JUSTICE BRENNAN delivered the opinion of the Court.
The question presented by this appeal is whether an apportionment plan for congressional district satisfies Art. I, § 2, of the Constitution without need for further justification if the population of the largest district is less than one percent greater than the population of the smallest district. A three-judge District Court declared New Jersey's 1982 reapportionment plan unconstitutional on the authority of Kirkpatrick v. Preisler, 394 U.S. 526 (1969), and White v. Weiser, 412 U.S. 783 (1973), because the population deviations among districts, although small, were not the result of a good-faith effort to achieve population equality. We affirm.
I
After the results of the 1980 decennial census had been tabulated, the Clerk of the United States House of Representatives notified the Governor of New Jersey that the number of Representatives to which the State was entitled had decreased from 15 to 14. Accordingly, the New Jersey Legislature was required to reapportion the State's congressional districts. The State's 199th Legislature passed two reapportionment bills. One was vetoed by the Governor, and the second, although signed into law, occasioned significant dissatisfaction among those who felt it diluted minority voting strength in the city of Newark. See App. 83-84, 86-90. In response, the 200th Legislature returned to the problem of apportioning congressional districts when it convened in January 1982, and it swiftly passed a bill (S-711) introduced by Senator Feldman, President pro tem of the State Senate,
Like every plan considered by the legislature, the Feldman Plan contained 14 districts, with an average population per district (as determined by the 1980 census) of 526,059.
The legislature had before it other plans with appreciably smaller population deviations between the largest and smallest districts. The one receiving the most attention in the District Court was designed by Dr. Ernest Reock, Jr., a political science professor at Rutgers University and Director of the Bureau of Government Research. A version of the Reock
Almost immediately after the Feldman Plan became law, a group of individuals with varying interests, including all incumbent Republican Members of Congress from New Jersey, sought a declaration that the apportionment plan violated Art. I, § 2, of the Constitution
Shortly thereafter, the District Court issued an opinion and order declaring the Feldman Plan unconstitutional. Denying the motions for summary judgment and resolving the case on the record as a whole, the District Court held that the population variances in the Feldman Plan were not "unavoidable despite a good-faith effort to achieve absolute equality," see Kirkpatrick, supra, at 531. The court rejected appellants' argument that a deviation lower than the statistical imprecision of the decennial census was "the functional equivalent of mathematical equality." Daggett v. Kimmelman, 535 F.Supp. 978, 982-983 (NJ 1982). It also held that appellants had failed to show that the population variances were justified by the legislature's purported goals of preserving minority
II
Article I, § 2, establishes a "high standard of justice and common sense" for the apportionment of congressional districts: "equal representation for equal numbers of people." Wesberry v. Sanders, 376 U.S. 1, 18 (1964). Precise mathematical equality, however, may be impossible to achieve in an imperfect world; therefore the "equal representation" standard is enforced only to the extent of requiring that districts be apportioned to achieve population equality "as nearly as is practicable." See id., at 7-8, 18. As we explained further in Kirkpatrick v. Preisler:
Article I, § 2, therefore, "permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." Id., at 531. Accord, White v. Weiser, 412 U. S., at 790.
Thus two basic questions shape litigation over population deviations in state legislation apportioning congressional districts. First, the court must consider whether the population differences among districts could have been reduced or eliminated altogether by a good-faith effort to draw districts of equal population. Parties challenging apportionment legislation
III
Appellants' principal argument in this case is addressed to the first question described above. They contend that the Feldman Plan should be regarded per se as the product of a good-faith effort to achieve population equality because the maximum population deviation among districts is smaller than the predictable undercount in available census data.
A
Kirkpatrick squarely rejected a nearly identical argument. "The whole thrust of the `as nearly as practicable' approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case." 394 U. S., at 530; see White v. Weiser, supra, at 790, n. 8, and 792-793. Adopting any standard other than population equality, using the best census data available, see 394 U. S., at 532, would subtly erode the Constitution's ideal of equal representation. If state legislators knew that a certain de minimis level of population differences was acceptable, they would doubtless strive to achieve that level rather than equality.
Any standard, including absolute equality, involves a certain artificiality. As appellants point out, even the census data are not perfect, and the well-known restlessness of the American people means that population counts for particular localities are outdated long before they are completed. Yet problems with the data at hand apply equally to any population-based standard we could choose.
To accept the legitimacy of unjustified, though small population deviations in this case would mean to reject the basic premise of Kirkpatrick and Wesberry. We decline appellants' invitation to go that far. The unusual rigor of their standard has been noted several times. Because of that rigor, we have required that absolute population equality be the paramount objective of apportionment only in the case of
The sole difference between appellants' theory and the argument we rejected in Kirkpatrick is that appellants have proposed a de minimis line that gives the illusion of rationality and predictability: the "inevitable statistical imprecision of the census." They argue: "Where, as here, the deviation from ideal district size is less than the known imprecision of the census figures, that variation is the functional equivalent of zero." Brief for Appellants 18. There are two problems with this approach. First, appellants concentrate on the extent to which the census systematically undercounts actual population — a figure which is not known precisely and which, even if it were known, would not be relevant to this case. Second, the mere existence of statistical imprecision does not make small deviations among districts the functional equivalent of equality.
In the District Court and before this Court, appellants rely exclusively on an affidavit of Dr. James Trussell, a Princeton University demographer. See App. 97-104. Dr. Trussell's carefully worded statement reviews various studies of the undercounts in the 1950, 1960, and 1970 decennial censuses, and it draws three important conclusions: (1) "the undercount in the 1980 census is likely to be above one percent"; (2) "all the evidence to date indicates that all places are not undercounted to the same extent, since the undercount rate has been shown to depend on race, sex, age, income, and education"; and (3) "[t]he distribution of the undercount in New Jersey is . . . unknown, and I see no reason to believe that it would be uniformly spread over all municipalities." Id., at 103-104. Assuming for purposes of argument that each of
In essence, appellants' one-percent benchmark is little more than an attempt to present an attractive de minimis line with a patina of scientific authority. Neither Dr. Trussell's statement nor any of appellants' other evidence specifies a precise level for the undercount in New Jersey, and Dr. Trussell's discussion of the census makes clear that it is impossible to develop reliable estimates of the undercount on anything but a nationwide scale. See id., at 98-101. His conclusion that the 1980 undercount is "likely to be above one percent" seems to be based on the undercounts in previous censuses and a guess as to how well new procedures adopted in 1980 to reduce the undercount would work. Therefore, if we accepted appellants' theory that the national undercount level sets a limit on our ability to use census data to tell the difference between the populations of congressional districts, we might well be forced to set that level far above one percent when final analyses of the 1980 census are completed.
As Dr. Trussell admits, id., at 103, the existence of a one-percent undercount would be irrelevant to population deviations among districts if the undercount were distributed evenly among districts. The undercount in the census affects the accuracy of the deviations between districts only to the extent that the undercount varies from district to district. For a one-percent undercount to explain a one-percent deviations between the census populations of two districts, the undercount in the smaller district would have to be approximately three times as large as the undercount in the larger
The census may systematically undercount population, and the rate of undercounting may vary from place to place. Those facts, however, do not render meaningless the differences in population between congressional districts, as determined by uncorrected census counts. To the contrary, the census data provide the only reliable — albeit less than perfect — indication of the districts' "real" relative population levels. Even if one cannot say with certainty that one district is larger than another merely because it has a higher census count, one can say with certainty that the district with a larger census count is more likely to be larger than the other district than it is to be smaller or the same size. That certainty is sufficient for decisionmaking. Cf. City of Newark v. Blumenthal, 457 F.Supp. 30, 34 (DC 1978). Furthermore, because the census count represents the "best population data available," see Kirkpatrick, 394 U. S., at 528, it is the only basis for good-faith attempts to achieve population equality. Attempts to explain population deviations on the basis of flaws in census data must be supported with a precision not achieved here. See id., at 535.
C
Given that the census-based population deviations in the Feldman Plan reflect real differences among the districts, it is clear that they could have been avoided or significantly reduced with a good-faith effort to achieve population equality. For that reason alone, it would be inappropriate to accept the Feldman Plan as "functionally equivalent" to a plan with districts of equal population.
The District Court found that several other plans introduced in the 200th Legislature had smaller maximum deviations than the Feldman Plan. 535 F. Supp., at 982. Cf. White v. Weiser, 412 U. S., at 790, and n. 9. Appellants object that the alternative plans considered by the District Court were not comparable to the Feldman Plan because
In any event, it was unnecessary for the District Court to rest its finding on the existence of alternative plans with radically different political effects. As in Kirkpatrick, "resort to the simple device of transferring entire political subdivisions of known population between contiguous districts would have produced districts much closer to numerical equality." 394 U. S., at 532. Starting with the Feldman Plan itself and the census data available to the legislature at the time it was enacted, see App. 23-34, one can reduce the maximum population deviation of the plan merely by shifting a handful of municipalities from one district to another.
IV
By itself, the foregoing discussion does not establish that the Feldman Plan is unconstitutional. Rather, appellees' success in proving that the Feldman Plan was not the product of a good-faith effort to achieve population equality means only that the burden shifted to the State to prove that the population deviations in its plan were necessary to achieve some legitimate state objective. White v. Weiser demonstrates that we are willing to defer to state legislative policies, so long as they are consistent with constitutional norms, even if they require small differences in the population of congressional districts. See 412 U. S., at 795-797; cf. Upham v. Seamon, 456 U.S. 37 (1982); Connor v. Finch, 431 U.S. 407, 414-415 (1977). Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives. As long as the criteria are nondiscriminatory, see Gomillion v. Lightfoot, 364 U.S. 339 (1960), these are all legitimate objectives that on a proper showing could justify minor population deviations. See, e. g., West Virginia Civil Liberties Union v.
The possibility that a State could justify small variations in the census-based population of its congressional districts on the basis of some legitimate, consistently applied policy was recognized in Kirkpatrick itself. In that case, Missouri advanced the theory, echoed by JUSTICE WHITE in dissent, see post, at 771-772, that district-to-district differences in the number of eligible voters, or projected population shifts, justified the population deviations in that case. 394 U. S., at 534-535. We rejected its arguments not because those factors were impermissible considerations in the apportionment process, but rather because of the size of the resulting deviations and because Missouri "[a]t best . . . made haphazard adjustments to a scheme based on total population," made "no attempt" to account for the same factors in all districts, and generally failed to document its findings thoroughly and apply them "throughout the State in a systematic, not an ad hoc, manner." Id., at 535.
Under the Feldman Plan, the largest districts are the Fourth and Ninth Districts, and the smallest are the Third and Sixth. See supra, at 728. None of these districts borders on the Tenth, and only one — the Fourth — is even mentioned in appellants' discussions of preserving minority voting strength. Nowhere do appellants suggest that the large population of the Fourth District was necessary to preserve minority voting strength; in fact, the deviation between the Fourth District and other districts has the effect of diluting the votes of all residents of that district, including members of racial minorities, as compared with other districts with fewer minority voters. The record is completely silent on the relationship between preserving minority voting
V
The District Court properly applied the two-part test of Kirkpatrick v. Preisler to New Jersey's 1982 apportionment of districts for the United States House of Representatives. It correctly held that the population deviations in the plan were not functionally equal as a matter of law, and it found that the plan was not a good-faith effort to achieve population equality using the best available census data. It also correctly rejected appellants' attempt to justify the population deviations as not supported by the evidence. The judgment of the District Court, therefore, is
Affirmed.
[Map of New Jersey Congressional Districts follows this page.]
As an alternative ground for affirmance, the appellees contended at oral argument that the bizarre configuration of New Jersey's congressional districts is sufficient to demonstrate that the plan was not adopted in "good faith." This argument, as I understand it, is a claim that the district boundaries are unconstitutional because they are the product of political gerrymandering. Since my vote is decisive in this case, it seems appropriate to explain how this argument influences my analysis of the question that divides the Court. As I have previously pointed out, political gerrymandering is one species of "vote dilution" that is proscribed by the Equal Protection Clause.
I
Relying on Art. I, § 2, of the Constitution, as interpreted in Wesberry v. Sanders, 376 U.S. 1 (1964), and subsequent cases, appellees successfully challenged the congressional districting plan adopted by the New Jersey Legislature. For the reasons stated in JUSTICE BRENNAN's opinion for the Court, which I join, the doctrine of stare decisis requires that result. It can be demonstrated, however, that the holding in Wesberry, as well as our holding today, has firmer roots in the Constitution than those provided by Art. I, § 2.
The constitutional mandate contained in Art. I, § 2, concerns the number of Representatives that shall be "apportioned among the several States."
The abolition of slavery and the guarantees of citizenship and voting rights contained in the Thirteenth, Fourteenth, and Fifteenth Amendments effectively repealed Art. I, § 2's requirement that some votes be given greater weight than others. It remains true, however, that Art. I, § 2, does not itself contain any guarantee of equality of representation. The source of that guarantee must be found elsewhere. But as Justice Clark perceptively noted in his partial concurrence
In its review of state laws redefining congressional districts subsequent to Wesberry v. Sanders, the Court has not found it necessary to rely on the Equal Protection Clause. That Clause has, however, provided the basis for applying the "one person, one vote" standard to other electoral districts. See, e. g., Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964); Avery v. Midland County, 390 U.S. 474 (1968). Even if Art. I, § 2, were wholly disregarded, the "one person, one vote" rule would unquestionably apply to action by state officials defining congressional districts just as it does to state action defining state legislative districts.
In Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960), the Court invalidated a change in the city boundaries of Tuskegee, Alabama, "from a square to an uncouth twenty-eight-sided figure" excluding virtually all of the city's black voters. The Court's opinion identified the right that had been violated as a group right:
Although the Court explicitly rested its decision on the Fifteenth Amendment, the analysis in Justice Whittaker's concurring opinion — like Justice Clark's in Wesberry — is equally coherent, see 364 U. S., at 349. Moreover, the Court has subsequently treated Gomillion as though it had been decided on equal protection grounds. See Whitcomb v. Chavis, 403 U.S. 124, 149 (1971).
There is only one Equal Protection Clause. Since the Clause does not make some groups of citizens more equal than others, see Zobel v. Williams, 457 U.S. 55, 71 (1982) (BRENNAN, J., concurring), its protection against vote dilution cannot be confined to racial groups. As long as it proscribes gerrymandering against such groups, its proscription must provide comparable protection for other cognizable groups of voters as well. As I have previously written:
See Cousins v. City Council of Chicago, 466 F.2d 830, 851-852 (CA7) (Stevens, J., dissenting), cert. denied, 409 U.S. 893 (1972).
II
Like JUSTICE WHITE, I am convinced that judicial preoccupation with the goal of perfect population equality is an inadequate method of judging the constitutionality of an apportionment plan. I would not hold that an obvious gerrymander is wholly immune from attack simply because it comes closer to perfect population equality than every competing plan. On the other hand, I do not find any virtue in the proposal to relax the standard set forth in Wesberry and subsequent cases, and to ignore population disparities after some arbitrarily defined threshold has been crossed.
Until two decades ago, constrained by its fear of entering a standardless political thicket, the Court simply abstained from any attempt to judge the constitutionality of legislative apportionment plans, even when the districts varied in population from 914, 053 to 112, 116. See Colegrove v. Green, 328 U. S., at 557. In Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964), the Court abandoned that extreme form of judicial restraint and enunciated the "one person, one vote" principle. That standard is "judicially manageable" because census data are concrete and reasonably reliable and because judges can multiply and divide.
Even as a basis for protecting voters in their individual capacity, the "one person, one vote" approach has its shortcomings. Although population disparities are easily quantified, the standard provides no measure of the significance of any numerical difference. It is easy to recognize the element of
More important, mere numerical equality is not a sufficient guarantee of equal representation. Although it directly protects individuals, it protects groups only indirectly at best. See Reynolds v. Sims, supra, at 561. A voter may challenge an apportionment scheme on the ground that it gives his vote less weight than that of other voters; for that purpose it does not matter whether the plaintiff is combined with or separated from others who might share his group affiliation. It is plainly unrealistic to assume that a smaller numerical disparity will always produce a fairer districting plan. Indeed, as Justice Harlan correctly observed in Wells v. Rockefeller, 394 U.S. 542, 551 (1969), a standard "of absolute equality is perfectly compatible with `gerrymandering' of the worst sort. A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues." Since Justice Harlan wrote, developments in computer technology have made the task of the gerrymanderer even easier. See post, at 776 (WHITE, J., dissenting).
To a limited extent the Court has taken cognizance of discriminatory treatment of groups of voters. The path the Court has sometimes used to enter this political thicket is marked by the label "intent." A finding that the majority deliberately sought to make it difficult for a minority group to elect representatives may provide a sufficient basis for holding that an objectively neutral electoral plan is unconstitutional. See Rogers v. Lodge, 458 U.S. 613, 616-617 (1982). For reasons that I have already set forth at length, this standard is inadequate. See id., at 642-650 (STEVENS, J., dissenting); Mobile v. Bolden, 446 U. S., at 83 (STEVENS, J., concurring in judgment). I would not condemn a legislature's districting plan in the absence of discriminatory impact simply because its proponents were motivated, in part, by partisanship or group animus. Legislators are, after all, politicians; it is unrealistic to attempt to proscribe all political considerations in the essentially political process of redistricting. In the long run, constitutional adjudication that is premised on a case-by-case appraisal of the subjective intent of local decisionmakers
For a number of reasons, this is a burden that plaintiffs can meet in relatively few cases. As a threshold matter, plaintiffs must show that they are members of an identifiable political group whose voting strength has been diluted. They must first prove that they belong to a politically salient class, see supra, at 749-750, one whose geographical distribution is sufficiently ascertainable that it could have been taken into account in drawing district boundaries.
One standard method by which members of a disadvantaged political group may establish a dilution of their voting rights is by reliance on the "one person, one vote" principle, which depends on a statewide statistical analysis. But prima facie evidence of gerrymandering can surely be presented in other ways. One obvious type of evidence is the shape of the district configurations themselves. One need not use Justice Stewart's classic definition of obscenity — "I know it when I see it"
Substantial divergences from a mathematical standard of compactness may be symptoms of illegitimate gerrymandering. As Dr. Ernest Reock, Jr., of Rutgers University has written: "Without some requirement of compactness, the boundaries of a district may twist and wind their way across the map in fantastic fashion in order to absorb scattered
Extensive deviation from established political boundaries is another possible basis for a prima facie showing of gerrymandering. As we wrote in Reynolds v. Sims: "Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering." 377 U. S., at 578-579.
A procedural standard, although obviously less precise, may also be enlightening. If the process for formulating and adopting a plan excluded divergent viewpoints, openly reflected the use of partisan criteria, and provided no explanation of the reasons for selecting one plan over another, it would seem appropriate to conclude that an adversely affected plaintiff group is entitled to have the majority explain its action.
Although a scheme in fact worsens the voting position of a particular group,
If a State is unable to respond to a plaintiff's prima facie case by showing that its plan is supported by adequate neutral criteria, I believe a court could properly conclude that the challenged scheme is either totally irrational or entirely
III
In this case it is not necessary to go beyond the reasoning in the Court's opinions in Wesberry v. Sanders, 376 U.S. 1 (1964), Kirkpatrick v. Preisler, 394 U.S. 526 (1969), and
A glance at the map, ante, following p. 744, shows district configurations well deserving the kind of descriptive adjectives — "uncouth"
Such a map prompts an inquiry into the process that led to its adoption. The plan was sponsored by the leadership in the Democratic Party, which controlled both houses of the state legislature as well as the Governor's office, and was signed into law the day before the inauguration of a Republican Governor. The legislators never formally explained the guidelines used in formulating their plan or in selecting it over other available plans. Several of the rejected plans contained districts that were more nearly equal in population, more compact, and more consistent with subdivision boundaries, including one submitted by a recognized expert, Dr. Ernest Reock, Jr., whose impartiality and academic credentials were not challenged. The District Court found that the Reock Plan "was rejected because it did not reflect the leadership's partisan concerns." Daggett v. Kimmelman, 535 F.Supp. 978, 982 (NJ 1982). This conclusion, which arises naturally from the absence of persuasive justifications for the rejection of the Reock Plan, is buttressed by a letter written to Dr. Reock by the Democratic Speaker of the New Jersey General Assembly. This letter frankly explained the importance to the Democrats of taking advantage of their opportunity to control redistricting after the 1980 census. The Speaker justified his own overt partisanship by describing the political considerations that had motivated the Republican majority in the adoption of district plans in New
Because I have not made a comparative study of other districting plans, and because the State has not had the opportunity
This case concerns the congressional reapportionment of New Jersey. The districting plan enacted by the New Jersey Legislature and signed into law by the Governor on January 19, 1982, Pub. L. 1982, ch. 1, reduced the number of congressional districts in the State from 15 to 14 as required by the 1980 census figures. The 14 congressional districts created by the legislature have an average deviation of 0.1384% and a maximum deviation between the largest and smallest districts of 0.6984%. In other words, this case concerns a
I respectfully dissent from the Court's unreasonable insistence on an unattainable perfection in the equalizing of congressional districts. The Court's decision today is not compelled by Kirkpatrick v. Preisler, supra, and White v. Weiser, 412 U.S. 783 (1973), see Part I, infra, and if the Court is convinced that our cases demand the result reached today, the time has arrived to reconsider these precedents. In any event, an affirmance of the decision below is inconsistent with the majority's own "modifications" of Kirkpatrick and White which require, at a minimum, further consideration of this case by the District Court. See Part IV, infra.
I
"[T]he achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment." Reynolds v. Sims, 377 U.S. 533, 565-566 (1964). One must suspend credulity to believe that the Court's draconian response to a trifling 0.6984% maximum deviation promotes "fair and effective representation" for the people of New Jersey. The requirement that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's," Wesbery v. Sanders, 376 U.S. 1, 7-8 (1964), must be understood in light of the malapportionment in the States at the time Wesberry was decided. The plaintiffs in Wesberry were voters in a congressional district (population 823,680) encompassing Atlanta that was three
The States responded to Wesberry by eliminating gross disparities between congressional districts. Nevertheless, redistricting plans with far smaller variations were struck by the Court five years later in Kirkpatrick v. Preisler, supra, and its companion, Wells v. Rockefeller, 394 U.S. 542 (1969). The redistricting statutes before the Court contained total percentage deviations of 5.97% and 13.1%, respectively.
Just as Wesberry did not require Kirkpatrick, Kirkpatrick does not ineluctably lead to the Court's decision today. Although the Court stated that it could see "no nonarbitrary way" to pick a de minimis point, the maximum deviation in Kirkpatrick, while small, was more than eight times as large as that posed here. Moreover, the deviation in Kirkpatrick was not argued to fall within the officially accepted range of statistical imprecision of the census. Interestingly enough, the Missouri redistricting plan approved after Kirkpatrick, contained a deviation of 0.629% — virtually the same deviation declared unconstitutional in this case. Preisler v. Secretary of State of Missouri, 341 F.Supp. 1158, 1162 (WD Mo.), summarily aff'd sub nom. Danforth v. Preisler, 407 U.S. 901 (1972).
There can be little question but that the variances in the New Jersey plan are "statistically insignificant." Although the Government strives to make the decennial census as accurate as humanly possible, the Census Bureau has never intimated that the results are a perfect count of the American population. The Bureau itself estimates the inexactitude in the taking of the 1970 census at 2.3%,
Accepting that the census, and the districting plans which are based upon it, cannot be perfect represents no backsliding in our commitment to assuring fair and equal representation in the election of Congress. I agree with the views of Judge Gibbons, who dissented in the District Court, that Kirkpatrick should not be read as a "prohibition against toleration of de minimis population variances which have no statistically relevant effect on relative representation." Daggett v. Kimmelman, 535 F. Supp., at 984. A plus-minus deviation of 0.6984% surely falls within this category.
If today's decision simply produced an unjustified standard with little practical import, it would be bad enough. Unfortunately, I fear that the Court's insistence that "there are no de minimis population variations, which could practicably be avoided, but which nonetheless meet the standard of Art. I, § 2, without justification," ante, at 734, invites further litigation of virtually every congressional redistricting plan in
In all such cases, state legislatures will be hard pressed to justify their preference for the selected plan. A good-faith effort to achieve population equality is not enough if the population variances are not "unavoidable." The court must consider whether the population differences could have been further "reduced or eliminated altogether." Ante, at 730. With the assistance of computers, there will generally be a plan with an even more minimal deviation from the mathematical ideal. Then, "the State must bear the burden of proving that each significant variance between districts was necessary to achieve some legitimate goal." Ante, at 731. As this case illustrates, literally any variance between districts will be considered "significant."
The only way a legislature or bipartisan commission can hope to avoid litigation will be to dismiss all other legitimate concerns and opt automatically for the districting plan with the smallest deviation.
II
One might expect the Court had strong reasons to force this Sisyphean task upon the States. Yet the Court offers
Instead the Court is purely defensive in support of its decision. The Court refuses to adopt any fixed numerical standard, below which the federal courts would not intervene, asserting that "[t]he principle of population equality for congressional districts has not proved unjust or socially or economically harmful in experience." Ante, at 733. Of course, the principle of population equality is not unjust; the unreasonable application of this principle is the rub. Leaving aside that the principle has never been applied with the vengeance witnessed today, there are many, including myself, who take issue with the Court's self-congratulatory assumption that Kirkpatrick has been a success. First, a
More than a decade's experience with Kirkpatrick demonstrates that insistence on precise numerical equality only invites those who lost in the political arena to refight their battles in federal court. Consequently, "[m]ost estimates are that between 25 percent and 35 percent of current house district lines were drawn by the Courts." American Bar Association, Congressional Redistricting 20 (1981). As I have already noted, by extending Kirkpatrick to deviations below even the 1% level, the redistricting plan in every State with more than a single Representative is rendered vulnerable to after-the-fact attack by anyone with a complaint and a calculator.
The Court ultimately seeks refuge in stare decisis. I do not slight the respect that doctrine is due, see, e. g., White v.
Several pages later, the Court rejected in equally uncategorical terms the idea that variances may be justified in order to make districts more compact. Id., at 535-536. "A State's preference for pleasingly shaped districts," the Court concluded, "can hardly justify population variances." Id., at 536. In Justice Fortas' words, the Kirkpatrick Court "reject[s], seriatim, every type of justification that has been — possibly, every one that could be — advanced." Id., at 537.
Yet today the Court — with no mention of the contrary holdings in Kirkpatrick — opines: "Any number of consistently applied legislative policies might justify some variance, including for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representative."
In order that legislatures have room to accommodate these legitimate noncensus factors, a range of de minimis population deviation, like that permitted in the legislative reapportionment cases, is required. The Court's insistence that every deviation, no matter how small, be justified with specificity discourages legislatures from considering these "legitimate" factors in making their plans, lest the justification be found wanting, the plan invalidated, and a judicially drawn substitute put in its place. Moreover, the requirement of precise mathematical equality continues to invite those who would bury their political opposition to employ equipopulous gerrymanders. A de minimis range would not preclude such gerrymanders but would at least force the political cartographer to justify his work on its own terms.
III
Our cases dealing with state legislative apportionment have taken a more sensible approach. We have recognized that certain small deviations do not, in themselves, ordinarily constitute a prima facie constitutional violation. Gaffney v. Cummings, 412 U.S. 735 (1973); White v. Regester, 412 U.S. 755 (1973). Moreover, we have upheld plans with reasonable variances that were necessary to account for political
Bringing together our state legislative and congressional cases does not imply overlooking relevant differences between the two. States normally draw a larger number of legislative districts, which accordingly require a greater margin to account for geographical and political boundaries. "[C]ongressional districts are not so intertwined and freighted with strictly local interests as are state legislative districts." White v. Weiser, 412 U. S., at 793. Furthermore, because congressional districts are generally much larger than state legislative districts, each percentage point of variation represents a commensurately greater number of people. But these are differences of degree. They suggest that the level at which courts should entertain challenges to districting plans, absent unusual circumstances, should be lower in the
I would not hold up New Jersey's plan as a model reflection of such interests. Nevertheless, the deviation involved here is de minimis, and, regardless of what other infirmities the
IV
Even if the Court's view of the law were correct, its disposition of the case is not. At a minimum, the Court should vacate the decision of the District Court and remand for further consideration. As previously indicated, the Court finally recognizes today that considerations such as respecting political subdivisions and avoiding contests between incumbent Representatives might justify small population variances. Indeed, the Court indicates that "any number of consistently applied legislative policies" might do so. Ante, at 740. There is evidence in the record to suggest that the New Jersey Legislature was concerned with such considerations.
I join JUSTICE WHITE's excellent dissenting opinion, and reaffirm my previously expressed doubt that "the Constitution — a vital and living charter after nearly two centuries because of the wise flexibility of its key provisions — could be read to require a rule of mathematical exactitude in legislative reapportionment."White v. Weiser, 412 U.S. 783, 798 (1973) (concurring opinion). I write separately to express some additional thoughts on gerrymandering and its relation to apportionment factors that presumably were not thought relevant under Kirkpatrick v. Preisler, 394 U.S. 526 (1969).
I
The Court, following Kirkpatrick, today invalidates New Jersey's redistricting plan solely because various alternative plans, principally the one proposed by Professor Reock, had what the Court views as "appreciably smaller population deviations between the largest and smallest districts." Ante, at 728. Under all of the plans, the maximum population variances were under 1%. I view these differences as neither "appreciable" nor constitutionally significant. As JUSTICE WHITE demonstrates, ante, at 769-772 (dissenting opinion), the Court's insistence on precise mathematical equality is self-deluding, given the inherent inaccuracies of the census data and the other difficulties in measuring the voting population of a district that will exist for a period of 10 years. See Kirkpatrick, supra, at 538 (Fortas, J., concurring) (pursuit of precise equality "is a search for a will-o'-the-wisp"). Moreover, it has become clear that Kirkpatrick leaves no room for proper legislative consideration of other factors, such as preservation of political and geographic boundaries, that plainly are relevant to rational reapportionment decisions,
II
The extraordinary map of the New Jersey congressional districts, see ante, following p. 744, prompts me to comment on the separate question of gerrymandering — "the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes," Kirkpatrick, supra, at 538 (Fortas, J., concurring). I am in full agreement with JUSTICE WHITE's observation more than a decade ago that gerrymandering presents "a far greater potential threat to equality of representation" than a State's failure to achieve
I therefore am prepared to entertain constitutional challenges to partisan gerrymandering that reaches the level of discrimination described by JUSTICE STEVENS. See ante, at 748 (concurring opinion). I do not suggest that the shape of a
I do believe, however, that the constitutional mandate of "fair and effective representation," Reynolds, supra, at 565, proscribes apportionment plans that have the purpose and effect of substantially disenfranchising identifiable groups of voters. Generally, the presumptive existence of such unconstitutional discrimination will be indicated by a districting plan the boundaries of which appear on their face to bear little or no relationship to any legitimate state purpose. As JUSTICE STEVENS states, "dramatically irregular shapes may have sufficient probative force to call for an explanation," ante, at 755 (concurring opinion); "drastic departures from compactness are a signal that something may be amiss," ante, at 758; and "[e]xtensive deviation from established political boundaries is another possible basis for a prima facie showing of gerrymandering," ibid. In such circumstances, a State should be required to provide a legitimate and nondiscriminatory explanation for the districting lines it has drawn. See Reynolds, supra, at 568 (the apportionment "presented little more than crazy quilts, completely lacking in rationality, and could be found invalid on that basis alone").
In this case, one cannot rationally believe that the New Jersey Legislature considered factors other than the most
This summary statement by Judge Gibbons, a resident of New Jersey, is powerful and persuasive support for a conclusion
FootNotes
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"Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . . ."
In any event, the additional claim that Kirkpatrick actually promotes gerrymandering (as opposed to merely failing to stop it) is completely empty. A federal principle of population equality does not prevent any State from taking steps to inhibit gerrymandering, so long as a good-faith effort is made to achieve population equality as well. See, e. g., Colo. Const. Art. V, § 47 (guidelines as to compactness, contiguity, boundaries of political subdivisions, and communities of interest); Mass. Const., Amended Art. CI, § 1 (boundaries); N. Y. Elec. Law § 4-100(2) (McKinney 1978) (compactness and boundaries).
JUSTICE WHITE further argues that the lack of a de minimis rule encourages litigation and intrusion by federal courts into state affairs. Post, at 777-778. It cannot be gainsaid that the de minimis rule he proposes would have made litigation in this case unattractive. But experience proves that cases in which a federal court is called upon to invalidate an existing apportionment, and sometimes to substitute a court-ordered plan in its stead, frequently arise not because a newly enacted apportionment plan fails to meet the test of Kirkpatrick, but because partisan politics frustrate the efforts of a state legislature to enact a new plan after a recent census has shown that the existing plan is grossly malapportioned. See, e. g., Carstens v. Lamm, 543 F.Supp. 68 (Colo. 1982); Shayer v. Kirkpatrick, 541 F.Supp. 922 (WD Mo.), summarily aff'd, 456 U.S. 966 (1982); O'Sullivan v. Brier, 540 F.Supp. 1200 (Kan. 1982); Donnelly v. Meskill, 345 F.Supp. 962 (Conn. 1972); David v. Cahill, 342 F.Supp. 463 (NJ 1972); Skolnick v. State Electoral Board of Illinois, 336 F.Supp. 839 (ND Ill. 1971).
Some of these changes are particularly obvious. Shifting the small town of Roosevelt from the Fourth to the Seventh District brings both appreciably closer to the mean, and the town is already nearly surrounded by the Seventh District. Similarly, River Edge, Oradell, Norwood, and Montville are barely contiguous with their present districts and almost completely surrounded by the new districts suggested above. Further improvement could doubtless be accomplished with the aid of a computer and detailed census data. See also n. 5, supra.
We do not, of course, prejudge the validity of a plan incorporating these changes, nor do we indicate that a plan cannot represent a good-faith effort whenever a court can conceive of minor improvements. We point them out only to illustrate that further reductions could have been achieved within the basic framework of the Feldman Plan.
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." U. S. Const., Art. I, § 2, cl. 3 (emphasis supplied).
Reading a "one person, one vote" requirement into Art. I, § 2, is historically as well as textually unsound. See Kelly, Clio and the Court: An Illicit Love Affair, 1965 S. Ct. Rev. 119, 135-136.
In litigation under the Voting Rights Act, federal courts have developed some familiarity with the problems of identifying and measuring dilution of racial group voting strength. Some of the concepts developed for statutory purposes might be applied in adjudicating constitutional claims by other types of political groups. The threshold showing of harm may be more difficult for adherents of a political party than for members of a racial group, however, because there are a number of possible base-line measures for a party's strength, including voter registration and past vote-getting performance in one or more election contests. See generally Backstrom, Robins, & Eller, Issues in Gerrymandering: An Exploratory Measure of Partisan Gerrymandering Applied to Minnesota, 62 Minn. L. Rev. 1121, 1131-1139 (1978).
In addition, geographic compactness may differ from sociopolitical compactness. Baker, supra n. 8, at 205. As one geographer has noted:
"In many regions, the population is uneven, perhaps strung out along roads or railroads. Travel may be easier and cheaper in some directions than in others, such that an elongated district astride a major transport corridor might in fact be the most compact in the sense of minimum travel time for a representative to travel around the district. If so, then a modified criterion, the ratio of the maximum to the minimum travel time, would be a preferred measure." Morrill, supra n. 19, at 22.
"For example, if a jurisdiction consisting of 540 Republicans and 460 Democrats were subdivided randomly into 10 districts, Republicans would probably be elected in six or more districts. However, if malevolent Democrats could draw district lines with precision, they might be able to isolate 100 Republicans in one district and win all the other district elections by a margin of one or two votes, thus capturing 90% of the state legislature while commanding only 46% of the popular vote." Tribe, supra n. 15, at 756, n. 2.
See Hacker, supra n. 6, at 47-50.
Copies of the letter were sent to all Democratic legislators.
"The apportionment map produced by P. L. 1982, c.1 leaves me, as a citizen of New Jersey, disturbed. It creates several districts which are anything but compact, and at least one district which is contiguous only for yachtsmen. While municipal boundaries have been maintained, there has been little effort to create districts having a community of interests. In some districts, for example, different television and radio stations, different newspapers, and different transportation systems serve the northern and southern localities. Moreover the harshly partisan tone of Speaker Christopher Jackman's letter to Ernest C. Reock, Jr. is disedifying, to say the least. It is plain, as well, that partisanship produced artificial bulges or appendages of two districts so as to place the residences of Congressmen Smith and Courter in districts where they would be running against incumbents." Id., at 984.
The Court also makes much of the fact that the precise amount of variation in undercounting among districts cannot be known with certainty. The relevant point, however, is that these district-to-district variances make it impossible to determine with statistical confidence whether opting for the plan with the smallest maximum deviation is ameliorating or aggravating actual equality of population among the districts. In addition, the count of individuals per district depends upon the Census Bureau's selection of geographic boundaries by which to group data. "Data from the 1980 census have been compiled for congressional districts by equating component census geographic areas to each district and summing all data for areas coded to the district. Where the smallest census geographic area was split by a congressional district boundary, the census maps for the area were reviewed to determine in which district the majority of the population fell, and the entire area was coded to that district." U. S. Bureau of Census, Congressional Districts of the 98th Congress A-1 (1983) (preliminary draft). Thus, completely aside from undercounting effects, it is obvious that even absolute numerical equality between the census figures for congressional districts does not reflect districts of equal size.
Finally, the Court dismisses the entire concept of statistical error with the sophistic comment that "[e]ven if one cannot say with certainty that one district is larger than another merely because it has a higher census count, one can say with certainty that the district with a larger census count is more likely to be larger than the other district than it is to be smaller or the same size." Ante, at 738. The degree of that certainty, however, is speculative. The relevant consideration is not whether District Four is larger than District Six, but how much larger, and, how much less larger under the selected plan vis-a-vis an alternative plan. Moreover, variable undercounting and differences between census units and district lines may result in other districts having higher maximum deviations.
The general point is that when the numbers become so small, it makes no sense to concentrate on ever finer gradations when one cannot even be certain whether doing so increases or decreases actual population variances.
JUSTICE STEVENS makes the same point.
"Given the birth rate, the mortality rate, the transient character of modern society, and the acknowledged errors in the census, we all know that such differences may vanish between the date of the census and the date of the next election. Absolute population equality is impossible to achieve." Ante, at 752 (concurring opinion).
"The nobly aimed `one-man, one-vote' principle is coming into increasing use as a weapon for state legislators bent on partisan gerrymandering. From California to New Jersey and points in between, Republicans and Democrats alike are justifying highly partisan remaps by demonstrating respect for the 1964 Supreme Court mandate that population of congressional districts within states must be made as equal as possible. Meanwhile, other interests at stake in redistricting — such as the preservation of community boundaries and the grouping of constituencies with similar concerns — are being brushed aside . . . . The emphasis on one-man, one-vote not only permits gerrymandering, it encourages it. In many states it is impossible to approach population equality without crossing city, county and township lines. Once the legislature recognizes that move must be made, it is only a short step further to the drawing of a line that dances jaggedly through every region of the state. Local interests, informed that it is no longer legally permissible to draw a whole-county congressional map in most states, are far less likely to object than they were in the past . . . . The court's decision to reject a tiny deviation in favor of an even smaller one may further encourage the hairsplitting numbers game that has given rise to partisan gerrymanders all over the country." Congressional Quarterly, Inc., State Politics and Redistricting 1-2 (1982).
See also Engstrom, The Supreme Court and Equipopulous Gerrymandering: A Remaining Obstacle in the Quest for Fair and Effective Representation, 1976 Ariz. State L. J. 277, 278 ("Not only has the Court failed to develop effective checks on the practice of gerrymandering, but in pursuing the goal of population equality to a point of satiety it has actually facilitated that practice"); Baker, One Man, One Vote, and "Political Fairness," 23 Emory L. J. 701, 710 (1974) (hereafter Baker) ("Priority was typically given to miniscule population variations at the expense of any recognition of political subdivisions. Charges of partisan gerrymandering were more widespread than in past decades for two major reasons: the extent of redistricting activity among all fifty states, and the lack of emphasis on former norms of compactness and adherence to local boundary lines").
In the eyes of some commentators, the experience of New York in the aftermath of Wells v. Rockefeller is instructive.
"Subsequent congressional districting in New York became a possible prototype for the `equal-population gerrymander.' Whereas the former district pattern nullified by the Supreme Court had been the result of bipartisan compromise with each major party controlling one house, by 1970 the Republicans held both legislative houses as well as the governorship. The assistant counsel to the senate majority leader (and chief coordinator of the redistricting) candidly remarked: `The Supreme Court is just making gerrymandering easier than it used to be.' Not only was New York City subjected to major cartographic surgery, but upstate cities were also fragmented, with portions being joined to suburban and rural areas in an attempt to dilute concentrations of Democrats." Baker, at 712-713. Yet, under the new plan, no district deviated by more than than 490 persons from the average, and the configuration of district boundaries revealed generally compact and contiguous contours. Baker, Gerrymandering: Privileged Sanctuary or Next Judicial Target?, in Reapportionment in the 1970s, p. 138 (N. Polsby ed. 1971). Ironically, David Wells, the plaintiff who successfully challenged the former district pattern, returned to federal court in February 1970 to ask if the old plan could be restored. See Dixon, "One Man, One Vote — What Happens Next?," 60 Nat. Civic Rev. 259, 265 (1971).
"The Democratic victory was due in part to a sophisticated computer program that made possible the creation of districts having almost exactly equal population. The most populous district has only 171 more people than the least populous one. That accuracy seemed to impress the court, which expressed no concern that the new district lines divided cities and carved up counties all over the state." Illinois Map is Unpleasant Surprise for the GOP, 40 Congressional Quarterly 573 (1982).
See also Carstens v. Lamm, 543 F.Supp. 68, 73-74, and 84, n. 39 (Colo. 1982) (three-judge District Court reviewed five major redistricting plans, including the Republican legislature's plan with a difference between largest and smallest districts of seven persons, i. e., a maximum deviation of 0.0015%, and the Democratic Governor's plan with a 15-person difference, i. e., a maximum deviation of 0.0031%); O'Sullivan v. Brier, 540 F.Supp. 1200, 1202 (Kan. 1982) (three-judge District Court asked to choose between a Democratic plan with a 0.11% maximum deviation and a Republican plan with a 0.09% maximum deviation).
These cases also illustrate an additional unfortunate side effect of Kirkpatrick: the increasing tendency of state legislators and Governors — who have learned that any redistricting plan is "vulnerable to after-the-fact attack by anyone with the complaint and a calculator," ante, at 778 (WHITE, J., dissenting) — to spurn compromise in favor of simply drawing up the most partisan plan that appears consistent with the population equality criterion. No longer do federal district courts merely review the constitutionality of a State's redistricting plan. Rather, in many cases they are placed in the position of choosing a redistricting plan in the first instance.
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