text:
    DAVIS, SECRETARY, STATE BOARD OF ELECTIONS, et al. v. MANN et al.
    No. 69.
    Argued November 14, 18, 1963.
    Decided June 15, 1964.

      David J. Mays and R. D. Mcllwaine III, Assistant Attorney General of Virginia, argued the cause for appellants. With them on the briefs were Robert Y. Button, Attorney General of Virginia, and Henry T. Wickham.

      Edmund D. Campbell and Henry E. Howell, Jr. argued the cause for appellees. With Mr. Campbell on the brief for appellees Mann et al. was E. A. Prichard. With Mr. Howell on the brief for appellees, the citizens and voters of Norfolk, Virginia, were Leonard B. Sachs and Sidney H. Kelsey.

      Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Bruce J. Terris and Richard W. Schmude.

    Briefs of amici curiae were filed by Leo Pfeffer, Melvin L. Wulf, Jack Greenberg and Robert B. McKay for the American Jewish Congress et al., and by W. Scott Miller, Jr. and George J. Long for Schmied, President of the Board of Aldermen of Louisville, Kentucky.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

Presented for decision in this case is the validity, under the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution, of the apportionment of seats in the legislature of the Commonwealth of Virginia.

I.

Plaintiffs below, residents, taxpayers, and qualified voters of Arlington and Fairfax Counties, filed a complaint on April 9, 1962, in the United States District Court for the Eastern District of Virginia, in their own behalf and on behalf of all voters in Virginia similarly situated, challenging the apportionment of the Virginia General Assembly. Defendants, sued in their representative capacities, were various officials charged with duties in connection with state elections. ' Plaintiffs claimed rights under, provisions of the Civil Rights Act, 42 U. S. C. §§ 1983, 1988, and asserted jurisdiction under 28 U. S. C. § 1343 (3).

The complaint alleged that the present statutory provisions apportioning seats in the Virginia Legislature, as amended- in 1962, result in invidious discrimination against plaintiffs and “all other voters of the State Senatorial and House districts” in which they reside, since voters in Arlington and Fairfax Counties are given substantially less representation than voters living in other parts of the State. Plaintiffs asserted that the discrimination was violative of the Fourteenth Amendment as well as the Virginia Constitution, and contended that the requirements of the Equal Protection Clause of the Federal Constitution, and of the Virginia Constitution, could be met only by a redistribution of legislative representation among the counties and independent cities of the State “substantially in proportion to their respective populations.” Plaintiffs asserted that they “possess an inherent right to vote for members of the General Assembly . . . and to cast votes that are equally effective with the votes of every other citizen” of Virginia, and that this right was being diluted and effectively denied by the discriminatory apportionment of seats in both houses of the Virginia Legislature under the statutory provisions attacked as being unconstitutional. Plaintiffs contended that the alleged inequalities and distortions in the allocation of legislative seats prevented the Virginia Legislature from “being a body representative of the people of the Commonwealth,” and resulted in a minority of the people of Virginia controlling the General Assembly.

The complaint requested the convening of a three-judge District Court. With respect to relief, plaintiffs sought a declaratory judgment that the statutory scheme of legislative apportionment in Virginia, prior as well as subsequent to the 1962 amendments, contravenes the Equal Protection Clause of the Fourteenth Amendment and is thus unconstitutional and void. Plaintiffs also requested the issuance of a prohibitory injunction restraining defendants from performing their official duties relating to the election of members of the General Assembly pursuant to the present statutory provisions. Plaintiffs further sought a mandatory injunction requiring defendants to conduct the next primary and general elections for legislators on an at-large basis throughout the State.

A three-judge District Court was promptly convened. Residents and voters of the City of Norfolk were permitted to intervene as plaintiffs against the original defendants and against certain additional defendants, election officials in Norfolk. On June 20, 1962, all of the plaintiffs obtained leave to amend the complaint by adding an additional prayer for relief which requested that, unless the General Assembly “promptly and fairly” reapportioned the legislative districts, the Court should reapportion the districts by its own order so as to accord the parties and others similarly situated “fair and proportionate” representation in the Virginia Legislature.

Evidence presented to the District Court b.y plaintiffs included basic figures showing the populations of the various districts from which senators and delegates are elected and the number of seats assigned to each. From that data various statistical comparisons were derived. Since the 1962 reapportionment measures were enacted only two days before the complaint was filed and made only small changes in the statutory provisions relating to legislative apportionment, which had been last amended in 1968, the evidence submitted covered both the present and the last previous apportionments. Defendants introduced various exhibits showing the numbers of military and military-related personnel in the City of Norfolk and in Arlington and Fairfax Counties, disparities from population-based representation among the various States in the Federal Electoral College, and results of a comparative study of state legislative apportionment which show Virginia as ranking eighth among the States in population-based legislative representativeness, as reapportioned in 1962.

On November 28, 1962, the District Court, with one judge dissenting, sustained plaintiffs’ claim and entered an interlocutory order holding the apportionment of the Virginia Legislature violative of the Federal Constitution. 213 F. Supp. 577. The Court refused to dismiss the case or stay its action on the ground, asserted by defendants, that plaintiffs should be required first to procure the views of the state courts on the validity of the apportionment scheme. Instead, it held that, since neither the 1962 legislation nor the relevant state constitutional provisions were ambiguous, no question of state law necessitating abstention by the Federal District Court was presented. In applying the Equal Protection Clause to the Virginia apportionment scheme, the Court stated that, although population is the predominant consideration, other factors may be of some relevance “in assaying the justness of the apportionment.” Stating that the Federal Constitution requires a state legislative apportionment to “accord the citizens of the State substantially equal representation,” the Court held that the inequalities found in the statistical information relating to the population of the State’s various legislative districts, if unexplained, sufficiently showed an “invidious discrimination” against plaintiffs and those similarly situated. The Court rejected any possibility of different bases of representation being applicable in the two houses of the Virginia Legislature, stating that, in Virginia, each house has “a direct, indeed the same, relation to the people,” and that the principal present-day justification for bicameralism in state legislatures is to insure against precipitate action by imposing greater deliberation upon proposed legislation. Because of the gross inequalities in representation among various districts in both houses of the Virginia Legislature, the Court put the burden of explanation on defendants, and found that they had failed to meet it. Consequently, the Court concluded that the discrimination against Arlington and Fairfax Counties and the City of Norfolk was a grave and “constitutionally impermissible” deprivation, violative of the Equal Protection Clause of the Fourteenth Amendment.

With respect to relief, the Court stated that, while it would have preferred that the General Assembly itself correct the unconstitutionality of the 1962 apportionment legislation, it would not defer deciding the case until after the next regular session of the Virginia Legislature in January 1964, because senators elected in November 1963 would hold office until 1968 and delegates elected in 1963 would serve until 1966. Deferring action would thus result in unreasonable delay in correcting the injustices in the apportionment of the Senate and the House of Delegates, concluded the Court.

The District Court’s interlocutory order declared that the 1962 apportionment violated the Equal Protection Clause and accordingly was void and of no effect. It also restrained and enjoined defendants from proceeding with the conducting of elections under the 1962 legislation, but stayed the operation of the injunction until January 31, 1963, so that either the General Assembly could act or an appeal could be taken to this Court, provided that, if neither of these steps was taken, plaintiffs might apply to the District Court for further relief. Finally, the court below retained jurisdiction of the case for the entry of such orders as might be required.

An appeal to this Court was timely noted by defendants. On application by appellants, The Chief Justice, on December 15, 1962, granted a stay of the District Court’s injunction pending final disposition of the ease by this Court'. Because of this stay, the November 1963 election of members of the Virginia Legislature was conducted under the existing statutory provisions. We noted probable jurisdiction on June 10, 1963. 374 U. S. 803.

II.

The Virginia Constitution provides for a Senate of not more than 40 nor less than 33 members, in Art. IV, § 41, and for a House of Delegates of not more than 100 nor less than 90 seats, in Art. IV, §.42. Senators are elected quadrennially and delegates biennially. At all relevant times, state statutes have fixed the number of senators at 40 and the number of delegates at 100. Pursuant to the state constitutional requirement of legislative reapportionment at least decenially, contained in Art. IV, § 43, the General Assembly has reapportioned senatorial and House seats in 1932, 1942, and 1952, as well as in 1962, and in 1958 the apportionment statutes were amended. The Virginia Constitution contains no express standards, however, for the apportionment of legislative representation, and leaves the task of establishing districts solely up to the discretion of the legislature.

With respect to political subdivisions, Virginia has 98 counties and 32 independent cities. Despite the absence of any specific provisions in the State Constitution, population has generally been traditionally regarded as the most important factor for legislative consideration in reapportioning and redistricting. Because cities and counties have consistently not been split or divided for' purposes of legislative representation, multimember districts have been utilized for cities and counties whose populations entitle them to more than a single representative, resulting in there always being less than 100 delegate districts and less than 40 senatorial districts. And, because of a tradition of respecting the integrity of the boundaries of cities and counties in drawing district lines, districts have been constructed only of combinations of counties and cities and not by pieces of them. This has resulted in the periodic utilization of floterial districts where contiguous cities or counties cannot be combined to yield population totals reasonably close to a population ratio figure determined by dividing the State’s total population by the number of seats in the particular legislative body. Various other factors, in addition to population, which have historically been considered by Virginia Legislatures in enacting apportionment statutes include compactness and contiguity of territory in forming districts, geographic and topographic features, and community of interests among people in various districts.

Section 24-14 of the Virginia Code, as amended in 1962, provides for the apportionment of the Virginia Senate, and divides the State into 36 senatorial districts for the allocation of the 40 seats in that body. With a total state population of 3,966,949, according to the 1960 census, and 40 Senate seats, the ideal ratio would be one senator for each 99,174 persons. Under the 1962 statute, however, Arlington County is given but one senator for its 163,401 persons, only .61 of the representation to which it would be entitled on a strict population basis. The City of Norfolk has only .65 of its ideal share of senatorial representation, with two senators for a population of 305,872. And Fairfax County (including the cities of Fairfax and Falls Church), with two senators for 285,194 people, has but .70 of its ideal representation in the Virginia Senate. In comparison, the smallest senatorial district, with respect to population, has only 61,730, and the next smallest 63,703. Thus, the maximum population-variance ratio between the most populous and least populous senatorial districts is 2.65-to-l. Under the 1962 senatorial apportionment, applying 1960 population figures, approximately 41.1% of the State’s total population reside in districts electing a majority of the members of that body.

Apportionment of seats in the Virginia House of Delegates is provided for in § 24-12 of the Virginia Code, as amended in 1962, which creates 70 House districts and distributes the .100 House seats among them. Dividing the State’s total 1960 population by 100 results in an ideal ratio of one delegate for each 39,669 persons. Fair-fax County, with a population of 285,194, is allocated only three House seats under the 1962 apportionment provisions, however, thus being given only .42 of its ideal representation. While the average population per delegate in Fairfax County is 95,064, Wythe County, with only 21,975 persons, and Shenandoah County, with a population of only 21,825, are each given one seat in the Virginia House. The maximum population-variance ratio, between the most populous and least populous House districts, is thus 4.36-to-1. The City of Norfolk, with 305,872 people, is given only six House seats, and Arlington County, with a population of 163,401, is allocated only three. Under the 1962 reapportionment of the House of Delegates, 40.5% of the State’s population live in districts electing a majority of the House members. Twenty-seven House districts have more than three times the representation of the people of Fairfax County, 12 districts have twice the representation of Arlington County, and six, twice that of Norfolk.

No adequate political remedy to obtain legislative reapportionment appears to exist in Virginia. No initiative procedure is provided for under Virginia law. Amendment of the State Constitution or the calling of a constitutional convention initially requires the vote of a majority of both houses of the Virginia General Assembly. Only after such legislative approval is obtained is such a measure submitted to the people for a referendum vote. Legislative apportionment questions do not appear to have been traditionally regarded as non justiciable by Virginia state courts, however, and appellees could possibly have sought and obtained relief in a state court as well as in a Federal District Court.

III.

In Reynolds v. Sims, ante, p. 533, decided also this date, we held that the Equal Protection Clause requires that seats in both houses of a bicameral state legislature must be apportioned substantially on a population basis. Neither of the houses of the Virginia General Assembly, under the 1962 statutory provisions here attacked, is apportioned sufficiently on a population basis to be constitutionally sustainable. Accordingly, we hold that the District Court properly found the Virginia legislative apportionment invalid.

Appellants' contention that the court below should have abstained so as to permit a state court to decide the questions of state law involved in this litigation is without merit. Where a federal court's jurisdiction is properly invoked, and the relevant state constitutional and statutory provisions are plain and unambiguous, there is no necessity for the federal court to abstain pending determination of the state law questions in a state court. McNeese v. Board of Education, 373 U. S. 668. This is especially so where, as here, no state proceeding had been instituted or was pending when the District Court’s jurisdiction was invoked. We conclude that the court below did not err in refusing to dismiss the proceeding or stay its action pending recourse to the state courts.

Undoubtedly, the situation existing in Virginia, with respect to legislative apportionment, differs not insignificantly from that in Alabama. In contrast to Alabama, in Virginia the legislature has consistently reapportioned itself decennially as required by the State Constitution. Nevertheless, state legislative malapportionment, whether resulting from prolonged legislative inaction or from failure to comply sufficiently with federal constitutional requisites, although reapportionment is accomplished periodically, falls equally within the proscription of the Equal Protection Clause.

We reject appellants’ argument that the underrepresen-tation of Arlington, Fairfax and Norfolk is constitutionally justifiable since it allegedly resulted in part from the fact that those areas contain large numbers of military and military-related personnel. Discrimination against a class of individuals, merely because of the nature of their employment, without more being shown, is constitutionally impermissible. Additionally, no showing was made that the Virginia Legislature in fact took, such a factor into account in allocating legislative representation. And state policy, as evidenced by Virginia’s election laws, actually favors and fosters voting by military and military-related personnel. Furthermore, even if such persons were to be excluded in determining the populations of the various legislative districts, the discrimination against the disfavored areas would hardly be satisfactorily explained, because, after deducting military and military-related personnel, the maximum population-variance ratios would still be 2.22-to-1 in the Senate and 3.53-to-l in the House.

We also reject appellants’ claim that the Virginia apportionment is sustainable as involving an attempt to balance urban and rural power in the legislature. Not only does this explanation lack legal merit, but it also fails to conform to the facts. Some Virginia urban areas, such as Richmond, by comparison with Arlington, Fairfax and Norfolk, appear to be quite adequately represented in the General Assembly. And, for the reasons stated in Reynolds, in rejecting the so-called federal analogy, and in Gray v. Sanders, 372 U. S. 368, 378, appellants’ reliance on an asserted analogy to the deviations from population in the Federal Electoral College is misplaced. The fact that the maximum variances in the populations of various state legislative districts are less than the extreme deviations from a population basis in the composition of the Federal Electoral College fails to provide a constitutionally cognizable basis for sustaining a state apportionment scheme under the Equal Protection Clause.

We find it unnecessary and inappropriate to discuss questions relating to remedies at the present time. Since the next election of Virginia legislators will not occur until 1965, ample time remains for the Virginia Legislature to enact a constitutionally valid reapportionment scheme for purposes of that election.. After the District Court has provided the Virginia Legislature with an adequate opportunity to enact a valid plan, it can then proceed, should it become necessary, to grant relief under equitable principles to insure that no further elections are held under an unconstitutional scheme. Since the District Court stated that it was retaining jurisdiction and that plaintiffs could seek further appropriate relief, the court below presumably intends to take further action should the Virginia Legislature fail to act promptly in remedying the constitutional defects in the State’s legislative apportionment plan. We therefore affirm the judgment of the District Court on the merits of this litigation, and remand the case for further proceedings consistent with the views stated here and in our opinion in Reynolds v. Sims.

It is so ordered.

Mr. Justice Clark concurs in the affirmance for the reasons stated in his concurring opinion in Reynolds v. Sims, ante, p. 587, decided this date.

[For dissenting opinion of Mr. Justice Harlan, see ante, p. 589.]

Mr. Justice Stewart.

In this case, the District Court.recognized that “population is not . . . the sole or definitive measure of districts when taken by the Equal Protection Clause.” 213 F. Supp., at 584. In reaching its decision the. court made clear that it did not “intend to say that there cannot be wide differences of population in districts if a sound reason can be advanced for the discrepancies.” Id., at 585. The District Court, however, could find “no rational basis for the disfavoring of Arlington, Fairfax and Norfolk.” Ibid. In my opinion the appellants have failed to show that the trial court erred in reaching this conclusion. Accordingly, in keeping with the view expressed in my dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, post, p. 744, I would affirm the District Court’s judgment holding that to the extent a state legislative apportionment plan is conclusively shown to have no rational basis, such a plan violates the Equal Protection Clause.

       Reapportionment in 1952 was accomplished only after the Governor convened a special session of the Virginia Legislature for that purpose, since the legislature had adjourned without enacting any statutes reallocating representation. In anticipation of the constitutional mandate to reapportion in 1962, the Virginia Governor, in January 1961, appointed a commission on redistricting. In doing its work, this commission employed the assistance of the Bureau of Public Administration of the University of Virginia. Suggesting that Senate and House districts should be, as nearly as practicable, equal in population, the Bureau submitted two alternative plans for the apportionment of the House and three alternative plans for the apportionment of Senate seats. These plans all followed the various criteria traditionally considered in previous apportionments, and complied with the constitutionally prescribed size limitations on both of the houses. In late 1961, the commission filed its report recommending a redistricting plan different from any of the plans submitted by the Bureau. Its plan, based more on political compromise than any of the Bureau’s suggested plans, deviated further from population-based representation than any of the Bureau’s proposals. At its 1962 regular session, the Virginia General Assembly completely disregarded both the commission report and the plans prepared by the Bureau, and adopted apportionment schemes of its own for each house, in practical effect making only minimal changes in the existing statutory provisions. These enactments, of course, are the ones principally complained of by appellees in this litigation.

       The term “floterial district” is used to refer to a legislative district which includes within its boundaries several separate districts or political subdivisions which independently would not be entitled to additional representation but whose conglomerate population entitles the entire area to another seat in the particular legislative body being apportioned. See Baker v. Carr, 369 U. S. 186, 256 (Clark, J., concurring). As an example, the City of Lynchburg, with a 1960 population of 54,790, is itself allocated one seat in the Virginia House of Delegates under the 1962 apportionment plan. Amherst County, with a population of only 22,953, is not given any independent representation in the Virginia House. But the City of Lynchburg and Amherst County are combined in a floterial district with a total population of 77,743. Presumably, it was felt that Lynchburg was entitled to some additional representation in the Virginia House, since its population significantly exceeded the ideal House district size of 36,669. However, since Lynchburg’s population did not approach twice that figure, it was apparently decided that Lynchburg was not entitled, by itself, to an added seat. Adjacent Amherst County, with a population substantially smaller than the ideal district size, was presumably felt not to be entitled to a separate House seat. The solution was the creation of a floterial district comprising the two political subdivisions, thereby according Lynchburg additional representation and giving Amherst County a voice in the Virginia House, without having to create separate additional districts for each of the two political subdivisions.

       In illustrating the disparities from population-based representation in the apportionment of Senate seats, the District Court included in its opinion a chart showing the composition (by counties and cities) and populations of, and the number of senators allotted to, various senatorial districts, and comparing these figures with the senatorial representation given Arlington, Fairfax and Norfolk. 213 F. Supp., at 581-582.

       Appellees have pointed out, however, that, since seats in the Virginia Legislature are reapportioned decennially, and since the allegedly underrepresented districts are those whose populations are increasing more rapidly than the allegedly overrepresented ones, the disparities from population-based representation, in both houses of the Virginia Legislature, will continually increase throughout the 10-year period until the next reapportionment.

       In discussing deviations from population-based representation in the allocation of seats in the House of Delegates, the District Court included, as part of its opinion, a chart showing the populations of and the number of seats given to certain House districts, and comparing these figures with the House representation accorded Arlington, Fair-fax and Norfolk. 213 F. Supp., at 582-584.

       For a discussion of the lack of federal constitutional significance of the presence or absence of an available political remedy, see Lucas v. Forty-Fourth General Assembly of Colorado, post, pp. 736-737, decided also this date.

       Va. Const., Art. XV, §§ 196, 197.

       In Brown v. Saunders, 159 Va. 28, 166 S. E. 105 (1932), the Supreme Court of Appeals of Virginia held that a congressional dis-tricting statute enacted by the Virginia Legislature was invalid since it conflicted with Art. IV, § 55, of the State Constitution, which requires congressional districts to have “as nearly as practicable, an equal number of inhabitants.” Of course, involved in that case was a specific state constitutional requirement relating to congressional districting, whereas no such detailed state requirements exist with respect to apportionment of seats in the Virginia Legislatura. Appellants have argued, however, that this decision indicates that Virginia courts will also adjudicate questions relating to the validity of the State's legislative apportionment scheme under the provisions of the Federal Constitution.

       However, in Tyler v. Davis, a case involving a suit instituted on March 26, 1963, almost four months after the District Court’s decision in the instant case, the Circuit Court of the City of Richmond dismissed, on the merits, an action challenging the apportionment of seats in the Virginia Legislature. Although the state court found that it had jurisdiction and that the questions raised were justiciable in nature, it dismissed the complaint on the ground that plaintiffs had failed to show that the scheme for apportioning seats in the Virginia Legislature was an invidiously discriminatory one violative 'of the Equal Protection Clause.

       See 213 F. Supp., at 584.

       Virginia’s election laws enable persons in the armed forces to vote without registration or payment of poll tax. Va. Code Ann., 1950 (Repl. Vol. 1964) §24r-23.1. While the literal language of this provision grants the privilege to those “in active service ... in time of war,” the Virginia State Board of Electors is applying it currently. Although the mere stationing of military personnel in the State does not give them residence, Virginia election officials interpret the applicable statutory provisions to mean that residence for military personnel is determined in the same manner as for all other citizens. Military personnel and members of their families who have been residents of Virginia for a year, residents of a county, city or town for six months, and residents of a precinct for 30 days are entitled to vote. Military personnel are not included in the categories of persons disabled from voting. Va. Code Ann., 1950 (Repl. Vol. 1964) § 24-18.

       See Reynolds v. Sims, ante, pp. 571-576.

       See id., at 585.


source: Caselaw Access Project

author: Mr. Chief Justice Warren Mr. Justice Stewart.

license: Public Domain

text:
    ROMAN, CLERK OF THE PEACE, et al. v. SINCOCK et al.
    No. 307.
    Argued December 9, 1963.
    Decided June 15, 1964.

      Frederick Bernays Wiener argued the cause for appellants. With him on the briefs were David P. Buckson, Attorney General of Delaware, E. Norman Veasey, Chief Deputy Attorney General, Januar D. Bove, Jr., Frank O’Donnell and N. Maxson Terry.

      Vincent A. Theisen argued the cause and filed a brief for appellees.

      Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus, curiae, urging affirmance. With him on the brief were Bruce J. Terris and Richard W. Schmude.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

Presented for decision in this case is the constitutional validity, under the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution, of the apportionment of seats in the Delaware General Assembly.

I.

Shortly after this Court’s decision in Baker v. Carr, 369 U. S. 186, plaintiffs below, residents, taxpayers and qualified voters of New Castle County, Delaware, filed a complaint in the United States District Court for the District of Delaware, in their own behalf and on behalf of all persons similarly situated, challenging the apportionment of the Delaware Legislature. Defendants, sued in their representative capacities, were various officials charged with the performance of certain duties in connection with state elections. The complaint alleged deprivation of rights under the Equal Protection Clause of the Fourteenth Amendment, and asserted that the District Court had jurisdiction under the Fourteenth Amendment, 42 U. S. C. §§ 1983 and 1988, and 28 U. S. C. §§ 1343 and 2201.

Plaintiffs below alleged that the apportionment of seats in the Delaware Legislature resulted in an “invidious discrimination as to the inhabitants of New Castle County and the City of Wilmington,” operated to deny them the right to cast votes for Delaware legislators “that are of equal effect with that of every other citizen of the State of Delaware,” and was arbitrary and capricious in failing to provide a reasonable classification of those voting for members of the Delaware General Assembly. Plaintiffs also asserted that they were without any other adequate remedy since the existing legislative apportionment was frozen into the 1897 Delaware Constitution; that the present legislature was dominated by legislators representing the two less populous counties; that it was, as a practical matter, impossible to amend the State Constitution or convene a constitutional convention for the purpose of reapportioning the General Assembly; and that the Delaware Legislature had consistently failed to take,appropriate action with respect to reapportionment.

Plaintiffs below sought a declaration that Art. II, § 2, of the Delaware Constitution, which established the apportionment of seats in both houses of the Delaware Legislature, is unconstitutional, and an injunction against defendants to prevent the holding of any further elections under the existing apportionment scheme. Plaintiffs also requested that the District Court either reapportion the Delaware Legislature on a population basis or, alternatively, direct that the November 1962 general election be conducted on an at-large basis. A three-judge District Court was asked for by plaintiffs, and was promptly convened.

On July 25, 1962, the District Court entered an order staying the proceedings until August 7, 1962, in order to permit the Delaware Legislature to take “some appropriate action.” 207 F. Supp. 205. The court noted that, since publication of any proposed constitutional amendment at least three months prior to the next general election was required under Delaware law, it would serve no useful purpose to grant a stay beyond August 7, 1962.

On July 30, 1962, the General Assembly approved a proposed amendment to the legislative apportionment provisions of the Delaware Constitution, based upon recommendations of a bipartisan reapportionment committee appointed by the Delaware Governor. Under Delaware law this amendment could not, however, become effective unless again approved during the next succeeding session of the General Assembly.

On August 7, 1962, the District Court entered an order refusing to dismiss the suit, and stated that, while it had no desire to substitute its judgment for the collective wisdom of the Delaware General Assembly in matters of legislative apportionment, it had no alternative but to proceed promptly in deciding the case. 210 F. Supp. 395. Some of the defendants applied for a further stay of proceedings so that the General Assembly coming into office in January 1963 would have an opportunity to approve the proposed constitutional amendment. On August 8, 1962, plaintiffs applied for a preliminary injunction against the conducting of the November 1962 general election under the existing apportionment provisions. Plaintiffs were thereafter permitted to amend their complaint to request that the proposed constitutional amendment also be declared unconstitutional and that the court order a provisional reapportionment of the Delaware Legislature.

On October 16, 1962, the District Court denied both the applications for a preliminary injunction and for a further stay. 210 F. Supp. 396. Denial of a preliminary injunction effectively permitted the holding of the November 1962 general election pursuant to the legislative apportionment provisions of the 1897 Delaware Constitution. After extended pretrial proceedings, the court, on November 27, 1962, entered a pretrial order in which the parties agreed to the accuracy of a series of exhibits, statistics and various statistical computations. In early January 1963, the Delaware General Assembly, elected in November 1962, approved the proposed constitutional amendment by the requisite two-thirds vote. As a result, the amendment to the legislative apportionment provisions of Art. II, § 2, became effective on January 17, 1963, having been passed by two successive General Assemblies. Trial before the District Court ensued, with the expert testimony of various political scientists being presented.

On April 17, 1963, the District Court, in an opinion by Circuit Judge Biggs, held that Art. II, § 2, of the Delaware Constitution, both before and after the 1963 amendment, resulted in gross and invidious discrimination against the plaintiffs and others similarly situated, in violation of the Equal Protection Clause of the Fourteenth Amendment. 215 F. Supp. 169. Stating that “the fundamental issue presented for . . . adjudication is whether or not the apportioning of members of the General Assembly of the State of Delaware offends the electors of the State because of an alleged debasement of their voting rights,” the court indicated that it would pass upon the constitutional validity of both the provisions of the 1897 Constitution and the provisions of the 1963 constitutional amendment. After considering in detail the apportionment of legislative seats under the provisions of the 1897 Delaware Constitution, the court below concluded that “[t]he uneven growth of the different areas of the State created a condition because of which the numbers of inhabitants in representative and senatorial districts differed not only on an intercounty basis but also on an intracounty basis.” After discussing the effect of the 1963 reapportionment amendment, the District Court turned to a consideration of plaintiffs’ claim under the Federal Constitution. Stating that the rights asserted by plaintiffs are “personal civil rights” of great importance, the court below continued:

. . Section 2 of Article II of the Constitution of Delaware as it existed prior to the 1963 Amendment and as it exists today creates such an inequality in voting power, resulting in invidious discrimination, as to bring it within the proscription of the Fourteenth Amendment of the Constitution of the United States. . . . This is true as to the apportionment of the Senate as well as to the apportionment of the House of Representatives of the General Assembly of Delaware. While mathematical exactitude in apportionment cannot be expected, and indeed is not possible in an absolute sense, disparities created by Section 2 of Article II, as it was prior to the 1963 Amendment and as it is now, are of such a startling nature as to demonstrate a debasement of franchise of individual electors of this State which the Equal Protection Clause of the Federal Constitution cannot tolerate.”

After holding that the apportionment of at least one house of a bicameral state legislature must be based substantially on population, the District Court rejected the relevancy of the so-called federal analogy as a justification for departures from a population-based apportionment scheme in the other house of a state legislature. Although finding no rational or reasonable basis for the Delaware apportionment, either as it previously existed or as amended, the court nevertheless concluded that reapportionment was basically a legislative function, and that a further opportunity should be given to the General Assembly to reapportion itself properly in accordance with the requirements of the Fourteenth Amendment. After attempting to delineate some guidelines for the Delaware Legislature to follow in reapportioning, the court below, with an eye toward the impending 1964 elections, gave the General Assembly until October 1, 1963, to adopt a constitutionally valid plan. The District Court entered a decree declaring Art. II, § 2, of the Delaware Constitution to be unconstitutional, and retained jurisdiction to order injunctive or other relief if it became necessary to do so.

On May 6, 1963, the Supreme Court of Delaware advised the Delaware Governor that, notwithstanding the holding of the District Court, he should proceed according to the provisions of the invalidated 1963 constitutional amendment to proclaim a redistricting plan for House of Representatives seats. The Delaware Supreme Court’s opinion was predicated on the view that the District Court’s decision was not a final one, since it was appealable and since no injunctive relief had been granted. Acting on this advice, while making reference to the District Court’s decision, the Governor, on May 17, 1963, proclaimed a plan providing for the redistricting of certain House districts in accordance with the provisions of the 1963 reapportionment amendment. Under these circumstances, on May 20,1963, the District Court entered an injunction against the holding of any elections for General Assembly seats under Art. II, § 2, of the Delaware Constitution, either as it had previously existed or as amended, and again reserved jurisdiction to make such further orders as it might deem necessary. The District Court denied a motion to stay its injunction pending appeal, but, on application by defendants below, Mr. Justice Brennan, on June 27, 1963, stayed the operation of the District Court’s injunction pending final disposition of the case by this Court. Notices of appeal from the District Court’s final decree, and from its injunction and denial of the motion for a stay, were timely filed by defendants. Pursuant to this Court’s Rule 15 (3), both appeals have been treated as a single case. When appellees filed a motion to affirm, appellants countered with a motion to advance. On October 21, 1963, we noted probable jurisdiction and granted appellants’ motion to advance. 375 U. S. 877.

II.

Under the provisions of the 1897 Delaware Constitution relating to legislative apportionment, in force when this litigation was commenced, the State was geographically divided into 17 Senate and 35 House districts for the purpose of electing members of the Delaware Legislature. Delaware senators serve four-year terms, with approximately half of the senators elected every two years, and all representatives are elected for two-year terms. Qualified voters in each Senate and House district elect one senator and one representative, under the 1897 Constitution's apportionment plan. Delaware is comprised of only three counties, and only one sizable metropolitan area — Wilmington. Under the 1897 apportionment, five senatorial districts and 10 representative districts were allocated to Kent County, to Sussex County, and to “rural” New Castle County (that part of the county outside of the City of Wilmington), and Wilmington was given two senatorial and five representative districts. The number and boundaries of both' the senatorial and representative districts were specifically fixed and described in the constitutional provisions, and no provision was made for their alteration. When the constitutional provisions were adopted, the population of the State of Delaware was approximately 180,000, with about 32,000 living in Kent County, 38,000 residing in Sussex County, and 105,000 living in New Castle County (of whom about 70,000 lived in the City.of Wilmington). By 1960, the total population of Delaware had increased to 446,292, of which 307,446 resided in New Castle County, 95,827 in Wilmington and 211,619 in “rural” New Castle County. And, under the 1960 census figures, 65,651 lived in Kent County and 73,195 resided in Sussex County.

Under the 1897 apportionment scheme, as perpetuated over 65 years later, Senate districts ranged in population from 4,177 to 64,820, resulting in a maximum population-variance ratio, between the most populous and least populous Senate districts, of about 15-to-l. Senatorial districts in Kent and Sussex Counties were consistently much smaller in population than those in New Castle County, with the exception of one New Castle County district which, with a population of only 4,177, was the smallest senatorial district in the State. Only 22% of the State’s total population resided in districts electing a majority of the members of the 17-member Senate, applying 1960 census figures to the senatorial apportionment scheme existing when this litigation was commenced.

Representative districts ranged in population, as of 1960, from 1,643 to 58,228, under Art. II, § 2, of the 1897 Delaware Constitution, resulting in a maximum population-variance ratio, in the Delaware House, of about 35-to-1. Again, the average population of House districts in Kent and Sussex Counties was significantly smaller than that of those in New Castle County, although several of the “rural” New Castle County districts were among the smallest in the State. Applying 1960 census figures to the 1897 apportionment scheme, with respect to the Delaware House, the 18 most sparsely populated representative districts, containing only about 18.5% of the State’s total 1960 population, elected a majority of the members of the House of Representatives. Persons living in the six most populous representative districts, 233,718, more than one-half of the total state population, had only the same voting power, under the 1897 Constitution’s scheme, as those 16,552 persons living in the six least populous districts, with respect to electing members of the Delaware House. Serious disparities in the population of districts, both House and Senate, within each county were also presented in the district population figures considered by the District Court.

Evidence before the District Court showed that, despite repeated attempts to reapportion the legislature or to call a constitutional convention for that purpose, the Delaware Legislature had consistently failed to take any action to change the existing apportionment of legislative seats. No initiative and referendum procedure exists in Delaware. Legislative apportionment has been traditionally provided for wholly by constitutional provisions in Delaware, and a concurrence of two-thirds of both houses of two consecutive state legislatures is required in order to amend the State Constitution. The Delaware General Assembly may also, by a two-thirds vote, submit to the State’s voters the question of whether to hold a constitutional convention.

Under the 1963 amendment to Art. II, § 2, of the Delaware Constitution, the size of the Senate is increased from 17 to 21 members, and the four added seats are allotted equally to Kent and Sussex Counties, giving each of the State’s three counties seven senators. The added senators are to be elected at large from districts comprising about one-half of the House districts in each of the two counties. As a result of this change, each voter in Kent and Sussex Counties is entitled to vote for two senators and one representative. With respect to the House of Representatives, the amendment provides that each existing representative district with a population in excess of 15,000 persons is to be allotted an additional representative for each additional 15,000 persons or major fraction thereof. The boundaries of the original 35 representative districts are not affected, and districts receiving additional representatives are to be divided, by a redistricting commission headed by the Governor, so that each of the new districts elects one representative. The net effect of the 1963 amendment, as regards immediate changes in House representation, is to allot 10 additional representatives to various districts in New Castle County, increasing the size of the House to 45 members. Representation of Kent and Sussex Counties is to be unaffected. Under the revised apportionment, the maximum population-variance ratio is reduced to about 12-to-l with respect to the House, but remains about 15-to-l in the Senate. A majority of the members of the House would be elected, under the 1963 amendment, from districts with only about 28% of the State’s total population. And, since the 1963 amendment added two Senate seats each for the two smaller counties, the change in senatorial apportionment would result in two-thirds of the Senate being elected from districts where only about 31% of the State’s population reside. About 21% of the State’s population would be represented by a majority of the members of the Delaware Senate, under the 1963 reapportionment.

The 1963 amendment also provided that, if a constitutional convention were to be called, the number of delegates and the method of their election were not to be affected by the amended apportionment provisions, and, for the purpose of any future constitutional convention, the representative districts were to elect delegates on the basis of the apportionment provided by Art. II, § 2, as it existed prior to the amendment. Thus, the number of constitutional convention delegates would continue to be 41, one from each of the 35 representative districts provided for under the 1897 scheme, with two elected at large from each of the three counties.

III.

In Reynolds v. Sims, ante, p. 533, decided also this date, we held that the Equal Protection Clause requires that seats in both houses of a bicameral state legislature-must be apportioned substantially on a population basis. Neither of the houses of the Delaware General Assembly, either before or after the 1963 constitutional amendment, was so apportioned. Thus, we hold that the District Court correctly found the Delaware legislative apportionment constitutionally invalid, and affirm the decisions below.

For the reasons stated in our opinion in Reynolds appellants’ reliance upon the so-called federal analogy to justify the deviations from a population basis in the apportionment of seats in the Delaware Legislature is misplaced. And appellants’ argument that the Delaware apportionment scheme should be upheld since Congress has admitted various States into the Union although the apportionment of seats in their legislatures was based on factors other than population is also unconvincing. In giving the Delaware Legislature an opportunity to adopt a constitutionally valid plan of legislative apportionment, and in deferring decision until after the November 1962 general election, because of the imminence of that election and the disruptive effect which its decision might have had, the District Court acted in a wise and temperate manner. And the court below did not err in granting injunctive relief after it had become apparent that, despite its decree holding that the 1963 constitutional amendment reapportioning seats in the Delaware Legislature failed to comply with federal constitutional requirements, no further reapportionment by the Delaware General Assembly was probable.

Our affirmance of the decision below is not meant to indicate approval of the District Court’s attempt to state in mathematical language the constitutionally permissible bounds of discretion in deviating from apportionment according to population. In our view the problem does not lend itself to any such uniform formula, and it is neither practicable nor desirable to establish rigid mathematical standards for evaluating the constitutional validity of a state legislative apportionment scheme under the Equal Protection Clause. Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.

Apart from what we said in Reynolds, we express no view on questions relating to remedies at the present time. Regardless of the requirements of the Delaware Constitution and the fact that legislative apportionment has traditionally been considered a constitutional matter in Delaware, the delay inherent in following the state constitutional prescription for approval of constitutional amendments by two successive General Assemblies cannot be allowed to result in an impermissible deprivation of appellees’ right to an adequate voice in the election of legislators to represent them. Acting under general equitable principles, the court below must now determine whether it would be advisable, so as to avoid a possible disruption of state election processes and permit additional time for the Delaware Legislature to adopt a constitutionally valid apportionment scheme, to allow the 1964 election of Delaware legislators to be conducted pursuant to the provisions of the 1963 constitutional amendment, or whether those factors are insufficient to justify any further delay in the effectuation of appellees’ constitutional rights. We therefore affirm the decisions of the District Court here appealed from, and remand the case for further proceedings consistent with the views stated here and in our opinion in Reynolds v. Sims.

It is so ordered.

Mr. Justice Clark concurs in the affirmance for the reasons stated in his concurring opinion in Reynolds v. Sims, ante, p. 587, decided this date.

[For dissenting opinion of Mr. Justice Harlan, see ante, p. 589.]

Mr. Justice Stewart.

In this case the appellees showed that the apportionment of seats among the districts represented in the Delaware House of Representatives and within the counties represented in the Delaware Senate, apparently reflects "no policy, but simply arbitrary and capricious action.” The appellants have failed to dispel this showing by suggesting any possible rational explanation for these aspects of Delaware’s system of legislative apportionment. Accordingly, for the reasons stated in my dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, post, p. 744, I would affirm the judgment of the District Court insofar as it holds that Delaware’s system of apportionment violates the Equal Protection Clause.

       Interestingly, Art. I, § 3, of the Delaware Constitution provides : "All elections shall be free and equal.”

       See 207 F. Supp., at 207. The decisions of the court below are reported sub nom. Sincock v. Terry and Sincock v. Duffy.

       By the requisite two-thirds vote in both houses of the General Assembly, pursuant to Art. XVI, § 1, of the Delaware Constitution.

       Under Art. XVI, § 1, of the Delaware Constitution, a constitutional amendment must be passed by a two-thirds vote of both houses of successive General Assemblies before becoming part of the State Constitution.

       53 Del. Laws, c. 425 (1962); 54 Del. Laws, c. 1 (1963).

       215 F. Supp., at 184.

       The other two judges both wrote short opinions. Chief District Judge Wright indicated that he concurred in the view that Art. II, § 2, of the Delaware Constitution, before and after amendment, was unconstitutional, since at least one house of a state legislature must be apportioned strictly on a population basis. He indicated that he also agreed with the “precatory observation” of Judge Biggs that the other house must also be apportioned substantially on a population basis.
      District Judge Layton concurred in the result reached, finding that Art. II, §2, of the Delaware Constitution, prior to as well as after the 1963 amendment, was unconstitutional with respect to the House of Representatives. He stated that, since the 1963 amendment contained no severability clause, the whole amendment was unconstitutional because of the provisions relating to the House, and that therefore there was no need to consider whether the senatorial provisions were valid. He indicated, however, that he thought that it was permissible to apportion one house on a nonpopulation, area basis where the other house was apportioned strictly on population, since such a system would be patterned on the scheme of representation in the Federal Congress.

       Included in the District Court’s opinion is a chart showing the population of the 17 senatorial districts established by Art. II, § 2, of the 1897 Delaware Constitution, and tracing the population changes in each during the period 1930-1960. 215 F. Supp., at 176.

       A chart showing the population of the 35 representative districts established by Art. II, § 2, of the 1897 Delaware Constitution, and tracing the population changes in each during the period 1890-1960, is included in the District Court’s opinion. 215 F. Supp., at 17ár-175.

       And, as pointed out by the court below, under the apportionment of House seats contained in Art. II, § 2, of the Delaware Constitution, “The inhabitants of the 18 least populated representative districts are less in number than those of the two districts having the heaviest concentration of population; nonetheless, the former elect 18 representatives in the House of Representatives, while the latter elect 2 representatives in the House of Representatives of the Delaware General Assembly.” 215 F. Supp., at 176.

       The 35 representative districts tended to follow generally the boundaries of a “hundred,” a geographical subdivision of counties in Delaware since its founding, and the 17 senatorial districts, which were also described in a detailed fashion in Art. II, § 2, of the 1897 Delaware Constitution, were composed either of two representative districts each or two or more hundreds or portions of hundreds.

       For a discussion of the lack of federal constitutional significance of the presence or absence of an available political remedy, see Lucas v. Forty-Fourth General Assembly of Colorado, post, pp. 736-737, decided also this date.

       Under Art. XVI, § 1, of the Delaware Constitution.

       Under Art. XVI, § 2, of the Delaware Constitution.

       A chart showing the composition of the Senate and the population of each of the 21 senatorial districts under the 1963 amendment is included in the District Court’s opinion. 215 F. Supp., at 181.

       Included in the District Court’s opinion are charts indicating the effect of the 1963 amendment on the representation of New Castle County in the House of Representatives and showing the composition of the Delaware House, as reapportioned, including the population of each of its 45 districts under 1960 census figures. 215 F. Supp., at 179-180.

       Under Art. XVI, § 2, of the Delaware Constitution.

       See Reynolds v. Sims, ante, pp. 571-576.

       That the three Delaware counties may have possessed some attributes of limited sovereignty prior to the inception of Delaware as a State provides no basis for applying the federal analogy to legislative apportionment in Delaware while holding it inapplicable in other States. Whatever the role of counties in Delaware during the colonial period, they never have had those aspects of sovereignty which the States possessed when our federal system of government was adopted. And it could hardly be contended that Delaware’s counties retained any elements of sovereign power, when the State was formed, that at all compare with those retained by the States under our Federal Constitution. See 215 F. Supp., at 186, where the District Court stated that “there never was much and there is now no sovereignty in the Counties of Delaware . . . .”
      Additionally, the Delaware legislative apportionment scheme here challenged, even after the 1963 constitutional amendment, fails to resemble the plan of representation in the Federal Congress in several significant respects: the Delaware House of Representatives is plainly not apportioned in accordance with population, and senators in Delaware are not chosen as representatives of counties. Although, under the 1963 amendment, each county is given an equal number of senators, the 21 senators are chosen one each from the 21 senatorial districts, seven per county, established solely for the purpose of their election. Each Delaware senator represents his district and not the county in which the district is located. Members of the Federal Senate are of course elected from a State at large, and represent the entire State.

       See the discussion of and the reasons for rejecting this argument in Reynolds v. Sims, ante, p. 582.

       The court below suggested that population-variance ratios smaller than 1%-to-l would presumably comport with minimal constitutional requisites, while ratios in excess thereof would necessarily involve deviations from population-based apportionment too extreme to be constitutionally sustainable. See 215 F. Supp., at 190.

       See Reynolds v. Sims, ante, p. 585.

       Particularly Art. XVI, § 1, which requires the approval by successive state legislatures before a proposed constitutional amendment can be adopted.
      In its initial opinion, incident to its order granting a limited stay, the District Court suggested that the Delaware Legislature might desire to amend the State Constitution so as to make legislative apportionment a statutory instead of a constitutional matter, in order to obviate the delay inherently involved in complying with the requirement of the Delaware Constitution that constitutional amendments must be approved by two successive General Assemblies before becoming effective. 207 F. Supp., at 206-207. In this manner, the District Court suggested, if the Delaware Legislature's attempt at reapportionment should be found deficient under the Federal Constitution, the General Assembly elected in November 1962 would be free, under state law, to proceed expeditiously with the enactment of a revised statutory reapportionment plan consonant with the requirements of the Equal Protection Clause. Unfortunately, the Delaware Legislature failed to act on the Court’s suggestion, and instead proposed the constitutional amendment hereinbefore discussed, which was .approved by two consecutive state legislatures in late 1962 and in early 1963. However, in its opinion on the merits, the District Court intimated that, with the Delaware constitutional provisions relating to legislative apportionment declared invalid, the Delaware Legislature could “then proceed to pass an apportionment statute meeting the requirements of the Fourteenth Amendment . . . .” 215 F. Supp., at 191.