the cases rejecting claims arising out of the States' creation, alteration, or destruction of local subdivisions or their powers, insofar as these claims are made by the subdivisions themselves, see Laramie County v. Albany County, 92 U. S. 307Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394Trenton v. New Jersey, 262 U. S. 182Risty v. Chicago, R.I. & P. R. Co., 270 U. S. 378270 U. S. 389-390; Williams v. Mayor and City Council of Baltimore, 289 U. S. 36, or by the whole body of their residents who share only a general, undifferentiated interest in their preservation. See Hunter v. Pittsburgh, 207 U. S. 161. The policy is also given effect by the denial of "standing" to persons seeking to challenge state action as infringing the interest of some separate unit within the State's administrative structure -- a denial which precludes the arbitrament by federal courts of what are only disputes over the local allocation of government functions and powers. See, e.g., Smith v. Indiana, 191 U. S. 138Braxton County Court v. West Virginia, 208 U. S. 192Marshall v. Dye, 231 U. S. 250Stewart v Kansas City, 239 U. S. 14.

[Footnote 4/24]

223 U.S. at 223 U. S. 141.

". . . [T]he contention, if held to be sound, would necessarily affect the validity not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum. And, indeed, the propositions go further than this, since, in their essence, they assert that there is no governmental function, legislative or judicial, in Oregon, because it cannot be assumed, if the proposition be well founded, that there is at one and the same time one and the same government which is republican in form and not of that character."

Compare 48 U. S. Borden, 7 How. 1, 48 U. S. 38-39:

". . . For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned -- if it had been annulled by the adoption of the opposing government -- then the laws passed by its legislature during that time were nullities, its taxes wrongfully collected, its salaries and compensation to its officers illegally paid, its public accounts improperly settled, and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not, in some cases, as criminals."

"When the decision of this court might lead to such results, it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction."

[Footnote 4/25]

See Bowen, The Recent Contest in Rhode Island (1844); Frieze, A Concise History of the Efforts to Obtain an Extension of Suffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842); Mowry, The Dorr War (1901); Wayland, The Affairs of Rhode Island (2d ed. 1842).

[Footnote 4/26]

The Court reasoned, with respect to the guarantee against domestic violence also contained in Art. IV, § 4, that this, too, was an authority committed solely to Congress; that Congress had empowered the President, not the courts, to enforce it, and that it was inconceivable that the courts should assume a power to make determinations in the premises which might conflict with those of the Executive. It noted further that, in fact, the President had recognized the governor of the charter government as the lawful authority in Rhode Island, although it had been unnecessary to call out the militia in his support.

[Footnote 4/27]

See note 24, supra.

[Footnote 4/28]

Id. at 48 U. S. 3948 U. S. 46-47.

[Footnote 4/29]

Id. at 48 U. S. 41-42.

[Footnote 4/30]

In evaluating the Court's determination not to inquire into the authority of the charter government, it must be remembered that, throughout the country, Dorr "had received the sympathy of the Democratic press. His cause, therefore, became distinctly a party issue." 2 Warren, The Supreme Court in United States History (Rev. ed.1937), 186.

[Footnote 4/31]

Appellants also allege discrimination in the legislature's allocation of certain tax burdens and benefits. Whether or not such discrimination would violate the Equal Protection Clause if the tax statutes were challenged in a proper proceeding, see Dane v. Jackson, 256 U. S. 589cf. Nashville, C. & St.L. R. Co. v. Wallace, 288 U. S. 249288 U. S. 268, these recitative allegations do not affect the nature of the controversy which appellants' complaints present.

[Footnote 4/32]

Appellants would find a "right" to have one's ballot counted on authority of United States v. Mosley, 238 U. S. 383United States v. Classic, 313 U. S. 299;United States v. Saylor, 322 U. S. 385. All that these cases hold is that conspiracies to commit certain sharp election practices which, in a federal election, cause ballots not to receive the weight which the law has, in fact, given them, may amount to deprivations of the constitutionally secured right to vote for federal officers. But see United States v. Bathgate, 246 U. S. 220. The cases do not so much as suggest that there exists a constitutional limitation upon the relative weight to which the law might properly entitle respective ballots, even in federal elections.

[Footnote 4/33]

Mackenzie, Free Elections (1958) (hereafter, Mackenzie), 108.

[Footnote 4/34]

Ogg, English Government and Politics (2d ed.1936) (hereafter Ogg), 248-250, 257; Seymour, Electoral Reform in England and Wales (1915) (hereafter, Seymour), 46-47.

[Footnote 4/35]

Ogg 257-259; Seymour 45-52; Carpenter, The Development of American Political Thought (1930) (hereafter, Carpenter), 45-46.

[Footnote 4/36]

Ogg 258.

[Footnote 4/37]

Seymour 51.

[Footnote 4/38]

The Federalist, No. 56 (Wright ed.1961), at 382. Compare Seymour 49. This takes account of the restricted franchise as well as the effect of the local unit apportionment principle.

[Footnote 4/39]

Seymour 52-76.

[Footnote 4/40]

Ogg 264-265; Seymour 318-319.

[Footnote 4/41]

For these and other instances of gross inequality, see Seymour 320-325.

[Footnote 4/42]

Seymour 333-346; Ogg 265.

[Footnote 4/43]

Seymour 349, 490-491.

[Footnote 4/44]

Seymour 489-518.

[Footnote 4/45]

Mackenzie 108; see also Seymour 513-517.

[Footnote 4/46]

Ogg 270.

[Footnote 4/47]

Ogg 253.

[Footnote 4/48]

Ogg 270-271.

[Footnote 4/49]

Ogg 273-274.

[Footnote 4/50]

7 & 8 Geo. VI, c. 41. The 1944 Act was amended by the House Of Commons (Redistribution Of Seats) Act, 1947, 10 & 11 Geo. VI, c. 10, and the two, with other provisions, were consolidated in the House Of Commons (Redistribution Of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, since amended by the House Of Commons (Redistribution Of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26.

[Footnote 4/51]

See generally Butler, The Redistribution Of Seats, 33 Public Administration 125 (1955).

[Footnote 4/52]

See note 50, supra. However, Commissions are given discretion to depart from the strict application of the local boundary rule to avoid excessive disparities between the electorate of a constituency and the electoral quota, or between the electorate of a constituency and that of neighboring constituencies. For detailed discussion, see Craig, Parliament and Boundary Commissions, [1959] Public Law 23. See also Butler, supra, note 51, at 127.

[Footnote 4/53]

Mackenzie 108, 113.

[Footnote 4/54]

The Times, Dec. 15, 1954, p. 4, cols 3-4.

[Footnote 4/55]

[1955] 1 Ch. 238.

[Footnote 4/56]

The court reserved the question whether a judicial remedy might be found in a case in which it appeared that a Commission had manifestly acted in complete disregard of the Acts.

[Footnote 4/57]

Note 50, supra.

[Footnote 4/58]

First Periodical Report of the Boundary Commission for England [Cmd. 9311] (1954), 4, par.19.

[Footnote 4/59]

Under the 1949 Act, see note 50, supra, the intervals between reports were to be not less than three nor more than seven years, with certain qualifications. The 1958 Act raised the minimum to ten and the maximum to fifteen years.

[Footnote 4/60]

First Periodical Report, supra, note 58, at 4, par. 20.

[Footnote 4/61]

582 H.C.Deb. (5th ser.1957-1958), 30.

[Footnote 4/62]

See The Federalist, No. 56, supra, note 38; Tudor, Life of James Otis (1823), 188-190.

[Footnote 4/63]

Griffith, The Rise and Development of the Gerrymander (1907) (hereafter, Griffith), 23-24.

[Footnote 4/64]

Luce, Legislative Principles (1930) (hereafter, Luce), 336-342.

[Footnote 4/65]

Griffith 25

[Footnote 4/66]

Griffith 15-16, n. 1.

[Footnote 4/67]

Griffith 28.

[Footnote 4/68]

Carpenter 48-49, 54; Griffith 26, 28-29; Luce 339-340.

[Footnote 4/69]

Carpenter 87; Griffith 26-29, 31.

[Footnote 4/70]

II Farrand, Records of the Federal Convention (1911), 241.

[Footnote 4/71]

The power was provided. Art. I, § 4, cl. 1.

[Footnote 4/72]

III Elliot's Debates (2d ed. 1891), 367; II id. at 50-51.

[Footnote 4/73]

See Madison, in I Farrand, op. cit. supra, note 70, at 321: "The great difficulty lies in the affair of Representation, and if this could be adjusted, all others would be surmountable."

[Footnote 4/74]

See The Federalist, No. 62 (Wright ed.1961), at 408-409.

[Footnote 4/75]

See The Federalist, No. 54, id. at 369-374.

[Footnote 4/76]

Carpenter 130.

[Footnote 4/77]

Jefferson, Notes on the State of Virginia (Peden ed.1955), 118-119. See also II writings of Thomas Jefferson (Memorial ed.1903), 160-162.

[Footnote 4/78]

Carpenter 139-140.

[Footnote 4/79]

Griffith 102-104

[Footnote 4/80]

Griffith 104-105

[Footnote 4/81]

Luce 343-350. Bowen, supra, note 25, at 17-18, records that, in 1824 Providence County, having three-fifths of Rhode Island's population, elected only twenty-two of its seventy-two representatives, and that the town of Providence, more than double the size of Newport, had half Newport's number of representatives.

[Footnote 4/82]

Carpenter 130-137; Luce 364-367; Griffith 116-117.

[Footnote 4/83]

See 14 Stat. 428; 15 Stat. 2, 14, 41.

[Footnote 4/84]

Various indices of population were employed among the States which took account of the factor of numbers. Some counted all inhabitants, e.g., N.J.Const., 1844, Art. IV, § 3; some, only white inhabitants, e.g., Ill.Const., 1848, Art. III, § 8; some, male inhabitants over twenty-one, e.g., Ind.Const., 1851, Art. IV, §§ 4-5; some, qualified voters, e.g., Tenn.Const., 1834, Art. II, §§ 4 to 6; some excluded aliens, e.g., N.Y.Const., 1846, Art. III, §§ 4, 5 (and untaxed persons of color); some excluded untaxed Indians and military personnel, e.g., Neb.Const., 1866-1867, Art. II, § 3. For present purposes, these differences, although not unimportant as revealing fundamental divergences in representation theory, will be disregarded.

[Footnote 4/85]

Ore.Const., 1857, Art. IV, §§ 5, 6, 7; Ill.Const., 1848, Art. III, §§ 8, 9; Ind.Const., 1851, Art. IV, §§ 4, 5, 6; Minn.Const., 1857, Art. IV, § 2; Wis.Const., 1848, Art. IV, §§ 3 to 5; Mass.Const., 1780, Amends. XXI, XXII; Neb.Const., 1866-1867, Art. II, § 3. All of these but Minnesota made provision for periodic reapportionment. Nevada's Constitution of 1864, Art. XV, § 13, provided that the federal censuses and interim state decennial enumerations should serve as the bases of representation for both houses, but did not expressly require either numerical equality or reapportionment at fixed intervals .

Several of these constitutions contain provisions which forbid splitting counties or which otherwise require recognition of local boundaries. See, e.g., the severe restriction in Ill.Const., 1848, Art. III, § 9. Such provisions will almost inevitably produce numerical inequalities. See, for example, University of Oklahoma, Bureau of Government Research, Legislative Apportionment in Oklahoma (1956), 21-23. However, because their effect in this regard will turn on idiosyncratic local factors, and because other constitutional provisions are a more significant source of inequality, these provisions are here disregarded.

[Footnote 4/86]

Tenn.Const., 1834, Art. II, §§ 4 to 6 (two-thirds of a ratio entitles a county to one representative in the House); W.Va.Const., 1861-1863, Art. IV, §§ 4, 5, 7, 8, 9 (one-half of a ratio entitles a county to one representative in the House); Mich.Const., 1850, Art. IV, §§ 2 to 4 (one-half of a ratio entitles each county thereafter organized to one representative in the House). In Oregon and Iowa, a major-fraction rule applied which gave a House seat not only to counties having a moiety of a single ratio, but to all counties having more than half a ratio in excess of the multiple of a ratio. Ore.Const., 1857, Art. IV, § 6, note 85,supra; Iowa Const., 1857, Art. III, §§ 33, 34, 35, 37, note 89, infra.

[Footnote 4/87]

See Bone, States Attempting to Comply with Reapportionment Requirements, 17 Law & Contemp.Prob. 387, 391 (1952).

[Footnote 4/88]

It also appears, although the section is not altogether clear, that the provisions of West Virginia's Constitution controlling apportionment of senators would operate in favor of the State's less populous regions by limiting any single county to a maximum of two senators. W.Va.Const., 1861-1863, Art. IV, § 4.

[Footnote 4/89]

Iowa Const., 1857, Art. III, §§ 33, 34, 35, 37.

[Footnote 4/90]

N.Y.Const., 1846, Art. III, §§ 4, 5 (except Hamilton County); Kan.Const., 1859, Art. 2, § 2; Art. 10. The Kansas provisions require periodic apportionment based on censuses, but do not in terms demand equal districts.

[Footnote 4/91]

Ohio Const., 1851, Art. XI, §§ 1 to 5. See Art. XI, §§ 6 to 9 for Senate apportionment.

[Footnote 4/92]

Me.Const., 1819, Art. IV, Pt. First, §§ 2, 3. See Art. IV, Pt. Second, § 2, for Senate apportionment based on numbers.

[Footnote 4/93]

Mo.Const., 1865, Art. IV, §§ 2, 7, 8. See Art. IV, §§ 4 to 8, for Senate apportionment based on numbers.

[Footnote 4/94]

Towns smaller than one hundred and fifty, if so situated that it was "very inconvenient" to join them to other towns for voting purposes, might be permitted by the legislature to send a representative.

[Footnote 4/95]

N.H.Const., 1792, Pt. Second, §§ IX to XI; Pt. Second, § XXVI.

[Footnote 4/96]

Pa.Const., 1838, as amended, Art. I, §§ 4, 6, 7.

[Footnote 4/97]

Conn.Const., 1818, Art. Third, § 3.

[Footnote 4/98]

Vt.Const., 1793, c. II, § 7.

[Footnote 4/99]

R.I.Const., 1842, Art. VI, § 1.

[Footnote 4/100]

N.J.Const., 1844, Art. IV, § 2, cl. One.

[Footnote 4/101]

Conn.Const., 1818, Amend. II.

[Footnote 4/102]

Vt.Const., 1793, Amend. 23.

[Footnote 4/103]

N.J.Const., 1844, Art. IV, § 3, cl. One

[Footnote 4/104]

R I.Const., 1842, Art. V, § 1.

[Footnote 4/105]

Ark.Const., 1868, Art. V, §§ 8, 9; Va.Const., 1864, Art. IV, § 6 (this constitution was in effect when Virginia ratified the Fourteenth Amendment); Va.Const., 1870, Art. V, § 4 (this was Virginia's Reconstruction Act convention constitution); Miss.Const., 1868, Art. IV, §§ 33 to 35; Tex.Const., 1868, Art. III, §§ 11, 34. The Virginia Constitutions and Texas' provisions for apportioning its lower chamber do not, in terms, require equality of numbers, although they call for reapportionment following a census. In Arkansas, the legislature was authorized, but not commanded, to reapportion periodically; it is not clear that equality was required.

[Footnote 4/106]

N.C.Const., 1868, Art. II, §§ 6, 7. See Art. II, § 5, for Senate apportionment based on numbers.

[Footnote 4/107]

S.C.Const., 1868, Art. I, § 34; Art. II, §§ 4 to 6.

[Footnote 4/108]

La.Const., 1868, Tit. II, Arts. 20, 21. See Tit. II, Arts. 28 to 30, for Senate apportionment based on numbers.

[Footnote 4/109]

Ala.Const., 1867, Art. VIII, § 1. See Art. VIII, § 3, for Senate apportionment based on numbers.

[Footnote 4/110]

S.C.Const., 1868, Art. II, § 8.

[Footnote 4/111]

Fla.Const., 1868, Art. XIV, par. 1. See Art. XIV, par. 2, for Senate apportionment.

[Footnote 4/112]

Ga.Const., 1868, Art. III, § 2. The extent of legislative authority to alter these districts is unclear, but it appears that the structure of three contiguous counties for each of forty-four districts is meant to be permanent.

[Footnote 4/113]

Ga.Const., 1868, Art. III, § 3. The extent of legislative authority to alter the apportionment is unclear, but it appears that the three-tiered structure is meant to be permanent.

[Footnote 4/114]

See, e.g., Durfee, Apportionment of Representation in the Legislature: A Study of State Constitutions, 43 Mich.L.Rev. 1091, 1097 (1945); Short, States That Have Not Met Their Constitutional Requirements, 17 Law & Contemp.Prob. 377 (1952); Harvey, Reapportionments of State Legislatures -- Legal Requirements, 17 Law & Contemp.Prob. 364, 370 (1952). For an excellent case study of numerical inequalities deriving solely from a "one member per county" minimum provision in Ohio, see Aumann, Rural Ohio Hangs On, 46 Nat.Mun.Rev. 189, 191-192 (1957).

[Footnote 4/115]

Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571, 574 (1955). (This is the effect of a later Georgia constitutional provision, Ga.Const., 1945, § 2-1501, substantially similar to that of 1868.) The same three-tiered system has subsequently been adopted in Florida, Fla.Const., 1885, Art. VII, §§ 3, 4, where its effects have been inequalities of the order of eighty to one. Dauer and Kelsay, supra, at 575, 587.

[Footnote 4/116]

The constitutions discussed are those under which the new States entered the Union.

[Footnote 4/117]

Colo.Const., 1876, Art. V, §§ 45, 47; N.D.Const., 1889, Art. 2, §§ 29, 35; S.D.Const., 1889, Art. III, § 5; Wash.Const., 1889, Art. II, §§ 3, 6; Utah Const., 1895, Art. IX, §§ 2, 4; N.M.Const., 1911, Art. IV, following § 41. The Colorado and Utah Constitutions provide for reapportionment "according to ratios to be fixed by law" after periodic census and enumeration. In New Mexico, the legislature is authorized, but not commanded, to reapportion periodically. North Dakota does not, in terms, demand equality in House representation; members are to be assigned among the several senatorial districts, which are of equal population.

[Footnote 4/118]

Wyo, Const., 1889, Art. III, Legislative Department, § 3; Art. III, Apportionment, §§ 2, 3.

[Footnote 4/119]

Idaho Const., 1889, Art. III, § 4.

[Footnote 4/120]

Okla.Const., 1907, Art. V, § 10(b) to (j). See Art. V, §§ 9(a), 9(b) for Senate apportionment based on numbers.

[Footnote 4/121]

Mont.Const., 1889, Art. VI, §§ 2, 3

[Footnote 4/122]

Mont.Const., 1889, Art. V, § 4; Art. VI, § 4. The effective provisions are, first, that there shall be no more than one senator from each county, and, second, that no senatorial district shall consist of more than one county.

[Footnote 4/123]

Alaska Const., 1956, Art. VI, § 7; Art. XIV, § 2. The exact boundaries of the districts may be modified to conform to changes in House districts, but their numbers of senators and their approximate perimeters are to be preserved.

[Footnote 4/124]

Hawaii Const., 1950, Art. III, § 2

[Footnote 4/125]

Alaska Const., 1956, Art. VI, §§ 3, 4, 6. The method of equal proportions is used.

[Footnote 4/126]

Hawaii Const., 1950, Art. III, § 4. The method of equal proportions is used, and, for sub-apportionment within the four "basic" areas, a form of moiety rule obtains.

[Footnote 4/127]

Ariz.Const., 1910, Art. IV, Pt. 2, § 1. On the basis of 1910 census figures, this apportionment yielded, for example, a senatorial ratio differential of more than four to one between Mohave and Cochise or between Mohave and Maricopa Counties. II Thirteenth Census of the United States (1910), 71-73.

[Footnote 4/128]

The pertinent state constitutional provisions are set forth in tabular form in XIII Book of the States (1960-1961), 54-58, and Greenfield, Ford and Emery, Legislative Reapportionment: California in National Perspective (University of California, Berkeley, 1959), 81-85. An earlier treatment, now outdated in several respects but still useful, is Durfee, supra, note 114. See discussions in Harvey, supra, note 114; Shull, Political and Partisan Implications of State Legislative Apportionment, 17 Law & Contemp.Prob. 417, 418-421 (1952).

[Footnote 4/129]

Nebraska's unicameral legislature is included in this count.

[Footnote 4/130]

Greenfield, Ford and Emery, supra, note 128, at 7.

[Footnote 4/131]

Harvey, supra, note 114, at 367. See Tabor, The Gerrymandering of State and Federal Legislative Districts, 16 Md.L.Rev. 277, 282-283 (1956).

[Footnote 4/132]

See, e.g., Mather and Ray, The Iowa Senatorial Districts Can Be Reapportioned -- A Possible Plan, 39 Iowa L.Rev. 535, 536-537 (1954).

[Footnote 4/133]

See, e.g., Walter, Reapportionment and Urban Representation, 195 Annals of the American Academy of Political and Social Science 11, 12-13 (1938); Bone,supra, note 87. Legislative inaction and state constitutional provisions rejecting the principle of equal numbers have both contributed to the generally prevailing numerical inequality of representation in this country. Compare Waltersupra, with Baker, One Vote, One Value, 47 Nat.Mun.Rev. 16, 18 (1958).

[Footnote 4/134]

See, e.g., Griffith 116-117; Luce 364-367, 370; Merriam, American Political Ideas (1929), 244-245; Legislation, Apportionment of the New York State Senate, 31 St. John's L.Rev. 335, 341-342 (1957).

[Footnote 4/135]

In 1947, the Boundary Commission for England,

". . . impressed by the advantages of accessibility [that large compact urban regions] . . . enjoy over widely scattered rural areas . . . , came to the conclusion that they could conveniently support electorates in excess of the electoral quota, and would, in the majority of cases, prefer to do so, rather than suffer severance of local unity for parliamentary purposes"

-- that, "in general, urban constituencies could more conveniently support large electorates than rural constituencies. . . ." Initial Report of the Boundary Commission for England [Cmd. 7260] (1947), 5. See also Mackenzie 110-111; De Grazia, General Theory of Apportionment, 17 Law & Contemp.Prob. 256, 261-262 (1952).

[Footnote 4/136]

See Walter, supra, note 133; Walter, Reapportionment of State Legislative Districts, 37 Ill.L.Rev. 20, 37-38 (1942). The urban-rural conflict is often the core of apportionment controversy. See Durfee, supra, note 114, at 1093-1094; Short, supra, note 114, at 381.

[Footnote 4/137]

Baker, Rural Versus Urban Political Power (1955), 11-19; MacNeil, Urban Representation in State Legislatures, 18 State Government 59 (1945); United States Conference of Mayors, Government Of the People, By the People, For the People (ca.1947).

[Footnote 4/138]

See, in addition to the authorities cited in notes 130, 131, 136 and 137, supra, and 140 to 144, infra (all containing other examples than those remarked in text), Hurst, The Growth of American Law, The Law Makers (1950), 41-42; American Political Science Assn., Committee on American Legislatures, American State Legislatures (Zeller ed.1954), 34-35; Gosnell, Democracy, The Threshold of Freedom (1948), 179-181; Lewis, Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057, 1059-1064 (1958); Friedman, Reapportionment Myth, 49 Nat.Civ.Rev. 184, 185-186 (1960); 106 Cong.Rec. 14901-14916 (remarks of Senator Clark and supporting materials); H.R.Rep. No. 2533, 85th Cong., 2d Sess. 24; H.R.Doc. No.198, 84th Cong., 1st Sess. 38-40; Hadwiger, Representation in the Missouri General Assembly, 24 Mo.L.Rev. 178, 180-181 (1959); Hamilton, Beardsley and Coats, Legislative Reapportionment in Indiana: Some Observations and a Suggestion, 35 Notre Dame Law. 368-370 (1960); Corter, Pennsylvania Ponders Apportionment, 32 Temple L.Q. 279, 283-288 (1959). Concerning the classical gerrymander, see Griffith, passim; Luce 395-404; Brooks, Political Parties and Electoral Problems (3d ed.1933), 472-481. For foreign examples of numerical disproportion, see Hogan, Election and Representation (1945), 95; Finer, Theory and Practice of Modern Government (Rev. ed.1949), 551-552.

[Footnote 4/139]

Baker, supra, note 137, at 11. Recent New Jersey legislation provides for reapportionment of the State's lower House by executive action following each United States census subsequent to that of 1960. N.J.Laws 1961, c. 1. The apportionment is to be made on the basis of population, save that each county is assured at least one House seat. In the State's Senate, however, by constitutional command, each county elects a single senator, regardless of population. N.J.Const., 1947, Art. IV, § II, par. 1.

[Footnote 4/140]

Note, 42 Minn.L.Rev. 617, 618-619 (1958).

[Footnote 4/141]

Greenfield, Ford and Emery, supra, note 128, at 3.

[Footnote 4/142]

University of Oklahoma, Bureau of Government Research, The Apportionment Problem in Oklahoma (1959), 16-29.

[Footnote 4/143]

1 Labor's Economic Rev. 89, 96 (1956).

[Footnote 4/144]

Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571, 572, 574 (1955).

[Footnote 4/145]

See the Second Schedule to the House of Commons (Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, as amended by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26, § 2, and the English experience described in text at notes 50 to 61, supra. See also the Report of the Assembly Interim Committee on Elections and Reapportionment, California Assembly (1951) (hereafter, California Committee Report), 37:

"The geographic -- the socioeconomic -- the desires of the people -- the desires of the elected officeholders -- the desires of political parties -- all these can and do legitimately operate not only within the framework of the 'relatively equal in population districts' factor, but also within the factors of contiguity and compactness. The county and Assembly line legal restrictions operate outside the framework of theoretically 'equal in population districts.' All the factors might conceivably have the same weight in one situation; in another, some factors might be considerably more important than others in making the final determination."

A Virginia legislative committee adverted to

". . . many difficulties such as natural topographical barriers, divergent business and social interests, lack of communication by rail or highway, and disinclinations of communities to breaking up political ties of long standing, resulting in some cases of districts requesting to remain with populations more than their averages, rather than have their equal representation with the changed conditions."

Report of the Joint Committee on the Reapportionment of the State into Senatorial and House Districts, Virginia General Assembly, House of Delegates, H. Doc. No. 9 (1922), 1-2. And the Tennessee State Planning Commission, concerning the problem of congressional redistricting in 1950, spoke of a

"tradition [which] relates to the sense of belonging -- loyalties to groups and items of common interest with friends and fellow citizens of like circumstance, environment or region."

Tennessee State Planning Commission, Pub. No. 222, Redistricting for Congress (1950), first page.

[Footnote 4/146]

See, e.g., California Committee Report at 52.

". . . [T]he reapportionment process is, by its very nature, political. . . . There will be politics in reapportionment as long as a representative form of government exists. . . ."

"It is impossible to draw a district boundary line without that line's having some political significance. . . ."

[Footnote 4/147]

See, e.g., S, Celler, Congressional Apportionment -- Past, Present, and Future, 17 Law & Contemp.Prob. 268 (1952), speaking of the history of congressional apportionment:

". . . A mere reading of the debates [from the Constitutional Convention down to contemporary Congresses] on this question of apportionment reveals the conflicting interests of the large and small states and the extent to which partisan politics permeates the entire problem."

[Footnote 4/148]

See Standards for Congressional Districts (Apportionment), Hearings before Subcommittee No. 2 of the Committee on the Judiciary, House of Representatives, 86th Cong., 1st Sess. 23, concerning a proposed provision for judicial enforcement of certain standards in the laying out of districts:

"Mr. KASEM. You do not think that that [a provision embodying the language: 'in as compact form as practicable'] might result in a decision depending upon the political inclinations of the judge?"

"Mr. CELLER. Are you impugning the integrity of our Federal judiciary?"

"Mr. KASEM. No; I just recognize their human frailties."

For an instance of a court torn, in fact, or fancy, over the political issues involved in reapportionment, see State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017, and especially the dissenting opinion of Higbee, J., 290 Mo. at 613, 235 S.W. at 1037.

[Footnote 4/149]

See text at notes 139-143, supra.

[Footnote 4/150]

Decisions of state courts which have entertained apportionment cases under their respective state constitutions do not, of course, involve the very different considerations relevant to federal judicial intervention. State court adjudication does not involve the delicate problems of federal-state relations which would inhere in the exercise of federal judicial power to impose restrictions upon the States' shaping of their own governmental institutions. Moreover, state constitutions generally speak with a specificity totally lacking in attempted utilization of the generalities of the Fourteenth Amendment to apportionment matters. Some expressly commit apportionment to state judicial review, see, e.g., N.Y.Const., 193, Art. III, § 5, and, even where they do not, they do precisely fix the criteria for judicial judgment respecting the allocation of representative strength within the electorate. See, e.g., Asbury Park Press. Inc., v. Woolley, 33 N.J. 1, 161 A.2d 705.

[Footnote 4/151]

Appellants' suggestion that, although no relief may need be given, jurisdiction ought to be retained as a "spur" to legislative action does not merit discussion.

[Footnote 4/152

See note 24, supra.

Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER joins.

The dissenting opinion of MR. JUSTICE FRANKFURTER, in which I join, demonstrates the abrupt departure the majority makes from judicial history by putting the federal courts into this area of state concerns -- an area which, in this instance, the Tennessee state courts themselves have refused to enter.

It does not detract from his opinion to say that the panorama of judicial history it unfolds, though evincing a steadfast underlying principle of keeping the federal courts out of these domains, has a tendency, because of variants in expression, to becloud analysis in a given case. With due respect to the majority, I think that has happened here.

Once one cuts through the thicket of discussion devoted to "jurisdiction," "standing," "justiciability," and "political

Page 369 U. S. 331

question," there emerges a straightforward issue which, in my view, is determinative of this case. Does the complaint disclose a violation of a federal constitutional right, in other words, a claim over which a United States District Court would have jurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983? The majority opinion does not actually discuss this basic question, but, as one concurring Justice observes, seems to decide it "sub silentio.Ante, p. 369 U. S. 261. However, in my opinion, appellants' allegations, accepting all of them as true, do not, parsed down or as a whole, show an infringement by Tennessee of any rights assured by the Fourteenth Amendment. Accordingly, I believe the complaint should have been dismissed for "failure to state a claim upon which relief can be granted." Fed.Rules Civ.Proc., Rule 12(b)(6).

It is at once essential to recognize this case for what it is. The issue here relates not to a method of state electoral apportionment by which seats in the federal House of Representatives are allocated, but solely to the right of a State to fix the basis of representation in its own legislature. Until it is first decided to what extent that right is limited by the Federal Constitution, and whether what Tennessee has done or failed to do in this instance runs afoul of any such limitation, we need not reach the issues of "justiciability" or "political question" or any of the other considerations which in such cases as Colegrove v. Green,328 U. S. 549, led the Court to decline to adjudicate a challenge to a state apportionment affecting seats in the federal House of Representatives, in the absence of a controlling Act of Congress. See also Wood v. Broom, 287 U. S. 1.

The appellants' claim in this case ultimately rests entirely on the Equal Protection Clause of the Fourteenth Amendment. It is asserted that Tennessee has violated the Equal Protection Clause by maintaining, in effect, a system of apportionment that grossly favors in legislative representation the rural sections of the State as against its urban communities. Stripped to it's essentials, the complaint purports to set forth three constitutional claims of varying breadth:

"(1) The Equal Protection Clause requires that each vote cast in state legislative elections be given approximately equal weight."

"(2) Short of this, the existing apportionment of state legislators is so unreasonable as to amount to an arbitrary and capricious act of classification on the part of the Tennessee Legislature, which is offensive to the Equal Protection Clause."

"(3) In any event, the existing apportionment is rendered invalid under the Fourteenth Amendment because it flies in the face of the Tennessee Constitution."

For reasons given in MR. JUSTICE FRANKFURTER's opinion, ante pp. 369 U. S. 325-327, the last of these propositions is manifestly untenable, and need not be dealt with further. I turn to the other two.

I

I can find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be so structured as to reflect with approximate equality the voice of every voter. Not only is that proposition refuted by history, as shown by my Brother FRANKFURTER, but it strikes deep into the heart of our federal system. Its acceptance would require us to turn our backs on the regard which this Court has always shown for the judgment of state legislatures and courts on matters of basically local concern In the last analysis, what lies at the core of this controversy is a difference of opinion as to the function of representative government. It is surely beyond argument that those who have the responsibility for devising a system of representation may permissibly consider that factors other than bare numbers should be taken into account. The existence of the United States Senate is proof enough of that. To consider that we may ignore the Tennessee Legislature's judgment in this instance because that body was the product of an asymmetrical electoral apportionment would, in effect, be to assume the very conclusion here disputed. Hence, we must accept the present form of the Tennessee Legislature as the embodiment of the State's choice, or, more realistically, its compromise, between competing political philosophies. The federal courts have not been empowered by the Equal Protection Clause to judge whether this resolution of the State's internal political conflict is desirable or undesirable, wise or unwise.

With respect to state tax statutes and regulatory measures, for example, it has been said that the

"day is gone when this Court uses the . . . Fourteenth Amendment to strike down state laws . . . because they may be unwise, improvident, or out of harmony with a particular school of thought."

Williamson v. Lee Optical Co., 348 U. S. 483348 U. S. 488. I would think it all the more compelling for us to follow this principle of self-restraint when what is involved is the freedom of a State to deal with so intimate a concern as the structure of its own legislative branch. The Federal Constitution imposes no limitation on the form which a state government may take other than generally committing to the United States the duty to guarantee to every State "a Republican Form of Government." And, as my Brother FRANKFURTER so conclusively proves (ante pp. 369 U. S. 308-317), no intention to fix immutably the means of selecting representatives for state governments could have been in the minds of either the Founders or the draftsmen of the Fourteenth Amendment.

In short, there is nothing in the Federal Constitution to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people. I would have thought this proposition settled by MacDougall v. Green, 335 U. S. 281, in which the Court observed (at p. 335 U. S. 283) that to "assume that political power is a function exclusively of numbers is to disregard the practicalities of government," and reaffirmed by South v. Peters, 339 U. S. 276. A State's choice to distribute electoral strength among geographical units, rather than according to a census of population, is certainly no less a rational decision of policy than would be its choice to levy a tax on property, rather than a tax on income. Both are legislative judgments entitled to equal respect from this Court.

II

The claim that Tennessee's system of apportionment is so unreasonable as to amount to a capricious classification of voting strength stands up no better under dispassionate analysis.

The Court has said time and again that the Equal Protection Clause does not demand of state enactments either mathematical identity or rigid equality. E.g., Allied Stores of Ohio v. Bowers, 358 U. S. 522358 U. S. 527-528, and authorities there cited; McGowan v. Maryland, 366 U. S. 420366 U. S. 425-426. All that is prohibited is "invidious discrimination" bearing no rational relation to any permissible policy of the State. Williamson v. Lee Optical Co., supra, at 348 U. S. 489. And in deciding whether such discrimination has been practiced by a State, it must be borne in mind that a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived

to justify it." McGowan v. Maryland, supra. It is not inequality alone that calls for a holding of unconstitutionality; only if the inequality is based on an impermissible standard may this Court condemn it.

What then is the basis for the claim made in this case that the distribution of state senators and representatives is the product of capriciousness or of some constitutionally prohibited policy? It is not that Tennessee has arranged its electoral districts with a deliberate purpose to dilute the voting strength of one race, cf. Gomillion v. Lightfoot, 364 U. S. 339, or that some religious group is intentionally underrepresented. Nor is it a charge that the legislature has indulged in sheer caprice by allotting representatives to each county on the basis of a throw of the dice, or of some other determinant bearing no rational relation to the question of apportionment. Rather, the claim is that the State Legislature has unreasonably retained substantially the same allocation of senators and representatives as was established by statute in 1901, refusing to recognize the great shift in the population balance between urban and rural communities that has occurred in the meantime.

It is further alleged that, even as of 1901, the apportionment was invalid in that it did not allocate state legislators among the counties in accordance with the formula set out in Art. II, § 5, of the Tennessee Constitution. In support of this, the appellants have furnished a Table which indicates that, as of 1901, six counties were overrepresented and 11 were underrepresented. But that Table, in fact, shows nothing in the way of significant discrepancy; in the instance of each county, it is only one representative who is either lacking or added. And it is further perfectly evident that the variations are attributable to nothing more than the circumstance that the then enumeration of voters resulted in fractional remainders with respect to which the precise formula of the Tennessee Constitution was, in such instances, slightly disregarded. Unless such de minimis departures are to be deemed of significance, these statistics certainly provide no substantiation for the charge that the 1901 apportionment was arbitrary and capricious. Indeed, they show the contrary.

Thus, reduced to its essentials, the charge of arbitrariness and capriciousness rests entirely on the consistent refusal of the Tennessee Legislature over the past 60 years to alter a pattern of apportionment that was reasonable when conceived.

A Federal District Court is asked to say that the passage of time has rendered the 1901 apportionment obsolete to the point where its continuance becomes vulnerable under the Fourteenth Amendment. But is not this matter one that involves a classic legislative judgment? Surely it lies within the province of a state legislature to conclude that an existing allocation of senators and representatives constitutes a desirable balance of geographical and demographical representation, or that, in the interest of stability of government, it would be best to defer for some further time the redistribution of seats in the state legislature.

Indeed, I would hardly think it unconstitutional if a state legislature's expressed reason for establishing or maintaining an electoral imbalance between its rural and urban population were to protect the State's agricultural interests from the sheer weight of numbers of those residing in its cities. A State may, after all, take account of the interests of its rural population in the distribution of tax burdens, e.g., American Sugar Rfg. Co. v. Louisiana, 179 U. S. 89, and recognition of the special problems of agricultural interests has repeatedly been reflected in federal legislation, e.g., Capper-Volstead Act, 42 Stat. 388; Agricultural Adjustment Act of 1938, 52 Stat. 31. Even the exemption of agricultural activities from state criminal statutes of otherwise general application has not been deemed offensive to the Equal Protection Clause. Tigner v. Texas, 310 U. S. 141. Does the Fourteenth Amendment impose a stricter limitation upon a State's apportionment of political representatives to its central government? I think not. These are matters of local policy, on the wisdom of which the federal judiciary is neither permitted nor qualified to sit in judgment.

The suggestion of my Brother FRANKFURTER that courts lack standards by which to decide such cases as this is relevant not only to the question of "justiciability," but also, and perhaps more fundamentally, to the determination whether any cognizable constitutional claim has been asserted in this case. Courts are unable to decide when it is that an apportionment originally valid becomes void because the factors entering into such a decision are basically matters appropriate only for legislative judgment. And so long as there exists a possible rational legislative policy for retaining an existing apportionment, such a legislative decision cannot be said to breach the bulwark against arbitrariness and caprice that the Fourteenth Amendment affords. Certainly, with all due respect, the facile arithmetical argument contained in Part II of my Brother CLARK's separate opinion (ante, pp. 369 U. S. 253-258) provides no tenable basis for considering that there has been such a breach in this instance. (See the Appendix to this opinion.)

These conclusions can hardly be escaped by suggesting that capricious state action might be found were it to appear that a majority of the Tennessee legislators, in refusing to consider reapportionment, had been actuated by self-interest in perpetuating their own political offices or by other unworthy or improper motives. Since Fletcher v. Peck, 6 Cranch 87, was decided many years ago, it has repeatedly been pointed out that it is not the business of the federal courts to inquire into the personal motives of legislators. E.g., Arizona v. California, 283 U. S. 423283 U. S. 455 & n. 7. The function of the federal judiciary ends in matters of this kind once it appears, as I think it does here on the undisputed facts, that the state action complained of could have rested on some rational basis. (See the Appendix to this opinion.)

It is my view that the majority opinion has failed to point to any recognizable constitutional claim alleged in this complaint. Indeed, it is interesting to note that my Brother STEWART is at pains to disclaim for himself, and to point out that the majority opinion does not suggest, that the Federal Constitution requires of the States any particular kind of electoral apportionment, still less that they must accord to each voter approximately equal voting strength. Concurring opinion,ante, p. 369 U. S. 265. But that being so, what, may it be asked, is left of this complaint? Surely the bare allegations that the existing Tennessee apportionment is "incorrect," "arbitrary," "obsolete" and "unconstitutional" -- amounting to nothing more than legal conclusions -- do not themselves save the complaint from dismissal. See Snowden v. Hughes, 321 U. S. 1Collins v. Hardyman, 341 U. S. 651. Nor do those allegations shift to the appellees the burden of proving theconstitutionality of this state statute; as is so correctly emphasized by my Brother STEWART (ante, p. 369 U. S. 266), this Court has consistently held in cases.arising under the Equal Protection Clause that "'the burden of establishing the unconstitutionality of a statute rests on him who assails it.' Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580294 U. S. 584."

(Emphasis added.) Moreover, the appellants do not suggest that they could show at a trial anything beyond the matters previously discussed in this opinion, which add up to nothing in the way of a supportable constitutional challenge against this statute. And finally, the majority's failure to come to grips with the question whether the complaint states a claim cognizable under the Federal Constitution -- an issue necessarily presented by appellees' motion to dismiss - does not, of course, furnish any ground for permitting this action to go to trial.

From a reading of the majority and concurring opinions one will not find it difficult to catch the premises that underlie this decision. The fact that the appellants have been unable to obtain political redress of their asserted grievances appears to be regarded as a matter which should lead the Court to stretch to find some basis for judicial intervention. While the Equal Protection Clause is invoked, the opinion for the Court notably eschews explaining how, consonant with past decisions, the undisputed facts in this case can be considered to show a violation of that constitutional provision. The majority seems to have accepted the argument, pressed at the bar, that, if this Court merely asserts authority in this field, Tennessee and other "malapportioning" States will quickly respond with appropriate political action, so that this Court need not be greatly concerned about the federal courts becoming further involved in these matters. At the same time, the majority has wholly failed to reckon with what the future may hold in store if this optimistic prediction is not fulfilled. Thus, what the Court is doing reflects more an adventure in judicial experimentation than a solid piece of constitutional adjudication. Whether dismissal of this case should have been for want of jurisdiction or, as is suggested in Bell v. Hood, 327 U. S. 678327 U. S. 682-683, for failure of the complaint to state a claim upon which relief could be granted, the judgment of the District Court was correct.

In conclusion, it is appropriate to say that one need not agree, as a citizen, with what Tennessee has done or failed to do in order to deprecate, as a judge, what the majority is doing today. Those observers of the Court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break with the past. Those who consider that continuing national respect for the Court's authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication will view the decision with deep concern.

I would affirm.

|369 U.S. 186app2|

APPENDIX TO OPINION OF MR. JUSTICE HARLAN

THE INADEQUACY OF ARITHMETICAL FORMULAS AS MEASURES

OF THE RATIONALITY OF TENNESSEE'S APPORTIONMENT

Two of the three separate concurring opinions appear to concede that the Equal Protection Clause does not guarantee to each state voter a vote of approximately equal weight for the State Legislature. Whether the existing Tennessee apportionment is constitutional is recognized to depend only on whether it can find "any possible justification in rationality" (ante, p. 369 U. S. 265); it is to be struck down only if "the discrimination here does not fit any pattern" (ante, p. 369 U. S. 258).

One of the concurring opinions, that of my Brother STEWART, suggests no reasons which would justify a finding that the present distribution of state legislators is unconstitutionally arbitrary. The same is true of the majority opinion. My Brother CLARK, on the other hand, concludes that "the apportionment picture in Tennessee is a topsy-turvical of gigantic proportions" (ante, p. 369 U. S. 254), solely on the basis of certain statistics presented in the text of his separate opinion and included in a more extensive Table appended thereto. In my view, that analysis is defective not only because the "total representation" formula set out in footnote 7 of the opinion (ante, p. 369 U. S. 255), rests on faulty mathematical foundations, but, more basically, because the approach taken wholly

ignores all other factors justifying a legislative determination of the sort involved in devising a proper apportionment for a State Legislature.

In failing to take any of such other matters into account and in focusing on a particular mathematical formula which, as will be shown, is patently unsound, my Brother CLARK's opinion has, I submit, unwittingly served to bring into bas-relief the very reasons that support the view that this complaint does not state a claim on which relief could be granted. For in order to warrant holding a state electoral apportionment invalid under the Equal Protection Clause, a court, in line with well established constitutional doctrine, must find that none of the permissible policies and none of the possible formulas on which it might have been based could rationally justify particular inequalities.

I

At the outset, it cannot be denied that the apportionment rules explicitly set out in the Tennessee Constitution are rational. These rules are based on the following obviously permissible policy determinations: (1) to utilize counties as electoral units; (2) to prohibit the division of any county in the composition of electoral districts; (3) to allot to each county that has a substantial voting population -- at least two-thirds of the average voting population per county -- a separate "direct representative"; (4) to create "floterial" districts (multi-county representative districts) made up of more than one county, and (5) to require that such districts be composed of adjoining counties. [Footnote 5/1] Such a framework unavoidabe leads to unreliable arithmetic inequalities under any mathematical formula whereby the counties' "total representation" is sought to be measured. It particularly results in egregiously deceptive disparities if the formula proposed in my Brother CLARK's opinion is applied.

That formula computes a county's "total representation" by adding (1) the number of "direct representatives" the county is entitled to elect; (2) a fraction of any other seats in the Tennessee House which are allocated to that county jointly with one or more others in a "floterial district"; (3) triple the number of senators the county is entitled to elect alone, and (4) triple a fraction of any seats in the Tennessee Senate which are allocated to that county jointly with one or more others in a multi-county senatorial district. The fractions used for items (2) and (4) are computed by allotting to each county in a combined district an equal share of the House or Senate seat, regardless of the voting population of each of the counties that make up the election district. [Footnote 5/2]

This formula is patently deficient in that it eliminates from consideration the relative voting power of the counties that are joined together in a single election district. As a result, the formula unrealistically assigns to Moore County one-third of a senator, in addition to its direct representative (ante, p. 369 U. S. 255), although it must be obvious that Moore's voting strength in the Eighteenth Senatorial District is almost negligible. Since Moore County could cast only 2,340 votes of a total eligible vote of 30,478 in the senatorial district, it should in truth be considered as represented by one-fifteenth of a senator. Assuming,arguendo, that any "total representation" figure is of significance, Moore's "total representation" should be 1.23, not 2. [Footnote 5/3]

The formula suggested by my Brother CLARK must be adjusted regardless whether one thinks, as I assuredly do not, that the Federal Constitution requires that each vote be given equal weight. The correction is necessary simply to reflect the real facts of political life. It may, of course, be true that the floterial representative's "function

is to represent the whole district" (ante, p. 369 U. S. 256). But can it be gainsaid that, so long as elections within the district are decided not by a county unit system, in which each county casts one vote, but, by adding the total number of individual votes cast for each candidate, the concern of the elected representatives will primarily be with the most populous counties in the district?

II

I do not mean to suggest that any mathematical formula, albeit an "adjusted" one, would be a proper touchstone to measure the rationality of the present or of appellants' proposed apportionment plan. For, as the Table appended to my Brother CLARK's opinion so conclusively shows, whether one applies the formula he suggests or one that is adjusted to reflect proportional voting strength within an election district, no plan of apportionment consistent with the principal policies of the Tennessee Constitution could provide proportionately equal "total representation" for each of Tennessee's 95 counties. The pattern suggested by the appellants in Exhibits "A" and "B" attached to their complaint is said to be a "fair distribution" which accords with the Tennessee Constitution, and under which each of the election districts represents approximately equal voting population. But even when tested by the "adjusted" formula, the plan reveals gross "total representation" disparities that would make it appear to be a "crazy quilt." For example, Loudon County, with twice the voting population of Humphreys County, would have less representation than Humphreys and about one-third the representation of Warren County, which has only 73 more voters. Among the more populous counties, similar discrepancies would appear. Although Anderson County has only somewhat over 10% more voters than Blount County, it would have

approximately 75% more representation. And Blount would have approximately two-thirds the representation of Montgomery County, which has about 13% less voters. [Footnote 5/4]

III

The fault with a purely statistical approach to the case at hand lies not with the particular mathematical formula used, but in the failure to take account of the fact that a multitude of legitimate legislative policies, along with circumstances of geography and demography, could account for the seeming electoral disparities among counties. The principles set out in the Tennessee Constitution are just some of those that were deemed significant. Others may have been considered and accepted by those entrusted with the responsibility for Tennessee's apportionment. And, for the purposes of judging constitutionality under the Equal Protection Clause, it must be remembered that what is controlling on the issue of "rationality" is not what the State Legislature may actually have considered, but what it may be deemed to have considered.

For example, in the list of "horribles" cited by my Brother CLARK (ante, p. 369 U. S. 255), all the "underrepresented" counties are semi-urban: all contain municipalities of over 10,000 population. [Footnote 5/5] This is not to say, however, that the

presence of any such municipality within a county necessarily demands that its proportional representation be reduced in order to render it consistent with an "urban versus rural" plan of apportionment. Other considerations may intervene and outweigh the Legislature's desire to distribute seats so as to achieve a proper balance between urban and rural interests. The size of a county, in terms of its total area, may be a factor. [Footnote 5/6] Or the location within a county of some major industry may be thought to call for dilution of voting strength. [Footnote 5/7] Again, the combination of certain smaller counties with their more heavily populated neighbors in senatorial or "floterial" districts may result in apparent arithmetic inequalities. [Footnote 5/8]

More broadly, the disparities in electoral strength among the various counties in Tennessee, both those relied upon by my Brother CLARK and others, may be

accounted for by various economic, [Footnote 5/9] political, [Footnote 5/10] and geographic [Footnote 5/11] considerations. No allegation is made by the appellants that the existing apportionment is the result of any other forces than are always at work in any legislative process, and the record, briefs, and arguments in this Court themselves attest to the fact that the appellants could put forward nothing further at a trial.

By disregarding the wide variety of permissible legislative considerations that may enter into a state electoral apportionment, my Brother CLARK has turned a highly complex process into an elementary arithmetical puzzle.

It is only by blinking reality that such an analysis can stand and that the essentially legislative determination can be made the subject of judicial inquiry.

IV

Apart from such policies as those suggested which would suffice to justify particular inequalities, there is a further consideration which could rationally have led the Tennessee Legislature, in the exercise of a deliberate choice, to maintain the status quo. Rigidity of an apportionment pattern may be as much a legislative policy decision as is a provision for periodic reapportionment. In the interest of stability, a State may write into its fundamental law a permanent distribution of legislators among its various election districts, thus forever ignoring shifts in population. Indeed, several States have achieved this result by providing for minimum and maximum representation from various political subdivisions such as counties, districts, cities, or towns. See Harvey, Reapportionments of State Legislatures -- Legal Requirements, 17 Law & Contemp.Probs. (1952), 364, 368-372.

It is said that one cannot find any rational standard in what the Tennessee Legislature has failed to do over the past 60 years. But surely one need not search far to find rationality in the Legislature's continued refusal to recognize the growth of the urban population that has accompanied the development of industry over the past half decade. The existence of slight disparities between rural areas does not overcome the fact that the foremost apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population. And I understand it to be conceded by at least some of the majority that this policy is not

Page 369 U. S. 349

rendered unconstitutional merely because it favors rural voters.

Once the electoral apportionment process is recognized for what it is -- the product of legislative give-and-take and of compromise among policies that often conflict -- the relevant constitutional principles at once put these appellants out of the federal courts.

[Footnote 5/1]

The relevant provisions of the Tennessee Constitution are Art. II, §§ 5 and 6:

"Sec. 5. Apportionment of representatives. -- The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each, and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be entitled to one member."

"Sec. 6. Apportionment of senator. -- The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining, and no counties shall be divided in forming a district."

[Footnote 5/2]

This formula is not clearly spelled out in the opinion, but it is necessarily inferred from the figures that are presented. Knox County, for example, is said to have a "total representation" of 7.25. It elects (1) three direct representatives (value 3.00); (2) one representative from a two-county district (value .50); (3) one direct senator (value 3.00), and (4) one senator in a four-county district (value .75). See Appendix to opinion of MR. JUSTICE CLARK, ante pp. 369 U. S. 262-264.

[Footnote 5/3]

If this "adjusted" formula for measuring "total representation" is applied to the other "horribles" cited in the concurring opinion (ante, p. 369 U. S. 255), it reveals that these counties -- which purportedly have equal "total representation" but distinctly unequal voting population -- do not have the same "total representation" at all. Rather than having the same representation as Rutherford County, Moore County has only about 40% of what Rutherford has. Decatur County has only 55% of the representation of Carter County. While Loudon and Anderson Counties are substantially underrepresented, this is because of their proximity to Knox County, which outweighs their votes in the Sixth Senatorial District and in the Eighth Floterial District.

[Footnote 5/4]

These disparities are as serious, if not more so, when my Brother CLARK's formula is applied to the appellants' proposal. For example, if the seven counties chosen by him as illustrative are examined as they would be represented under the appellants' distribution, Moore County, with a voting population of 2,340, is given more electoral strength than Decatur County, with a voting population of 5,563. Carter County (voting population 23,302) has 20% more "total representation" than Anderson County (voting population 33,990), and 33% more than Rutherford County (voting population 25,316).

[Footnote 5/5]

Murfreesboro, Rutherford County (pop. 16,017); Elizabethton, Carter County (pop. 10,754); Oak Ridge, Anderson County (pop. 7,387). Tennessee Blue Book, 1960, pp.143-149.

[Footnote 5/6]

For example, Carter and Washington Counties are each approximately 60% as large as Maury and Madison Counties in terms of square miles, and this may explain the disparity between their "total representation" figures.

[Footnote 5/7]

For example, in addition to being "semi-urban," Blount County is the location of the City of Alcoa, where the Aluminum Company of America has located a large aluminum smelting and rolling plant. This may explain the difference between its "total representation" and that of Gibson County, which has no such large industry and contains no municipality as large as Maryville.

[Footnote 5/8]

For example, Chester County (voting population 6,391) is one of those that is presently said to be overrepresented. But under the appellants' proposal, Chester would be combined with populous Madison County in a "floterial district" and with four others, including Shelby County, in a senatorial district. Consequently, its total representation according to the Appendix to my Brother CLARK's opinion would be .19. (Ante, p. 369 U. S. 262.) This would have the effect of disenfranchising all the county's voters. Similarly, Rhea County's almost 9,000 voters would find their voting strength so diluted as to be practically nonexistent.

[Footnote 5/9]

For example, it is primarily the eastern portion of the State that is complaining of malapportionment (along with the Cities of Memphis and Nashville). But the eastern section is where industry is principally located and where population density, even outside the large urban areas, is highest. Consequently, if Tennessee is apportioning in favor of its agricultural interests, as constitutionally it was entitled to do, it would necessarily reduce representation from the east.

[Footnote 5/10]

For example, sound political reasons surely justify limiting the legislative chambers to workable numbers; in Tennessee, the House is set at 99 and the Senate at 33. It might have been deemed desirable, therefore, to set a ceiling on representation from any single county so as not to deprive others of individual representation. The proportional discrepancies among the four counties with large urban centers may be attributable to a conscious policy of limiting representation in this manner.

[Footnote 5/11]

For example, Moore County is surrounded by four counties each of which has sufficient voting population to exceed two-thirds of the average voting population per county (which is the standard prescribed by the Tennessee Constitution for the assignment of a direct representative), thus qualifying for direct representatives. Consequently Moore County must be assigned a representative of its own, despite its small voting population, because it cannot be joined with any of its neighbors in a multi-county district, and the Tennessee Constitution prohibits combining it with nonadjacent counties. See note 1, supra.