subdivisions, counties, or towns, the deviations from population equality were usually not large. Malapportionment, in the sense we have come to know it in recent decades, was not a factor that seriously distorted the representation process until late in the 19th century.

THE BACKGROUND OF POPULATION REPRESENTATION

The reasons for the original emphasis on population as the basis for legislative representation are rooted in the American philosophy of representative government, as adapted to the pragmatic realities of American federalism. American constitutionalism has always included three principal themes-liberty, equality. and majority rule. All were derivative to some extent, but the amalgam was a distinctively American contribution.

The notion of liberty may be traced to the English Revolution of 1688 and the resulting bill of rights promulgated the following year. The influence of John Locke had been substantial then, and his writings continued to be important in the formation of the Government of the United States a century later.

The important theme of equality may be credited in part to Rousseau, the principal philosopher of the then looming French Revolution, with its motto of liberté, égalité, fraternité. These ideas were well known to Jefferson, who included in the Declaration of Independence the broad assertion that "all men are created equal" and thus showed himself already ahead of his times.

Majority rule, however logical an outgrowth of liberty and equality, was the boldly new American contribution to the philosophy of government. Even the limited experiments with democracy known to the world up to this time were not genuinely based on majority rule. In 18th-century England the House of Lords. without any pretense of representing people, unashamedly represented favoredinterest groups; and in the House of Commons "rotten boroughism" was at its height, so that large numbers of the people were not represented at all.

Apparently, these considerations were much in the minds of those who drafted the Constitution of the United States. The first comprehensive constitutional scheme presented to the Constitutional Convention in 1787 was the Virginia plan. As originally proposed, it provided for representation in accordance with population in both Houses of the Congress. At one time during the Convention a majority of the States voted for that plan in principle; but as is well known. it was ultimately agreed that the small States would be allowed representation equal to that of the large States in the Senate, the price necessary to secure their agreement to form a union. And so the sovereign States entered into a consensual union based almost exclusively on representation in relation to population in one House and not at all in the other.

Further striking evidence that population equality as a basis for electoral representation was a view widely accepted at that time is the fact that article II, section 14, of the Northwest Ordinance of 1787, intended by Congress for the future governance of all that vast territory, included the following requirement: "The inhabitants of the said territory shall always be entitled to the benefits * ** of a proportionate representation of the people in the Legislature."

MAJORITARIAN IMPULSES GOVERN THE STATES

The story of the development of representation formulas for State constitutions reflects similar majoritarian impulses for more than a century after 1776, when the first of the constitutions of the Original Thirteen States were being drafted. Although several of the Original Thirteen States adopted apportionment formulas which today produce substantial inequality among election districts, the population at the time those formulas were approved was much more evently spread among the counties that were given equal representation (as in Delaware and New Jersey) and among the towns that were given equal representation (as in Connecticut, Rhode Island, and Vermont). Today the situation has been vastly altered by the shift of population to the great urban centers.

The various formulas in the State constitutions adopted before 1787 did not however, furnish the pattern for the National Congress. Even more significant is the fact that the congressional formula, ordained by the Great Compromise. did not serve as a model for States later admitted to the Union. Between 1790 when Vermont was admitted, and 1889, when Montana was admitted almost 100 years later, every State admitted to the Union entered with a constitution_providing for representation based principally on population in both houses of the legislature."

Id., at 11.

To speak of those 19th century legislatures in terms of acceptance of the principle of population as the basis for apportionment is not, however, to suggest that there was mathematically precise equality among the districts at that time. A number of States, particularly in the West, relied on county boundaries in drawing their apportionment formulas, but the distortions which resulted from assuring each county at least one representative, for example, or from grouping whole counties to form election districts, were much less in agricultural and rural America, as it then was, than in industrial and urban America, as it now is.

As the United States became primarily an industrial and urban nation, honest application of the representation formulas would have meant in nearly all States a gradual shift of political power from the county seats in the rural areas to the cities. So changes were made, accompanied by astonishingly frank expressions of distrust for majority rule. Behind those sentiments, however, we can be sure lay the perfectly natural fear of diminished political power, specifically loss of legislative seats to the population-gaining areas largely at the expense of The rural areas.

HOW THE URBAN AREAS WERE DENIED POWER

The response was of two kinds :

1. In many States, including such populous States as California, Illinois, MichIgan, New York, Ohio, and Pennsylvania, the constitutional formula was adjusted to preserve legislative control in the areas of declining population regardless of subsequent shifts in population. The device was, of course, to make population of slight or at least diminished importance in one or both houses. These formulas tended to become locked into the constitutions because, with Continuing population shifts, the number of legislators who would be prejudiced by a return to emphasis on population was bound to increase. Change often became a virtual impossibility.

2. Where amendment of the constitutional formula was not practicable for one reason or another, a number of State legislatures simply ignored the State constitutional provisions for periodic (usually decennial) reapportionment to take into account population changes. Tennessee, from whence came Baker, and Alabama, the source of Reynolds, were such States. So was Maryland, which produced Maryland Committee for Fair Representation v. Tawes, where the legis lature simply ignored repeated popular votes calling for the convening of a constitutional convention. And, of course, some States, not content to rely on constitutional change or on legislative foot-dragging alone, did a little of both. The result was malapportionment, tested by any measurable standard. By 1942. when the Supreme Court first held that this was a matter for judicial Cognizance, the population disparities among election districts were as high as 957 to 1 (the Vermont house) and 422 to 1 (the California senate); and in 1962, immediately before the decision in Baker, a voting majority could be elected in each of eight State senates by less than 20 percent of the population, including California (10.7 percent), Florida (12.3 percent) and Nevada (8 percent).

The original decision to give equal representation in one house of Congress to each State had been grounded on another fact of political life relevant to the States but not to their political subdivisions. That is the fact that States are themselves sovereign governmental entities whose borders are immune from alteration without their consent and whose retained authority is guaranteed by the Constitution. Counties, cities, towns, villages, and other local subdivisions are solely creatures of the State, subject to alteration or obliteration at the dis eretion of their parent authority, and altogether lacking in assurance of any residuum of retained authority."

REAPPORTION MENT DECISIONS WERE NO SURPRISE

For the reasons already stated, the decision in Reynolds requiring substantial population equality among election districts should have come as no great surprise. Once the equal protection clause was ruled applicable and the Federal analogy shown to be inapplicable, the already familiar facts of malapportionment pointed inescapably in the direction of the Court's command for substantial quality among election districts.

Similarly, the 1964 decision in Wesberry v. Sanders, requiring near-population quality among congressional districts, should not have been particularly sur

See the discussion in Reynolds v. Sims, 377 U.S 533 at 575 (1964).

prising, even though that ruling was grounded on the requirement of article I. section 2, of the Constitution that Members of the House of Representatives be chosen "by the people." The same underlying doctrine-faith in the principle of majority rule-was found to have been incorporated into the Constitution as to the choice of Representatives. Any other decision would have made a mockery of the plain sense of the compromise which produced the equal representation of all States in the Senate, while assuring representation in accordance with popul tion in the House of Representatives.

The reaction to these decisions was interesting. To whatever extent there my have been doctrinal disagreement with the requirement of equality in congre sional districting, it was largely swallowed up in the fact of acquiescence. A number of States made legislative adjustments almost at once to come into cor pliance with the mandate of near equality.' Where there was initial failure to act, the problem seemed not to involve dispute as to whether equality should b legislated, but involved instead the familiar issue of whether the lines should l» drawn in one way or another. These difficulties can eventually be surmounted. and it must be assumed that the decision in Wesberry has been accepted as part of the living law.

The situation in relation to Reynolds is, however, rather different. The initial reaction was mixed and, it must be said, somewhat confusing. As might be anticipated, many State legislators, particularly those whose seats were placed in jeopardy, objected strenuously; the Republican Party (perhaps inadvisedly. even from a partisan standpoint) stated support in its platform for a constitu tional amendment; and efforts were made in Congress, ultimately unsuccessful. to deny or to postpone the exercise of jurisdiction by Federal courts in connection with apportionment matters.

It was hard to believe, however, that this reaction represented majority sentiment; it was, after all, the majority of the voters, until then frequently underrepresented in congressional districts and in State legislative representation who stood to benefit from these decisions. Not surprisingly, when the voters learned the significance of the decisions (in part from the largely favorable press reactions), they reacted as might have been expected. A Gallup poll conducted in August 1964 recorded a 3-to-2 support for the decision; mayors of the printcipal cities importuned the White House to oppose the restrictions on Federal Court jurisdiction then being debated in Congress; and the Democratic Party. although silent on the issue in its platform, gave important behind-the-scenes support to the Court and the decisions.8

Meanwhile, the lower Federal courts, the State courts and even the State legislatures moved with almost surprising alacrity toward good faith compliance. The Court had warned that "once a State's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan." By the end of 1964 reappor tionment had either been completed, or substantial steps had been taken toward apparently satisfactory compliance, in most of the States. When there are added the States in which the present formula is valid, of which, there are probably a few, and the States in which initial legislative action is probable in 1965, one might speculate that the prospects for ratification of a constitutional amendment by three-fourths of the State legislatures would be dim indeed, ever if, as now appears unlikely, approval of such an amendment could be secured by the necessary two-thirds vote of each House of Congress.

10

The propositions advanced in the earlier part of this paper-that the equalpopulation principle is sound constitutional doctrine and that the decisions seer now destined for implementation and not reversal-suggest the appropriateness of giving brief attention to a third point. What problems of implementatior and interpretation lie ahead? What benefits may be anticipated from full conpliance with the equal-population principle?

The equal-population principle now held applicable to State legislatures has been criticized, principally perhaps by those who have not read the decisions of refuse to believe what they read, on the ground that the Court has required the

7 For example, Colorado, Connecticut. Georgia, Michigan, and Wisconsin.

I have reviewed that congressional episode in Court, Congress and Reapportionment 63 Mich. L. Rev. 255 (1964).

Chief Justice Warren in Reynolds v. Sims, 377 U.S. 533 at 585 (1964),

10 By the end of 1964 changes had been effected in 16 States, and in at least as ment States the existing systems had been held invalid in many cases with a judicially impose? date (most often 1965) by which compliance was to be completed.

absurdity of mathematical equality among congressional districts and in State legislative representation. But the Court denied that implication as plainly as words can speak:

case.

**** Mathematical exactness or precision is hardly a workable constitutional requirement*** what is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the So long as the divergencies from a strict population standard are based on legitimate considerations incident to the effectuation of a rational State policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral State legislature." "1

When State experimentation with various representation plans was thus invited, the Court was of course aware that further litigation would be necessary to distinguish that which might be "marginally permissible in one State" from that which "may be unsatisfactory in another." Prediction as to which of the myriad of possible variations will be upheld and which rejected is too speculative to be worthwhile at this juncture, but it may be helpful at least to outline some of the questions that are likely to arise.

1. To what extent may election district lines be based on existing political subdivisions such as counties and towns?

The Court specifically recognized that some deviations from population might be based on State preference for “insuring some voice to political subdivisions as political subdivisions," Although the distortion cannot be so great as to subvert the basic norm of population equality, considerable latitude remains.

12

"*** Local governmental entities are frequently charged with various responsibilities incident to the operation of State government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions. And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering." 13

This receptiveness to individualized apportionment formulas should encourage study of local government to determine what State governmental function is served by each of the local units-the counties, cities, towns, villages, school districts, and other special-purpose districts. If, for example, the town is found to be the significant instrument of local government, county lines may not be relevant in legislative representation. When inquiry is made into these matters and into the extent of county and city home rule, it may be that duplication of function will be revealed.

The local governmental process ordinarily has proved quite unyielding to demands for change; but improvement may prove less difficult when legislatures are no longer tied exclusively to local units of government and thus become more directly responsible to the voters. Return to majority rule in State legislatures holds promise of giving to the demand for States' rights a new dignity and

urgency.

2. To what extent, if any, does the Constitution forbid the partisan gerrymander? By the end of 1964 the Supreme Court had offered no direct guidance on this obviously troublesome problem. In Wright v. Rockefeller, 376 U.S. 52 (1964), in which appellants claimed that the election district lines in the four congressional districts of Manhattan had been drawn along lines based on racial considerations, the Court affirmed the lower court's dismissal of the complaint for failure to show "legislative contrivance” to segregate on the basis of race or place of origin. But even that case did not raise the ultimate question whether an artful arrangement of election districts to promote political advantage (as opposed to racial discrimination) is forbidden by the equal protection clause or by any other provision of the Constitution.

Elimination of gross population disparities removes one of the devices by which partisan advantage has in the past been secured. There is no difficulty, however, in imagining instances in which equality is satisfied but the representative function nevertheless is seriously undermined by the gerrymander.

It is clear at least that Congress can, as it once did," require compactness and contiguity in the drawing of congressional district lines. This requirement should

1377 U.S. 577-579 (1964).

"This language is from 377 U.S. at 580, with emphasis supplied.

377 U.S. at 580-581.

*See, for example, 17 Stat. 28 (1872), 31 Stat. 733 (1901).

be reinstated for congressional districting; the adoption of similar requirements would be useful additions to State legislative representation formulas. It is diffcult to see how any political party could raise good-faith objections to such a requirement in supplement to the constitutional necessity for equality."

3. May a State establish multimember as well as single-member election districts! The equal-population principle, as formulated by the Supreme Court, does not in so many words address itself to the question whether State legislators and Representatives to Congress may be chosen, within the discretion of each State, from single-member constituencies or from mutimember districts. In commenting on the possible ways in which varied bases of representation could be achieved between the two houses of a bicameral legislature, Chief Justice WarreL observed in Reynolds v. Sims, with all the casualness of unstudied dictum, that "One body could be composed of single-member districts while the other could have at last some multimember districts." But it may not be quite that easy. The issue is presented in Fortson v. Dorsey, 228 F. Supp. 259 (N.D. Ga. 1964), a case challenging the validity of the 1962 Georgia senatorial apportionment. By that act the State was divided into 54 senatorial districts, generally adhering to county boundary lines. In order to conform to some extent to the equality requirement, some of the districts included two or more counties, some were single counties and some consisted of portions of counties. All were single-member districts except that, where more than one senator was assigned to a single county, all senators were to be elected at-large. The three-judge Federal dis trict court held that the provisions for county-at-large elections in the populous counties violated the equal protection clause of the 14th amendment.

On January 18, 1965, the Supreme Court reversed the district court, repeating what had been said as dictum in Reynolds, now as the holding of the Court, that one body of a bicameral legislature could have "at least some" multimember districts. Justice Brennan, for the majority, emphasized that the Court did no more than uphold the statute on its face. "It might well be that, designedly or otherwise, a multimember constituency apportionment scheme, under the cir cumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population [emphasis supplied]." Thus, the validity of the gerrymander to serve racial or political ends has not yet been passed upon.

4. To what extent may the Federal courts intervene in the State legislativ process to assure satisfaction of the equal-population principle?

In Reynolds the Court recognized that "legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion ac cording to Federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." Only in that case, and in the Oklahoma case," has the Supreme Court approved affirmative judicial intervention as a remedy for an existing apportionment formula found to be invalid, and both of those were exceptional cases of legislative failure to reapportion after repeated judicial attempts to secure legislative reapportionment.

Subsequently, three-judge Federal district courts have sought in several instances to limit legislative action in connection with anticipated reapportionment. Four examples will suffice. In New York the court limited the term of legislators elected in 1964 to 1 instead of the usual 2 years and fixed April 1. 1965, as the time within which reapportionment was required. In Connecticut the Court ordered that no legislative elections be held in November 1964, and that the holdover legislature prepare a temporary apportionment and prepare for a constitutional convention to establish a permanent plan.19 In Vermon: the Court ordered that a new plan be established by April 1, 1965, and that State legislators elected under the invalid apportionment enact no legislation

15 Several courts has suggested that compactness, equality and "neutrality" may he secured by the use of computer techniques. For a discussion, see Weaver and Hess, t Procedure for Nonpartisan Districting: Development of Computer Techniques, 73 Yale

L.J. 2SS (1963).

16 Probable jurisdiction was noted by the Supreme Court on Oct. 12, 1964, and the case was placed on the summary calendar. A joint motion to advance the case was granted by the Court on Nov. 23, and it was argued on Dec. 10, 1964.

17 Williams v. Moss, 378 U.S. 558 (1964). For the opinion on remand, see Reynolds v State Election Board, 233 F. Supp. 323 (W.D. Okla, 1964),

18 WMCA, Inc. v. Lomenzo, F. Supp.- (S.D.N.Y. 1964), petition for cer. filed 33 Lit Week 3174 Nos. 611, 623).

1 Pinney v. Butterworth, --F. Supp.- (D. Conn, 1964).