MR. JUSTICE WHITE delivered the opinion of the Court with respect to the validity of the multi-member election district in Marion County, Indiana (Parts I-VI), together with an opinion (Part VII), in which THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE BLACKMUN joined, on the propriety of ordering redistricting of the entire State of Indiana, and announced the judgment of the Court.
We have before us in this case the validity under the Equal Protection Clause of the statutes districting and apportioning the State of Indiana for its general assembly elections. The principal issue centers on those provisions constituting Marion County, which includes the city of Indianapolis, a multi-member district for electing state senators and representatives.
Indiana has a bicameral general assembly consisting of a house of representatives of 100 members and a senate of 50 members. Eight of the 31 senatorial districts and 25 of the 39 house districts are multi-member districts, that is, districts that are represented by two or more
On January 9, 1969, six residents of Indiana, five of whom were residents of Marion County, filed a suit described by them as "attacking the constitutionality of two statutes of the State of Indiana which provide for multi-member districting at large of General Assembly seats in Marion County, Indiana . . . ."
Plaintiff Walker, a Negro resident of Lake County, also a multi-member district but a smaller one, alleged an invidious discrimination against Lake County Negroes because Marion County Negroes, although no greater in number than Lake County Negroes, had the opportunity to influence the election of more legislators than Lake County Negroes.
A three-judge court convened and tried the case on June 17 and 18, 1969. Both documentary evidence and oral testimony were taken concerning the composition and characteristics of the alleged ghetto area, the manner in which legislative candidates were chosen and their residence and tenure, and the performance of Marion County's delegation in the Indiana general assembly.
The court then turned to evidence showing the residences of Marion County's representatives and senators
The court also characterized Marion County's general assembly delegation as tending to coalesce and take common positions on proposed legislation. This was "largely the result of election at large from a common constituency, and obviates representation of a substantial, though minority, interest group within that common
The court's conclusions of law on the merits may be summarized as follows:
1. There exists within Marion County an identifiable racial element, "the Negro residents of the Center Township Ghetto," with special interests in various areas of
2. The voting strength of this racial group has been minimized by Marion County's multi-member senate and house district because of the strong control exercised by political parties over the selection of candidates, the inability of the Negro voters to assure themselves the opportunity to vote for prospective legislators of their choice and the absence of any particular legislators who were accountable for their legislative record to Negro voters.
3. Party control of nominations, the inability of voters to know the candidate and the responsibility of legislators to their party and the county at large make it difficult for any legislator to diverge from the majority of his delegation and to be an effective representative of minority ghetto interests.
4. Although each legislator in Marion County is arguably responsible to all the voters, including those in the ghetto, "[p]artial responsiveness of all legislators is [not] . . . equal [to] total responsiveness and the informed concern of a few specific legislators."
6. As a legislative district, Marion County is large as compared with the total number of legislators, it is not subdistricted to insure distribution of the legislators over the county and comprises a multi-member district for both the house and the senate. (See Burns v. Richardson, 384 U.S. 73, 88 (1966).)
7. To redistrict Marion County alone would leave impermissible variations between Marion County districts and other districts in the State. Statewide redistricting was required, and it could not await the 1970 census figures estimated to be available within a year.
8. It may not be possible for the Indiana general assembly to comply with the state constitutional requirement prohibiting crossing or dividing counties for senatorial apportionment
9. Plaintiff Walker's claim as a Negro voter resident of Lake County that he was discriminated against because Lake County Negroes could vote for only 16 assemblymen while Marion County Negroes could vote for 23 was deemed untenable. In his second capacity, as a general voter in Lake County, Walker "probably has received less effective representation" than Marion County voters because "he votes for fewer legislators and, therefore, has fewer legislators to speak for him," and, since
Turning to the proper remedy, the court found redistricting of Marion County essential. Also, although recognizing the complaint was directed only to Marion County, the court thought it must act on the evidence indicating that the entire State required reapportionment.
The court enjoined state officials from conducting any elections under the existing apportionment statutes and ordered that the 1970 elections be held in accordance with the plan prepared by the court. Jurisdiction was retained to pass upon any future claims of unconstitutionality with respect to any future legislative apportionments adopted by the State.
With the 1970 elections long past and the appearance of new legislation abolishing multi-member districts in Indiana, the issue of mootness emerges. Neither party deems the case mooted by recent events. Appellees, plaintiffs below, urge that if the appeal is dismissed as moot and the judgment of the District Court is vacated, as is our practice in such cases, there would be no outstanding judgment invalidating the Marion County multi-member district and that the new apportionment legislation would be in conflict with the state constitutional provision forbidding the division of Marion County for the purpose of electing senators. If the new senatorial districts were invalidated in the state courts in this respect, it is argued that the issue involved in the present litigation would simply reappear for decision.
We agree that the case is not moot and that the central issues before us must be decided. We do not, however, pass upon the details of the plan adopted by the District Court, since that plan in any event would have required revision in light of the 1970 census figures.
The line of cases from Gray v. Sanders, 372 U.S. 368 (1963), and Reynolds v. Sims, 377 U.S. 533 (1964), to Kirkpatrick v. Preisler, 394 U.S. 526 (1969), and Wells v. Rockefeller, 394 U.S. 542 (1969), recognizes that "representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies." Reynolds v. Sims, 377 U. S., at 565. Since most citizens find it possible to participate only as qualified voters in electing their representatives, "[f]ull and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature." Ibid. Hence, apportionment schemes "which give the same number of representatives to unequal numbers of constituents," 377 U. S., at 563, unconstitutionally dilute the value of the votes in the larger districts. And hence the requirement that "the seats in both houses of a bicameral state legislature
The question of the constitutional validity of multi-member districts has been pressed in this Court since the first of the modern reapportionment cases. These questions have focused not on population-based apportionment but on the quality of representation afforded by the multi-member district as compared with single-member districts. In Lucas v. Colorado General Assembly, 377 U.S. 713 (1964), decided with Reynolds v. Sims, we noted certain undesirable features of the multi-member district but expressly withheld any intimation "that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political sub-division, are constitutionally defective." 377 U. S., at 731 n. 21. Subsequently, when the validity of the multi-member district, as such, was squarely presented, we held that such a district is not per se illegal under the Equal Protection Clause. Fortson v. Dorsey, 379 U.S. 433 (1965); Burns v. Richardson, 384 U.S. 73 (1966); Kilgarlin v. Hill, 386 U.S. 120 (1967). See also Burnette v. Davis, 382 U.S. 42 (1965); Harrison v. Schaefer, 383 U.S. 269 (1966).
Plaintiffs level two quite distinct challenges to the Marion County district. The first charge is that any multi-member district bestows on its voters several unconstitutional advantages over voters in single-member districts or smaller multi-member districts. The other allegation is that the Marion County district, on the record of this case, illegally minimizes and cancels out the voting power of a cognizable racial minority in Marion County. The District Court sustained the latter claim and considered the former sufficiently persuasive to be a substantial factor in prescribing uniform, single-member districts as the basic scheme of the court's own plan. See 307 F. Supp., at 1366.
In asserting discrimination against voters outside Marion County, plaintiffs recognize that Fortson, Burns, and Kilgarlin proceeded on the assumption that the dilution of voting power suffered by a voter who is placed in a district 10 times the population of another is cured by allocating 10 legislators to the larger district instead of the one assigned to the smaller district. Plaintiffs challenge this assumption at both the voter and legislator level. They demonstrate mathematically that in theory voting power does not vary inversely with the size of the district and that to increase legislative seats in proportion to increased population gives undue voting power to the voter in the multi-member district since he has more chances to determine election outcomes than
The District Court was more impressed with the other branch of the claim that multi-member districts inherently discriminate against other districts. This was the assertion that whatever the individual voting power of Marion County voters in choosing legislators may be, they nevertheless have more effective representation in the Indiana general assembly for two reasons. First, each voter is represented by more legislators and therefore, in theory at least, has more chances to influence critical legislative votes. Second, since multi-member delegations are elected at large and represent the voters of the entire district, they tend to vote as a bloc, which is tantamount to the district having one representative with several votes.
We are not ready, however, to agree that multi-member districts, wherever they exist, overrepresent their voters as compared with voters in single-member districts, even if the multi-member delegation tends to bloc voting. The theory that plural representation itself unduly enhances a district's power and the influence of its voters remains to be demonstrated in practice and in the day-to-day operation of the legislature. Neither the findings of the trial court nor the record before us sustains it, even where bloc voting is posited.
In fashioning relief, the three-judge court appeared to embrace the idea that each member of a bloc-voting delegation has more influence than legislators from a single-member district. But its findings of fact fail to deal with the actual influence of Marion County's delegation in the Indiana Legislature. Nor did plaintiffs' evidence make such a showing. That bloc voting tended to occur is sustained by the record, and defendants' own witness thought it was advantageous for Marion County's delegation to stick together. But nothing demonstrates that senators and representatives from Marion County counted for more in the legislature than members from single-member districts or from smaller multi-member districts. Nor is there anything in the court's findings indicating that what might be true of Marion County is also true of other multi-member districts in Indiana or is true of
Rather than squarely finding unacceptable discrimination against out-state voters in favor of Marion County voters, the trial court struck down Marion County's multi-member district because it found the scheme worked invidiously against a specific segment of the county's voters as compared with others. The court identified an area of the city as a ghetto, found it predominantly inhabited by poor Negroes with distinctive substantive-law interests and thought this group unconstitutionally underrepresented because the proportion of legislators with residences in the ghetto elected from 1960 to 1968 was less than the ghetto's proportion of the population, less than the proportion of legislators elected from Washington Township, a less populous district, and less than the ghetto would likely have elected had the
First, it needs no emphasis here that the Civil War Amendments were designed to protect the civil rights of Negroes and that the courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. There has been no hesitation in striking down those contrivances that can fairly be said to infringe on Fourteenth Amendment rights. Sims v. Baggett, 247 F.Supp. 96 (MD Ala. 1965); Smith v. Paris, 257 F.Supp. 901 (MD Ala. 1966), aff'd, 386 F.2d 979 (CA5 1967); and see Gomillion v. Lightfoot, 364 U.S. 339 (1960). See also Allen v. State Board of Elections, 393 U.S. 544 (1969). But there is no suggestion here that Marion County's multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination. As plaintiffs concede, "there was no basis for asserting that the legislative districts in Indiana were designed to dilute the vote of minorities." Brief of Appellees (Plaintiffs) 28-29. Accordingly, the circumstances here lie outside the reach of decisions such as Sims v. Baggett, supra.
Nor does the fact that the number of ghetto residents who were legislators was not in proportion to ghetto population satisfactorily prove invidious discrimination absent evidence and findings that ghetto residents had less opportunity than did other Marion County residents to participate in the political processes and to elect legislators of their choice. We have discovered nothing in the record or in the court's findings indicating that poor Negroes were not allowed to register or vote, to choose the political party they desired to support, to participate in its affairs or to be equally represented on those occasions when legislative candidates were chosen. Nor did
On the record before us plaintiffs' position comes to this: that although they have equal opportunity to participate in and influence the selection of candidates and legislators, and although the ghetto votes predominantly Democratic and that party slates candidates satisfactory to the ghetto, invidious discrimination nevertheless results when the ghetto, along with all other Democrats, suffers the disaster of losing too many elections. But typical American legislative elections are district-oriented, head-on races between candidates of two or more parties. As our system has it, one candidate wins, the others lose. Arguably the losing candidates' supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. This is true of both single-member and multi-member districts. But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called "safe" districts where the same party wins year after year.
Plainly, the District Court saw nothing unlawful about the impact of typical single-member district elections. The court's own plan created districts giving both Republicans and Democrats several predictably safe general assembly seats, with political, racial or economic minorities in those districts being "unrepresented" year after year. But similar consequences flowing from Marion County multi-member district elections were viewed differently. Conceding that all Marion County voters could fairly be said to be represented by the entire delegation,
There is another gap in the trial court's reasoning. As noted by the court, the interest of ghetto residents in certain issues did not measurably differ from that of other voters. Presumably in these respects Marion County's assemblymen were satisfactorily representative of the ghetto. As to other matters, ghetto residents has unique interests not necessarily shared by others in the community and on these issues the ghetto residents were invidiously underrepresented absent their own legislative voice to further their own policy views.
Part of the difficulty with this conclusion is that the findings failed to support it. Plaintiffs' evidence purported to show disregard for the ghetto's distinctive interests; defendants claimed quite the contrary. We see nothing in the findings of the District Court indicating recurring poor performance by Marion County's delegation with respect to Center Township ghetto, nothing to show what the ghetto's interests were in particular legislative situations and nothing to indicate that the outcome would have been any different if the 23 assemblymen had been chosen from single-member districts. Moreover, even assuming bloc voting by the delegation contrary to the wishes of the ghetto majority, it would not follow that the Fourteenth Amendment had been violated unless it is invidiously discriminatory for a county to elect its delegation by majority vote based on party or candidate platforms and so to some extent predetermine legislative votes on particular issues. Such tendencies are inherent in government by elected representatives; and surely elections in single-member districts visit precisely the same consequences on the supporters of losing candidates whose views are rejected at the polls.
The District Court's holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district.
We are not insensitive to the objections long voiced to multi-member district plans.
Even if the District Court was correct in finding unconstitutional discrimination against poor inhabitants of the ghetto, it did not explain why it was constitutionally compelled to disestablish the entire county district and to intrude upon state policy any more than necessary to ensure representation of ghetto interests. The court entered judgment without expressly putting aside on supportable grounds the alternative of creating single-member districts in the ghetto and leaving the district otherwise intact, as well as the possibility that the Fourteenth Amendment could be satisfied by a simple requirement that some of the at-large candidates each year must reside in the ghetto. Cf. Fortson v. Dorsey, supra.
We are likewise at a loss to understand how on the court's own findings of fact and conclusions of law it
The remedial powers of an equity court must be adequate to the task, but they are not unlimited. Here the District Court erred in so broadly brushing aside state apportionment policy without solid constitutional or equitable grounds for doing so.
At the same time, however, we reject defendant's suggestion that the court was wrong in ordering statewide reapportionment. After determining that Marion County required reapportionment, the court concluded that "it becomes clear beyond question that the evidence adduced in this case and the additional apportionment requirements set forth by the Supreme Court call for a redistricting of the entire state as to both houses of the General Assembly." 305 F. Supp., at 1391. This evidence, based on 1960 census figures, showed that Senate district 20, with one senator for 80,496, was overrepresented by 13.68% while district 5, with one senator for 106,790, was underrepresented by 14.52%, for a total variance of 28.20% and a ratio between the largest and smallest districts of 1.327 to 1. The house figures were similar. The variation ranged from one representative for 41,449 in district 39 to one for 53,003 in district 35, for a variance of 24.78% and a ratio of 1.279 to 1.
Nor can we accept defendant's argument that the statutory plan was beyond attack because the District Court had held in 1965 that at that time the plan met the "substantial equality" test of Reynolds. Stout v. Bottorff,
We therefore reverse the judgment of the District Court and remand the case to that court for further proceedings consistent with this opinion.
It is so ordered.
Earlier this Term I remarked on "the evident malaise among the members of the Court" with prior decisions in the field of voter qualifications and reapportionment. Oregon v. Mitchell, 400 U.S. 112, 218 (1970) (separate opinion of this writer).
Today's opinions in this and two other voting cases now decided
Past decisions have held that districting in local governmental units must approach equality of voter population "as far as is practicable," Hadley v. Junior College District, 397 U.S. 50, 56 (1970), and that the "as nearly as is practicable" standard of Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964), for congressional districting forbade a maximum variation of 6%. Kirkpatrick v. Preisler, 394 U.S. 526 (1969). Today the Court sustains a local governmental apportionment scheme with a 12% variation. Abate v. Mundt, post, p. 182.
Other past decisions have suggested that multi-member constituencies would be unconstitutional if they could be shown "under the circumstances of a particular case . . . to minimize or cancel out the voting strength of racial or political elements of the voting population." Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S. 73, 88 (1966). Today the Court holds that a three-judge District Court, which struck down an apportionment scheme for just this reason, "misconceived the Equal Protection Clause." Ante, at 160.
Prior opinions stated that "once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded." Gray v. Sanders, 372 U.S. 368, 381 (1963); Hadley v. Junior College District, 397 U.S. 50,
The Court justifies the wondrous results in these cases by relying on different combinations of factors. Abate v. Mundt relies on the need for flexibility in local governmental arrangements, the interest in preserving the integrity of political subdivisions, and the longstanding tradition behind New York's practice in the latter respect. This case finds elementary probability theory too simplistic as a guide to resolution of what is essentially a practical question of political power; the opinion relies on the long history of multi-member districts in this country and the fear that "affirmance of the District Court would spawn endless litigation." Ante, at 157. Gordon v. Lance relies heavily on the "federal analogy" and the prevalence of similar anti-majoritarian elements in the constitutions of the several States.
To my mind the relevance of such considerations as the foregoing is undeniable and their cumulative effect is unanswerable. I can only marvel, therefore, that they were dismissed, singly and in combination, in a line of cases which began with Gray v. Sanders, 372 U.S. 368 (1963), and ended with Hadley v. Junior College District, 397 U.S. 50 (1970).
That line of cases can best be understood, I think, as reflections of deep personal commitments by some members of the Court to the principles of pure majoritarian democracy. This majoritarian strain and its nonconstitutional sources are most clearly revealed in Gray v. Sanders, supra, at 381, where my Brother DOUGLAS, speaking for the Court, said: "The conception of political equality from the Declaration of Independence,
If majoritarianism is to be rejected as a rule of decision, as the Court implicitly rejects it today, then an alternative principle must be supplied if this earlier line of cases just referred to is still to be regarded as good law. The reapportionment opinions of this Court provide little help. They speak in conclusory terms of "debasement" or "dilution" of the "voting power" or "representation" of citizens without explanation of what these concepts are. The answers are hardly apparent, for as the Court observes today:
A coherent and realistic notion of what is meant by "voting power" might have restrained some of the extreme lengths to which this Court has gone in pursuit of the will-o'-the-wisp of "one man, one vote."
An interesting illustration of the light which a not implausible definition of "voting power" can shed on reapportionment doctrine is provided by the theoretical model created by Professor Banzhaf, to which the Court refers, ante, at 144-146.
It is not surprising therefore that the Court in this case declines to embrace the measure of voting power suggested by Professor Banzhaf. But it neither suggests an alternative nor considers the consequences of its inability to measure what it purports to be equalizing. See n. 2, supra. Instead it becomes enmeshed in the haze of slogans and numerology which for 10 years has obscured its vision in this field, and finally remands the case "for further proceedings consistent with [its] opinion." Ante, at 163. This inexplicit mandate is at
This case is nothing short of a complete vindication of Mr. Justice Frankfurter's warning nine years ago "of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country." Baker v. Carr, 369 U.S. 186, 268 (1962) (dissenting opinion). With all respect, it also bears witness to the morass into which the Court has gotten itself by departing from sound constitutional principle in the electoral field. See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, supra, and my separate opinions in Reynolds v. Sims, 377 U.S. 533, 589 (1964), and in Oregon v. Mitchell, 400 U.S. 112, 152 (1970). I hope the day will come when the Court will frankly recognize the error of its ways in ever having undertaken to restructure state electoral processes.
I would reverse the judgment below and remand the case to the District Court with directions to dismiss the complaint.
The Indiana Constitution provides that "no county, for Senatorial apportionment, shall ever be divided." Art. 4, § 6. The legislative apportionment statutes in Indiana which implemented that provision gave Marion County eight senators, all elected at large. The statutes also gave the county 15 at-large representatives.
Marion County is the most populous in the State. It contains nine townships and includes the city of Indianapolis. On January 9, 1969, this lawsuit was commenced to require a subdivision of the multi-member districting practiced in Marion County. Certain voters contended that the multi-member district deprived them of equal protection of the laws because it diluted the voting rights of an identifiable racial minority within the county.
To determine if there was an identifiable minority within the county the District Court adopted the following definition of "ghetto":
Applying the definition to the extensive evidence in the case, the District Court found there was an identifiable ghetto area within Center Township. The court then contrasted the residence of those elected to the state
The District Court concluded:
The court found that the voting strength of the cognizable element within Center Township was severely minimized, that minimization occurred by virtue of the strong control which the political parties exert over the nomination process in Marion County, and that black voters within Center Township are unable to be assured of the opportunity of voting for prospective legislators of their choice. The court further found that "[u]nder the evidence before the Court such invidious effects will continue so long as Marion County is apportioned into large senate and house multi-member districts." 305 F. Supp., at 1399.
Based on its findings the District Court held the then Indiana apportionment acts unconstitutional and enjoined their enforcement. The court then determined
This suit was commenced some 22 months before the 1970 election in ample time for a decision on the merits. The plaintiffs in fact won below but this Court stayed the order. Now the election has been held and a federal decennial census has been taken. Under the compulsion of the decree of the District Court the legislature has adopted single-member districts for the entire State. But absent a federal decree they would certainly follow the mandate of the Indiana Constitution.
As the Court says, the fact that the 1970 election is history does not affect the underlying claim in this case. We have a finding of fact that an identifiable racial minority has its voting strength severely minimized by the operation of multi-member districts. We also have a finding that the invidious effects will continue so long as Marion County has multi-member districts. Under the order of the District Court (absent our stay) the 1965 apportionment statutes could not be used. The District Court would retain jurisdiction and no attempt by the state
The Indiana Constitution requires "an enumeration. . . of all male inhabitants over the age of twenty-one years" to be made every six years. Art. 4, § 4. Then at the next legislative session, the general assembly is directed to reapportion the State according to the number of male inhabitants above the age of 21. Art. 4, § 5. These provisions fell into disuse and the last enumeration provided for was in 1921 and, prior to Baker v. Carr, 369 U.S. 186, the legislature had not been apportioned since that time. See Matthews v. Handley, 179 F.Supp. 470 (ND Ind. 1959); Fruit v. Metropolitan School District, 241 Ind. 621, 172 N.E.2d 864. Indiana courts had no power to require reapportioning under the state constitution. Parker v. State ex rel. Powell, 133 Ind. 178, 32 N. E. 836.
In 1969 the legislature initially approved proposed constitutional changes to those two sections which will provide for using the federal decennial census for Indiana and apportioning the State immediately thereafter, such apportionment to remain unaltered until the next decennial census. S. J. Res. No. 26, Acts 1969, c. 464. The provision must still be approved by the 1971 general assembly and a majority of the voters. See Art. 16, § 1, of the Indiana Constitution. At the time this case was argued under the Indiana Apportionment Act of 1965 (2d Spec. Sess.), c. 4, § 1, and c. 5, § 1, the 1960 Decennial Census was accepted as correct.
The constitutional provision which now requires multi-member senatorial districts has been in Indiana's constitution from the date of enactment—1851. And the ghetto voters' position as a class will not change. The findings of the District Court clearly state the invidious effects will last so long as multi-member districting lasts. The District Court found that "to redistrict Marion County alone, to provide single-member districts or any other type of districts meeting constitutional standards, would
The merits of the case go to the question reserved in Fortson v. Dorsey, 379 U.S. 433, 439, and in Wells v. Rockefeller, 394 U.S. 542, 544, whether a gerrymander can be "constitutionally impermissible" The question of the gerrymander
The problem of the gerrymander is how to defeat or circumvent the sentiments of the community. The problem of the law is how to prevent it. As MR. JUSTICE HARLAN once said "A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues." Wells v. Rockefeller, 394 U. S., at 551 (dissenting). The easy device is the gerrymander. The District Court found that it operated in this case to dilute the vote of the blacks.
In Gomillion v. Lightfoot, 364 U.S. 339, we dealt with the problem of a State intentionally making a district smaller to exclude black voters. Here we have almost the converse problem. The State's districts surround the black voting area with white voters.
Gomillion, involving the turning of the city of Tuskegee from a geographical square "to an uncouth twenty-eight-sided figure," 364 U. S., at 340, was only one of our cases which dealt with elevating the political interests of one identifiable group over those of another. Georgia's county unit system was similar, although race was not a factor. Under the Georgia system a farmer in a rural county could have up to 99 times the voting power of his urban-dwelling brother. See Gray v. Sanders, 372 U.S. 368. Here the districting plan operates to favor "upper-middle class and wealthy" suburbanites. 305 F. Supp., at 1385.
A showing of racial motivation is not necessary when dealing with multi-member districts. Burns v. Richardson, 384 U.S. 73, 88; Fortson v. Dorsey, 379 U. S., at 439. Although the old apportionment plan which is in full harmony with the State's 1851 constitution, may not be racially motivated, the test for multi-member districts is whether there are invidious effects.
Multi-member districts are not per se unconstitutional. Fortson v. Dorsey, 379 U. S., at 439. In that case we expressly reserved judgment on the question of whether a multi-member districting plan which operated "to minimize or cancel out the voting strength of racial or political elements of the voting population" could pass constitutional muster. Ibid.
In Burns v. Richardson, supra, we again considered the problems of multi-member districts. The doubts noted in Fortson v. Dorsey were resolved and we stated that assuming the requirements of Reynolds v. Sims, 377 U.S. 533, were satisfied, multi-member districts are unconstitutional "only if it can be shown that `designedly or otherwise' . . . [such a district would operate] to minimize or cancel out the voting strength of racial or political elements of the voting population." 384 U. S., at 88. We went on to suggest how the burden of proof could be met.
These factors are all present in this case. Between the
In both Fortson and Burns we demanded that the invidious effects of multi-member districts appear from evidence in the record. Here that demand is satisfied by (1) the showing of an identifiable voting group living in Center Township, (2) the severe discrepancies of residency of elected members of the general assembly between Center and Washington Townships, cf. BRENNAN, J., dissenting in Abate v. Mundt, post, p. 187, (3) the finding of pervasive influence of the county organizations of the political parties, and (4) the finding that legislators from the county maintain "common, undifferentiated" positions on political issues.
Little time need be spent on the District Court's decision to redistrict the entire State. The court found that there were already impermissible population variances between districts under the current apportionment plan. The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it was 1.279 to 1. The court also found that the new Marion County districts would also have impermissible population variances when compared to existing districts.
It is said that if we prevent racial gerrymandering today, we must prevent gerrymandering of any special interest group tomorrow, whether it be social, economic, or ideological. I do not agree. Our Constitution has a special thrust when it comes to voting; the Fifteenth Amendment says the right of citizens to vote shall not be "abridged" on account of "race, color, or previous condition of servitude."
Our cases since Baker v. Carr have never intimated that "one man, one vote" meant "one white man, one vote." Since "race" may not be gerrymandered, I think the Court emphasizes the irrelevant when it says that the effect on "the actual voting power" of the blacks should first be known. They may be all Democratic or all Republican; but once their identity is purposely washed out of the system, the system, as I see it, has a constitutional defect. It is asking the impossible for us to demand that the blacks first show that the effect of the scheme was to discourage or prevent poor blacks from voting or joining such party as they chose. On this record, the voting rights of the blacks have been "abridged," as I read the Constitution.
The District Court has done an outstanding job, bringing insight to the problems. One can always fault a lower court by stating theoretical aspects of apportionment plans that may not have been considered. This
I would affirm the judgment.
"34-102. Apportionment of representatives.—Representatives shall be elected from districts comprised of one  or more counties and having one  or more representatives, as follows: . . . Twenty-sixth District Marion County: fifteen  representatives. . . ."
"34-104. Apportionment of senators.—Senators shall be elected from districts, comprised of one or more counties and having one or more senators, as follows: . . . Nineteenth District—Marion County: eight  senators, two  to be elected in 1966."
The District Court denied plaintiffs' motion to have the suit declared a class action under Fed. Rule Civ. Proc. 23 (b). 305 F.Supp. 1359, 1363 (SD Ind. 1969). See n. 17, infra.
Plaintiff Rowland Allan (spelled "Allen" in the District Court's opinion), an independent voter, alleged that multi-member districting deprived him of any chance to make meaningful judgments on the merits of individual candidates because he was confronted with a list of 23 candidates of each party.
The defendants argued that Marion County's problems were countywide and that its delegation could better represent the various interests in the county if elected at large and responsible to the county as a whole rather than being elected in single-member districts and thus fragmented by parochial interests and jealousies. They also urged that the 1960 census figures were an unreliable basis for redistricting Marion County and opposed the court's suggestion that the apportionment of the whole State was an issue properly before the court on the pleadings and the evidence.
Democrats Votes Republicans Votes Neff ................... 151,822 Cox .................. 144,336 Bridwell ............... 151,756 Hadley................ 144,235 Murphy ................. 151,746 Baker ................ 144,032 Dean ................... 151,702 Burke ................ 143,989 Creedon ................ 151,573 Borst ................ 143,972 Jones .................. 151,481 Madinger ............. 143,918 DeWitt ................. 151,449 Clark ................ 143,853 Logan .................. 151,360 Bosma ................ 143,810 Roland ................. 151,343 Brown ................ 143,744 Walton ................. 151,282 Durnil ............... 143,588 Huber .................. 151,268 Gallagher ............ 143,553 Costello ............... 151,153 Cope ................. 143,475 Fruits ................. 151,079 Elder ................ 143,436 Lloyd .................. 150,862 Zerfas ............... 143,413 Ricketts ............... 150,797 Allen ................ 143,369
Though nearly 300,000 Marion County voters cast nearly 4 1/2 million votes for the House, the high and low candidates within each party varied by only about a thousand votes. And, as these figures show, the Republicans lost every seat though they received 48.69% of the vote. Plaintiffs' Exhibit 10.
"A Senatorial or Representative district, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be divided." (Emphasis added.)
"The Indiana constitutional provision for staggering the terms of senators, so that one-half of the Senate terms expire every two years, is entirely proper and valid and would be mandatory in a legislatively devised redistricting plan.
"However, the plan adopted herein is provisional in nature and probably will be applicable for only the 1970 election and the subsequent 2-year period. This is true since the 1970 census will have been completed in the interim, and the legislature can very well redistrict itself prior to the 1972 election. On the other hand, it is conceivable that the legislature may fail to redistrict before the 1972 elections. In such event, all fifty senatorial seats shall be up for election every two years until such time as the legislature properly redistricts itself. It will then properly be the province of the legislature in redistricting to determine which senatorial districts shall elect senators to 4-year terms and which shall elect senators to 2-year terms to reinstate the staggering of terms." 307 F. Supp., at 1367.
In Burnette, we summarily affirmed a three-judge District Court ruling, Mann v. Davis, 245 F.Supp. 241 (ED Va. 1965), which upheld a multi-member district consisting of the city of Richmond, Va., and suburban Henrico County over the objections of both urban Negroes and suburban whites. Since the urban Negroes did not appeal here, the affirmance is of no weight as to them, but as to the suburbanites it represents an adherence to Fortson. Similarly, Harrison summarily affirmed a District Court reapportionment plan, Schaefer v. Thomson, 251 F.Supp. 450 (Wyo. 1965), where multi-member districts in Wyoming were held necessary to keep county splitting at a minimum.
Burns vacated a three-judge court decree which required single-member districts except in extraordinary circumstances. The Court in Burns noted that "the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record." 384 U. S., at 88.
In Kilgarlin, the Court affirmed, per curiam, a district court ruling
"insofar as it held that appellants had not proved their allegations that [the Texas House of Representatives reapportionment plan] was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of single-member, multi-member and floterial districts it was an unconstitutional `crazy quilt.' " 386 U. S., at 121.
A B C #1. X X X #2. X X Y #3. X Y X #4. X Y Y #5. Y X X #6. Y X Y #7. Y Y X #8. Y Y Y
The theory hypothesizes that the true test of voting power is the ability to cast a tie-breaking, or "critical" vote. In the population of three voters as shown above, any voter can cast a critical vote in four situations; in the other four situations, the vote is not critical since it cannot change the outcome of the election: For example, C can cast a tie-breaking vote only in situations 3, 4, 5, and 6. The number of combinations in which a voter can
the number of voters. Dividing this result (critical votes) by 2[n] (possible combinations), one arrives at that fraction of possible combinations in which a voter can cast a critical vote. This is the theory's measure of voting power. In District K with three voters, the fraction is 4/8, or 50%. In District L with nine voters, the fraction is 140/512, or 28%. Conventional wisdom would give District K one representative and District L three. But under the theory, a voter in District L is not 1/3 as powerful as the voter in District K, but more than half as powerful. District L deserves only two representatives, and by giving it three the State causes voters therein to be overrepresented. For a fuller explanation of this theory, see Banzhaf, Multi-Member Electoral Districts—Do They Violate the "One Man, One Vote" Principle, 75 Yale L. J. 1309 (1966).
The Brief of Appellees (Plaintiffs), at 23 n. 7, indicates that in the 1970 elections:
"[O]ne of the major political parties in Marion County held district `mini-slating conventions' for purposes of determining its legislative candidates. All of the slated candidates were subsequently nominated in the primary. Black candidates filed in the slating conventions in six of the fifteen Marion County `districts' including the five that contain parts of the ghetto area. Only two black candidates were slated and nominated including one in the district that contains only a very small part of the ghetto area where the black candidate overwhelmingly defeated the white candidate in a head-on race notwithstanding a very substantial white voting majority. In a district that was almost entirely ghetto a white candidate won almost all of the vote in a head-on race against a black candidate who campaigned primarily on the basis of skin-color. All five of the candidates in the `ghetto districts,' however, avowed a substantial commitment to the substantive interests of black people and the poor."
The record shows that plaintiff Chavis was slated by the Democratic Party and elected to the state senate in 1964. Exhibit 10. Also, plaintiffs Ramsey and Bryant were both slated by the same party as candidates for the House of Representatives in 1968 but were defeated in the general election. Ibid.; see also Tr. 131 (Ramsey), Tr. 133 (Bryant).
One of plaintiffs' witnesses, an attorney and political figure in the Republican Party, testified as follows:
"Q. In your experience, Mrs. Allen, aren't tickets put together by party organization to appeal [to] the various interest groups throughout Marion County?
"Q. Among these interest groups are economic groups, racial groups and others?
"Q. I show you exhibit 5B that is in evidence, showing the location of the elected Republican representatives' homes at the time they filed in the party primary, does it to you somehow reflect an interest in making an appeal to each conceivable faction in the family, in the county area, each geographical interest?
"A. Yes, it does, if I can explain.
"Q. Yes, you may.
"A. Back in 1966, as I stated, we had a real primary fight and at the time we selected our candidates in the primary Republican Action Committee was not real, real strong in some geographical areas, and we felt that necessary to come up with a 15 man slate, many of the people who lived in Center Township including myself did not feel ready to run for public office and therefore there was a hiatus in Center Township residents. However, many of the Washington Township residents, I believe at least two Washington Township residents had a number of family and historical ties in this Center Township Area, even though they did not live there and to the best of the Committee's ability they tried to achieve racial, geographical, economical and social diversity on the ticket. I can't say they were entirely successful, but they made a real good attempt and this is a result of their attempts.
"Q. And the real hard driving effort to put the Action Committees through did take place by the residents of Center Township; did it not?
"A. It was an over-all drive. Center Township, having the population it has, could not be ignored." Tr. 145-148.
Plaintiffs' lawyer was at the time of the trial the Marion County Democratic chairman, Tr. 256; plaintiff Chavis was a ward chairman and a longtime precinct committeeman, Tr. 77.
Although plaintiffs asserted it, there was no finding by the District Court that Republican legislators residing in the ghetto were not representative of the area or had failed properly to represent ghetto interests in the general assembly.
R. Dixon, Democratic Representation: Reapportionment in Law and Politics 461-463, 470-472, 476-490, 503-507 (1968); P. David & R. Eisenberg, State Legislative Redistricting: Major Issues in the Wake of Judicial Decision (1962); Barnett, Unitary-Multiple Election Districts, 39 Am. Pol. Sci. Rev. 65 (1945); Silva, Compared Values of the Single- and the Multi-member Legislative District, 17 W. Pol. Q. 504 (1964); Hamilton, Legislative Constituencies: Single-member Districts, Multi-member Districts, and Floterial Districts, 20 W. Pol. Q. 321 (1967) (includes a discussion of districting in Indiana); Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W. Pol. Q. 742 (1964); Lindquist, Socioeconomic Status and Political Participation, 17 W. Pol. Q. 608 (1964); Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am. Pol. Sci. Rev. 1105 (1955); Kovach, Some Lessons of Reapportionment, 37 Reporter 26 (Sept. 21, 1967); and M. Collins, M. Dauer, P. David, A. Lacy, & G. Mauer, Evolving Issues and Patterns of State Legislative Redistricting in Large Metropolitan Areas (1966).
Interesting material with respect to the relative merits of single-and multi-member districts may be found in the congressional debates surrounding the passage in 1842 of the statute requiring representatives to be elected in single-member districts. See n. 39, infra. Though the racial considerations present here were, not surprisingly, absent in these pre-Civil War Amendments debates, the concern voiced by congressmen over the submergence of minorities, bloc voting, and party control shows, at least, that the plaintiffs' apprehensions are not entirely new ones. See, e. g., Cong. Globe, 27th Cong., 2d Sess., 445-448, 452-453, 463-464.
In 1842, Congress by statute required single-member districts for congressional elections. Act of June 25, 1842, § 2, 5 Stat. 491. The substance of the restriction was continued in Rev. Stat. § 23 and in apportionment legislation in this century until 1929. In 1941, Congress enacted a law that required that until a State is redistricted in a manner provided by law after decennial reapportionment of the House, representatives were to be elected from the districts prescribed by the law of the State, and that "if any of them are elected from the State at large they shall continue to be so elected," provided that if reapportionment of the House following a census shows that a State is entitled to an increase in the number of representatives, the additional representatives shall be elected at large until the State is redistricted, and if there is a decrease in the number of representatives and the number of districts in the State exceeds the number of representatives newly apportioned, all representatives shall be elected at large. Act of Nov. 15, 1941, 55 Stat. 762, amending § 22 (c) of the Act of June 18, 1929, 46 Stat. 27, 2 U. S. C. § 2a (c). In 1967, Congress reinstated the single-member district requirement, "except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress." 81 Stat. 581, 2 U. S. C. § 2c (1964 ed., Supp. V). Hawaii was the only State to take advantage of this exception. It has districted for the 92d Congress. Hawaii Rev. Stat. § 12-32.5 (Supp. 1969).
Congress has not purported to exercise Fourteenth Amendment powers to regulate or prohibit multi-member districts in state elections.
[For Appendix to opinion of the Court, see post, p. 164.]
MR. JUSTICE STEWART joins in Part I through VI of the Court's opinion, holding that the multi-member districting scheme here in issue did not violate the Equal Protection Clause of the Fourteenth Amendment. He dissents from Part VII of the opinion for the reasons expressed in his dissenting opinion in Lucas v. Colorado General Assembly, 377 U.S. 713, 744.